author: Grant, J. Hooker, J.

text:
    James Havey v. John Petrie.

      Contract — Illegal sale — Diseased animals — Rescission—Replevin— Demand.

    While one who has traded a sound horse for a horse affected with the glanders may not, under 3 How. Stat. § 2186v, which imposes a penalty for driving an animal affected with a contagious or infectious disease through the country, be required to return the diseased horse before bringing an action of replevin \ for the sound one, he is under obligation to give notice of the rescission of the contract, tender back any boot money received, and demand possession of the sound horse before bringing said suit.

    Error to St. Clair. (Vance, J.) Submitted on briefs January 2, 1894. Decided May 18, 1894.
    Beplevin. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      A. E. Chadwick and E. F. Law, for appellant.

      Stevens & Merriam, for defendant.

      For cases holding as to when demand is necessary and when not, see Aspell v. Hosbein, 98 Mich. 117, and note.

   Grant, J.

Plaintiff and defendant traded horses, defendant paying $10 in exchange. The horse which plaintiff received from defendant was, at the time of the trade, affected with the glanders. Plaintiff called defendant’s attention to the fact that the horse had some disease, to which defendant replied that it was only the distemper. The evidence of plaintiff tends strongly to show that defendant knew that the horse had the glanders. Plaintiff, without any demand or notice of rescission or offer to return the horse and the $10, brought this action of replevin. The court directed a verdict for defendant.

According to plaintiff's evidence, a great fraud was committed upon him by defendant. Upon taking the proper steps to rescind, he was entitled to recover possession of the horse transferred to defendant. The learned counsel for plaintiff admit the well-established rule that he who seeks to rescind a contract on the ground of fraud must restore the other party, as far as he is able, to his former statu quo; that is, he must tender back what - he has received, and demand back what he has parted with. But they claim that the sale was absolutely void, under 3 How. Stat. § 2136«. This statute imposes a penalty for selling, etc., any domestic animal affected with any contagious or infectious disease when the person selling knows it’ to be so affected. It does not in terms, like the Sunday law, ■declare such a sale void. We do not think plaintiff placed himself in position to maintain the action. He might not, under this statute, be required to return the diseased horse, because it is made a penal offense to drive him through the country; but he was under obligations to give defendant notice of rescission, to tender back the $10, and ■demand possession. Defendant might have complied with such a demand, and was entitled to the opportunity to do so before being subjected to the expenses of litigation. Had the amount paid in exchange been $100, upon what principle could plaintiff be entitled to retain the $100 and recover the horse which he had traded? The principle is the same, however, whether the amount paid be large or small. Even in cases of fraud, _ a party is not entitled to the benefit of both ends of the bargain.

Judgment affirmed.

McGrath, C. J., and Long, J., concurred with’Grant, J.

Hooker, J.

(dissenting). The only question in the case is whether the court erred in holding that the plaintiff was not entitled to replevy his horse without returning the sum of $10, which was in part the consideration for his horse. In my opinion, it depends on whether the contract —involving, as it did, the sale of a horse having the glanders, which is made a penal offense — was void, or whether it was merely voidable. 3 How. Stat. § 313 6v, prohibits and makes penal the sale of a horse known to have the glanders. It does not state that the contract of sale would be void, but it needs no argument to show that such sale would be'illegal. Hnder the Sunday laws, it has been repeatedly held that contracts made upon Sunday are absolutely void. How. Stat. § 3015. In the case of Brazee v. Bryant, 50 Mich. 140, Mr. Justice Cooley, speaking for the Court, says:

fiIt was decided in Tucker v. Mowrey, 12 Mich. 378, that, under the statutes of this State, a sale of property made on Sunday was absolutely void, and that thé contract of sale could neither be set up as a basis of an action nor as a ground of defense. Each party was therefore entitled to demand and recover what he had delivered or paid under the contract. This follows from the absolute prohibition of business and labor on that day when it is not work of necessity or charity.” Benedict v. Bachelder, 24 Mich. 425; Allen v. Duffie, 43 Id. 1; Winfield v. Dodge, 45 Id. 355; Adams v. Hamell, 2 Doug. 73. See, also, Arbuckle v. Reaume, 96 Mich. 244, and cases cited.

I am unable to distinguish the case at bar from that of a Sunday contract. Our attention is not called to any statute which declares such contracts void, but the cases cited, treating .them as illegal contracts, hold them to be void. It would seem, then, that, this contract being void, it cannot be made the basis of a defense to an action of replevin where the plaintiff did not participate in the transgression of the law. See Cotton v. Thurland, 5 Term R. 405; Lacaussade v. White, 7 Id. 535; Parker v. Rochester, 4 Johns. Ch. 332. Hnder the Michigan cases cited, the defendant had no right to the horse received by him as against the plaintiff; and while it would have been proper for the plaintiff to tender the $10 and demand his property, as was done in a similar case tinder the Sunday contract, it was unnecessary.

I think the judgment of the circuit court should be reversed.

Montgomery, J., took no part in the decision.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    George B. Cluett et al. v. Gates L. Rosenthal, Garnishee of Sol and Sam Rosenthal.
    [See 98 Mich. 208.]

      Garnishment — Trial of statutory issue — Waiver—Evidence—Fraudulent conveyances — Chattel mortgage — Assignment for benefit of creditors — Conduct of counsel.

    1. It is not the policy of the courts, nor is it practicable, to pause in the trial of a cause, and open up a collateral inquiry upon the question of whether a wrong was committed in obtaining the information which a witness possesses.
    2. One who is in no way responsible for the tort by which information has been obtained by a witness may introduce evidence of the facts ascertained, even though a trespass or wrong was committed by the witness in obtaining the information.
    3. A garnishee defendant waives' the right secured to him by How. Stat. §§ 8069, 8070, to have the statutory issue tried at the same term at which judgment is rendered against the principal defendants, by noticing the case for trial for a subsequent term.

    4. Where such right is waived, the case must thereafter proceed as other issues of fact, subject to notice by either party.
    5. A chattel mortgage given to a trustee to secure certain creditors, which authorizes the trustee to take possession of the mortgaged property forthwith, and, in addition to the usual power of sale, provides that, if he shall deem it more advantageous to sell the property, or any part thereof, at private sale or in the usual course of trade, he may do so, applying the proceeds to the liquidation of the mortgage indebtedness, does not vest any actual title in the mortgagee, and is not inconsistent with the right of the mortgagor, or his creditors who may acquire liens, to redeem at any time, and hence does not amount to»a general assignment with preferences.
    6. Where in garnishment proceedings against a trustee, to Whom a firm with which he had formerly been connected had mortgaged their entire stock of goods, books of account, credits, evidences of debt, rights of action, and bills and accounts receivable to secure certain specified creditors, the testimony tends to show that the mortgagee had, after severing his connection with the mortgagors, kept some track of their business; that when he took the mortgage he went through the form of taking possession, but continued the mortgagors in actual charge of the business; that he subsequently sold the mortgaged property, and bid it in in form, but that the mortgagors continued in possession; and that in taking the mortgage he assumed to act as trustee for certain creditors, who do not appear to have been present, — the jury may well find that the trustee would, as a reasonably prudent man, before assuming to act as trustee, inform himself as to the state of said creditors’ claims by reference to the books of the mortgagors, especially in view of his previous knowledge of their business, and, if the books tend to show that no such indebtedness as that claimed to exist in favor of a portion of said creditors was ever createdj they are competent evidence as showing a fraudulent intent on the part of the mortgagors in executing the mortgage, and some evidence of mala fides on the part of the mortgagee.
    7. The Court will not regard captious objections to the arguments ’ of counsel, and will allow something for their zeal, and will hesitate in any case to consider that they have intentionally transgressed the rule; but when the language used is such as evinces a studied purpose to arouse the prejudices of the jury, based upon facts not in the case, the Court cannot overlook it, or consider that a party against whom such effort has been made has had a fair consideration of his case at the hands of the jury.
    Error to Muskegon. (Dickerman, J.) Submitted on briefs January 3, 1894. Decided May 18, 1894.

