text:
    T. Guilford Smith v. William F. Baker.

      Contract — Discharge of employe.

    Where a book-keeper, who is employed, at a yearly salary, makes unauthorized overdrafts from his employer’s money, of which he has the handling, the employer is authorized to discharge him before the end of the year, and demand repayment.
    Error to Manistee. (Judkins, J.)
    Submitted on briefs April 27, 1894.
    Decided June 16, 1894.

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

      Dovel & Smith, for appellant.

      McAlvay & Grant, for plaintiff.
   Montgomery, J.

From 1882 to 1885, inclusive, the plaintiff was engaged in the lumbering business at Hungerford, Newaygo county, Mich.; and from 1882 to August, 1885, defendant was in his employ, as book-keeper, and kept his account in his own. handwriting. The books showed an overdraft by defendant amounting to $708.13, which, with interest to the date of the trial, measured plaintiff’s recovery below. There was no dispute about the amount of overdraft, but the defense interposed by defeádant was that he overdrew his account on the authority of Stewart Ives, who was manager of the plaintiff up to some time in the summer of 1885, when he was superseded by Mr. Mason. The claim, as defendant states it, is:

“I was building a house at the time of the overdraft, and needed more money than I had, and had a talk with Mr. Ives about it. He asked me how much I needed, and I told him from $100 to $600. He said he would assist me; that I could overdraw my salary, and make it up as I went along; that it would probably be balanced at the end of the year, — if not, then soon after. I told him I would need $500 or $600. With that understanding, I drew the money.”

Defendant does not claim that any agreement was made with Mr. Mason by which he could continue his overdrafts after Mr. Mason came there, and on cross-examination he testified:

“The amount of the overdraft was not limited.
Q. Then there was no definite or particular agreement made between you and Mr. Ives?
A. He said, * If you want $500, or more or less, just as you like, — whatever you need to keep you going with your house and running expenses, — take it out of the business.’
Q. What was the balance of the agreement that you were to take it out of the business?
“ A. I was not supposed to draw much over $500, — from $500 to $700; anywhere along there, whatever there was.
I didn't consider it necessary, if it took $700, to tell him I would have to have $700.
“ Q. How was it after Mr. Mason came?
“A. I supposed my agreement with Mr. Ives would go along the same.
Q. And you drew- out $300 under that agreement? Isn't it a fact that the two items you drew out then were two items of salary?
“ A. I drew that amount of money to use as I told you in the first place.
“ Q. What was your agreement about paying it back?
“A. To balance it up as I went along."

As a matter of fact the overdraft was $708.13.

It does not appear that the authority to allow the money of the lumbering concern to be withdrawn by employés, in the way of loans, was within the scope of Mr. Ives' employment. The presumption would certainly be the other way. However this may be, i't is apparent that there was no definite arrangement by which he permitted the defendant to overdraw any such sum as he did, and certainly none which continued after Mr. Ives was superseded by Mr. Mason. The defendant having the handling of plaintiff's money, and making these unauthorized overdrafts, the plaintiff was certainly authorized to discharge him, and to. demand repayment.

The circuit judge very properly directed a verdict for the plaintiff, which is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, 0. J.

license: Public Domain

text:
    Freeman B. Hill v. Frank Carter.

      Land contract — Default—Forfeiture—Tender—Estoppel—Summary proceedings — Pleading.
    1. A tender of the interest due on a land contract deprives the vendor of the right to declare a forfeiture for its non-payment, upon the same principle that a tender of the amount due upon a mortgage will operate to discharge the lien.

      2. How. Stat. § 8299, which provides that, upon the return, duly served, of the summons issued in summary proceedings to recover the possession of land, the defendant may plead not guilty to the complaint, or, if he neglect or refuse to plead thereto, the officer before whom the proceedings are pending shall enter such plea for him, contemplates a plea of not guilty, simply.
    3. Where summary proceedings are instituted to recover the possession of land sold upon contract because of default in the payment of interest, the maturity of which is not denied by the vendee, but he sets up a subsequent agreement, by the terms of which the work done thereunder was to be accepted in discharge of said interest; which the vendor denies, the vendee is not estopped, by making proof of a tender of said interest, from showing said agreement, and its performance.
    4. It is not necessary in such a case that the amount of the tender should be brought into court.
    5. It is not error to instruct the jury in such a case that, if the vendor objected to the tender as being insufficient in amount, he was bound to say so at the time, and if he did not, and refused the tender on other grounds, as that nothing was due, or that it was past due, he cannot now raise the question as to the sufficiency of the amount tendered.
    Error to Allegan. (Padgham, J.)
    Submitted on briefs May 1, 1894.
    Decided June 16, 1894. .
    Summary proceedings to recover the possession of land. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Williams, Williams <& Butler, for appellant.

      Charles B. Willces, for defendant.
   McGrath, 0. J.

Complaint against the vendee in a land contract to recover possession of the premises upon the claim of forfeiture by reason of non-payment of interest. Defense: (1) An alleged agreement that certain work was to be done for complainant, and applied to the payment of the interest; and (2) two tenders made before the declaration of forfeiture, and one tender made after-wards, and before the complaint to recover possession.

The following questions were submitted to the jury, the first four of which were answered in the affirmative, and the last in the negative:

“First. Did Hill agree with Carter to allow the first year’s interest on the contract, if Carter furnished dressed lumber and stone bearings for the barn?
“ Second. Did Carter furnish dressed lumber and stone bearings for the barn?
“ Third. Did Carter tender to Hill interest on the contract May 12, 1892?
“ Fourth. Did Carter tender to Hill interest on the contract May 14, 1892, at Thew’s office?
“ Fifth. Did Carter ever refuse to pay Hill the interest?”

Appellant contends:

1. That no tender was pleaded.

2. That the tenders were not kept good by payment into court.

3. That the defenses were inconsistent.

4. That the court was in error in instructing the jury that, if Hill objected to the tender as being insufficient in amount, he was bound to say so'at the time, and if he did not, and refused the tender on other grounds, as that nothing was due, or that it was past due, he cannot now-raise the question as to the sufficiency of the amount tendered.

The proceeding to recover possession is based upon an alleged default and declaration of forfeiture. If the tender was made, it deprived complainant of the right to declare a forfeiture, upon the same principle that a tender of the amount due upon a mortgage will operate to discharge its lien. The creditor, by refusing to accept, does not forfeit his right to the thing tendered, but he does lose all collateral benefits or' securities. Kortright v. Cady, 21 N. Y. 366; Tiffany v. St. John, 65 Id. 314; Frost v. Bank, 70 Id. 553; Caruthers v. Humphrey, 12 Mich. 270; Van Husan v. Kanouse, 23 Id. 303; Renard v. Clink, 91 Id. 1.

The general rule is that all matters of defense not going to controvert the whole of plaintiff’s cause of action as averred should be noticed. 1 Shinn, Pl. & Pr. § 754. The defense here went to the whole of complainant’s case, and it was not necessary that notice thereof be given. Again, How. Stat. § 8299, contemplates a plea of not guilty, simply.

Nor do we think that the defendant, by making proof of tender, was estopped, under the circumstances of this, case, from showing the agreement that the work done upon the barn was to be applied in payment of the interest. The complaint in this proceeding is based upon the land contract. Defendant did not deny the maturity of an installment of interest upon that instrument. He, however, set up a subsequent agreement, by the terms of which the work done was to be accepted in discharge of his obligation upon the land contract. Complainant denied that agreement. In view of the dispute, defendant sought to avoid imperiling his interest in the land by payment. A payment into court has been held to be an admission of an indebtedness, to that extent, upon the contract sued upon; but we do not- understand that a tender-made before suit, to protect incidents, precludes the party making the tender from asserting, after suit brought, any other existing defense.

The theory of the cases above cited is that, as to all things which are incidental and accessorial to the debt, the tender is equivalent to payment. The court instructed the jury that if, after the tender, Hill at any time offered to take the money, and Carter refused to pay it, the latter would lose the benefit of his tender. It was not necessary that the amount of the tender should be brought into court. Caruthers v. Humphrey, supra; Moynahan v. Moore, 9 Mich. 9; Allen v. Atkinson, 21 Id. 351; Stewart v. Brown, 48 Id. 383.

As to the objection to the instruction of the court respecting the insufficiency in the amount tendered, the charge is fully sustained by Allen v. Atlcinson, 21 Mich. 362; Flanders v. Chamberlain, 24 Id. 305.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    John H. Hembeau v. The Great Camp of the Knights of the Maccabees for Michigan.

      Mutual benefit associations — Death claims — Power of committee— Finality of decision — Public policy.

    1. It is competent for a mutual benefit association to provide a‘ law of its order, to which all parties assent, which makes a finding of liability by the duly-constituted committees of the order a condition precedent to a right to receive benefits.

