text:
      In re CHAPPELL’S ESTATE.
    1. Evidence — Competency—Guardian and Ward — Insanity.
    It is not proof of mental incompetency, standing alone, that respondent frequently changed her mind, or made bad business bargains, or that she failed to pay the agreed amount for driving a well.
    2. Same — Incompetency—Mentally Incompetent.
    Under section 8709, 3 Comp. Laws, the term “mentally incompetent” as used, refers to a person whose mind has become so affected as to have lost control of itself to such a degree as to deprive the person affected of sane and normal action.
    Error to Berrien; Bridgman, J.
    Submitted June 22, 1915.
    (Docket No. 98.)
    Decided December 22, 1915.
    Petition by Frederick Haselo, to secure the appointment of a guardian of Orilla Haselo Chappell. From a judgment in the probate court finding her incompetent, respondent appealed to the circuit court. Judgment for petitioner. Respondent brings error.
    Reversed ; new trial denied.

      Harry A. Plummer and John J. Sterling, for appellant.

      Harris S. Whitney, for appellee.
    This is a proceeding to obtain the appointment of a guardian of the person and estate of Mrs. Haselo, now Mrs. Chappell, upon the ground that she is mentally incompetent to have the charge, custody, and management of her person and estate. Mrs. Haselo removed from Cherry Valley, 111., to Benton Harbor in this State on October 10, 1910. She was then about 72 years of age, and in good physical health, although somewhat deaf. Her late husband, Frederick Haselo, had been dead a little more than a year. Previous to his death he had been an invalid for some 11 years, during which time Mrs. Haselo had cared for him and looked after the business on the farm. Six children had been born of her marriage to Mr. Haselo, five of whom are living, and the youngest is upwards of 40 years of age. During the long period of her husband’s illness, when she had the burden of caring for him and looking after the property, she says that the children gave her but little assistance and seldom visited her. When she came to Michigan, Mrs. Haselo was the owner of a life estate in a farm of 100 acres in Illinois, left her by her late husband. This property produced a rental of from $450 to $550 per year, but she seems to have had more or less trouble in obtaining payment of the rent. She also had a home in Cherry Valley worth about $1,100, and a place in Belvidere which was sold for $1,000. Her son testifies that she had also about $800 in notes. Shortly after coming here she purchased a house and four lots in Benton Harbor, and lived there until the following March. For the purpose of buying this property she borrowed $900 from her oldest son, Frederick Haselo, and to secure its payment she gave him a mortgage on her home in Cherry Valley, due in two years, with interest payable annually. This mortgage the son foreclosed at the end of the first year, for nonpayment of interest. This is the same son who makes this application for the appointment of a guardian.
    • It does not appear that any of the children visited Mrs. Haselo after she came to Michigan. She says:
    “My son Fred never came here to see me until he came to make this petition; then he came to see me with an officer.”
    In March, 1911, she went to live with one Edgar A. Chappell, a farmer in Berrien county, as his housekeeper ; and at about the same time they entered into a contract in writing, bearing date the 20th day of March, 1911, by which it was agreed that Mrs. Haselo should do such work for Mr. Chappell as is usually performed by a housekeeper, and have her board and lodging, and that Mr. Chappell should look after her business affairs, collect her rents, about which she was having some trouble, and such other moneys as might be, or become, due her, and account to her monthly for all that should come into his hands. Neither was to have any further compensation for work done under the contract, and the contract was to be revocable at the pleasure of either. Shortly after this it was agreed between Mr. Chappell and Mrs. Haselo that they would be married; and in view of the fact that she was to become his wife, it was her wish, she says, that he should have the use of her property during his lifetime, the principal being so secured that it would eventually come back to her children. In September, 1911, she executed a deed of her Benton Harbor property to a third person and had the same re-conveyed to herself and Mr. Chappell jointly, so as to make a home for him, she said, if his farm should be taken away. On the 9th day of December, 1911, they entered into a further contract, whereby Mr. Chappell was to care for, maintain, and support Mrs. Haselo so long as she might live, and provide her with medical attention and necessaries, in consideration whereof she was to do his housework and turn over to him, for his use, all her moneys' and personal properties, together with all rents and income to which she might be, or might become, entitled. By the agreement Mr. Chappell was to have the use and benefit of these moneys so long as he should live; and at the end of each year he was to execute to her a mortgage on 40 acres of land conditioned for the repayment of the amount he had received during the year, such repayment to be made one year after his death, without interest. The agreement also contained the following clause:
    “In the event that second party leaves the home of the first party or refuses at any time to fulfill the conditions of this agreement, then the moneys so paid to first party shall be held by him as stipulated damages for nonperformance of the contract, and this agreement terminated.”
    A few days after making this agreement, and on December 16, 1911, Mrs. Haselo let Mr. Chappell have $1,255, for which he gave her a mortgage on 40 acres of land due one year after his death, without interest. This land was already incumbered to the extent of from $1,400 to $1,800, as Mrs. Haselo was told at the time. When the money was advanced it was with the understanding that it should be used in the discharge of such earlier indebtedness; but an adjoining piece of land being for sale cheap, Mrs. Haselo advised Mr. Chappell to use it in the purchase of that land, rather than in the payment of the prior incumbrance. We are not told the value of this 40 acres by itself, but his entire farm of 100 acres is said to be worth $100 per acre. On March 2, 1912, she gave him $500 more, for which he made his note due one year after his death.

      In June, 1913, at a time when Mr. Chappell was about to visit a relative at some distance, Mrs. Haselo made a memorandum of various sums of money that she had loaned him, exclusive of the amounts covered by the mortgage and the note above mentioned. She made two copies, with a view to protection if one should be lost, and asked him to sign them in acknowledgment of the receipt of the moneys designated. He did sign the papers, but before doing so inserted a statement reading, “This has nothing to do with, the mortgage at Plummer’s is to be taken out of this.” The amount acknowledged by the memorandum was $615. After Mr. Chappell had gone upon his contemplated visit, Mrs. Haselo became anxious about the statement he had inserted in the memorandum and took the paper to a lawyer’s office. She was there told that Mr. Chappell’s conduct throughout was very reprehensible, and that he was evidently attempting to defraud her, and she was advised to, and, being very much frightened, did, begin a suit in chancery against him to set aside the conveyance she had made and for an accounting and other relief. She also made an agreement with the attorney that he should have 15 per cent, of the value of all property recovered by him in the proceedings. At this time the contemplated marriage had not taken place, and had evidently been intentionally avoided by Mr. Chappell. An answer was filed, in which he denied, among other things, that he had ever promised to marry her. But before the suit could be heard, Mrs. Haselo and Mr. Chappell talked over their differences, and she filed with the clerk of the court a discontinuance. This was on the 4th day of November, 1913. When her attorney became aware that the suit had been discontinued by Mrs. Haselo, he. at once communicated with her son Fred in Illinois, who immediately came to Michigan; and, on the 10th day of November, began these proceedings for the appointment of a guardian. He did not attempt to get any explanation from his mother before the citation was issued and served. On the 13th day of December, 1913, a hearing was had before the probate judge, on the petition, and she was adjudged to be mentally incompetent to have the charge, custody, and management of her person and estate, for the reason, as stated in the order of the probate court, “that she is unable to comprehend or realize the results or nature of the matters and transactions into which she has entered,” and because “it would appear that unless some person is appointed to protect her interests she stands in great danger of being deprived and defrauded of a considerable portion of her estate.” On the 2d day of January, 1914, Mrs. Haselo took an appeal to the circuit court, where the matter came to trial before the circuit judge and a jury on the 2d day of March, 1914. But before the hearing in the circuit court, and on the 17th day of January, she and Mr. Chappell had been married, and had rearranged their property matters so that the house and lots in Benton Harbor and 40 acres of Mr. Chappell's farm were conveyed to them jointly, as husband and wife. On the trial in the circuit court, the son, Frederick Haselo, testified as follows:

      “Q. The Court: You may state any fact or circumstance within your knowledge that will have any— throw any light on the question of the competency or incompetency of your mother.