      Garnishment proceedings. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Bunker & Carpenter, for appellant.

      Broten & Lovelace, for plaintiffs.

       As to waiver of laches on the part of the plaintiff in failing to bring to trial the statutory issue made in a garnishment proceeding, see Meigs v. Weller, 90 Mich. 629.

   Montgomery, J.

On the 25th day of June, 1892, the principal defendants, Sol and Sam Rosenthal, executed to the garnishee defendant, Gates L. Rosenthal, a trust mortgage to secure $15,800 of alleged indebtedness of the mortgagors, which consisted of $1,850 to the Union National Bank, $9,000 to Gates L. Rosenthal, $2,950 to Rosen Bros., and $2,000 to Ben Kersberg, of Kansas City. The mortgage covered the entire stock of Rosenthal Bros., together with their books of account, credits, evidences of debt, rights of action, and bills and accounts receivable. The defendant took possession under the mortgage very shortly after its execution. This suit in garnishment was instituted for the purpose of attacking the validity of the mortgage. It is claimed — First, that it amounted to a general assignment with preferences; and, second, that it was actually fraudulent as against the creditors of Rosenthal Bros.

"VTe do not find support for the first contention. The only provision of the chattel mortgage which is unusual is that authorizing the mortgagee to sell at private sale or in the usual course of trade. This does not vest any actual title in the mortgagee, and is not inconsistent with the right of the mortgagors, or their creditors who may acquire liens, to redeem at any time. The provision confers no power upon the mortgagee to reinvest the proceeds of the sales, or apply them to any other purpose than the satisfaction of the secured claims. The case is not at all analogous to Kendall v. Bishop, 76 Mich. 634. In that case the mortgagee was empowered to reinvest the trust funds, and add to the stock.

The court below was of opinion that the mortgage was not void upon its face, and submitted the question of fraud to the .jury. The trial resulted in a verdict for the plaintiffs. The questions presented by the appellant’s counsel relate to proceedings at the trial. We do not think the court erred in proceeding to a trial of the case. The defendant waived his right to have the case tried at the term at which judgment was rendered against the principal defendants by noticing the case for a subsequent term, and in that term consented that the case be continued. Having waived the statutory right, the case must thereafter proceed as other issues of fact, subject to notice by either party.

Error is assigned upon a ruling of the circuit judge admitting proofs of the contents of the books of Rosenthal Bros. Two grounds are urged against the admissibility of the testimony offered: First, that the original books themselves were mere hearsay, in a suit against Gates L. Rosenthal; and, second, that the secondary evidence admitted was improperly obtained, and therefore it should have been excluded. As to the admissibility of the books themselves, we think the court was not in error. ' The testimony tended to show that defendant had previously been connected with Rosenthal Bros., and severed his connection with them in 1890; that between the 1st day of January, 1892, and the 1st day of June, Rosenthal Bros, had purchased very largely, their purchases amounting to $18,000; that defendant had, after severing his connection with the firm, kept some track of the business; that when he took the mortgage in June, 1892, as trustee, he went through the form of taking possession, but continued Rosenthal Bros, in actual charge of the business; that the stock was subsequently sold by the mortgagee, and bid in by him in form, but that Rosenthal Bros, still continued in actual possession; that in taking the mortgage he assumed to act as trustee for certain named creditors, who it does not appear were present; and the 'jury might well have found that he would, as a reasonably prudent man, before assuming to act as trustee, inform himself as to the state of these creditors' claims by reference to the books of Rosenthal Bros., especially in view of his previous knowledge of their business. The books in fact tended to show that no such indebtedness as that claimed to exist •in favor of Rosen Bros, and Kersberg was ever created. This testimony was certainly competent as showing a fraudulent intent on the part of Rosenthal Bros. Koch v. Lyon, 82 Mich. 513. And we think, in view of the fact that the defendant undertook to act as trustee for other alleged creditors, it is a fair inference that he would inform himself by reference to the books as to the state of their claims, and the books were some evidence of mala fides on his part. See Loos v. Wilkinson, 110 N. Y. 212. See, also, Ganther v. Jenks & Co., 76 Mich. 510.

The information of the witness who gave evidence of the contents of the books was obtained while the books were in possession of the sheriff under an unauthorized attachment; and in Rosenthal v. Circuit Judge, 98 Mich. 208, we held that the attorney should be required to deliver up any memorandum which he had made, relating to the contents of the books, thus righting a wrong committed by a misuse of the process of the court, as far as practicable. But the attorney who obtained the information was not acting in the present case at the time the attachment in question was sued out or the information obtained. The question, therefore, is whether one who is in no way responsible for the tort by which the information was obtained by a witness may introduce evidence of the facts ascertained, even though a trespass or wrong was committed by the witness in obtaining the information. We think such testimony is admissible. It is not the policy of the courts, nor is it practicable, to pause in the trial of a cause, and open up a collateral inquiry upon the question of whether a wrong has been committed in obtaining the information which a witness possesses. The cases have gone to great length upon this subject. In Legatt v. Tollervey, 14 East, 302, it was held that, upon the offer to prove at the trial of a cause the original record of an indictment and acquittal, or a true copy thereof, such evidence must be received, though there was no order of court or fiat of the attorney general allowing the plaintiff a copy of such record, and though the officer who, without such authority, produced the record, or gave a copy of it to the party, is answerable for contempt of court in so doing. This has become a leading case, and is cited in 1 Greenl. Ev. § 254a, in support of the doctrine of the text that, though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue; that the court will not take notice how they were>^ obtained, whether lawfully ®r unlawfully, nor will it frame an issue to determine that question. The doctrine is also fully supported by State v. Mathers, 64 Vt. 101; Com. v. Dana, 2 Metc. 329; Com. v. Tibbetts, 157 Mass. 519.

One other assignment of error remains to be noticed. In the closing address to the jury, counsel for plaintiffs used the following language:

“ These men of Jerusalem, that have got the evidence in their possession as to the truth or falsity of this claim, their mouths are sealed, and a padlock upon each one.”

Counsel for defendant interposed, saying:

“We take an exception to the statement of counsel. There is nothing in this case to show any such thing.”

Plaintiffs’ counsel replied:

“ I presume very likely that you deny your nationality. I haven’t any doubt of it.
“Ihe Court: I don’t think that you should have used that language at all.
“Plaintiffs’ Counsel: Men from Jerusalem?
“The Court:. I don’t think you should have used it. * * * * *******
“Plaintiffs’ Counsel: Take it back then. Suppose they came from Podunk instead of Jerusalem. I don’t care where they came from.”

Further on, plaintiffs’ counsel proceeded:

“I would like to have before you the conversation between the Rosenthals, Gates L. Rosenthal, Rosen brothers, and the men that drew the mortgage in this case. * * * You know how they do it. They attempt to fail, put the property in somebody else’s possession, in somebody else’s name, and then they go to a creditor and say: ‘Will you take twenty-five cents on the dollar? Twenty-five cents we will give you. That is right. Just so fine, you know, just so slick as the paper on the wall. Take your twenty-five cents on the dollar.’ That is the way they do it, — so fine, so slick [caricaturing the speech and gestures of Jews].”