      2. A provision in the laws of a mutual benefit association that the decision of a tribunal created by the constitution to pass upon death claims shall be final, and bar any suit at law or in equity therefor, is sustained as within the rulings in Van Pouche v. Society, 63 Mich. 378; Canfield v. Knights of Maccabees, 87 Id. 626.

      8. The laws of a mutual benefit association confined beneficiaries to widows, relatives within the first degree of kinship, and dependents, and provided that the executive committee should have power to pass on all death claims,, and that its decision should be final unless appealed from to a higher body, the decision of which body should bar any suit at law or in equity by the beneficiary to recover the insurance. A member named as beneficiary an alleged dependent, and the executive committee rejected the claim of the beneficiary on the ground that he was not such dependent, and the higher body affirmed the decision on appeal. The beneficiary sued to recover the insurance, and alleged that, at the time the decedent became a member, the agent of the order assured him that the plaintiff was a dependent, within the meaning of the policy. There was no averment of any facts tending to show fraud on the part of the executive committee or the higher body. And it is held that, this being, so, one of the very questions which they had to determine was the effect of any alleged statements which the plaintiff was able to prove had been made by the agent, and that the case cannot therefore, on this ground, be distinguished from Canfield v. Knights of Maccabees, 87 Mich. 626.
    Error to Saginaw. (McKnight, J.)
    Argued May 1, 1894.
    Decided June 16, 1894.

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

      Rowland Connor, for appellant.

      Durand <& Carton, for defendant.
   Montgomery, J.

The defendant is a fraternal .and mutual benefit association, doing business on the assessment plan. It pays beneficiaries of the class to which deceased belonged $1,000. in case of death. By the laws of the order, beneficiaries are confined to widows, relatives within the first degree of kinship, and to dependents. Alexander Ooderre became a member of the order in 1891, and named the present plaintiff as beneficiary, claiming that he was a dependent. Coderre died July 16, 1892. Proofs of death were made by plaintiff. The executive committee of the order,. which passes on death claims, refused to allow the claim of plaintiff, on the ground that plaintiff was not, and never had been, a dependent of Coderre. On appeal to the Great Camp, this action of the executive committee was sustained. Plaintiff then brought the present suit in the circuit court for the county of Saginaw, and on the trial the circuit judge directed a verdict for the defendant, on the ground that, by his contract, the plaintiff was precluded from maintaining the action.

Among the laws of the order at the time that Coderre became a member of the defendant, and also in force at the time of his death, was section 83, which provides:

“The executive committee shall have power to pass on all death claims, and if, in their judgment, any such claim is not, on its face, a valid one, they shall notify the beneficiary or beneficiaries of the deceased member thereof, and give them or their attorneys an opportunity to appear before such committee within 60 days thereafter, and present such evidence as they may have to establish the justness of the said claim; and the said committee shall try, hear, and decide upon the justness or validity of such claim, and such decision shall be binding-on such claimant, unless an appeal is taken to the Great Camp. The notice of the appeal from the decision of the committee must be filed with the great record keeper within 60 days thereafter. The decision of the Great Camp in all such cases shall be final, and no suit in law or equity shall be commenced or maintained by any member or beneficiary against the Great Camp.”

We think the ruling of the circuit judge was in accordance with the holdings of this Court in Canfield v. Knights of Maccabees, 87 Mich. 626, and Van Poucke v. Society, 63 Id. 378. An attempt has been made to distinguish this case, but we do not discover any difference in principle between the Canfield case and the present. That was a death claim, and the plaintiff was wholly defeated. It was sought to try by the suit at law the question of whether the policy was binding at the time of the death of the deceased. The only possible difference between that and the present case is that in the present case the determination of the Great Camp was that the policy never was of binding force. (But this is not sufficient to distinguish the cases in principle.

The plaintiff contends that this law of the order is invalid as against public policy, for the reason that it attempts to oust the courts of jurisdiction. The same point was made in the Canfield case, and, while it was not much discussed, this Court held that the'case was controlled by the Van Poucke case. The holding of the courts places contracts of this nature by which one becomes a member of a mutual association, and entitled to benefits in case of disability, or whose heirs are entitled to benefits in case of death, as upon a different footing than ordinary contracts between individuals. As was said in the case of Rood v. Benefit Association, 31 Fed. Rep. 63:

.“This is a purely voluntary association. The members of the association have, by their own organic law, provided a tribunal to hear and determine all claims against it, and I do not think any court can be invoked to review the action of the board in a mattér so completely delegated to them. To attempt to enforce by suit any claim which the board of directors has acted upon, or refused to allow' or approve, is equivalent to prosecuting an appeal from this board. It was certainly competent for the members of this association to agree among themselves that the action of their board of directors in reference to any claim presented against the association should be final; and there can be no doubt from the language of the clause from the constitution just quoted that they have so agreed.”

See, also, Woolsey v. Odd Fellows, 61 Iowa, 492; Anacosta Tribe v. Murbach, 13 Md. 91; Society v. Vandyke, 2 Whart. 308; Toram v. Association, 4 Penn. St. 519; Lantalum v. Insurance Co., 22 New Br. 14.

The effect of this agreement would not be to oust the court of jurisdiction in case the Great Gamp should determine that the plaintiff was entitled to benefits, but should refuse to proceed to make payment. But such is not the case here. The plaintiff has submitted his claim to the jurisdiction provided by the laws of the order, and has been defeated therein, and now applies to the courts for redress. We think it was competent, under the decisions cited, for the association to provide a law of its order to which all parties should assent, and which should make a finding of liability by the duly-constituted committees of the order a condition precedent to a right .to receive benefits.

The plaintiff claims that the decision of this Court in Risser v. Hoyt, 53 Mich. 185, and other cases in which it has been held that the Legislature may not impair the right of trial by jury, are inconsistent with the validity of such an engagement as the one under consideration. We fail to see how the cases have any application to the question before us. This is not a case of an attempted exclusion of remedy by the Legislature, but a case where the parties have agreed that only on certain terms and under certain conditions shall a member be entitled to receive any benefits, or the beneficiary named be entitled to receive any sum in case of the death of the member.

But it is claimed, further, that the company is guilty of fraud, which takes this case out of the rule laid down in Canfield v. Knights of Maccabees. The declaration alleges that, before coming into court, the plaintiff diligently prosecuted his claim for payment, and has exhausted his remedies, before the tribunals provided by the order; and the plaintiff further alleges that “the defendant, in so refusing, as aforesaid, to pay said sum of money to said plaintiff, is acting in violation of the laws, rules, and regulations of said association, and is willfully seeking to defraud said plaintiff.” The only respect in which any fraud is alleged is that, at the time Coderre became a member, the agent of the company assured Coderre that the plaintiff was a “dependent,” within the meaning of the policy. There is no averment of any facts tending to show fraud on the part of the executive committee or of the Great Camp. This being so, one of the very questions which they had to determine was the effect of any alleged statements which the plaintiff was able to prove had been made by the agent of the company. Fraud cannot be predicated upon the decision of the tribunal constituted by the parties themselves, either as to the equity or the law of the case considered, unless, in fact, such committee acted in bad faith and oppressively. No such allegations are contained in the declaration, and the case cannot therefore, on this ground, be distinguished from the Canfield case.

The judgment of the court below will be affirmed, with costs.

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

       For a consideration of this contention regarding certain provisions in policies of insurance, see Utter v. Insurance Co., 65 Mich. 554; Lumber Co. v. Insurance Co., 80 Id. 120.


author: Long, J.

text:
    William A. Walz v. Christina Walz.

      Easement — Reservation in deed.

    The owner of a building, the lower story of which was divided by a permanent partition wall into two stores, within one of which a stairway led from the street to the upper story, and into a. hall, from which doors led into rooms over each store, conveyed the half of the building within which the stairs were built, and inserted in the deed a clause reserving to the grantor the right to use said stairs and hall in common with the owners of the premises conveyed. And it is held that the reservation created an easement appurtenant to the premises retained by the grantor, which right passed to a subsequent grantee of the said premises.

    Appeal from Calhoun. (Smith, J.)
    Argued May 1, 1894..
    Decided June 16, 1894.
    Bill to restrain defendant from interfering with complainant's rights in a certain stairway. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      George H. Soutlmorth, for complainant.

      Jesse M. Hatch (Herbert H. Winsor, of counsel), for defendant.

       See note to Hagerty v. Lee, 20 L. R. A. 631, for cases bearing on the questions of the exception and reservation of easements.

   Long, J.

This bill was filed to obtain a perpetual injunction against the defendant, restraining her from obstructing or in any manner interfering with the complainant's rights in a certain stairway, leading from the street to the upper floor of a store building.