      “A. Only what I saw myself is it?

      “The Court: What you know.

      “A. I was not there at all times. Of course, her being queer in different ways, doing and having Mr. Hall there to do her business for her, and then tell me to do one thing and turn around and in probably a few minutes tell me to do something else to the contrary, had a tendency to make us think or believe that she was not just right. That they saw very frequently.

      “Mr. Sterling: That is your answer to the court’s question? That is all you can state about it, is it? That is all you recall now?

      “A. Yes, sir.

      “Q. On that subject?

      “A. Yes, sir.

      “Q. Is that so or not?

      “A. Yes, sir. Mr. Hall was administrator of my father’s estate with the will annexed.”
    John F. Whiteman, son-in-law of Mrs. Haselo Chappell, also testified:
    “Q. Is there any fact or circumstance that you can remember now connected with your mother-in-law that would make you believe that she was not mentally competent? * * *

      “A. I can only speak of my own experience with her; I have had little dealings with her; I have lived in her property 10 years; she would agree to have things done; then after it was. done she would not agree to settle for them; after I had moved out of her property she wanted me to take charge of it and rent it; I have letters — not with me — to collect rents and one thing and another, which my wife did for her and then finally put it into another man’s hands to attend to it as we did not care to bother with it. One time we was therej lived there, there was no provision for water, and she told me if I would put down a partnership well with a neighbor there, she would stand for it, and pay her share, and afterwards she backed down flat and left me that expense. I had several little matters that way when she would be obstinate. Of course, my not being a direct relative, I didn’t pay much attention to it.”
    The foregoing is all of the oral testimony offered in proof of mental incompetency. Neither the other children, nor any neighbor or acquaintance, was called to testify in that behalf. Counsel for petitioner then put in evidence the note and the mortgage above mentioned, the deed of the Benton Harbor property, the several agreements referred to, the finding of the probate judge, and the bill of complaint, together with the answer in the chancery suit, and rested.

      In defense Mrs. Haselo Chappell testified fully relative to the transactions mentioned, and as to her intentions and purposes, in, and relative to, the same. She was cross-examined at considerable length. Two physicians from Benton Harbor were produced who had made examination as to her competency, each of whom gave it as his opinion that she was mentally competent in every respect. One of these physicians testified as follows:

      “Q. Doctor, is it possible for — in your judgment and opinion — for a person to respond to all the tests you applied and everything you did to this woman, and she be incompetent to transact ordinary business affairs?

      “A. I don’t think it is possible.”
    Also one of her attorneys took the witness stand, and, after relating various business transactions that she had had with him, or in his presence, gave it as his opinion that she was “a mighty shrewd and remarkably well-preserved woman physically and mentally.”
    No rebutting testimony was offered in behalf of the petitioner. The jury 'returned a verdict that Mrs. Chappell was incompetent. Neither Mrs. Chappell herself, nor the physicians, nor her attorney were examined in the probate court. At the close of the testimony in support of the petition, and again when the evidence was all in, the court was requested to direct a verdict in favor of the respondent, but each request was refused.
   Person, J.

(after stating the facts). The application in this matter was made under the provision of section 8709, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11565); and the term “mentally incompetent,” as used in that section, has been defined by this court in a number of cases.

“It does not refer to persons who are sane, but not, perhaps, as wise or intelligent as some other persons. It applies to those whose mind is so affected as to have lost control of itself to such a degree as to deprive the person afflicted of sane and normal action.” In re Guardianship of Storick, 64 Mich. 685 (31 N. W. 582).
“The statute contemplates the existence of insanity or of mental infirmity that is equivalent in destroying mental competency.” In re Asa B. Brown, 45 Mich. 326 (7 N. W. 899).

When this court in Re Estate of Leonard, 95 Mich. 295 (54 N. W. 1082), said that “incompetent” and “incapable,” as used in the statute, were regarded by the legislature as synonymous terms, it did not intend to be understood as meaning that any one was mentally incompetent who was incapable of conducting his business successfully, but rather that the word “incapable,” as used in the statute, was synonymous with “mentally incompetent” in the sense above defined.

There was nothing whatever in the testimony of Mrs. Haselo’s son, or in that of her son-in-law, that tended in any degree to show such “mental incompetency” on her part as would authorize the appointment of a guardian of her person and estate. All they said is as consistent with competency as with incompetency. The son tells us that Mr. Hall was the administrator of his father’s estate, and he gives us no reason whatever for thinking it “queer” that his mother should have had Mr. Hall do her business. Nor, without giving some specific instance in illustration, is incompetency indicated by the son’s statement that his mother would tell him to do one thing, and in probably a few minutes tell him to do something else to the contrary. The only act showing incompetency on Mrs. Haselo’s part, that the son-in-law could think of, was her failure to pay what she had promised for the putting down of a well, and it is absurd to call that an indication of the mental incompetency required by the statute. And Mrs. Chappell explains the circumstances by telling us that she was unable to keep her promise because this same son-in-law would not pay the rent that he owed her.

All of the evidence in support of the petition, other than the foregoing, was the various agreements with, and conveyances to, Mr. Chappell, and the pleadings in the chancery suit. That these agreements and transfers were injudicious must be conceded. The attorney who advised Mrs. Haselo that Mr. Chappell was aiming to defraud her had apparent grounds for the advice. But it must be remembered from Mrs. Haselo’s viewpoint she was dealing with the man whom she was about to marry. And, as a general rule, the fact that one makes foolish bargains is not a reason, under the statute, why he should have a guardian appointed over him.

“If it were, a goodly number of people would be under guardianship.” Partello v. Holton, 79 Mich. 372 (44 N. W. 619).

An improvident business transaction may be competent evidence in support of an application for guardianship; most of the acts of a respondent in such a cáse are competent as going to show the mental condition. But such an improvident act becomes cogent proof of mental incompetency only as it is reinforced and explained by other facts and circumstances.

And what are the other facts and circumstances in this case? Her children permitted Mrs. Haselo, at her age, to come to Michigan alone, and seemed to have no doubt of her ability to care for herself. Her son, who files this petition, not only loaned her a substantial sum of money, but foreclosed the mortgage given to secure its payment, at the first default in interest. He could have had no doubt of her mental responsibility. The attorney who began the chancery suit for her seemed to have no question of her competency to begin such a suit, nor of her competency to make a contract with him by which he was to receive 15 per cent, of the value of the property recovered. Two doctors, whom the trial court seemed to hold in the highest respect, made thorough examination and declared her mind to be perfectly normal, and that she was fully capable of transacting business. One of her attorneys, who had seen a good deal of her in a business way, gave the same opinion. The testimony of these gentlemen was not contradicted or seriously questioned. Her son and son-in-law could not name one instance of any value wherein she had shown herself mentally incompetent. And beyond all, her own testimony, given quite fully in the record, indicates not only a normal mind, but a rather bright one. In the light of all these circumstances the improvidence of her dealings with Mr. Chappell does not become evidence that the jury were authorized to act upon in declaring her incompetent. She is now married to Mr. Chappell, and so far as the record shows they are living together contentedly. It is his duty to care for and support her.

The judgment of the circuit court is reversed, and a new trial will not be granted. The respondent and appellant will recover costs of both courts against the petitioner.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

This case having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


source: Caselaw Access Project

author: Person, J.

license: Public Domain

text:
    JORGENSEN v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Pleading — Master and Servant — Death—Injury to Servant —Amendments—Interstate Commerce — Railroads — Employer’s Liability.
    Where plaintiff brought an action under the Michigan statute (Act No. 104, Pub. Acts 1909), for the death of a fireman on defendant railway, and two years later, at the trial, asked for leave to amend the declaration SO' as to bring the claim within the Federal act relating to employer’s liability (35 U. S. Stat. 63, as amended; U. S. Comp. Stat. 1913, §§ 8657-8665), not referred to in the pleading, which, however, alleged that the defendant owned and operated a system extending through Michigan and Indiana, the request, which did not involve an addition of new matter, was rightfully granted and did not operate to introduce a new cause of action.