And, further on:

“Did you ever know any of these kind of fellows*that, was a laboring man, in your life? I want you to think about that. I ask you if you ever saw one of these fellows, in your life that was shoveling sand upon the railroad.”

And, further on:

. “I want to put it into your memories, gentlemen of' the jury, — I "want to know if you ever met a man of that kind in your life that was a laboring man. Go back over your past life, and every place you have lived in your life,. and call to mind if you can name a man of that stamp that was ever a laboring man. Forty years of my life have gone, and I haven't discovered that one yet. Maybe you have. You don't find them doing that kind of business. They are putting up games and schemes, — just so nice as the paper on the wall; that is what they are doing [caricaturing the speech and gestures of Jews].
“Counsel for Defendant: We take an exception to the line of argument.
“Plaintiffs’ Counsel (proceeding): And they are doing it all over this country, and have been doing it.”

When it is considered that the defendant was not even a witness on his own behalf, and that neither of the Rosenthal brothers was sworn, it is apparent that the only purpose of this line of argument was to impress the jury with the belief that the nationality of the defendants should be taken as evidence against them. This is certainly not the policy of the law. The courts are open to .aliens and citizens alike; and any attempt, by arousing the prejudice of jurors, to curtail this right, is a departure from the proper privilege of counsel, and, when carried to the extent indicated by the language quoted, is sufficient ■to justify a reversal of the case. It is unnecessary to cite ■cases decided by this Court in which the privilege of counsel in arguing cases has been considered. It is enough to ■say that the Court will not regard captious objections to ¡arguments, and will allow something for the zeal of counsel, and will hesitate in any case to consider that counsel .have intentionally transgressed the rule. But where the language is such as evinces a studied purpose to arouse -the prejudice of the jury, based upon facts not in the ■case, we cannot overlook it, or consider that a party against whom such- effort has been made has had a fair consideration of his case at the hands of the jury.

We think, for this reason, the case should be reversed, and a new trial ordered.

The other Justices concurred.

      The mortgage authorized the mortgagee to take possession forthwith, and, in addition to the usual power of sale upon default, contained the following provision: “If, however, said second party shall deem it more advantageous to sell said property, or any part thereof, at private sale or in the usual course of trade, he is hereby expressly authorized to make such private sale or to sell in the usual course of trade, retaining and applying the proceeds to the liquidation of the indebtedness hereby secured, as hereinbefore mentioned.”


text:
    The East Jordan Lumber Company v. The Village of East Jordan.

      Municipal corporations — Water supply — Authority to contract— Mandamus — Constitutional law — Title of act.

    1. An objection that the prayer of a petition for mandamus to compel a village, incorporated under the general village incorporation act, to levy a tax sufficient to pay the amount due on a contract to furnish a water supply for the prevention of fires, is not sufficiently definite, in that it is not ascertainable from said prayer whether a special or a general assessment is asked for, is untenable, as the Court, can and will direct as to the nature of the assessment, if a mandamus is granted.
    2. The provisions of chapter 11 of the general village incorporation act (How. Stat. §§ 2970-2980), which authorizes the construction, maintenance, and protection of waterworks in villages incorporated under said act, were intended to hedge about the proceedings of the village council in providing for the purchase or establishment of waterworks to be owned by the village, and are not inconsistent with the power to lease or purchase from individuals water for fire protection.
    3. Subdivision 16 of section 1 of chapter 7 of the general village incorporation act (How. Stat. § 2847), which authorizes the village council to make ordinances for the organization and regulation of the fire department, and for the prevention and extinguishment of fires, and section 2 of chapter 10 of the same act (How. Stat. § 2959), which provides that “the council may purchase and provide suitable fire engines and apparatus for the extinguishment of fires, and may sink wells and construct cisterns and reservoirs in the streets, public grounds, and other suitable places in the village, and make all necessary provisions for a convenient supply of water for the use of the [fire] department,” empower the village to contract with private individuals to furnish a water supply for the prevention of fires, and for the use of the fire department, without a vote of the electors.
    4. Where such a contract purports to bind the village as a corporation, and is approved by the council in that form, payment for the fire protection thus secured should be made out of the general fund, under section 1 of chapter 9 of said act (How. Stat. § 2923), which authorizes the village council to raise by general tax upon all the real and personal property liable to taxation in the village (exclusive of taxes for highway and street purposes) such sum, not exceeding in any one year one and one-fourth per cent, of the assessed value of such property, as they shall deem necessary for the purpose of defraying the general expenses and liabilities of the corporation, and to carry into effect the powers in said act granted, and provides that the moneys so raised shall constitute a “general fund.”
    5. Act No. 385, Local Acts of 1889, entitled “An act to amend Act No. 334 of the Local Acts of 1887, entitled ‘ An act to incorporate the village of East Jordan, Charlevoix county,’ approved February 7, • 1887, by adding four new sections thereto, to stand as sections 7, 8, 9, and 10, relative to water supply, and levying special taxes therefor,” in so far as it attempts to authorize the council of said village to provide for the payment of the claim of the relator by a special assessment, to be levied and collected in accordance with the provisions of section 7 of the act, is invalid, said object not being expressed in the title to said amendatory act; citing Nester v. Busch, 64 Mich. 657.

      Mandamus. Argued January 18, 1894. Granted May 18, 1894.
    Relator applied for mandamus to compel respondent to levy a tax sufficient to pay the claim of relator under a contract to furnish a water supply. The facts are stated in the opinion.

      Pratt & Davis, for relator.

      8. G. Field and R. L. Gorbett. for respondent.
   Montgomery, J.

This is an application for a mandamus to compel the respondent, by its common council, to proceed to levy a tax sufficient to pay the relator the sum of $2,249.21, due upon a contract between the relator’s assignor and the respondent, by which the relator’s assignor undertook to furnish a water supply for the prevention of fires.

The contract was made in 1888, and, in substance, provided that the lumber company should furnish, and connect with its sawmill boilers, a duplex steam fire pump, with not less than five-inch suction and four-inch discharge, and lay a five-inch wrought-iron pipe along Main street to the south line of Williams street, in the village of East Jordan, with one two-way hydrant at each intersecting street, and keep not less than 50 pounds of steam on one or more of its boilers, continuously, and furnish water to the village to the fullest capacity of the pump, for fire protection, and, for the space of one hour per day, for street-sprinkling purposes. The village, on its part, agreed to pay monthly to the company the sum of $35, from the completion of the waterworks, for the space of three years, for such time in each year when the mill should run for sawing purposes, and such further sum as should equal the cost of keeping up steam and maintaining said waterworks in running order during the period when said mill should not be running, and any other expense to which the company should be liable on account of keeping up steam in said boilers during the period in which the mill should not be running, and to pay such other sum or sums as should equal the amount of taxes that should be levied on the premises of the said company for the purpose of fire protection. The village also agreed to furnish and connect with the waterworks a four-inch wrought-iron pipe, to extend from the corner of Mill and Main streets, along Mill street to Second street, and to furnish and keep not less than 500 feet of 2i-inch fire hose. It was also agreed between the parties that individuals living along the water mains should have the privilege, under the direction and permission of the council, to tap mains for water supply.