This building was owned, prior to February 27, 1880, by John B. Tyler and wife, and consisted of a brick block of 40 feet frontage, and extending back from 60 to 80 feet. It was divided into two stores. On tbe first floor a permanent wall partition divided the stores from front to rear. A stairway of three or four feet in width was built within the west store on the easterly side, leading from the street to the second floor. At the top of the stairway is a narrow hall, out of which doors lead into rooms east and west over each store. The second story is divided by walls and partitions, and was formerly used for offices.

The husband of defendant, on February 27, 1880, purchased the west 20 feet of this building from John B. Tyler and wife. That deed contains the following reservation:

“ Said parties of the first part reserving the right to use the front stairs and the hall on the second floor in common with the owners of the premises hereby conveyed.”

After this purchase, defendant and her husband occupied the rooms over the store as a dwelling-house, and the Tylers occupied the rooms over the east store as a dwelling. On May 6, 1880, the complainant purchased the hast store from Mrs. Tyler, to whom .it had been conveyed by her husband. This deed did not specify any use to be made by the grantee of the stairway in question, which the Tylers had reserved when they conveyed to defendant’s husband; but on May 11, 1880, complainant procured a conveyance from Tyler and his wife and William Walz, the defendant’s husband, granting the use of .said stairway, as follows:

“Said William Walz, in consideration of the sum of one dollar to him paid, doth hereby sell, assign, transfer, bargain, grant, convey, and set over to said William A. Walz the right to use the front stairs, and the hall leading therefrom, on the second floor of said block, to be used as a passage way, and to be used in common with the said William A. Walz; also, the right of way at all times, for himself and all others that he may wish, over and upon said stairway and hall; and Ella A. Tyler (grantor of said William A. Walz of the said portion owned by him) and John B. Tyler, for value received, do hereby grant, bargain, sell, release, convey, transfer, and set over unto said William A. Walz the right to use said stairs and hall in common with the owners of the premises conveyed in a certain deed dated February 27, 1889, from said Ella A. Tyler to said William Walz, and all rights reserved to them in said deed in said stairway and hall and otherwise; the rights, privileges, and easement hereby transferred to be held and enjoyed by said William A. Walz, his executors, administrators, heirs, and assigns, forever.”

This conveyance was recorded in the office of the register of deeds on May 14, 1880.

On April 19, 1883, William Walz conveyed by deed to his wife, the defendant herein, the store purchased by him, being the west store of said block. In this deed the same reservation of stairs and hallway is made as in the deed from the Tylers to himself. William Walz thereafter died, and the defendant, claiming the right to the exclusive use of this stairway and hall, refused the complainant admittance thereto, or any use thereof, when he filed this bill to determine his rights, and to enjoin the defendant from further interfering therewith.

It appears that, after the complainant purchased his part of the block, he used the lower portion as a harness shop and the upper story as a storeroom for his business. He built a stairway inside of his own building, extending to the upper floor, and the defendant claims he had sufficient ingress to and egress from the upper floor through that stairway, and also that he could have had such by means of the alley to the east of the block, over which he had the right of way; that the stairway in question was not a way necessary for him to have egress from and ingress to his rooms on the upper floor. It is also contended that the reservation in the deed to her husband was a mere privilege to be enjoyed by Tyler and his wife, and was in no sense a servitude or burden upon her premises after the Tylers had conveyed title to the adjoining premises to the complainant. On the part of the Complainant, it is contended that the reservation was not a license or easement in gross, but appurtenant, and, being so, would pass by the conveyance from the Tylers to himself without express mention.

We think the case is ruled by Lathrop v. Elsner, 93 Mich. 599, and cases there cited, and that the reservation must be held to have created an easement appurtenant to the premises reserved by the Tylers. In this view of the case, it is not necessary to discuss the questions raised by counsel upon defendant's homestead rights in the premises. We think it required no conveyance from defendant's husband or further conveyance from the Tylers to give complainant all the rights which he claims.

The court below reached the right conclusion, — that the complainant was entitled to the relief asked, — and that decree will be affirmed.

The other Justices concurred.


text:
    Edward Lynch v. Edgar O. Durfee, Judge of Probate of Wayne County.

      Estates of deceased, persons — Probate notices — Newspaper.
    1. The power to determine in what partieular newspaper probate notices shall be published is left by the statute to the probate court.
    2. Where a judge of probate is ordered to show cause why a writ of prohibition should not issue restraining the appointment by him of an administrator, on the ground that the paper in which the notice of the hearing of the petition for such appointment was published is not a newspaper, within the meaning of the statute regulating the publication of probate notices, the return of the probate judge as to the character of said paper is binding upon the court issuing such order,
    3. The probate judge set up in his answer that the paper was a newspaper, published weekly in the city where his court was held; that, while devoted primarily to the interests of the legal profession, it also contained matters of interest to the general public; that it contained the proceedings of the Supreme Court, and of the courts of the city and county in which it was published; that it contained, from time to time, opinions of the federal courts, of those of other states, and of those of other counties in Michigan, where the same were of interest to the legal profession or to the general public; that it contained personal items of general interest and notices of passing events, and was intended, during the sessions of the Legislature, to contain its proceedings, and general items of interest in connection therewith; that it contained a record of real-estate transfers, mortgages, and bills of sale, and also advertisements, not only relating to the legal profession, but general trade advertisements, of interest to every one; that it circulated among judges, lawyers, bankers, brokers, real-estate agents, merchants, and business men, and was intended to contain items of importance to all, and was on sale at the news stands in the city where published. And it is held that the answer shows that the paper in question is a newspaper, within the meaning of How. Stat. § 5866, which provides that notice of the time and place of hearing an application for the appointment of an administrator shall be published in such newspaper as the probate judge may direct, and of How. Stat. § 6808, which provides that all probate notices required by law to be published by the judge of probate of any county shall be published in some newspaper printed in the county where he shall hold his court.

      Certiorari to Wayne. (Donovan, J.)
    Argued June 5, 1894.
    Decided June 16, 1894.
    Delator applied to the circuit court for a writ of prohibition to restrain respondent from appointing an administrator in the matter of the estate of Timothy Lynch, deceased, and brings certiorari to review the order denying said writ.
    Affirmed.
    ' The facts are stated in the opinion.

      Edwin F. Conely and Orla B. Taylor, for relator.

      Charles B. Warren, for respondent.
   Long, J.

Petitioner is one of the heirs at law of Timothy Lynch, deceased. On April 23, 1894, a petition was filed in the probate court for Wayne county by Patrick Lynch, a brother of petitioner, praying for the appointment of an administrator, as the deceased died intestate. An order was entered that the matter be set for hearing on May 22, 1894, and that notice of hearing be published in the Wayne County Legal News. Petitioner filed a protest against the appointment, on the' ground, among others, that the Wayne County Legal News, in which the notice was published, was not a newspaper printed and circulating in said county and State, within the meaning of the statute. This protest was overruled, and petitioner made application to the Wayne circuit court for a writ of prohibition against the probate judge, restraining the appointment on that ground. An order to show cause was granted, and the probate judge answered. Upon the hearing, the writ of prohibition was denied. The case now comes here on certiorari to review that finding.

How. Stat. § 5801, provides that the probate court shall appoint a time and place for proving any will, and “ shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such court in such newspaper printed in this State as the judge shall direct, three weeks successively,” etc.

Section 5866 provides that—

“When application shall be made to the judge of probate for the appointment of an administrator on an intestate estate, or for letters of administration with the will annexed, he shall cause notice of the same, and of the time and place of hearing thereof, to be published for three successive weeks in such newspaper as he may direct.”

Section 6808 provides:

“All probate and other legal notices required by law to be published by the judge of probate of any county * * * shall be published in some newspaper printed in the county where said probate judge shall hold his court.”

Section 9031 provides that—

“All legal advertisements shall be published in a newspaper printed in the county in which the proceedings are carried on,” etc.

These are the only provisions of our statutes relating to such publication.

The answer of the judge of probate made to the order of the court below to show cause sets up that the Wayne County Legal News is a newspaper, published weekly in the city of Detroit, and, while devoted primarily to the interests of the legal profession and the dissemination of legal knowledge, yet it is also intended to contain, and does contain, matters of interest to the general public; that it contains the proceedings of the Supreme Court of the State of Michigan, the Wayne circuit court, and the other courts of the - city of Detroit, and also contains notices of future proceedings in said courts; that it also contains, from time to time, opinions of the courts of the United States and of the other States, and also of other counties in Michigan, where the same are of interest to the legal profession or to the general public; that it also contains personal items of general interest, and notices of passing events; and respondent, asserts on information and belief that it is intended, when the Legislature is in session, to contain the proceedings thereof, and general items of interest in connection therewith. The answer further states that it contains a record of real-estate transfers and mortgages, chattel mortgages, and bills of sale, and also advertisements, not only relating to the legal profession, but general trade advertisements, of interest to every one; that it is intended to circulate, and in fact has a present circulation, among judges, lawyers, bankers, brokers, real-estate agents, merchants, and business men, and is intended to contain items of importance to all, and is on sale at the news stands in the city of Detroit. The answer further asserts that the Wayne County Legal News is intended-to fill the same position in the county of Wayne, State of Michigan, as is filled at present by the Chicago Legal News, the Toledo Legal News, the -St. Louis Legal Record, and other papers of similar nature in other cities; that it is not an innovation in the newspaper field, there being, as respondent asserts, upwards of 40 similar journals now published. A copy of the paper is filed with this return, as well as copies of the Chicago Legal News and other legal journals, which indicate the actual character of the Wayne County Legal News, and the field which it is intended to cover.