    2. Same — Constitutional Law.
    The Federal statute is a general law and is in force in Michigan as it is everywhere else, and the case was not like amending the declaration so as to plead a foreign statute.
    3. Estates oe Decedents — Death Act.
    The death act (3 Comp. Laws, § 10436, 5 How. Stat. [2d Ed.] § 13702) is applicable only to cases of instantaneous death. Actions for death that is not instantaneous must be brought under the survival act; and both rights of action for the same injury cannot exist at the same time.
    4. Damages — Railroads—Future Earnings.
    While the Michigan railroad liability act, Act No. 104, Pub. Acts 1909, allows probable future earnings to be included as damages if the death was not instantaneous, a different rule prevails in the application of the Federal act. U. S. Comp. Stat. 1913, §§ 8657-8665.
    5. Same — Trial—Charge.
    Accordingly, the trial court erred in charging the jury, under the Federal statute, that future earnings might be taken into consideration in awarding. damages.

      Error to Kent; Brown, J.
    Submitted June 30, 1915.
    (Docket No. 108.)
    Decided December 22, 1915.
    Case by H. Chris Jorgensen, as administrator of the estate of Emil Ingmanson, deceased, against the Grand Rapids & Indiana Railway Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      James H. Campbell, for appellant.

      Nichols & Shaw, for appellee.

      On constitutionality, application and effect of Federal employers’ liability act, see notes in 47 L. R. A. (N. S.) 38, L. R. A. 1915C, 47.

   Person, J.

Plaintiff’s intestate was employed by defendant as a fireman upon one of its engines, and on the 17th day of June, 1912, while the train with which he was connected was distributing gravel and other material for the maintenance of defendant’s roadbed and tracks, he received an injury, attributed to defendant’s negligence; from which he died on the following day. The judgment in this action, which was brought because of such alleged negligence and consequential injury, was recovered by plaintiff under the provisions of the Federal employers’ liability act of April 22, 1908 (35 U. S. Stat. 65), as amended by the Act of April 5, 1910 (36 U. S. Stat. 291). The original declaration, however, by which the action was begun, did not refer to the Federal act, nor did it, in express terms, charge that the defendant was engaged in interstate commerce, but, on the contrary, counted solely upon the Michigan railroad liability act (Act No. 104, Pub. Acts 1909) ; and it was not until the trial had been some time in progress, and more than two years after the right of action had accrued, that an amendment was made, bringing the case under the Federal act. It is conceded by both parties that the action should have been brought under that act originally, but the amendment was strongly objected to by defendant’s counsel, not only on the ground that it operated to introduce a new cause of action, but because, also, the two years’ limitation for bringing the action, embraced in the Federal act, had then intervened. The right to this amendment raises the first question argued before this court. The other questions relate to the measure of damages under the Federal law.

1. It was not error to permit the amendment. This court has already said, in Fernette v. Railroad, Co., 175 Mich. 653, 674 (144 N. W. 834, 835):

“It should be borne in mind that the declaration sets out.facts which would impose a liability upon defendant under the Federal act, if it had charged that, at the time of the collision, defendant was engaged in interstate commerce. We are of opinion that it was not necessary for plaintiff to plead either statute, but that, upon the coming in of the proofs, it was the duty of the trial court to permit an amendment of the pleadings to conform thereto.”

Nor did the amendment introduce any new cause of action. Congress is given power to regulate commerce between the States, and when it has acted, as in passing the Federal employers’ liability act, such enactment becomes the general law of the land and supersedes all State laws upon the same subject. Therefore the reference to the State law in the declaration might well have been struck out as surplusage, and as if the reference had been to a law that had been repealed. The charges of negligence and of injury remained the same as before the amendment, and stated in substantially the same words. Had there been no allegation in the declaration that the defendant was engaged in interstate commerce and that the decedent was employed by it therein, the addition of such matter to the declaration would have amounted to simply an elaboration of the old matter, and not to the introduction of new. Gainesville, etc., R. Co. v. Vandiver, 141 Ga. 350 (80 S. E. 997). But the original declaration in this case averred that the defendant owned, at the time of the injury, and was operating, a railway system extending through the States of Michigan and Indiana, and that the decedent was employed by it in the construction, repairing, and maintaining of the roadbed of such railway. This amounted to an allegation that the defendant was engaged in interstate commerce and that the decedent was employed by it in such commerce. Ft. Worth, etc., R. Co. v. Stalcup (Tex. Civ. App.), 167 S. W. 279. The Federal statute, as we have said, is a general law, as much in force in Michigan as anywhere, and therein this case differs from Wingert v. Circuit Judge, 101 Mich. 395 (59 N. W. 662), where it was attempted by amendment to plead a foreign law, and thereby to introduce into the declaration a cause of action that did not exist under our laws. Although the amendment, in the instant case, was made more than two years after the injury occurred, it stated no new cause of action, but related back to the original declaration, which was filed and served in due season so that the bar of the statute had not intervened. Grand Trunk, etc., R. Co. v. Lindsay, 238 U. S. 42 (34 Sup. Ct. 581, Am. & Eng. Ann. Cas. 1914C, 168); Missouri, etc., R. Co. v. Wulf, 226 U. S. 570 (33 Sup. Ct. 135, Am. & Eng. Ann. Cas. 1914B, 134); Michigan, etc., R. Co. v. Vreeland, 227 U. S. 59 (33 Sup. Ct. 192, Am. & Eng. Ann. Cas. 1914C, 176); Smith v. Railroad Co., 210 Fed. 761 (127 C. C. A. 311); Hogarty v. Railway Co., 245 Pa. 443 (91 Atl. 854); Vandalia R. Co. v. Stringer, 182 Ind. 676 (106 N. E. 865, 107 N. E. 673); Flanders v. Railway Co., 68 Fla. 479 (67 South. 68).

2. But the trial' court was in error in allowing the loss of future earnings to be included in the damages under the Federal act. This undoubtedly came from a misunderstanding of the construction given to that act by the Federal courts, and a natural inclination to apply to it the construction given to various State statutes.

Under the law and practice of this State it has been held that the statute commonly called the “death act” (3 Comp. Laws, § 10427; 5 How. Stat. [2d Ed.] § 13702) is applicable only to cases of instantaneous death; that where death is not instantaneous the action should be brought under the so-called “survival act” (3 Comp. Laws, § 10117; 5 How. Stat. [2d Ed.] § 12761); and that both rights of action, for the same injury, cannot exist at the same time (Oliver v. Railway Co., 134 Mich. 367 [96 N. W. 434, 104 Am. St. Rep. 607, 3 Am. & Eng. Ann. Cas. 53]; Storrie v. Elevator Co., 134 Mich. 297 [96 N. W. 569]; West v. Railway, 159 Mich. 269 [123 N. W. 1101]; Ely v. Railway, 162 Mich. 287 [127 N. W. 259]). And while the "“death act” is recognized as creating a new right of action, unknown to the common law, and authorizing damages with reference strictly to the pecuniary injury, suffered by certain beneficiaries, the “survival act” is treated as effecting a continuance of the right of action that had vested in the decedent, with such damages as he could have recovered, including the present worth of his probable future earnings had he lived. The Michigan railroad liability act of 1909 (Act No. 104, Pub. Acts 1909) has also been construed as allowing probable future earnings, in cases where death was not instantaneous, to be included among the damages in an action under that act. Habitz v. Railroad Co., 170 Mich. 71 (135 N. W. 827).

The Supreme Court of the United States has taken a somewhat different view of the Federal employers’ liability act. The first section of that act reads as follows:

“Section 1. That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall 'be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, tracks, roadbed, works, boats, wharves, or other equipment.” 35 U. S. Stat. 65, U. S. Comp. Stat. 1913, § 8657.