TJnder this contract the services were performed, and the village had the benefit. Bills were from time to time rendered, and audited by the common council, but remain unpaid. A special assessment upon a district was attempted to be made for the purpose of paying the relator’s claim, but collection was not enforced; doubtless, for the reason that the validity of the assessment was questioned. If the village was acting within the scope of its corporate powers in making the contract, there can be no doubt of the justice of the relator’s claim.

Among the objections urged to the granting of the relief prayed for is that the prayer of the petition is not sufficiently definite, as it is not ascertainable from the prayer whether a special assessment is asked for, or a general assessment. We do not deem the petition faulty in this respect. The Court can and will direct as to the nature of the assessment. '

It is contended that the contract is beyond the power of the common council, as it amounts to providing a system of waterworks, and it is said that this cannot be done without a vote of the people; and it is further urged that the council proceedings show that the purpose was to provide for the payment of sums growing due on the contract by special assessment, and that this excludes the power to provide for payment- by a general assessment; and it is further contended that no special assessment can be made, as the expense of maintaining waterworks must be paid out of the general fund of the village, and that, under the charter, an estimate of the cost of a public improvement must be made before it is undertaken, and the cost thereof collected before making the improvement.

The inquiry of first importance is whether it was within the scope of the corporate powers of the village to provide for the services and water supply for fire protection, as contemplated. If it was, inasmuch as the bills for the services and water supply have been audited* the justice of the claim is apparent. If* however* the contract was wholly without the scope of the corporate powers of the village* it follows* not only that the contract itself cannot be the basis of an action* but that it could not be after-wards ratified so as to create a liability. See 1 Dill. Mun. Corp. § 463, and Spitzer v. Village of Blanchard, 82 Mich. 234. If* on the other hand, the contract be one which it was within the power of the corporation to make* the fact that informalities may be found in the' proceedings does not prevent recovery, in a case where, as in the present, the municipal corporation has had the benefit of performance by the other contracting party* and has from time to time ratified the contract* and audited the bills presented. See Gas Co. v. City of San Francisco, 9 Cal. 453; Bridge Co. v. City of Frankfort, 18 B. Mon. 41; McDonald v. Mayor, 68 N. Y. 23; Fetterly v. Municipality of Russell, 14 U. C. Q. B. 433; Carey v. City of East Saginaw, 79 Mich. 73; 1 Dill. Mun. Corp. § 459. This rule is, of course* not applicable where express statutory restrictions have been ignored in making the original contract. It is claimed that such was the case here.

The village was incorporated under the general village incorporation act, and it is urged that section 2973* How.' Stat.* as amended (see 3 How. Stat. p. 3235), provides that* before any money shall be borrowed, appropriated,. raised* or expended for the construction of waterworks in any village subject to the provisions of this act* the council shall cause to be made an estimate of the expense thereof* and the question of raising the amount required for such purpose shall be submitted to the electors of the village. The chapter Of which this section is a part is* in substance* as follows:

Section 1 provides that any village organized under the provisions’ of this act shall have authority to construct and maintain waterworks for the introduction of water into the village, and supplying the village and the inhabitants thereof with pure and wholesome water, for the extinguishment of fires, and the ordinary and extraordinary uses of dwellings, stores, shops, hotels, factories, manufacturing establishments, mills, public buildings, yards, streets, livery stables, barns, and all other buildings and establishments.

Section 2 provides that the village may acquire, purchase, erect, and maintain such reservoirs, canals, appurtenances, machinery, etc., and may purchase and own such real estate, rights, and privileges, as may be necessary and proper for the construction and maintenance of such waterworks.

. Section 3 provides that it may borrow money to be used exclusively for the purpose of constructing and maintaining waterworks.

Section 4 is the section previously quoted.

Section 5 provides for a board of water commissioners. And the succeeding sections provide for fixing rents, for the care and protection of the waterworks, for certain police regulations, and for the condemnation of private property for the construction, erection, and maintenance of such waterworks.

We think it is evident that these provisions were intended to hedge about the proceedings of the council in providing for the purchase or establishment of waterworks to be owned by the village, and are not inconsistent with' the power to lease or purchase water for fire protection from individuals. We think this power is conferred under other provisions of the charter. Subdivision 16 of section 2847 confers authority to make ordinances for the prevention and extinguishment of fires. Section 2959 provides that—

“The council may purchase and provide suitable fire engines and apparatus for the extinguishment of fires, and may sink wells and construct cisterns and reservoirs in the ■streets, public grounds, and other suitable places in the village, and make all necessary provisions for a convenient supply of water for the use of the department.”

These provisions are broad enough to justify the expenditure attempted. Certainly, the ■ contract, and the action ■of the council in accepting and auditing bills for a supply ■of water, were within the authority to make necessary provision for a suitable supply of water for the use of the department.

As to the contention that no general assessment can be made, because the village council took no action tending to such assessment, it is-sufficient to say that the resolution providing for a special assessment was no part of the contract. On the contrary, the contract purported to bind the village as a corporation, and was approved by the council in that form; and we agree with the contention of respondent’s counsel that, under the provisions of section 2923, the payment for the fire protection should have been made out of the general fund.

It is suggested by relator’s -counsel that Act No. 385, Laws of 1889 (Local Acts, p. 600), authorizes the spreading of a special assessment to cover this claim. The terms of the act are undoubtedly broad enough to justify such action, but, without considering their validity in other respects, it is sufficient to say that'the title to the act did not express such an object, and the retrospective provisions of the act are, for this reason, invalid. See Nester v. Busch, 64 Mich. 657.

The village has had the benefit of a full performance by the relator; it has ratified, hy auditing these bills, a contract which, as we have said, it had the original power to make; and we think, within settled rules, the village is bound to respond to relator.

A writ of mandamus will issue, directing the general assessment upon the property of the village of a tax sufficient to pay the amount due to the relator, and directing the president and clerk of the village to draw proper orders on the treasurer for the sums that from time to time have been passed upon and allowed by the common council, and requiring the treasurer, upon presentation of said orders, after said tax shall have been raised and collected, to pay the same to the relator.

McGrath, O. J., Long and Grant, JJ., concurred. Hooker, J., did not sit.

      The contract was made with a copartnership doing business under the firm name of the East Jordan Lumber Co., which subsequently assigned to the relator.


author: Long, J. McGrath, C. J.

text:
    The People v. Abijah Eaton.

      Constitutional law — Highways—Telegraph poles — Additional servitude — Compensation.
    1. The placing of telegraph poles along a public highway is not an additional servitude upon the land of adjacent proprietors.
    2. The statutes of this.State (How. Stat. chaps. 100, 101), which authorize the construction along the public highways of telegraph lines by individuals and unincorporated associations, and by telegraph companies whose incorporation is provided for by the chapter last cited, are not in conflict with article 15, § 9, of the Constitution, which provides that “the property of no person shall be .taken by any corporation for public use without compensation being first made or secured in such manner as may be prescribed by law.”
    Error to Barry. (Smith, J.) Argued February 1, 1894. Decided May 18, 1894.
    Respondent was convicted of assault and battery, and sentenced to pay a fine of $20, or stand committed to the Barry county jail until the fine should be paid, not exceeding 30 days.
    Judgment affirmed.
    The facts are stated in the opinion.

      William O. Lowden and Charles G. Holbrook, for respondent.