Similar provisions to sections 5801 and 5866, above referred to, are to be found in the Revised Statutes of 1846; the other provisions quoted were enacted in 1853 and 1857; so that these statutes were on the statute books long before the newspaper field was occupied by the many thousands of publications we now find in circulation. But a newspaper, even in the days when these statutes were enacted, meant what it means to-day, — a sheet of paper printed and distributed at short intervals for conveying intelligence of passing events; a public print that circulates news, advertisements, proceedings of legislative bodies, public documents, and the like. Under the return here we are unable to say that this paper does not come within this definition. Our statutes are quite similar to those of other states in reference to the publication of such notices. The Chicago Legal News was held to be a newspaper within the meaning of the Illinois statute. Kerr v. Hitt, 75 Ill. 51. The St. Louis Legal Record was held to be such a newspaper within the meaning of the Missouri statute in Kellogg v. Carrico, 47 Mo. 157. See, also, Hernandez v. Drake, 81 Ill. 34; Railton v. Lauder, 126 Id. 129; Id., 26 Ill. App. 655; Maass v. Hess, 140 Ill. 576; Benkendorf v. Vincenz, 52 Mo. 441; Hull v. King, 38 Minn. 349; Beecher v. Stephens, 25 Id. 146.

It was said in Beecher v. Stephens, supra:

“Newspapers are of so many varieties that it would be next to impossible to give any brief definition which would include and describe all kinds of newspapers.”

In Hull v. King, supra, the court quote this language, and further say:

“It would therefore be unsafe to attempt to give any definition of the term, except the very general one that, according to the usage of the business world and in ordinary understanding, a newspaper is a publication, usually in sheet form, intended for general circulation, and published regularly at short intervals, containing intelligence of current events and news of general interest. * * * But if a publication contains the general and current news of the day, it is none the less a newspaper because it is chiefly devoted to the dissemination of intelligence of a particular kind or to the advocacy of particular principles or views. Most newspapers are devoted largely to special interests, — political, religious, financial, moral, social, and the like; and each is naturally patronized mainly by those who are in accord with the views which it advocates, or who are most interested in the kind of intelligence “to which it gives special prominence. But if it gives the general current news of the day, it still comes within the definition of a newspaper.”

In the case of Kellogg v. Carrico, supra, the question was raised as to the validity of a publication in the St. Louis County Legal Becord and Advertiser. It was objected that such paper was not a newspaper. The court said:

The Legal Becord and Advertiser was printed in St. Louis in the form of a newspaper, and was issued to its subscribers daily, except Sundays, when the publication was omitted. It was devoted to the dissemination of general legal intelligence, and' engaged extensively in legal advertising, including the publication of notices of sales under deeds of trust, and sales on execution, and all judicial sales. It was a law and advertising journal, and so, in a limited sense at least, a newspaper; for whether a newspaper or not is a question that cannot be determined by a consideration alone of the kind of intelligence it disseminated. It is not the particular kind of intelligence published that constitutes one publication a newspaper rather than another. Newspapers are devoted to the dissemination of intelligence on a great variety of subjects, such as politics, commerce, temperance, religion, and so on; and the law and legal topics and occurrences are not excluded from the range of newspaper enterprise. A paper devoted to the gathering up and dissemination of legal news among its readers is, or at least may be, a newspaper. I regard the Legal Becord as a newspaper of that, character.”

The statute of Illinois provides that the publication of legal notices shall be in a secular newspaper of general circulation, or some paper specially authorized by law to publish legal notices, and the question was raised as to whether the Chicago Legal News came within the definition of a secular newspaper. In the case of Kerr v. Hitt, the court said:

“The Chicago Legal News is published in the city of Chicago, in the county where this proceeding was commenced; is published once a week; is devoted principally to the dissemination of legal intelligence, but makes reference to passing events, contains advertisements, brief notices of legislative bodies, personal and political items of interest to the general reader, as well as the legal profession. Thus it will be seen it comes, substantially at least, within the definition given by lexicographers of a 'newspaper/ It is none the less a newspaper because its chief object is the publication of legal news. Many newspapers published in this and other countries are devoted chiefly to special interests, — such as religious and political newspapers; others devoted exclusively to literature, — «that contain advertisements, news items, personal and political, brief notices of matters of special public concern, and reference to proceedings of legislative and other public bodies. So it is with this journal. Besides legal it contains other items of news, not only connected with the bench and bar, but others of a general interest. It is that class of journal that will circulate among lawyers, real-estate and other business men, for it contains information in regard to sales of real estate, whether under judicial process or under powers. Accordingly, its advertising columns contain notices of sales under trust deeds, on execution, judicial sales under decrees of court, and all manner of notices of legal transactions, as well as a limited number of other advertisements usually found in a newspaper of general circulation."

In the later case of Railton v. Lauder, supra, it was held that the Chicago Daily Law Bulletin was a newspaper within the meaning of the statute, the purpose of the paper being similar to that of the Chicago Legal News.

The court below was bound by the return of the probate judge as to the character of the Wayne County Legal News, and by that return it appears that such paper is as much a newspaper within the meaning of our statute as were the Chicago Legal News and the St. Louis Legal Record newspapers within the meaning of the statutes of Illinois and Missouri. We think the return shows this journal to be a newspaper within the meaning of our statute. It has a general circulation, and contains the general news of the day; and we have no power to determine what particular paper shall publish probate notices. That question is left by statute to the probate court.

We find no error in the record, and the finding of the court below will not be disturbed.

The other Justices concurred.


author: Hooker, J.

text:
    Amos A. Kinney and Alfred L. Millard v. George Ferguson.

      Trespass — Adverse possession — Abandonment of premises — Instructions to jury.

    1. Trespass to lands cannot be maintained against one actually in possession, although the plaintiff have the legal title, the remedy in suph case being ejectment or case, depending upon the wrong to be redressed; citing Safford v. Basto, 4 Mich. 406; Carpenter v. Smith, 40 Id. 639; Buggies v. Sands, 40 Id. 559; Hecoek v. Van Dusen, 80 Id. 359.
    2. Where, in an action of trespass to lands, each party offers proof tending to show ownership in fee, and the court instructs the jury that the plaintiffs must recover unless adverse possession by the defendant is proved, such instruction practically sustains plaintiffs’ alleged title, and as effectually deprives the defendant of any benefit from his, leaving him to stand or fall upon the one question of possession; and, on plaintiffs’ appeal, all questions arising Upon the respective titles may be eliminated from the case.
    3. Where, in an action of trespass to lands, the defendant claims, and introduces evidence tending to show, that the plaintiff abandoned possession of the lands, and that the party under "whom the defendant committed the acts complained of thereupon entered into possession, and retained it, and authorized the commission of such acts by the defendant, and the plaintiff maintains, and gives evidence tending to show, that he never abandoned the premises, and that the alleged possessory acts relied upon by defendant were mere trespasses, an instruction to the jury that the plaintiff would not lose possession by mere neglect to work or manage the place, and that an intention to surrender possession must be found from his acts and conduct, which must be such as to clearly prove an intention to abandon the land, is all that can be asked upon the question of abandonment; and the jury are further properly instructed that isolated acts of dominion by the defendant, and the party under whom he attempts to justify, would be trespasses, and would not constitute possession, which would involve continuity of dominion, — a taking and holding, which could alone be found from the character of the acts done and the surrounding circumstances.
    4. Concise charges are not only commendable, but essential to a good understanding of the case by the jury, and it is a very proper practice for the trial court to extract from requests to charge (which are admirable reminders) such matters as should be explained to the jury, weaving them into a charge which, from its continuity and harmony, will be better understood than a succession of abstract propositions could be.
    Error to Lenawee. (Peck, J., presiding.)
    Argued June 6, 1894.
    Decided June 16, 1894.
    Trespass. Plaintiffs bring error.
    Affirmed.
    The facts are stated in the opinion.