Like our State statutes, this section provides for two distinct actions, one for the benefit of the employee himself where death is not instantaneous, and the other for the benefit of certain relatives whereby they are to receive compensation for their financial loss and damage resulting from the employee’s death. But as the act originally stood it contained no provision for the survival of the action that might be brought by the employee himself, that right, of course, ending with his death. Subsequently the act was amended (Act of April 5,1910, 36 U. S. Stat. 291), by adding the following section:

“Sec. 9. That any right of action, given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.” U. S. Comp. Stat. 1913, § 8665.

As the act now stands amended, there can, of course, be but one action if the injury results immediately in the employee’s death, and that is the . action to compensate the relatives for their financial loss because of his death. But when the injury does not result in immediate death the construction given to the act differs from that given to the State statutes, at least in this: That the right of action for the benefit of the relatives does not depend upon the instantaneous death of the employee, but will arise whenever such death does occur, providing it results from the injury; and the right which the employee himself had to bring an action will survive, so that both rights will be in existence at the same time, and may be united by the personal representative in one action. And when so united the personal representative will recover,, not only compensation for such financial loss as the beneficiaries have suffered from the employee’s death, but also such damages as the employee might have recovered, including those for pain and suffering, but not those for the loss of future earnings.

In St. Louis, etc., R. Co. v. Craft, 237 U. S. 648 (35 Sup. Ct. 704), the construction of the Federal act, and the theory upon which damages may be recovered under it, are very fully set forth. The action in that case was brought by an administrator to recover for injuries to, and the death of, his intestate, and the damages sought to be recovered were for (a) the pecuniary loss to the father by reason of the death, and (b) conscious pain and suffering of the decedent before the injuries proved fatal. The court, among other things, said:

“If the matter turned upon the original act alone, it is plain that the recovery here could not include damages for the decedent’s pain and suffering, for only through a provision for a survival of his right could such damages be recovered after his death. But the original act is not alone to be considered. On April 5, 1910, prior to the decedent’s injuries, the act was ‘amended.’ * * * No change was made in section 1 [U. S. Comp. Stat. 1913, § 8657]. Taylor v. Taylor 232 U. S. 363, 370 [34 Sup. Ct. 350]. It continues, as before, to provide for two distinct rights of action; one in the injured person for his personal loss and suffering where the injuries are not immediately fatal, and the other in his personal representative for the pecuniary loss sustained by designated relatives where the injuries immediately or ultimately result in death. Without abrogating or curtailing either right, the new section provides in exact words that the right given to the injured person ‘shall survive’ to his personal representative ‘for the benefit of’ the same relatives in whose behalf the other right is given. Brought into the act by way of amendment, this provision expresses the deliberate will of Congress. Its terms are direct, evidently carefully chosen, and should be given effect accordingly. It does not mean that the injured person’s right shall survive to his personal representative and yet be unenforceable by the latter, or that the survival shall be for the benefit of the designated relatives and yet be of no avail to them. On the contrary, it means that the right existing in the injured person at his death — a right covering his loss and suffering while he lived but taking no account of his premature death or of what he would have earned or accomplished in the natural span of life — shall survive to his personal representative to the end that it may be enforced and the proceeds paid to the relatives indicated. And when this provision and section 1 are read together the conclusion is unavoidable that the personal representative is to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived. Although originating in the same wrongful act or neglect, the two claims are quite distinct; no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong, but a single recovery for a double wrong. * * *
“Much stress is laid upon the concluding clause in the new section, ‘but in such cases, there shall be only one recovery for the same injury.’ Passing and reserving the question of its application where there has been a recovery by the decedent in his lifetime (see Michigan, etc., R. Co. v. Vreeland, supra [227 U. S. 59, 70, 33 Sup. Ct. 192, Am. & Eng. Ann. Cas. 1914C, 176]), we think this clause, as applied to cases like the present, is not intended to restrict the personal representative to one right to the exclusion of the other, or to require that he make a choice between them, but to limit him to one recovery of damages for both, and so to avoid the needless litigation in separate actions of what would better be settled once for all in a single action. This view gives full effect to every word in the clause and ascribes to it a reasonable purpose without bringing it into conflict with other provisions the terms of which are plain and unequivocal. Had Congress intended that the personal representative should make an election between the two rights of action and sue upon one only, it is not easy to believe that it would have chosen the words in this clausé to express that intention.”

The construction given to the Federal act by the Supreme Court of the United States is controlling. And because of the misconception of the trial court as to the scope of the act, thus construed, and as to the damages that may be recovered under it, its judgment is reversed, and a new trial granted.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

This case having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


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    GIFFORD v. WASHTENAW CIRCUIT JUDGE.
    Mandamus — Adequate Remedy at Law — Estates of Decedents— Probate Court — Executor’s Final Account — Appeal.
    Mandamus is not the proper remedy to vacate an order reinstating an appeal from probate court by legatees of an estate, in relation to the final account of the administrator, where the notice of filing the appeal was not served in time, and the record of other papers were not returned from probate court in the 30 days’ period as required by statute (1 Comp. Laws, § 672; 5 How. Stat. [2d Ed.] § 12120).
    Mandamus by William W. Gifford as administrator and trustee of tbe estate of Charles K. Perrine, deceased, against Edward F. Kinne, circuit judge for the county of Washtenaw, to compel the respondent to vacate an order reinstating an appeal from probate court of Albion College and another.
    Submitted June 15, 1915.
    (Calendar No. 26,567.)
    Writ denied December 22, 1915.

      A. J. Sawyer (James G. McHenry, of counsel), for relator.

      Robert A. Smith (Wilson & Cobb, of counsel), for respondent.
   Person, J.

The relator asks a mandamus to compel the respondent to vacate an order reinstating an appeal from the probate court. On the 20th day of June, 1914, the probate court for the county of Washtenaw made an order allowing the final account of relator as administrator with the will annexed of the estate of Charles K. Perrine, deceased. Within the 60 days allowed by statute — that is, on the 13th day of the following August — Albion College and Alma College, residuary legatees under the will, filed with the judge of probate their notice of appeal from such order, with their reasons therefor, and a duly approved bond. Upon the same day the probate court made a further order directing that notice of such appeal should be personally served upon the relator, as the adverse party, within 30 days from that date. The notice of appeal was not served upon the relator as directed by the probate court, nor was a copy of the* record appealed from, or of the other papers required by law, filed in the circuit court within the 30 days after the taking of the appeal, wherefore the appeal ceased, by virtue of the statute, to be of any effect. Within the first 10 days of the term of the circuit court next succeeding the expiration of the 30 days allowed for filing the record, appellants made application, under the provisions of section 672, 1 Comp. Laws (section 12120,, 5 How. Stat. [2d Ed.]), for a reinstatement'of the*, appeal. Upon the hearing of this application the circuit court made an order reinstating the appeal.

It is claimed by the relator that he had not sufficient or proper notice of the hearing upon the application to reinstate the appeal; that the showing upon which the order of reinstatement was made was not sufficient to give the court jurisdiction; and that, for these reasons, the order should be vacated and set aside.

As has been frequently held by this court, mandamus is not the proper remedy in cases of this kind. The court retained jurisdiction of the appeal, and the relator, providing he does nothing amounting to a waiver, may review the order complained of by writ of error after final judgment. The situation does not differ in principle from that in Mikkola v. Circuit Judge, 165 Mich. 583 (130 N. W. 1118), where this court refused to allow a mandamus for the purpose of vacating an order granting a dilatory appeal from justice’s court.

The writ is therefore denied.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JX, concurred.

This motion having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


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    WISCONSIN CHAIR CO. v. CHARLEVOIX CIRCUIT JUDGE.
    1. Judgments — Notice, Requirement oe.
    Notwithstanding a statutory requirement that the clerk of the court give notice to the interested parties or their attorneys of any order or judgment entered in vacation, attorneys are charged with notice of all orders and judgments entered during a term of court in any cause which is in condition for the same. '
    2. Practice — Findings—Amendments—Time.
    It is from the entry of the judgment that the period begins to run in which amendments may be proposed to the findings of fact and law of the court, not from the filing of the findings. Circuit Court Rule 265.
    3. Same — Findings—Judgment—Entry.
    Upon the trial of an issue of fact by the court without a jury, the judgment cannot properly be entered until after the findings have been filed.
    4. Same — Trial—Mistake in Entering.
    The findings are the basis for the judgment: yet, a judgment inadvertently entered before the filing of the findings is not void and may be regarded as in the nature of provisional action which only becomes perfected when the findings are completed.