      A. A. Eilis, Attorney General, and James A. Stveezey, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted of an assault and battery upon L. B. Bentley. It appears that Bentley, in company with three other men, were in the act of digging holes to set telegraph poles in the highway in front of the farm of respondent. Respondent forbade them doing so, and ordered them to desist, which they refused, whereupon he pushed Bentley down a slight embankment. It is not claimed that any serious harm was done him, or that respondent used any more force than was necessary to stop the work. It was claimed on the trial that Mr. Bentley and his companions represented, and were the employés of, a certain company, known as the Barry County Telegraph Association, incorporated under the provisions of chapter 101 of Howell’s Statutes, and that they informed respondent that they were erecting a telegraph' line along the highway, and were acting for an association, and that the State gave them the right to do so. The articles of association of the company were not on file with the Secretary of State at the time of the assault complained of, but they had been signed in due form of law, and were subsequently acknowledged and filed as provided by law.

The statutes of this State relating to electric telegraph lines, so far as they appear to be material to this case, may be briefly summarized as follows: Chapter 100, How. Stat., being Act No. 4, Laws of 1847, as amended in 1849 and 1873, is, “An act authorizing any persons to construct lines of electric telegraph in the State of Michigan.” Section 1 provides:

“That any person or persons may be, and they are hereby, authorized to construct and maintain lines of electric telegraph, together with all necessary fixtures appurtenant thereto, from point to point upon and along any of the public roads, highways, or railroads * * * of this State, * * * or upon or over the land of any individual, the owner of any land through which said telegraph line may pass, and railroad corporation on whose right of way the same may be constructed, having first given consent: Provided, that the same shall not in any instance be so constructed as to incommode the public in the use of said roads, highways, railroads, or bridges. * * * ”

Chapter 101, being Act No. 59, Laws of 1851, as amended in 1863, 1873, and 1875, is, “ An act to authorize the formation of telegraph companies.” Sections 1, 2, 3, and 4 provide for the manner of organization of such companies, and their general powers. Section 5 provides that—

“Such association is authorized to enter upon, and construct and maintain lines of telegraph through, along, and upon any of the public roads and highways, or across or under any of the waters, within the limits of this State, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of such lines: Provided, that the same shall not be so constructed as to incommode the public use of said roads or highways, or .injuriously interrupt the navigation of said waters: * * * And provided further, that this act shall not be construed to authorize any such association to injure, ■deface, tear, cut down, or destroy any tree or shrub planted along the margin of any highway in this State, or purposely left there for shade or ornament. ****** ’’

Section 6 provides for the appointment of commissioners by the circuit court to assess damages, on the application of any person through whose land said lines shall pass, who •shall consider himsel’f aggrieved or damaged thereby.

The principal question in this case is whether these acts conflict with article 15, § 9, of the Constitution, which provides:

“The property of no person shall be taken by any corporation for public use without conpensation • being first made or secured in such manner as may be prescribed by law.”

Is the placing of telegraph poles along a public highway an additional servitude upon the land of the adjacent proprietor? Public highways are under legislative control. Cooley, Const. Lim. 588. They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon their use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods. Macomber v. Nichols, 34 Mich. 212, 216. It has been settled in this State that lands taken or granted for public highways are so taken or granted for all the purposes for which they may be used for the benefit of the public, for the passing and repassing of travelers thereon, and for the transportation of passengers by stage coach, omnibus, or street cars propelled by horses, steam, or electricity, and that the laying of tracks for such street cars is not an additional servitude upon the lands of adjacent proprietors.

In Detroit City Ry. v. Mills, 85 Mich. 634, the defendants threatened to cut down and destroy the poles erected for stringing wire for the use of an electric street railway, and the claim was made by the defendants that they had the right to remove such poles because they were an additional servitude. It was held that they had no such right; that the erection of poles for such a road was in the furtherance of public travel; and. that, to constitute an additional servitude, there must be an injury to the present use and enjoyment of the land. See, also, People v. Railway Co., 92 Mich. 522; Dean v. Railway Co., 93 Id. 330.

It is difficult to see any distinction between the use of the highway for electric railway poles and for poles erected for the use of telegraph or telephone companies. In commenting upon this claimed distinction, Judge Dillon, in his work on Municipal Corporations (4th ed. p. 893, note), says:

.“The distinction is so fine as to be almost impalpable.”

These telegraph construction acts have .been in force in this State for many years, and this is the first time in tlfe history of the State, so far as I have discovered, where it has been claimed that the placing of such poles in the highway is an additional servitude. We are aware that in some states the doctrine is laid down that the placing of such poles creates an additional servitude upon the fee, but there are many cases holding the other way. Pierce v. Drew, 136 Mass. 79, Julia Building Ass’n v. Telephone Co., 88 Mo. 258, and State v. Flad, 23 Mo. App. 185, hold that an additional servitude is not created; and, we think, upon better reasoning. These cases accord with the views of this Court in Detroit City Ry. v. Mills, supra, and other cases in this State relative to the use of the street for street-railway purposes. If damage follows from the erection of such poles, the acts provide a method of settling that question.

We think there is nothing in the claim that the articles of association were not filed .at the time of the assault. Under chapter 100, any private person may erect telegraph poles along the highway, under certain restrictions.

When these lands were taken or granted for public highways, they were not taken or granted for such uses only as might then be expected to be made of them, by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvement of the country, or the discoveries of future times, might demand. The parties setting these poles were acting under color of legal right. The statute under which they acted is not in conflict with the provision of the Constitution above cited. It would be a great calamity to the State if, in the development of the means of rapid travel, and the transmission of intelligence by telegraph or telephone communication, parties engaged in such enterprises were compelled . to take condemnation proceedings before a single track could be laid or a pole set. The Legislature certainly has never so regarded this provision of the Constitution, and never till now, when more than 40 years have elapsed since the passage of these acts, has any one supposed that such a construction was to be placed upon the provision of the Constitution.

The conviction must be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred with Long, J.

McGrath, C. J.

(dissenting). -I cannot concur in the opinion of Mr. Justice Long. I think that Mr. Dillon, in his work on Municipal Corporations (4th ed. § 698a), lays down the correct rule. He says:

On the whole, the safer and perhaps sounder view is that such a use of the street or highway, attended, as it may be, especially in cities, with serious damage and inconvenience to the abutting owner, is not a street or highway use, proper, and hence entitles such owner to compensation for such use, or for any actual injury to his property caused by poles and lines of wire placed in front thereof.”

The theory upon which it has been held that the construction of street-railway tracks in streets is not an additional servitude is that the purpose of the tracks is to facilitate travel upon the street, and the cases which support the right to erect trolley poles have been put upon the ground that the poles and wires are directly ancillary to such use of the street. This class of cases makes a distinction between trolley poles and wires, which are incidents of that system of transportation, and telegraph and telephone poles, which are not used to facilitate the use of the street. It is' with reference to this attempted distinction that Mr. Dillon makes use of the language quoted by Mr. Justice Long, and found in 2 Dill. Mun. Corp. (4th ed.) p. 893, note.

I think that the judgment should be reversed.


author: McGrath, C. J.

text:
    James H. Lyons v. David V. Yerex.

      Life-insurance — Policy payable to heirs at law of insured — Rights of widow.

    1. Under the statutes of this State, the widow takes a share of the personal property of her. husband as distributee, and not as dowress, and is an heir as to such property.
    2. On the death of a member of a mutual benefit or co-operative life-insurance company, who dies intestate,' and whose policy of insurance is made payable to his “heirs at law,” the widow is entitled to share in the proceeds of said policy.
    Error to Lapeer. (Moore, J.) Argued February 15, 1894. Decided May 18, 1894.

      Assumpsit. Plaintiff brings error. Affirmed. The facts are stated in the opinion.