      A. L. Millard, for appellants.

      D. B. Morgan, for defendant.
   Hooker, J.

The plaintiffs appeal from a verdict of not guilty in a case of trespass quare clausum. The case was certified from justice’s court, upon plea of title, and each party offered proof tending to show ownership in fee. The evidence showed beyond dispute that the plaintiff Kinney was in possession at one time, and that one Hayward brought an action of ejectment against him and others in 1884, and obtained judgment of ouster, and entered and occupied until July, 1,889. A new trial was obtained, whereupon Hayward discontinued the ejectment case, and plaintiff Kinney took possession. Each party still claimed to own the land, and' Hayward commenced foreclosure proceedings against it. Defendant claims that Kinney thereupon abandoned the premises, after cutting the grass then upon it, and that from that time he never did anything upon the land to care for or use it. On May 27, 1890, a decree of foreclosure was granted; and Hayward, having some tax titles, is said to have taken possession, and maintained it since, and that, later he •arranged with the defendant to cut the grass, which he did, stacking it upon the premises, Hayward having previously repaired the fences. Plaintiffs maintain that they never abandoned the premises, and that the acts of Hayward in fixing the fence, and defendant in cutting and stacking the hay, were mere trespasses.

The court instructed the jury that the plaintiffs must recover, unless it was found that Hayward had taken and had possession of the land at the time of the alleged trespass. This question was left to the jury, with the following instruction:

“It is in dispute here whether or not he did take possession of the premises, whether the acts which he performed in connection with them amounted to a j)ossession of the premises, or were simply isolated acts, which constituted merely trespasses. Now, gentlemen, in order to determine whether these acts and his conduct with reference to the land were sufficient to establish a possession of it, — a complete taking and holding of possession of it,— you should consider what the character of the acts done by him was, and how and when they were done, and you should consider what the evidence has shown, as to the kind of land this was, its character, location, situation, the improvements which have been made upon it, the uses which it could naturally and profitably be put to, and all the surrounding circumstances and conditions under ■which it is claimed Mr. Hayward took possession of it.'
“ Now, it was not necessary, in order for Mr. Kinney to retain possession of it, that he remain upon the land, or that he work it, or manage it or improve it in any particular way, or to do any specific thing to evidence his •continued possession of it; and he should not be considered to have given it up unless his acts and conduct and statements with reference to it, at the time and under all the surrounding conditions and circumstances, clearly proved an intention on his part to abandon it.
“Now, the specific acts which are claimed to have been performed by Mr. Hayward, by himself or through Mr. Ferguson, would not of themselves, standing alone and separately, be sufficient to prove a taking of possession. The walking around, which has been testified to, to repair the fences, or the cutting of brush to put upon it, would not be sufficient to constitute a taking of possession of the. land; nor would the cutting of the crop upon it, standing alone; nor would the depasturing of it by putting animals in it, standing alone. But I leave it for you to determine, gentlemen, whether all the acts and conduct of Mr. nayward, and those who were in there under him, taken together, in connection with the character of the land, its general uses and purposes, what it might be naturally and profitably used for, and its location and situation, — whether, taking it all together, it has been proved that what was done by Mr. Hayward and those who were acting with him was sufficient to constitute taking possession of the land.”

The court did not stop with this, but required the jury to find for the plaintiffs, unless it should be found, further, that the alleged possession of Hayward was acquiesced in by the plaintiffs. He proceeded as follows:

“Now, gentlemen, if the acts performed by Mr. Hayward and those who were assisting him were not sufficient to constitute a taking and holding of possession of the premises in question, then one of the elements of this claimed defense of acquiescence is wanting, and the defense should not be allowed to prevail. On the other hand, if it has been well proved that Mr. Hayward did take possession there, to the exclusion of Mr. Kinney, then you will consider whether or not it has also been shown • that Mr. Kinney, after he had ascertained that Mr. Hayward had so taken and was holding possession of the premises, acquiesced in that condition of affairs. Did he submit to it, and allow it to stand, without objection or protest, for an unreasonable length of time? Now, gentlemen, you have heard the evidence in that respect, — the situation of Mr. Kinney, where he lived, what his location was with reference to these premises, his age, and all the other circumstances connected with it, — and should determine, from all the evidence in the case bearing upon that subject, whether or not the fact that Mr. Hayward had taken possession of this 40 acres of land, to his exclusion, came to his knowledge, and, if it did come to his knowledge, whether or not he submitted to it for a length of time which was unreasonable, under all the circumstances, without complaint or protest. If he did, then that fact, taken in connection with the fact, if it is established, that Mr. Hayward had taken possession of the premises to his exclusion, would establish the defense of acquiescence as against the entry and trespass of the defendant in entering and cutting down the grass, although it might have been unlawful, and was in the first instance. If it has not been established, the defense of acquiescence, with the essential ingredients that I have charged you are necessary t'o constitute it, have not been established, either in the respect of Mr. Hayward's taking possession, or in the respect of Mr. Kinney’s failing to protest and object to it within a reasonable time after it came to his knowledge, then it would follow that the plaintiffs would be entitled to your verdict. If that defense has been established, your verdict would be for the defendant.”

It is well settled that trespass cannot be maintained against one actually in possession, although the plaintiff have the legal title, — the remedy in such case being ejectment or case, depending upon the wrong to be redressed, — for the reason that there can never be constructive possession in one while another is in actual adverse possession. Ruggles v. Sands, 40 Mich. 559; Safford v. Basto, 4 Id. 406; Carpenter v. Smith, 40 Id. 639; Hecock v. Van Dusen, 80 Id. 359. Inasmuch; therefore, as the court instructed the jury that the plaintiffs must recover unless defendant’s adverse possession was proved, all questions arising upon the respective titles may be eliminated. He practically sustained the plaintiffs’ title by his instruction, and as effectually deprived the defendant of any benefit from his,leaving him to stand or fall upon the one question of possession. There is, therefore, no occasion to pass upon the various assignments of error relating to irregularities in the respective titles.

It remains to inquire:

First. Whether there was evidence which warranted the submission of the question of possession to the jury.

Second. Whether the instructions given were erroneous.

Third. Whether the omission of any of the requests to charge calls for a reversal.

We will pass the first of these questions with the remark that the record contains evidence tending to show that. Hayward exercised dominion over the premises, and that-Kinney did not; and that the court would not have been, justified in stating to the jury that the evidence showed, that Hayward was not in possession.

We can dispose of the second as summarily. The portions of the charge quoted seem to us to have carefully-stated the true question. The jurors- were not permitted to find possession from a single act of trespass. They were told that Kinney would not lose possession by mere neglect to work or manage the place, and that an intention to give it up must be found from his acts and conduct, which must be such as to clearly prove an intention to abandon it.” This was certainly all that could be asked upon the question of abandonment. The court also indicated that isolated acts of dominion by the defendant and Hayward would be trespasses, and that such, would not constitute possession, which involved continuity of dominion, — a taking and holding, which could alone be found from the character of the acts done and the surrounding circumstances.

Counsel for the plaintiffs says in his brief:

“Every one of the 20 requests was, as we submit, correct in respect to the law, and proper to be given; and the plaintiffs were entitled to them, and the refusal as to each was error.”

As counsel says, some of them state the law correctly, but it by no means follows that it was necessary to give them. The seventh and eighth requests, which alone are discussed specifically by counsel, were rendered unnecessary by the charge as given. The court as effectually told the jury that defendant's possession must be by open, exclusive, and continued acts of ownership as though the seventh had been given; and he was not called upon to give plaintiffs' illustrations of what would show possession, which were things which defendant' did not do, and might •have misled the jury. The eighth, in effect, would have directed a verdict for the plaintiffs, which, we have already .said, the court should not have done. To have given the :20 requests to charge would have made the charge unnecessarily long. They fill two or three more pages of the ¿récord than the charge does. We think concise charges .are not only commendable, but essential to a good understanding of the case by the jury, and that it is a very proper practice for the court to extract from requests (which are admirable reminders) such matters as should be explained to the jury, weaving them into a charge which, from its continuity and harmony, will be better understood than a succession of abstract propositions could be. We have examined the requests and the charge, and think that the court sufficiently covered .the questions raised. If, as seems to be the case, the real controversy is the right to the possession of the premises involved, it is unfortunate that a different action had not been brought.

The judgment of the circuit court will be affirmed.

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


text:
    Amos A. Kinney and Alfred L. Millard v. William Service.
    [See 91 Mich. 639.]