      5. Same — Time—Vacating Judgment.
    Whether • findings of fact and law were filed during the term or in vacation when the parties would be entitled to notice, if the premature entry of judgment tends to deprive any party of his rights, it should, if necessary, be vacated and set aside. Some injury must be shown, however. Such a judgment will not be set aside simply as matter of abstract right.
    6. Same — Delay.
    And where counsel for the relator did not become aware of the entry of judgment in a nonjury trial before the court, until nearly six weeks had elapsed, and some weeks. thereafter made application for leave to open the case and proposed amendments to the findings, which were referred to in the motion, but were not therewith filed, and the court requested the attorney to submit the proposed amendments to the court, the motion which in effect was one for an extension of time, was not improperly overruled, counsel declining to submit the proposed findings to the consideration of the trial court, without justification or excuse. Circuit Court Rule 266.
    Mandamus by the Wisconsin Chair Company against Joseph Barton, presiding judge of the county of Charlevoix, to require the respondent to vacate a judgment and afford an opportunity to file proposed amendments to the findings of the court.
    Submitted October 27, 1915.
    (Calendar No. 26,512.)
    Writ denied December 22, 1915.
    Rehearing denied April 21, 1916.

      Parm C. Gilbert and R. W. Kane, for relator.

      A. L. Fitch and John Jones, for respondent.
   Person, J.

One Charles G. Bush brought an action against the relator in the circuit court for the county of Charlevoix to recover for certain commissions alleged to be due on the sale of lands. The action was tried in July, 1914, beginning on the 7th, and terminating on the 8th. The trial was had before the respondent, who is circuit judge of the twenty-seventh judicial circuit, but who at the time was holding court in the county aforesaid. Before, or during the progress of, the trial, the attorneys for the defendant, relator here, filed a request in writing for findings of law and fact. A copy of this request was served upon the attorneys for plaintiff, and before the conclusion of the trial was brought to the attention of the circuit judge, who stated that he would comply with the request. He announced, however, that his mind was made up as to the merits of the case, and that he should enter judgment for the plaintiff for $3,139. On the same day the clerk did enter judgment 'for this amount without waiting for the special findings. The circuit judge states in his return that this judgment was entered inadevertently by the clerk, without request or direction so to do, and this must be taken as a correct explanation, although the language of the court in announcing his view of the case might well have been understood by the clerk as a direction to enter the judgment at once. The respondent, having closed his work in Charlevoix, returned to his home in Big Rapids, and thereafter mailed his findings of law and fact to the clerk of the court, and these were filed on the 20th day of July aforesaid. No notice of the filing of these findings was given to the attorneys for the relator, and no such notice was directed by the circuit judge to be given. That such special findings had been filed was not discovered by the attorneys for relator until the 20th day o,f the following August; and thereafter, on the 8th day of September, they filed a motion, which was heard by respondent on the 25th day of that month, asking that the judgment be vacated, and that relator have 20 days in which to propose amendments to the findings of fact and law, and to file exceptions. This motion was denied by respondent, and, as stated by him in his return to this court, for the following reasons:

“The motion was not accompanied by the proposed amendments and exceptions, although the request as set forth in the motion referred to them as ‘therein made,’ and counsel did not present for my consideration the amendments and exceptions proposed. The hearing of the motion was held at Charlevoix in the forenoon of September 25, 1914, Mr. R. W. Kane appearing for the motion. Mr. Gilbert was not present and did not appear at this hearing. On my own motion, after calling the attention of counsel to the absence of the proposed amendments and exceptions, I held the hearing open until the afternoon to enable counsel to prepare and present the proposed amendments, stating that I would give counsel all the time reasonably required to properly present the matter so that a proper disposition could be made of all the questions raised. At the afternoon session counsel appeared, but offered no proposed amendments or exceptions, renewing the request for the time asked in the motion. In view of the length of time that had elapsed and the opportunity afforded counsel to prepare and present such amendments and exceptions as they desired, I declined to grant the leave asked. No claim was made by counsel for the motion that the findings were not sufficiently full and definite on the facts and law, nor did counsel point out or indicate wherein or in what respect the findings were erroneous, insufficient, or indefinite.”

On the 12th day of October counsel for the relator brought on a second motion before respondent that the preceding motion be vacated and set aside. No new or further showing was made as the basis for this last motion, nor did counsel then tender any proposed amendments or exceptions. The motion was denied by the circuit judge. Thereupon relator makes this application for a mandamus to compel the respondent to vacate his order last mentioned, and to grant the motion of September 8th, that the judgment be set aside and relator given permission to propose amendments and exceptions to the findings of law and fact.

We believe it is the practice of many circuit judges to have the clerk notify counsel of the filing of findings of law and fact, and of other determinations by the court, and we think this very commendable, but we know of no rule or authoritative requirement that it be done, except as hereinafter stated.

Counsel are supposed to take notice of all orders and judgments entered during term. There is, however, a statutory provision that the clerk shall give notice to the parties or their attorneys of any judgment entered in vacation, in such manner as the circuit court shall, by general or special order, direct. Section 10265, 8 Comp. Laws; 4 How. Stat. (2d Ed.) § 11847. And it is from the entry of the judgment that the period begins to run in which amendments may be proposed to the findings of fact and law, and not from the filing of such findings. Circuit Court Rule No. 26 (b).

And upon the trial of an issue of fact by the court without a jury, the judgment cannot properly be entered until after the findings of fact and law shall have been filed. Stansell v. Corning, 21 Mich. 242; Ells v. Rector, 32 Mich. 379. The findings are the basis for the judgment; yet a judgment inadvertently entered before the filing of the findings is not void, and may “be regarded as in the nature of provisional action, which only becomes perfected when the findings are completed.” O’Blinskie v. Circuit Judge, 34 Mich. 62; Preger v. Barnett, 175 Mich. 494 (141 N. W. 587). And the time for proposing amendments to the findings should date from the day when the judgment properly could have been taken. O’Blinksie v. Circuit Judge, supra. We are not informed by this record whether the findings of fact and law were filed during term, or were filed during vacation when the parties would be entitled by the statute to notice of the judgment, but in either case, if the premature entry of the judgment tends to deprive any party of his rights, it should, if necessary, be vacated and set aside. Some’injury, however, must be shown; for such a judgment will not be set aside simply as a matter of abstract right.

But we cannot see, on this record, where any right of' the relator has been impaired by the premature judgment. The only injury claimed by him is that the ten days allowed him by rule for the filing of amendments, and the subsequent four days for taking exceptions, had passed before he learned that the findings of the court had been filed. But by the terms of Circuit Court Rule No. 26 amendments to the findings follow the entry of judgment, and do not precede it; and the court has the power to make any reasonable extension of the time for filing them that may be necessary. When the relator made his motion of September 8th, which was really a motion for. further time in which to propose amendments and take exceptions, the court did not peremptorily overrule the motion, but requested relator to submit the amendments which he wished made to the inspection of the court. This the court had a perfect right to do, not only for the dispatch of business, but also to be assured that the proposed amendments were such as should be considered, and not immaterial or frivolous. School District No. 4 of Easton v. Snell, 24 Mich. 350; Slocomb v. Thatcher, 20 Mich. 52; Wiley v. Lovely, 46 Mich. 83 (8 N. W. 716). In fact, the court held the motion open for a time to permit counsel to formulate such amendments and exceptions as he might desire to offer, although there had elapsed some three weeks in which to do this after the discovery that findings had been filed. And when counsel declined to accede to this very proper request of the court, or to render any excuse for not doing so, we think the court was justified in overruling his motion. Even when the order overruling this motion was subsequently sought to be set aside, no proposed amendments or exceptions were offered for the consideration of the court. We do not think that relator has been wrongfully deprived of his right to propose amendments and exceptions, and the writ of mandamus must be denied.