      W. B. Brown (Oahiü é Ostrander, of counsel), for appellant.

      Geer & Williams, for defendant.
   McGrath, C. J.

On tbe 30th day of September, 1887, there was issued to Harrison H. Lyons a certificate of membership in the Northwestern Masonic Aid Association, a mutual benefit or co-operative insurance company, which was made payable “to the heirs at law of the said Harrison H. Lyons." The insured died intestate, leaving a. widow and one son. By agreement the money was paid over to defendant, who paid one-half thereof to plaintiff, who now sues to recover the balance, claiming that the widow is not entitled to share in the proceeds of the policy.

Under our statute the widow takes a share of the personal property of her husband as distributee, and not as dowress, and is an heir as to such property. In Hascall v. Cox, 49 Mich. 435, 440, it is said:

Heirs’ is a technical word, and when it is made use of in any legal instrument there is a presumption, more or less strong, according to the circumstances, that it is employed in a technical sense. * * * But in common spéech the word is frequently used to indicate those who-come in any manner to the ownership of any property by reason of the death of an owner, and may then include-next of kin and legatees as well as those who take by descent. And in wills, which are often very informal instruments, and drawn without legal assistance, the word is sometimes employed with quite as little regard to the technical sense."

In the present case we are not gonsidering the use of the word in a will, but in a contract of insurance, in which the insured has used the word to designate the-beneficiaries. In determining the signification of 'words used in any case we are to consider all the surrounding circumstances. The original purpose of such contracts on the part of the insured is to make provision for dependents. It is most probable that the insured was actuated by the motive which ordinarily prompts men to take out, insurance. The common acceptation of the term “heir” has already been referred to. The statute makes the widow an heir as to personal property, and the wife is within the •class of persons protected and sought to be protected by this class of insurance.

In Tillman v. Davis, 95 N. Y. 17, cited by plaintiff, the court was construing a will in which the testatrix was dealing with both real and personal property, and the court held that the word “ heirs ” was used to designate blood relations.

In Griswold v. Sawyer, 125 N. Y. 411, it was held that the term “legal representatives,” as used in a life-insurance policy, includes the widow. The opinion was written by the same justice who wrote Tillman v. Davis. The court say:

“ Mr. Griswold was not a lawyer, and hence cannot be •supposed to have used these words in their strict, technical, legal sense, but it is reasonable to suppose that he used them in the general sense in which they are frequently used and generally understood by laymen.”

In Kaiser v. Kaiser, 13 Daly, 522, it was -held that the words “legal heirs,” used in a certificate of membership in a mutual insurance association, include the widow. Bookstaver, J., says:

“We think all this entirely inconsistent with the theory that he used the phrase ‘legal heirs’ in its ordinary acceptation, but we think that he intended thereby to •designate his wife and children, if he should leave any; •and this is the meaning often attached to the phrase by the unlearned, especially when only personal property is concerned.”

Gauch v. Insurance Co., 88 Ill. 251, is also cited, but the court there held that under the statute the widow did not take an interest in her husband’s personal property as a distributee, but as dowress.

In Lawwill v. Lawwill, 29 Ill. App. 643, decedent held a policy in the Masonic Benevolent Association, payable to his legal heirs. He died, leaving a widow, but no children. The statute provided that, in case the husband died without issue, the widow should take all the personal property. The court held that the widow was within the contingencies specified in the statute, and was the heir at law to his estate, and that the word “ heirs,” when uncontrolled by the context, must be construed to mean the persons designated by the statute as such in case of intestacy. See, also, Association v. Hoffman, 110 Ill. 603, and Alexander v. Association, 126 Id. 558.

In Johnson v. Knights of Honor, 53 Ark. 255, 260, Battle, J., says:

Sufficé it to say that the weight of authority holds that the word heirs,5 when used in any instrument to designate the persons to whom personal property is thereby transferred, given, or bequeathed, and the' context does not explain it, means those who would, under the statute of distribution, be entitled to the personal estate of the persons of whom they are mentioned as heirs, in the event of death and intestacy. * * * In many states where the widow is entitled to take under the statute of distribution she is held to be an heir of her deceased husband as to his personal estate, but it is different in this state. * * * It is true that section 2592, Mansf. Dig., provides: If a husband die, leaving a widow and no children, such widow shall be endowed of one-half of the real estate of which such husband died seised, and one-half of the personal estate, absolutely and in her own right.5 But she takes the one-half of the personal estate as dower, absolutely and independently of creditors, and not as'a distributive share.”

In Bailey v. Bailey, 25 Mich. 185; Barnett v. Powers, 40 Id. 317; Richardson v. Martin, 55 N. H. 45; Ivins’ Appeal, 106 Penn. St. 176; Luce v. Dunham, 69 N. Y. 36; Dodge’s Appeal, 106 Penn. St. 216,-the property with reference to which the word was used was real estate. In the last-mentioned case, Sterrett, J., in the opinion, says:

If the fund for distribution were personalty, the widow would perhaps be entitled to participate therein.”

In De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524, the property devised was both real and personal. The court say:

“ On the face of the will it was the intention of the testator to make the two funds a blended property, and to give them the character of real estate, and to make both properties go together.”

Nibl. Mut. Ben. Soc. § 247, says:

At common law one’s heirs are the persons who would inherit his real estate by right of blood. The statutes of adoption and those of descent have, in every state, to a greater or less degree, enlarged the meaning of the word, so that it may include persons not of the blood of the intestate. At common law the word had no reference to the distribution of any personalty, and this rule has not been disturbed by statute in some states. In those states, therefore, where this common-law rule obtains, the word i heirs,’ in a statute setting forth a class of persons who may take the fund, or in a certificate designating the persons who shall take the fund on the member’s death, must be taken to mean the person or persons to whom the real estate of the member will pass under the statutes of descent, whether such person or persons be akin to him or not. In most states, however, the statutes provide not only who shall inherit the realty of an intestate, but also who shall be the heirs of his personal property.”

The same author, at section 248, says:

Nothing is more natural, therefore, than to regard the heirs of the intestate’s personal property as the beneficiaries designated in the contract of insurance as ‘ my heirs.’ ”

See Houghton v. Kendall, 7 Allen, 72; White v. Stanfield, 146 Mass. 424; Addison v. Association, 144 Id. 591; Collier v. Collier, 3 Ohio St. 369; Eby’s Appeal, 84 Penn. St. 241; Freeman v. Knight, 2 Ired. Eq. 72; Insurance Co. v. Miller, 13 Bush, 489; Wilburn v. Wilburn, 83 Ind. 55; Gosling v. Caldwell, 1 Lea, 454; Ward v. Saunders, 3 Sneed, 387; Croom v. Herring, 4 Hawks (N. C.), 393.

Under the circumstances, we think it must be presumed that by the use of the words “my heirs” the insured intended to include those designated by the statute as such, and to whom the law would give that class of property in case of intestacy.

The judgment must therefore be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. Long, J., did not sit.


text:
    In the Matter of the Estate of George Buchan, Deceased. Appeal of Isabella Hughes.