      Trespass — Estoppel.
    Where, on the trial of an action of trespass to lands, it appears that the defendant, before committing the alleged trespass, applied to the plaintiff to ascertain -whether or not he had any claim upon the land, and was informed by the plaintiff that he did not know who was boss, but that he rather thought a third person (with whom plaintiff had been in litigation over the title to the land) was, and, if he should change his opinion about the matter, he would let the defendant know, and give him the first chance to rent the land; and the defendant, after waiting a reasonable time, and receiving no information from the plaintiff of any claim on his part to the land, or change of intention or mind upon the subject, and in reliance upon said statements, applied to the adverse claimant to rent the land of him, and entered thereon and did the acts' complained of under his authority, — the plaintiff is estopped to deny that such entry was lawful, and cannot maintain said action.
    Error to Lenawee. (Peck, J., presiding.)
    Argued June 6, 1894.
    Decided June 16, 1894.
    Trespass.- Plaintiffs bring error.
    Affirmed.
    The facts are stated in the opinion, and in Kinney v. Ferguson, ante, 178.

      A. L. Millard, for appellants.

      D. B. Morgan, for defendant.
   Hooker, J.

This case is a companion to that of Kinney v. Ferguson, ante, «178, which it closely resembles. There is, however, one question not involved in that case which requires attention, but for which it would be passed with the remark that it was in all respects similar. Instead of leaving the case to turn upon the fact of possession by Hayward, the court instructed the jury as follows:

“Now, gentlemen, some evidence has» been given with reference to the conversation or interview between the defendant here, Mr. Service, and Mr. Quilliams, who has been a witness upon the stand, with Mr. Kinney, one of the plaintiffs, in the early part of March, 1891. The parties disagree as to what occurred at that interview. Mr. Kinney’s testimony has been read to you, and it is not in perfect accord with the testimony of Mr. Service and Mr. Quilliams. Precisely what did occur there you will determine from the testimony of all the witnesses who have been sworn upon that subject, giving to each credence and faith as you think it fairly entitled to. And with reference to that subject 1 charge you that if you find from the evidence that in March, 1891, the defendant, Mr. Service, in company with Mr. Quilliams, before going upon the land and committing the acts which are charged as trespasses in this case, went to Mr. Kinney, called upon him, to ascertain whether he had any claim upon the land, or applied to him to lease it, and, having stated the object of their visit, Mr. Kinney told them, in substance, that he did not know who was boss, Mr. Hayward or himself, but, from what he had read in the 'Morenci paper, he thought Mr. Hayward was, and, if he should change his opinion about the matter, he would let them know, and give them the first chance to rent the land, and if Mr. Kinney did not afterwards inform them of any claim on his part, or change of intention or mind upon the subject, and the defendant, Mr. Service, after waiting a time which would be reasonable under all the surrounding circumstances, acting in reliance upon Mr. Kinney’s statement so made, applied to Mr. Hayward to rent the land of him, and entered upon the premises and did the acts complained of in this case under Mr. Hayward’s authority, in that case the plaintiffs cannot complain here of these acts as trespasses, and your verdict should be for the defendant. Now, if this state of facts, which I have just charged you1 would defeat the plaintiffs’ action,., has not been proved by the evidence, if all the conditions which I have just charged you are essential to establish this particular defense have not been shown by the proof in the case, the plaintiffs should not lose their action here for that reason, nor would the defendant be allowed to escape the result of his trespasses because of any waiver or estoppel worked out and acted upon by him as the result of that conversation.”

The defendant testified that, after the talk alluded to in the charge,' he hired the place of Hayward, and put in his crops, some time in April; that in July plaintiff Kinney came by and saw him at work, asked him if he rented of Hayward, to which he replied that he did, and- forbade his doing more unless he did it for him.

We think the charge was right. If defendant entered under the circumstances described in the charge, the plaintiffs were estopped to deny that the entry was lawful, and trespass would not lie for the subsequent acts of defendant in caring for and removing his crops.

The judgment must be affirmed.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, C. J., did not sit.


text:
    John E. Johnson v. The Board of Canvassers of the Village of Casnovia.

      Elections — Recount—Village officers — Marking ballots — Board of canvassers.

    1. Act No. 208, Laws of 1887 (3 How. Stat. § 234a), which provides for the correction of frauds and mistakes in the canvass and returns made by inspectors of elections, does not cover village elections.
    2. Where the official ballot used at a village election under the election law of 1891, as amended in 1893,. contains but one ticket, i. e., the name of but one person for each and every office to be voted for at such election, the failure of electors to stamp a cross in the circle at the head of their tickets, while a non-compliance with the statute, will not authorize the inspectors of election to reject the ballots.
    3. The common council of the village, when convened to determine the result of the election, as required by law, can act only upon the returns received from the board of inspectors, and the only remedy of a candidate, who is defeated by the rejection of such unstamped ballots, is by quo warranto; citing Roomer v. Board of Canvassers, 90 Mich. 27.

      Certiorari to Kent. (Adsit, J.)
    Argued June 5, 1894.
    Decided June 16, 1894.
    Relator applied to the circuit court ior mandamus to compel respondent to recount the votes cast at a village election, and to declare the result. Respondent brings certiorari to review the order granting the writ.
    Reversed.
    The facts are stated in the opinion.

      William Wisner Taylor (Henry J. Felicer, of counsel), for relator.

      Maher & Salsiury, for respondent.

       recount of votes.
      For cases bearing upon the construction of and proper practice under 3 How. Stat. § 234a, which provides for a recount of the votes cast at certain elections, on the petition of a candidate voted for at the particular election who conceives himself aggrieved on account of any fraud or mistake in the canvass of the votes by the inspectors of election, or in the returns made, see:

        To What Offices the Act Applies.

        Wheeler v. Board of Canvassers, 94 Mich. 448, Belknap v. Board of Canvassers, 94 Id. 516, and Vance v. Board of Canvassers, 95 Id. 462, holding the act inapplicable to the offices of State Senator, member of Congress, and circuit judge, respectively; and Naumann v. Board of Canvassers, 73 Mich, 252, holding it inapplicable to those cases where the city council, by whatever name it is called, is made the absolute judge of the election and right to office of its members.

        How Right to a Recount Enforced.

      1. McKenzie v. Board of Canvassers, 70 Mich. 147, where a candidate for alderman in a city, whose charter did not make the board of city canvassers or the common council judges of the election or qualifications of aldermen, complied with all of the requirements of the act, and asked for a recount of the votes by said board on the ground of alleged mistakes in the count made by the inspectors of election, and mandamus was granted to compel such recount.
      2. Packard v. Board of Canvassers, 94 Mich. 450, holding that where the application is filed in time, and the board of canvassers refuse to recount under the act, mandamus will lie to set the board in motion; but when they have recounted and declared the result, and made their return and adjourned, they become functus officio, and the remedy of the party claiming to be aggrieved is by a quo warranto proceeding to test the validity of the election.
      3. May v. Board of Canvassers, 94 Mich. 505, holding that the statute gives an aggrieved party the right to a recount of the votes cast for and against him for the office for which he was a candidate, upon his complying" with its provisions, enforceable by mandamus.

        When the Application for a Recount Must he Made.

        Newton v. Board of Canvassers, 94 Mich. 455, holding:
      a — That an application by a candidate for Supreme Judge to the board of county canvas-ers for a recount, made on the last day on which the Board of State Canvassers can, if the direction of the statute is to be observed, canvass the returns and issue the certificate of election, is not in time, and mandamus will not lie to compel a recount.
      h — That the board of county canvassers acting on a contest may well be held to constitute a special tribunal when in session only for the purpose of considering such contest, and it was not the legislative intent that the presentation of an application for a recount to the body when so acting, and after a full determination of the result as to the candidates for other offices, should entitle the party presenting such petition to a recount.

        Procedure on Recount.

      1. Packard v. Board of Canvassers, 94 Mich. 450, holding that the provision of the act requiring the recounting committee to make a return to the board of canvassers, “showing the whole number of votes given, the names of the candidates, and the number of votes given to each, written out in words and figures as upon the ballots,” cannot be construed as calling for a statement of every contested ballot, showing the reasons for which it was rejected, so that the contestant may take advantage of any error by writ of certiorari to the circuit court.
      2. Newton v. Board of Canvassers, 94 Mich. 455, holding that, in case of various contests arising before the board of canvassers, different committees may be appointed, and the recount in all cases proceed at once.
      3. May v. Board of Canvassers, 94 Mich. 505, holding:
      a — That the provision of the act giving the board of canvassers power to cause the ballot-boxes, used in the election districts in which the errors, mistakes, or frauds complained of are alleged to have occurred, to be brought before it, is not mandatory, but was intended to confer a right which the board might exercise in case of necessity, its purpose not being to enable the board to ascertain whether a recount shall be had, but whether there was fraud or mistake in the original count.
      b — That the statute gives to neither the board of canvassers nor to the committee appointed to make the recount power to enter upon an investigation of alleged frauds committed at the election; nor does it confer power upon the board to compare the registration lists with the poll-lists for the purpose of determining whether the votes of unregistered persons were received, and to exclude the entire vote of a precinct on that ground.
      c — That, if the resolution of the board directs the committee to proceed to investigate the matters set forth in the petition, a further provision authorizing them to open' all ballot-boxes containing votes cast for the office for which the petitioner was a candidate should be construed as having relation to the investigation thus directed, and as being limited to the ballot boxes in the precincts named in the petition.
      d — That where, upon the face of the returns of the inspectors of election, as corrected by the authorized recount, the petitioner is shown to have received a plurality of the votes cast for the office for which he was a candidate, and the .board of canvassers assumes to change said result by correcting the returns from a precinct according to an unauthorized recount of the ballots cast therein for said office, and by the rejection of the Vote of an entire precinct on the ground that votes were cast therein by persons who were not registered, mandamus will lie to compel the board to reconvene, and vacate a resolution directing the issuance of a certificate of election to the candidate thus shown to have been elected, and direct that a certificate be issued to the petitioner.