The writ is denied.

Brooke, C. J., and Kupin, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


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    TRUMBULL MOTOR CAR CO. v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Discretionary Nature oe Writ — Jurisdiction.
    The writ of ^mandamus will be allowed to require the lower court to take jurisdiction of a proceeding or action because a refusal to take jurisdiction would tend to deprive the litigant of any remedy, but if jurisdiction be wrongfully assumed the determination may be reviewed by appeal or writ of error, in which case mandamus is not ordinarily granted.
    2. Same — Abatement—Quashing Service.
    Hence, the refusal to quash service of process on a foreign corporation for the reason assigned that the point should be presented by a plea in abatement, the court re- , taining jurisdiction over the parties and denying the motion amounted to the retention of jurisdiction and it could be reviewed on error. The remedy at law was adequate, and mandamus will not issue.
    Mandamus by the Trumbull Motor Car Company against Patrick J. M. Hally, one of the circuit judges for the county of Wayne, to require respondent to vacate an order denying relator’s motion to quash service of process in an action in which it was defendant.

      Submitted October 5, 1915.
    (Calendar No. 26,859.)
    Writ denied December 22, 1915.

      Moore ■& Moore, for relator.

      Albert MoClatehey, for respondent.
   Person, J.

On the 17th day of May, 1915, Henry N. Backus, Burr Lobdell, and Herbert W. Cheney, as copartners, doing business as the Badger Cycle Car Company, began an action in assumpsit against the relator, the Trumbull Motor Car Company, in the circuit court for the county of Wayne. The defendant is a foreign corporation, organized under the laws of Connecticut, with its principal place of business at Bridgeport in that State. The declaration, with rule to plead and notice thereof, was served upon one Robert R. Adams, in the city of Detroit, as agent of the defendant. Claiming that such service was insufficient and void, the relator, defendant in the action, moved the circuit court to quash the service and dismiss the case. This motion was denied by the circuit judge.

It is claimed by counsel for relator that the circuit judge practically refused to pass upon the sufficiency of the service, holding that the question should have been raised by plea in abatement instead of by motion. The return, however, shows that this is a misunderstanding. The circuit judge did pass upon the motion and overruled it. In doing so he says he found as a fact that Mr. Adams was defendant’s agent; and he could not well have found otherwise, inasmuch as the agency was positively averred in the affidavit of service, and was not disputed in any of the affidavits filed by the defendant. What the circuit judge did decline to find was whether the defendant was doing a local business in Michigan, and whether any part of the contract was to be performed in this State.

It is true that defendant’s counsel had offered to consent to the framing of an issue and to the taking of proofs as to the facts, but neither side requested that such issue be framed, and the motion was actually submitted on affidavits. And this was the reason why the judge would not decide the facts above mentioned. He claimed to be unable to do so upon mere affidavits; and, in making the order overruling the motion, he reserved the right to the defendant of filing a plea in abatement and thereby raising such issues and taking such proofs as to the service as he should deem material. Counsel for defendant, however, had declined to avail himself of this privilege, preferring to insist upon his motion, and has come to this court, asking for a mandamus requiring the circuit judge to set aside the service of the declaration and dismiss the action. In this we think that the defendant, the relator here, has mistaken his remedy. It is true that mandamus has sometimes been granted in such cases, as in Grand Trunk R. Co. v. Circuit Judge, 106 Mich. 248 (64 N. W. 17), and the earlier cases cited in relator’s brief. But mandamus is not a writ of right, and, as a general rule, will not lie where the law has provided another remedy. In Michigan Mutual Fire Ins. Co. v. Circuit Judge, 112 Mich. 270 (70 N. W. 582), attention was called to “the growing frequency of applications for mandamus asking this court to review the action of subordinate courts, resulting in overloading this court with work which does not finally dispose of the case,” and a determination was there indicated, on the part of this court, to adhere more strictly in the future to the general rule above mentioned. And it was said in that case:

“The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such cireumstances, the party would be without remedy. On the contrary, if the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case the writ of mandamus ought not to issue.”

In that case, as in the one at bar, it was attempted by mandamus to have the service of process set aside, and the writ was denied for the reason above given.

In Cattermole v. Circuit Judge, 136 Mich. 274 (99 N. W. 1), the opinion, in referring to the above case of Michigan Mutual Fire Ins. Co. v. Circuit Judge, says:

“When that opinion was written, it was the deliberate intention of the court to reduce the practice by mandamus to uniformity, so far as practicable, with reference to the disposition of cases upon jurisdictional questions, denying the writ, under the well-settled rule, where jurisdiction was retained.”

And in City of Flint v. Circuit Judge, 146 Mich. 439 (109 N. W. 769), this court considered in some detail the office and scope of a writ of error, and what matters would be brought up by such writ. See, also, Mikkola v. Circuit Judge, 165 Mich. 583 (130 N. W. 1118), and the cases therein cited.

In the instant case the circuit court retained jurisdiction by its order overruling the motion, and relator has a complete remedy by writ of error if it desires to stand upon, and not to waive, its alleged rights. It had also the privilege of testing the sufficiency of the service by plea in abatement, and of bringing the resulting judgment to this court by writ of error, if not satisfactory.

The writ is denied.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and.STEERE, JJ., concurred.


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    McCREERY v. ROFF. ROFF v. MILLER.
    1. Practice — Title—Summary Proceedings — Circuit Court Com» -MISSIONER.
    Upon, writ of error to review a judgment for plaintiff in summary proceedings for the possession of real property, the cause should be entitled in tbe names of tbe parties to tbe proceeding before tbe circuit court commissioner, who is not properly a party in tbe circuit or appellate court and should not be named in tbe title of tbe action.
    2. Costs — Security — Nonresidents — Circuit Court Commissioner.
    Tbe propriety of entering an order requiring security for costs of a nonresident complainant in summary proceedings is not reviewable but rests in tbe discretion of tbe commissioner.
    .3. Mortgages — Redemption—Assignments.
    One may purchase tbe mortgage interest, after foreclosure by advertisement, from tbe buyer at public sale, and a junior incumbrancer may secure an assignment before sale and foreclose in bis own interest or be may buy tbe equity of tbe purchaser during tbe period of redemption.
    4. Same.
    And where tbe prior mortgage was redeemed tbe second mortgagee, or bis assignee, might foreclose as against tbe owner or any subordinate interests.
    .'5. Same — Junior Incumbrance.
    In tbe absence of peculiar and unusual equities, no reason is apparent why tbe bolder of a second mortgage may not purchase tbe equitable interest acquired at foreclosure sale by tbe first mortgagee, or bis representatives, and tbe effect is not tbe same as redemption, whereby it has been held that tbe foreclosure deed becomes void and . of no effect.
    ■j6. Same — Estates of Decedents — Conveyances by Executor.
    Section 9361, 3 Comp. Laws, requiring tbe approval of tbe probate judge to tbe assignment of tbe rights of an estate in real property acquired on foreclosure, etc., does not apply to the purchase of a mortgage interest before expiration of the redemption period: it would become applicable after the title of the estate had become absolute.
    7. Same — Equitable Defense — Summary Proceedings.
    The defense of equitable estoppel, based on the theory that the defendant was induced to believe that complainant was not insisting on the rights acquired by foreclosure sale, and he therefore relaxed his effort to raise the money, is an equitable defense and will be entertained only in a suit in chancery.
    Error to Calhoun; North, J.
    Submitted October 6, 1915.
    (Docket No. 14.)
    Decided December 22, 1915.
    Summary proceedings by Vance McCreery against Frank E. Roff and another for the possession of real property. Judgment for complainant, which defendants removed by certiorari to the circuit court. Judgment for complainant. Defendants bring error.
    Affirmed.

      J. M. Hatch & Son, for relator.

      Winsor & Robinson, for respondent.
   Person, J.