      Practice in Supreme Court — Findings of fact — Estates of deceased persons — Accounting by administrator — Evidence.
    1. The Court will not, in the absence of findings of fact, go into an examination of the testimony received on the trial of an appeal from probate court, to ascertain whether there is any testimony supporting any possible findings of fact which would sustain the judgment; citing Haines v. Saviers, 93 Mich. 440, 441, and cases cited; Child v. City of Jackson, Id. 503.
    2. An administrator’s final account showed the amount received and paid out on account of the estate, and stated that the debit balance had been turned over by the administrator to himself, as guardian of the minor children of the deceased, and accounted for by him as such guardian, and the account as thus balanced was allowed by the probate court. On the trial of an appeal from the order of allowance, testimony was received tending to show that the personal property of the deceased had all been applied to the payment of his debts; that the only remaining property consisted of a lot, on which was a store building with tenements above; that, during all of the time since the death of their father, four of the minor children had occupied one of the tenements; that the debit balance referred to in the account was never in fact paid to the administrator, but that one of the daughters of the decedent had received the rents, and receipted for them in the name of the administrator, and applied them from time to time to the support of the family, consisting at first of all of the children, including the appellant, and, after her marriage, of the remaining children. The testimony was objected to as in contradiction of the charge.which the administrator had made against himself. And it is held that such was not the purport of the testimony, but that it was offered for the purpose of showing a disbursement of the fund under such circumstances as, it was claimed, would relieve the, administrator from accounting further to the estate, his theory being that this method of dealing with the estate had the approval of all the adult children, and that he, «as guardian, had properly accounted for the funds received on account of his wards.
    Error to Wajme. (Reilly, J.) Submitted on briefs February 16, 1894. Decided May 18, 1894.
    Appeal from an order of the probate court allowing the final account of James H. Menzies, administrator de lonis non of the estate of George Buchan, deceased. The appellant brings error1.
    Order affirmed.
    The facts are stated in the opinion.

      Ed. E. Kane, for appellant.

      Henze & Slade, for appellee.
   Montgomery, J.

In 1879, George Buchan died intestate, leaving a wife and six daughters, whose ages were as follows: Isabella (now Hughes),, aged 19; Catherine, aged 14; Mary, aged 12; Maggie, aged 10; Jessie, aged 8 (since deceased); and Ha, aged 6. The widow, who had been appointed administratrix of the estate, died in less than a year after the decease of her husband, and James H. Menzies, an uncle of the minor children, was appointed administrator de lonis non. He continued in office until March 10, 1892, when his final account as administrator, filed on the 30th of December preceding, was allowed. The account showed that he had received $10,340.51, and paid out for the estate $8,493.31, including a charge for his services as administrator of $500. The balance, $1,847.20, is stated in the account to have been turned over by the administrator to himself, as guardian of the minor children, and accounted for by him as such guardian. The account thus balanced was allowed by the probate court. Mrs. Hughes appealed to the circuit, w'here the order of allowance was affirmed, and she now brings the proceedings had on the trial at the circuit to this Court for review.

At the trial the testimony tended to show that the personal property had all been applied to the payment of debts, and that the only remaining property consisted of a lot on Grand River avenue, in Detroit, upon which was situated a double store building with two tenements above the stores; that, during all the time since the decease of their father, four of the minor children had occupied one of the tenements; that the $1,847.20 referred to in the account was never in fact paid into the hands of the administrator, but that Catherine Buchan, one of the daughters, had received the rents, and receipted for them in the name of the administrator, and had applied the rents received from time to time to the support of the family, consisting at first of all the children, including the appellant, and after her marriage, in 1880, consisting of the remaining children, and that the same was true of the amount char'ged for compensation for services, and that, in addition, the administrator had contributed of his* own funds for the support of the children. Objection was taken to the admission of the testimony tending to show this state of facts on the ground that it was in contradiction of the charge which the administrator had made against himself. But we do not so understand the purport of the testimony. It was not an attempt to contradict the charge. The administrator recognized that the charge should properly be made, but the testimony referred to was offered for the purpose of showing a disbursement of the fund under such circumstances as, it was claimed, would relieve him from accounting further to the estate; the theory of the administrator being that this method of dealing with the estate had the approval of all the children who were of age, and that he, as guardian, had properly accounted for the funds received on behalf of the minor children.

It is contended, however, that the showing was not sufficient to discharge the administrator from liability.' This question is discussed in the briefs of counsel upon the apparent supposition that the Court will weigh the testimony. There were no findings of fact, and we are not advised as to what inferences were drawn from the testimony by the trial judge.

It is contended by the administrator’s counsel that there was testimony which fairly tended to show that the disposition which was made of the rents was known during all the years to the appellant; that, while this is not directly proven, yet the legitimate inferences from the proven facts justify such a conclusion. It appears, for instance, that she for a time lived in one of the tenements with the other members of the family, and that for nine years thereafter she lived in the same city, and visited back and forth with her relatives; and it is urged that from her close relationship, and her familiarity with their circumstances, she must- have known how they were being supported, and, further, that, with this knowledge, the statement of the appellant at the time of her departure to Chicago (made to the administrator in answer to a question from him as to whether she wished to have the property divided), that she was satisfied that it should not be divided until the children were all of age, could fairly be construed as authority to proceed with the appropriation, of the rents in the manner in which they had been appropriated, and that she must have intended to assent that the funds should be devoted to the support of her minor sisters. As before stated, we are not, upon this record, able to determine what inferences the circuit judge drew from the testimony, nor whether such inferences were justified. The appellant has not asked any findings of fact. Under such circumstances, we cannot, under settled rules of practice, go into an examination of the testimony to ascertain whether there is any testimony supporting any possible findings of fact which would sustain the judgment. Haines v. Saviers, 93 Mich. 441, and cases cited; Child v. City of Jackson, Id. 503.

The order below will be affirmed, with costs.

The other Justices concurred.


text:
    Eddy Huyck v. Ira S. Bailey.

      Equity pleading — Answer as evidence — Injunction—Jurisdiction— Statute of frauds — Estoppel—lácense.
    1. A sworn answer to a bill in equity is taken to be true in all points where the cause proceeds to a hearing on hill and answer only; citing Ruhlig v. Wiegert, 49 Mich. 399.
    2. The statute of frauds prevents the passing of title to realty by parol, and this cannot be done any more under the guise of » an estoppel, in the absence of fraud, and when the estoppel consists only of an implied assent, than by showing a direct parol contract; citing Hayes v. Livingston, 34 Mich. 387; Wood v. Railroad Co., 90 Id. 334.
    3. One who contracts with a life-tenant for the purchase of the timber standing on the land, and pays the purchase price, with the full knowledge and acquiescence of the remainder-man, will be protected, in so far as his acts in cutting and removing the timber without objection by the remainder-man are involved, upon the theory that the silence of the remainder-man amounted to a parol assent in the nature of a license, revocable at his pleasure.
    4. Where a bill is filed to prevent a threatened injury to the freehold, it is the value of the land which fixes the jurisdiction; citing White v. Forbes, Walk. Oh. 112; Fuller v, City of Grand Rapids, 40 Mich. 395.
    5. Where a bill filed by the remainder-man to restrain the cutting and removal of the timber standing on the land by a purchaser from the life-tenant charges that the threatened removal of the timber will damage the estate $350, and the answer asserts the value of the timber to be no more than $25, and, for aught that appears, the timber may have a particular value to the estate, the contention that the pleadings-show the amount in controversy to be less than $100, and that for this reason the bill should' have been dismissed, cannot be sustained; citing Blodgett v. Dwight, 38 Mich. 596.
    Appeal from Berrien. (O’Hara, J.) Argued February-16, 1894. Decided May 18, 1894.
    Bill to restrain the -cutting of timber on complainant’s land. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Samuel H. Kelley, for complainant.
    Cr. M. Valentine, for defendant.
   Montgomery, J.