   Hooker, J.

At the 'village election of Casnovia, held on the second Monday in March, 1894, the official ballot contained but one ticket, i. e., the name of but one person for each and every office to be voted for at.such election. Relator’s name was printed thereon as candidate for the office of president. The relator was at that time president of said village, and for that reason did not act as inspector of election. The result of the election was declared during the evening of election day by the inspectors, it being by them announced that relator had received 34 votes, and his competitor, John ~W. Dudley, 35 votes, for such office, and they made out a statement of the result of said election, in which they stated and gave out that said Dudley was elected president of said village. Upon Thursday following the election, viz., March 15, the council of said village convened to determine the result of said election, which meeting was adjourned one week without action. Before said adjourned meeting, relator made a petition for a recount of the votes cast for the office of president, and deposited the sum of $10, together with said petition, with the clerk of said village, and upon the 22d day of March caused a copy thereof to be served on said Dudley. The ground of • such application was the alleged failure of the inspectors to count for the relator seven official ballots which were excluded by said inspectors for the reason that no stamp or cross appeared upon them. Relator’s petition alleges, and the return does not deny, that at said adjourned meeting the council declined to take any action in relation to his said petition, and adjourned without taking any action in regard to a canvass of said votes. The petition further states that Dudley gave out and claimed his election to said office. Relator thereupon obtained a writ of mandamus from the Kent circuit court, requiring respondents to meet-and count the votes cast at said election, and determine the result, and they bring the cause to this Court by certiorari.

Three reasons are alleged for a reversal of the order of the circuit court:

1. The insufficiency of the petition for mandamus.

3. That the statute does not authorize recounts in village elections.

3. That the unmarked ballots could not lawfully be counted.

The act (No. 308, Laws of 1887) provides for the presentation to certain boards therein mentioned of a petition for a recount of ballots cast at any election by any candidate voted for at such election. Village boards or councils are not among them, and none of the boards mentioned have to do with elections of village officers. Were we to hold the act applicable to village elections, we should also be compelled to say that presentation to such boards was contemplated, though the express terms limit applications to those mentioned, viz., “board of city canvassers, if a city or ward office, or district board, or the board of county canvassers, in all other cases." We think it more reasonable to hold that the term “ any candidate voted for at any election" is limited by the other language of the act, and that it does not cover village, school-district, and possibly some other elections. '

The other important point relates to the ballot. Containing but one name for each office, there can be no doubt that the voter intended to vote for the peisons whose names were printed therein, unless we accept the ingenious argument of counsel that the voter desired that his ballot should not be counted, but put it in the ballot-box to deceive somebody, which would be going a great way to avoid the duties of citizenship. It is true that the law was not technically complied with by those who cast these ballots, but the stamping of these ballots would not, so far as we can see, have added to the certainty of the voter's intention, nor does the failure in any way hazard the rights of any one. In such a case the voter should not be deprived of his vote, if it can be avoided.

We think, however, that the council could act only upon the returns received from the board of inspectors, and that relator’s only remedy is by quo warranto. Roemer v. Board of Canvassers, 90 Mich. 27. We are therefore constrained to reverse the order of the circuit judge, with costs.

The other Justices concurred.


text:
    Christian Yockey v. James Norn.

      Standing timber — Sale—Passing of title.

    Where a contract for the sale of standing timber provides for final payment of the purchase price when the timber is loaded úpoD the cars by the vendor, who agrees to cut and so deliver it to the purchaser, the title does not pass until such delivery is made.
    Appeal from Oscoda. (Simpson, J.)'
    Argued April 27, 1894.
    Decided June 16, 1894.
    Bill to restrain the removal of certain timber. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      C. R. Henry (M. J. Connine and C. H. Gage, of counsel), for complainant.

      McDonell & Hall, for defendant.
   Hooker, J.

One Clark, being the owner of land on sections 11, 25, and 33, township 29 N. of range 1 W., made a writing, signed by himself and the defendant, of which a copy follows:

“ This agreement, made the 5th 'day of December, 1891, by and between Dayton Clark, of Grayling, Crawford county, Mich., of the first part, and James Norn, of Standish, Arenac county, Mich., of the second part, witnessed:
“That for and in consideration of the sum of $6.00 per M. feet the party of the first part agrees to sell, and hereby does sell, also to cut, skid, and put on cars for said second party, all the timber except 200 M., which the price is to be $8.00 per M. feet,'on the following described land, viz.: Entire section 33; also entire section 11; also the north half, and the south half of the south half, of section 25, — all in town 29 north of range 1 west.
• “Said second party agrees to pay said first party the sum of $1.00 per M. for all timber as fast as skidded, and roads made to each skidway, on section 33 and 25; and for all timber on section 11, as fast as skidded and roads made to each skidway, $1.50 per M. feet. Also the second party agrees to pay for said timber $1.50 as fast as banked on said railroad, balance to be paid when said timber is all loaded on cars, and scale to be determined by the Michigan Central Eailroad Company; and, at any time-when either first party or second party is dissatisfied with said scale, another scaler may be agreed on, to be selected by both parties, but all timber scaled by Michigan Central, till such scaler is selected, shall be final.
“At the signing of this contract there is now paid on said work (which receipt is hereby acknowledged) $3,391.62, which we set our hand the day and year first above written.
“Dayton D. Clark.
“James Norn.”

This was followed a' few days later by another agreement, to wit:

‘‘This agreement, made this 14th day of December, 1891. Dayton Clark, of Grayling, sells to James Norn, of Standish, all the pine and Norway timber on the S. ½ of N. E. ¼, S. W. ¼, and W. ½ of S. E. ¼ of section 6, in town 28 north of range 1 east. Said Clark is. to put said timber on cars for $6.00 per M. feet. Payments to be as follows: One dollar per M. when on the track -ready to put on cars, and balance when all loaded on cars. Said Clark is to leave said timber, or as much of some other timber, till the 24th day of June, if said Norn cannot take it sooner. Said Norn is to advance said Clark with $3,200, which said Clark is to pay interest for the advance at rate of 7 per cent, for 4 months. Logs to be-cut as directed by Norn. Scaling to be done by railroad company, if satisfactory, and, if not satisfactory, another scaler to be selected, agreeable to both parties.
“ Whereof the parties set their hands the day first above written.
“Dayton D. Clark.
“ James Norn.”

•Early in March, 1892, Clark, being embarrassed financially, deeded the land in controversy, viz., that on section 6, by quitclaim deed and a few days later by warranty deed, to Mrs. Elliott, without consideration, for the purpose of protecting it from his creditors. At Clark’s suggestion, one Peter Shien, a land agent, attempted to sell the parcel on section 6 to two or more different persons, and finally closed a sale to the complainant. Defendant having asserted a title to the timber, and threatened to remove the same, this bill was filed to restrain him from doing so, and to settle the rights- of the parties.