Summary proceedings were begun before the circuit court commissioner by one Vance Mc-Creery to obtain, possession of lands alleged in the petition to be held unlawfully and against his rights by Frank E. Roff and Cyrus C. Sterling. The commissioner rendered judgment in favor of the complainant, and the proceedings were removed to the circuit court by certiorari, where the judgment of the commissioner was affirmed. The case is now brought to this court by writ of error. By some inadvertence the proceedings are wrongly entitled both here and in the circuit court. Mr. Roff is not a relator, but a defendant, and the circuit court commissioner is not a party to the cause at all. This is an action in which Vance McCreery is complainant and Frank E. Roff and Cyrus C. Sterling are defendants, and which should have been so entitled. Inasmuch, however, as it has been fully argued for both sides without objection, and the record shows plainly the actual controversy before the court, we will dispose of it upon its merits.

The defendant Roff became owner of the premises through a quitclaim deed from Cyrus C. Sterling and wife, bearing date December 15, 1911. The consideration was mentioned therein as “one dollar and other considerations.” When this conveyance was made to Mr. Roff, the lands were incumbered by two mortgages, the first having been executed to one Joseph Ferguson on April 1, 1909, for $6,000, and interest, and the second to Vance McCreery, on September 28, 1909, for $3,500, and interest. Both were duly recorded. Mr. Ferguson having died, one Charles A. McLees, as the executor of his will, proceeded to foreclose the first mortgage by advertisement, under the statute, and on the foreclosure sale bid in the property as such executor, receiving a sheriff’s deed thereof, bearing date October 15, 1913. After the sale, and before the period for redemption had expired, that is, on the 9th day of July, 1914, Vance Mc-Creery, the complainant, to protect his second mortgage, purchased all of the rights of the executor under the foreclosure sale, paying him $6,647.15, the amount of his bid, with interest, and taking from the executor an assignment of the first mortgage, together with a quitclaim deed of the lands. The deed included an assignment of the executor’s rights under the foreclosure, in the following language:

“And I also assign, transfer and set over all my right, title and interest to the proceedings in foreclosure of the aboVe-described mortgage together with all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining.”

After the period for redemption had expired Mc-Creery served notice upon defendants to surrender possession of the premises, and following such notice began these proceedings before the circuit court commissioner, on the 26th day of October, 1914.

To the judgment of restitution in favor of McCreery, rendered by the commissioner, and affirmed by the circuit court, the appellant Roff urges the following objections: That the commissioner lost jurisdiction of the case by refusing to order security for costs; that the only right of McCreery, as junior mortgagee, was to redeem, and that he could not, by purchase from the executor, acquire for himself the benefits of the foreclosure and, through that proceeding, title to the land; that the deed from the executor to McCreery was void, inasmuch as it did not have the approval of the judge of probate, as required by 8 Comp. Laws, § 9361 (4 How. Stat. [2d Ed.] § 11072) ; that McCreery is es-topped from asserting title through the foreclosure proceedings because of a letter written by him to Roff under date of September 22, 1914, whereby the latter was deceived into the belief that McCreery did not intend to rely upon such title. These objections will be considered in their order.

1. On the return day of the summons before the circuit court commissioner, the defendant Roff appeared specially and demanded security for costs from the complainant, McCreery, because the latter was a nonresident of this State. The commissioner declining to make an order requiring such security, the defendant pleaded to the merits and went to trial. It is now claimed by him that in refusing to make the order as requested, the commissioner lost jurisdiction of the proceedings. It is stated in the opinion filed by the circuit judge that the point was not urged before him, although counsel for defendant suggested that he did not wish, to abandon it entirely. It is not claimed that there is in the statute conferring jurisdiction in cases of this kind upon circuit court commissioners any provision making it obligatory upon them to require security for costs from nonresidents. . Nor can the law governing the matter in justice’s court (1 Comp. Laws, § 713 [5 How. Stat. (2d Ed.) § 12169]), or that applicable to circuit courts (3 Comp. Laws, § 9990 [5 How. Stat. (2d Ed.) § 12653]), be held controlling. Without some express provision somewhere making it mandatory that security for costs be required of all nonresident complainants in summary proceedings, the propriety of such order must be considered as within the discretion of the commissioner. McDowd v. Circuit Judge, 41 Mich. 551 (49 N. W. 923); Goodenough v. Burton, 146 Mich. 50 (109 N. W. 52).

2. It is admitted by Roff in his affidavit for certiorari that each mortgage was a valid lien upon the land paramount to his rights; but he insists that a junior mortgagee cannot, upon foreclosure of a prior mortgage, acquire the legal title through an assignment from the purchaser at the foreclosure sale. He argues that, because of his fiduciary relations to the mortgagor and those claiming under him, any such attempted purchase by a junior mortgagee, before the sheriff’s deed becomes operative, amounts only to redemption, citing Johnson v. Johnson, Walk. Ch. 331. But the statute relative to redemption has been somewhat changed since that case was decided. It is now settled that the purchaser, at a foreclosure by advertisement, ordinarily acquires an equitable interest in the land which he may, during the period given for redemption, transfer in full to another. And that his assignee, if there is no redemption, will take the legal title when it matures exactly as the original bidder himself would have taken it. Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32).

And, in the absence of peculiar and unusual equities, no reason is apparent why the holder of a second mortgage may not purchase this equitable interest, arising on the foreclosure.of a prior mortgage, as well as any one else. There is a marked difference between redeeming, which is a matter of right, and taking an assignment of the equitable interest acquired by the purchaser on foreclosure, which is a matter of contract between the parties. Lieblien v. Hansen, 178 Mich. 11 (144 N. W. 496); Frisbee v. Frisbee, 86 Me. 444 (29 Atl. 1115). Upon redemption the foreclosure deed, by force of the statute, becomes “void and of no effect” (3 Comp. Laws, § 11143 [5 How.'Stat. (2d Ed.) § 13938]) ; but no such result ordinarily follows an .assignment (Gage v. Sanborn, supra).

The right of a subsequent mortgagee to require the assignment to himself of a prior mortgage, after it has •fallen due and before its foreclosure, is no longer a question in this State. Williams Bros. Co. v. Hanmer, 132 Mich. 635 (94 N. W. 176); Lamb v. Jeffrey, 41 Mich. 719 (3 N. W. 204). And he may at once proceed to foreclose such mortgage after it has been assigned to him.

Upon redemption from a prior mortgage the subsequent mortgagee may foreclose his lien as against the owner of the land and all others whose interests are subordinate to his. Powers v. Lumber Co., 43 Mich. 468 (5 N. W. 656). And a junior mortgagee may bid in the land, with all of the rights of any purchaser upon the foreclosure of a prior mortgage by advertisement. Jones on Mortgages (6th Ed.), § 1884; Pingree on Mortgages, § 1390.

McCreery had an undoubted right, in this case, to take from the executor of the Ferguson estate an assignment of the latter’s interest, acquired at the foreclosure of the first mortgage, and the legal title to the lands vested in him when the sheriffs deed became operative. 1

3. Objection was made before the commissioner to the admission in evidence of the quitclaim deed, given by the executor to McCreery. The objection was based upon the fact that the deed had not been approved by the judge of probate, in accordance with the provisions of section 9361, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11072), which reads as follows:

“Any real estate which may have been purchased or which may hereafter be purchased by an executor or administrator as such, upon a salé on execution for the recovery of a debt to the estate, or upon a sale in the foreclosure of a mortgage held by said executor or administrator (whether owned by the deceased in his lifetime or acquired after his. death), shall be considered as personal estate and may be sold and conveyed 'by said executor or administrator in like manner as personal estate may now be sold, and the proceeds thereof shall be held and divided as personal 'estate: Provided, such sale shall first be approved by the judge of probate having jurisdiction of such estate by an order entered in the journal of the court a copy of which order shall be attached to and recorded with the deed given by such executor or administrator.”