This is an injunction bill to restrain-defendant from proceeding to cut saw timber on lands owned by complainant.

The bill alleges, in substance, that the defendant has cut- and removed a large amount of timber from the premises, and threatens to continue to do so; that he has already cut a large amount, to wit, of the value of $360, and that by so cutting he has committed waste upon the premises, and -irreparable injury thereto, materially lessening the value thereof; that if he is permitted to cut down the timber and remove the same, and commit waste, the value of the premises will be depreciated to a large amount, to wit, $350; and that the cutting and removal of said timber from said premises have been done without the authority or consent of the complainant.

The answer admits the complainant’s title to -the land, but alleges that defendant had cut the timber in question by virtue of a contract made with the life-tenant before his' death, and that the contract was made with the life-tenant, and payment made thereunder to him by defendant, with the full knowledge and acquiescence of complainant. The answer also alleges that the timber uncut upon the premises, answering the description of the contract, would not exceed in value $25, and impliedly admits that the defendant intends to cut and take away such timber during the winter succeeding the filing of the bill.

The case was heard on bill and answer, no replication having been filed.

The complainant alleges that the statements of this answer by way of avoidance — that is, the statements setting up a contract with the life-tenant, and alleging that complainant is estopped — were not ’directly responsive to the allegations in the bill, and that as to these matters the answer is not evidence for the defendant. The eases cited to support this contention are cases where an issue was joined upon the answer, and testimony taken. See Schwarz v. Wendell, Walk. Ch. 267, and Hart v. Carpenter, 36 Mich. 402. But, where the case proceeds to hearing on bill and answer alone, the answer must be taken as true in all points. See Ruhlig v. Wiegert, 49 Mich. 399, 400, in which case the authorities are collated. See, also, Perkins v. Nichols, 11 Allen, 542, 544, where the rule is stated as follows:

“ When no replication is filed by the plaintiff, no issue made upon the truth of the defendant's allegations, but the cause is set down for hearing on the bill and answer, then the answer is to be considered as true throughout, in all its allegations, whether responsive or not; otherwise, the defendant would be precluded from proving the allegations which are only defensive.''

This leads to a consideration of the question of whether defendant has not a right to the timber, as against complainant. It will be observed that the extent to which the showing made by the answer goes is that the defendant purchased the timber of the life-tenant under such circumstances as would perhaps have estopped the complainant had the property been personalty, but it does not set up ’ any fraudulent concealment of facts by complainant as to the true title. Unfortunately for defendant's contention, the statute of frauds prevents the passing of title to realty by parol, and this cannot be done any more under the guise of an estoppel, in the absence of fraud, and when the estoppel consists only of an implied assent, than by showing a direct parol contract. See Hayes v. Livingston, 34 Mich. 387, and Wood v. Railroad Co., 90 Id. 334. An unrescinded parol license may be acted upon, and it is doubtless true that," under the showing in the answer, defendant is protected, in so far as his acts in removing timber without objection by complainant are involved. See Harlow v. Railroad Co., 41 Mich. 336. But the most that can be claimed is that the complainant's silence amounted to a parol assent in the nature of a license, which is revocable at the pleasure »of the licensor. The complainant took steps to revoke the license before filing the present bill.

It is contended that the pleadings show the amount in controversy to be less than $100, and that the bill should have been dismissed 'for this reason. The bill avers that the threatened removal of the timber would damage the estate $350. The answer asserts the value of the timber to be no more than $25. For aught that appears, the timber may have had a peculiar value to the estate. Blodgett v. Dwight, 38 Mich. 596. Moreover, in a case of a threatened injury to the freehold, it is the value of the land which fixes the jurisdiction. White v. Forbes, Walk. Ch. 112; Fuller v. City of Grand Rapids, 40 Mich. 395.

The decree will be affirmed, with costs.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.


text:
    Grove H. Wolcott v. Lydia Patterson.

      Married woman — Employment of attorney — Suit for divorce.

    1. A married woman may make lierself chargeable with the value of services rendered by an attorney upon her employment to secure a divorce from her husband, and the husband is not liable for such services.
    2. How. Stat. § 6235, which provides that “in every suit brought, either for a divorce or for a separation, the court may, in its discretion, require the husband to pay any sums necessary tó enable the wife to carry on or defend the suit during its pendency, and it may decree costs against either party, and award execution for the same, or it may direct such costs to he paid out of any property sequestered, or in the power of the court, or in the hands of a receiver,” clearly indicates that such proceedings are to be maintained at the cost of the wife, unless the court shall relieve her of such cost by an order for expense money to be paid by her husband; citing Ross v. Ross, 47 Mich. 185.
    Error to' Jackson. (Peck, J.) Submitted on briefs Jan_ nary 3, 1894. Decided May 18, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      John D. Gonely, for appellant.

      Marie S. Wolcott, for plaintiff.
   Montgomery, J.

Plaintiff is an attorney at law, and recovered in the coprt below for professional services rendered to the defendant, who is a married woman. A portion of the services related to the separate estate of the defendant, who is shown in the record to have had considerable property in her own right. Included in the bill of particulars was a charge of $100 for retainer and services in a divorce suit brought by defendant against her husband. This proceeding was not carried through to a determination, but was discontinued by Mrs. Patterson before a decree.

Substantially the only question presented by the record is whether a married woman may, in this State, make herself chargeable with the value of services rendered by an attorney upon her employment to secure a divorce from her husband. It is contended by the defendant that the husband is liable for such services, and that the wife is not. The authorities are not uniform upon the question, but we think the weight of authority negatives such liability on the part of the husband. See Schouler, Husb. & Wife, § 104, and cases cited in note. In some of the states the liability of the husband is asserted (Sprayberry v. Merk, 30 Ga. 81; Porter v. Briggs, 38 Iowa, 166; Langbein v. Schneider, 16 N. Y. Supp. 943), and in these jurisdictions it is held, that the wife is not competent to charge herself with such expénses (Musick v. Dodson, 76 Mo. 624; Cook v. Walton, 38 Ind. 228; Whipple v. Giles, 55 N. H. 139). See, however, dissenting opinion of Pettit, C. J., in Putnam v. Tennyson, 50 Ind. 461. We think the cases which deny the husband’s liability are moré consonant with the holdings of this Court that one who supplies the wife with goods apparently suitable to her situation in life does so at his peril, and can only recover if the husband has failed to supply necessaries. Clark v. Cox, 32 Mich. 204.

Is the wife competent to contract for such services? The wife may exhibit her bill for divorce in her own name. How. Stat. § 6233. And by section 6235 it is provided that—

“Tn every suit brought, either for divorce or for a separation, the court may, in .its discretion, require the husband to pay any sums necessary to enable the' wife to carry on or defend the suit during its pendency, and it may decree costs against either party, and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.”

The statute clearly indicates that such proceedings are to be maintained at the cost of the wife, unless the court shall relieve her of such cost by an order for expense money to be paid by her husband. Ross v. Ross, 47 Mich. 185. It has also been held in this State that a married woman is competent to assert her rights either as plaintiff or defendant, and, where a suit is brought against her as defendant, is bound to do so. Wilson v. Coolidge, 42 Mich. 112. It would seem to follow logically that, having the power to bring suit, and being in such suit responsible for costs, she must be held competent to contract for the services of an attorney to represent her rights. We think the right to contract for such services is necessarily incident to and included in her right to bring suit.

In this view, there was tío error committed to the prejudice of the defendant, and the judgment should be affirmed, With costs.

The other Justices concurred.