An examination of the evidence convinces us that the circuit judge was right in holding that the defendant was not in possession of the premises at the time of complainant’s purchase, and that the complainant had no actual notice, personally, of defendant’s interest in the timber or premises. It seems as clear that Shien had such potice before the consideration was paid by the complainant. The questions involved are:

1. Did the agreement of December 14 convey to the defendant the title to the timber?

2. If it did, was complainant bound by notice to Shien?

The agreement of December 14 used the expression, “ Dayton Clark sells to James Norn all the pine' and Norway timber” on the premises. Standing alone, this is a plain and explicit sale, by which the title to the timber standing and fallen would pass. This contract does not, in express terms, include a license to enter and remove the timber; on the contrary, it expressly provides that Clark shall deliver it elsewhere. This tends to negative a license to enter and remove the timber, which might otherwise be implied. Nettleton v. Sikes, 8 Metc. 34; Wood v. Manley, 11 Adol. & E. 34; Parsons v. Camp, 11 Conn. 525; White v. Elwell, 48 Me. 360; Anthony v. Haneys, 8 Bing. 186; Williams v. Morris, 8 Mees. & W. 488; McLeod v. Jones, 105 Mass. 403, 406; Boults v. Mitchell, 15 Penn. St. 371. Again, the agreement does not state a consideration for the timber alone, but upon its delivery upon the cars. This necessarily includes the cutting, hauling, and loading. The payment of $3,200 was not treated as payment down upon a purchase, but was called an advancement,” and 7 per cent, interest was stipulated for a period of four months. Furthermore, Norn did not treat this as the purchase price of the timber. He charged the sum to Clark, with whom he had other dealings, the account of which was not kept separate from this. He paid orders from Clark given to Clarkes men for lumbering upon section 6 and the other sections, and charged them up indiscriminately. Against’ these charges was credited the amount of lumber received from various sources, all at $6 per 1,000 feet. Norn testifies that the money was paid as an advancement to enable Clark to keep at work, he being lumbering and selling logs to Norn. Clark wanted more timber to cut, and obtained this money to pay for the land; Norn first getting a draft payable to Pack, from whom Clark got his title. The deed was in the hands of Mr. Staley, and Pack returned the draft to Norn, to be made payable to Staley, which was done, and Mr. Clark received his deed at that time from Staley. The contract of December 14 was the fourth one between Clark and Norn, and matters were unsettled between them. The contract was not witnessed or acknowledged, and therefore conld not be recorded. Norn was not to enter into possession of the premises. Under the circumstances, Clark could hardly have escaped bearing the loss had the timber been destroyed by fire before delivery. Upon the whole record we conclude that it was not the intention of the parties that title to the timber should pass by the contract of December 14 until delivery upon the cars, and it would follow that the complainant was entitled to relief. It is therefore unnecessary to discuss the question of notice.

The decree of the circuit court will be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    John W. Stofflet et al., Trustees of the Salem Church of the Evangelical Church of North America, at Vicksburg, Michigan, v. Emanuel C. Strome.

      Corporations — Religious society — Denial of incorporation — Estoppel —Pleading—Name of plaintiff — Amendment.
    1. The maker of a promissory note, given to a religious society in its corporate name to assist in the payment of its debts, cannot escape liability by showing that the certificate of incorporation of the society was not recorded until after the making of the note.
    2. The summons in a suit upon a promissory note payable to the order of the “ Evangelical Church of Vicksburg, Michigan,” described the plaintiffs as “Trustees of the Salem Church of the Evangelical Church of North America, a Corporation, at Vicksburg, Michigan.” The name specified in the certificate of incorporation was the “Salem Church of the Evangelical Association of North America, in Kalamazoo County, State of Michigan,” being the county in which Vicksburg is situated. The plaintiffs declared orally on a certain promissory note made and executed by the defendant to the “ Evangelical Church of Vicksburg, Michigan,” and averred that said note was intended for the “ Salem Church of the Evangelical Association of North America, of Vicksburg, Michigan,” to which declaration the defendant pleaded the general issue. And it is held that the objection of the defendant, made on the trial of an appeal from the .justice’s judgment, that the suit was not brought in the name of the corporation as expressed in the certificate of incorporation, not having been taken before the justice, was waived.
    3. Where in a suit in justice’s court, intended to be' brought in the corporate name of a religious society, the trustees’ names are stated in the summons, followed by the clause, “ Trustees of the” corporation, but omitting the word “as,” and the defendant pleads the general issue, and denies under oath that the plaintiff is a corporation, and, on the trial of an appeal from the justice’s judgment, for the first time raises the objection that the suit was commenced by the plaintiffs in their individual capacity, and not as the church or corporation, the appellate court will consider an amendment made in the furtherance of justice, if appearing that the defendant has not been misled or prejudiced; citing Merrill v. Village of Kalamazoo, 35 Mich. 311; Warder, Bushnell & Glessner Co. v. Gibbs, 93 Id. 39.
    Error to Kalamazoo. .(Buck, J.)
    Submitted on briefs June 5, 1894.
    Decided June 16, 1894.

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

      Frank E. Knappen and Howard & Boos, for appellant.

      Jesse B. Gropsey (Dallas Boudeman, of counsel), for plaintiff.
   Grant, J.

This suit is based upon a promissory note for $25, dated March 20, 1890, which the defendant promised to pay to the order of the Evangelical Church of Vicksburg, Michigan. Plaintiff recovered judgment, and defendant appeals. Plaintiff's articles of association were dated May 14, 1887, acknowledged in February, 1889, and recorded with the county clerk December 23, 1892.

The first contention is that the plaintiff corporation was not in existence at the time the note was given, and therefore no recovery can be had. The corporation was. organized under chapter 170, How. Stat. Section 4621 provides for the election of trustees, and the making of the certificate of such election. Section 4622 provides for the acknowledgment of such certificate, and the recording of the same with the county clerk, and that, after, the-recording thereof, “such trustees and their successors shall be a body corporate, by the name expressed in such certificate.” Counsel recognize the rule that parties dealing with business corporations are estopped to deny their legal incorporation, but deny that the defendant knew in this-case that the plaintiff claimed to be a corporation. This-position cannot be sustained. The payee named was the-corporation. The note was given to assist in the payment-of its debts. Defendant treated with it as a corporation,, and cannot defeat his liability by the .failure to record the; certificate. Willard v. Trustees, 66 Ill. 55.

The next cohtention is that the suit was not brought, in the name of the corporation. The name specified in the certificate is the “Salem Church of the Evangelical Association of North America, in Kalamazoo County, State-of Michigan.” In the summons the names of the trustees-were stated, after which appeared the following clause:: “ Trustees of the Salem Church of the Evangelical Church of North America, a Corporation, at Vicksburg, Michigan.” The precise claim is that the suit should have been instituted by the name expressed in the certificate. The declaration sets forth the note, and describes the plaintiff by the name therein given. To this the general issue was pleaded. No objection was taken before the justice, and it was therefore waived.

It is contended that the suit was commenced by the plaintiffs in their individual capacity, and not as the church or corporation. It is too plain to require argument that it was intended to bring suit in the name of and for the benefit of the corporation. The defendant and his counsel so understood it on the trial, before the justicé, for he interposed the plea of the general issue, and notice “that the plaintiff was not a corporation at the time of the making of said note’ and filed an affidavit to that effect. The case was tried before the justice with the jury, and this point does not appear to have been raised. If, however, the point is technically correct, it does not affect the merits of the case. The defendant has not been misled or prejudiced. In such case this Court will consider an amendment made in the furtherance of justice. Merrill v. Village of Kalamazoo, 35 Mich. 211; Warder, Bushnell & Glessner Co, v. Gibbs, 92 Id. 29.

Judgment affirmed.

The other Justices concurred.


text:
    Charles O. Smedley v. John Dregge.

      Attorneys — Assignment of mechanics' liens for collection— Champerty.

    How. Stat. § 7185, which provides that “no attorney, solicitor, or counselor shall, directly or indirectly, buy, or be in any manner interested in buying, any bond, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of bringing any suit thereon,” does not apply to an assignment to an attorney of mechanics’ liens for the purpose of collection, and to avoid expense and a multiplicity of suits.

    Appeal from Kent. (Adsit, J.)
    Submitted on briefs .June 6, 1891.
    Decided June 16, 1891.
    Bill to foreclose mechanics' liens. Complainant appeals from decree sustaining demurrer.
    Decree reversed, and cause remanded for further proceedings.
    The facts are .stated in the opinion.

      C. O. Smedley (Benn M. Corwin, of counsel), for complainant.

      Wesselius, Corbitt & Ewing, for defendant.

       See Town v. Tabor, 34 Mich. 262, 267, holding that there is no law in this State to prevent an attorney from buying a chattel of one person, and then suing another in replevin to get possession of it.

   Grant, J.

The bill of complaint in this cause was filed to foreclose several mechanics' liens which were .assigned to the complainant for the purpose of having him collect the same, and to save expenses and a multiplicity of suits. The defendant interposed a general demurrer, which was sustained by the court, upon the ground that the complainant, being a solicitor, could not maintain the .suit.

How. Stat. § 7185, reads as follows:

No attorney, solicitor, or counselor shall, directly or indirectly, buy, or be in any manner interested in buying, any bond, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of bringing any suit thereon.”

1. This Court held in Herbstreit v. Beckwith, 35 Mich. 95, that there is no authority against transfers to agents and attorneys for convenience of suit. There was no buying in this case, under the allegation- of the bill, but a legitimate assignment, to avoid expense and a multiplicity of suits. Clearly, therefore, the statute has no application here.

2. If the demurrer was sustained on the ground that the assignment was champertous, this was erroneous, under How. Stat. § 9004. Wildey v. Crane, 63 Mich. 720.

Decree reversed, with costs of both courts, and the cause remanded for further proceedings.

The other Justices concurred.