This section of the statute applies, however, only when anyexecutor or administrator has taken the legal title to real estate. It would have become applicable if the executor in this instance had retained the equitable interest acquired by him at the foreclosure sale until the period of redemption had expired and the deed executed to him by the sheriff had become operative. Such legal title does not vest at once upon the auction sale on statutory foreclosure (Jones on Mortgages, § 1884), but only at the expiration of the period allowed for redemption. Until the end of that period the foreclosure proceedings may be abandoned, if the parties choose to do so (Dodge v. Brewer, 31 Mich. 227), or a subsequent mortgagee may still demand an assignment of the mortgage. (Moore v. Smith, 95 Mich. 71 [54 N. W. 701]). The effect of the quitclaim deed in this case was not a conveyance of real estate within the meaning of the statute, but an assignment of the right to become vested with the legal title, if there should be no redemption.

4. The executor of the Ferguson estate assigned his interest, as purchaser at the foreclosure of the first mortgage, to McCreery, the complainant, on the 9th day of July, 1914. The right to redeem from the foreclosure sale expired on the 15th day of October, 1914. Between these dates, and on the 22d day of September, 1914, McCreery wrote Roff, the owner of the land, as follows:

“As you requested yesterday below is a statement of the mortgages. I bought the first mortgage of Mr. McLees, Ex. paid him $6,647.15 on July 9th. You can figure the interest due me to any time starting with July 9th. On the second $3,500 mortgage there is a balance due of $2,242.70 on this the interest is paid to March 28, 1914.”

It is claimed that this letter caused Roff to believe that the foreclosure proceedings were not to be insisted upon, and led him to relax his efforts to raise the redemption money. How it could have been so construed is not apparent. But be this as it may, it is not a defense that can be urged in an action at law, such as this. If there were such deceit as equitably would still authorize redemption by Roff, his application therefor must be to a court of equity. Gage v. Sanborn, supra.

The judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Brooke, C. J.

text:
    McQUILLAN v. AYER.
    1. Trusts — Validity—Express Trust.
    An express trust can be created only in the manner prescribed by the statutes of this State and may be created for the beneficial interest of any person or persons when, such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the statute limitations as to time. 3 Comp. Laws, §§ 8839, 8844, 8845, 8848.
    2. Same — Deeds.
    A purchaser from a trustee takes not only the legal title, but the beneficial title as well, when the conveyance is made rightfully and under the terms of the trust, or if made wrongfully, when the purchaser is ignorant of the violation of the trust.
    3. Same — Good Faith — Equitable Title.
    A conveyance by the trustee ordinarily effects a complete transfer of the beneficial as well as the legal estate, and while the grantee is charged with notice of the limitations of the trustee’s title, as contained in the instrument creating it, or of such limitations as may be actually known to him, there is no doubt that, under the statutes of this State, the trustee, under a deed that only describes him as trustee, can convey to one ignorant of the terms of the trust an absolute title both legal and equitable.
    4. Same — Contribution—Equity—Taxes Paid.
    Since he who seeks equity must do equity, a defendant who asks affirmative relief may be required to reimburse a complainant for taxes which the complainant was compelled in good faith to pay to protect her interest under a tax title purchase, though the tax title was void.
    5. Same — Void Tax Title — Repayment.
    And the defendant was erroneously relieved of liability for taxes paid by the complainant before the date of his title deed, and during the seizin of his grantors.

      Appeal from Ontonagon; Cooper, J.
    Submitted October 8, 1915.
    (Docket No. 24.)
    Decided December 22, 1915.
    Bill by Annie McQuillan against Frederick Ayer for an accounting, contribution, etc. From a decree for complainant for partial relief she appeals.
    Modified.

      A. E. Miller and John E. Tracy, for complainant.

      M. J. Sherwood, for defendant.
    On August 14, 1875, one Edmund M. Spalding located certain lands in Ontonagon county. In doing so he seems to have acted as trustee for himself and nine others, among whom was Dr. James McQuillan. Dr. McQuillan disposed of one-half of his interest to Felix O’Hegan, and Spalding issued to McQuillan and O’Hegan declarations of trust in the following language:
    “Marquette, Aug. 24, 1875. 'This is to certify that Dr. James McQuillan is entitled to a one-twentieth (1/20) undivided interest in the following described lands, located in my name as trustee: S. E. % of S. E. % See. 9 & S. E. % & S. % of S. W. % Sec. 10 & S. i/2of S. W. % & S. W. % of S. E. % Sec. 11, township 50 N. of range 42 W., situated in Ontonagon county, State of Michigan, located Aug. 14, 1875. Edmund M. Spalding, Trustee.”
    The land was patented to “Edmund M. Spalding, trustee.” It appears that Spalding, as trustee, never paid any taxes upon the property. The lands were sold for taxes for the years 1877 to 1881 to one James McCarthy, who purchased at the request of McQuillan, and later conveyed his interest to McQuillan. McQuillan purchased directly for the taxes of 1882 and 1883, and he or his assigns have continued to pay the taxes on the entire property from that time down to and including the year 1913. Complainant through mesne conveyance became the owner of the McQuillan interest in 1897. The O’Hegan interest passed to James McQuillan in 1910 by devise, and was by him conveyed to complainant in 1913. The complainant, therefore, at the time of the filing of her bill, was the owner of an undivided one-tenth interest in said lands, according to the declarations of trust executed by Spalding. In the year 1899 Spalding executed a quitclaim deed covering the S. E. quarter of the S. E. quarter of section 9 to M. E. Asiré. This deed was signed by Spalding as an individual. In 1902 Spalding conveyed the balance of the land by warranty deed to William 0. Butler, signing the deed as an individual and as “Edmund M. Spalding, Trustee.” Later, and in 1902, Butler acquired Asire’s title to the 40 acres which had been conveyed to Asiré by Spalding. In the same year, 1902, Butler, by warranty deed, conveyed all of said lands to defendant.
    Complainant’s bill is filed for the purpose of compelling defendant to convey to her the legal title to a one-tenth interest in said lands, and, further, to require defendant to repay to her nine-tenths of the taxes which she or her grantors have paid since 1885, together with interest thereon. She further prays for an injunction restraining the prosecution of a suit at law. To this bill of complaint defendant filed an answer by way of cross-bill seeking a decree to the effect that he be declared to be the sole owner in fee of all of said lands, and that complainant and all others claiming through or under her be enjoined from setting up any claim to said lands or any portion thereof. The record fails to disclose that either the defendant or his grantors, or any one of them, made any inquiry as to the nature of the trust under which Edmund M. Spalding located and held the lands in question. Complainant claims no title to the lands by virtue of the tax deeds, but insists upon her equitable right to be reimbursed for her expenditures in that regard to the extent of nine-tenths of the amount thereof, with interest thereon. Upon the hearing a decree was entered quieting the title to the lands in question in the defendant, upon condition that he cause to be deposited with the registrar in chancery the amount of the taxes paid by complainant or her grantors subsequent to the date defendant acquired, title. Defendant complied with this decree, and complainant has appealed.
   Brooke, C. J.

(after stating the facts). Broadly, it is the claim of the complainant that the use of the word “trustee” after the name Edmund M. Spalding, in the patent to him from the government, was sufficient to put an intending purchaser upon inquiry as to the nature of the trust under which said lands were held by Spalding, and that the defendant, having failed to show that either he or his grantors made any such inquiry, should be held to hold said lands as to the one-tenth owned by complainant under the trust as they were held by Spalding. A large number of authorities are cited in support of this proposition, including the case of Geyser-Marion Gold Mining Co. v. Stark, 106 Fed. 558 (45 C. C. A. 467, 53 L. R. A. 684). With reference to these authorities it may be said that they measurably support the contention of the complainant. We think, however, that the question in issue is disposed of by a consideration of our own statutes and decisions. Under the statutes of this State an express trust can be created only in the manner prescribed by statute. Such a trust may be created for the “beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time prescribed in this title.” Subdivision 5, § 8839, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10679).

Section 8844, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10684), provides:

“Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.”

Section 8845, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10685), is as follows: '

“The preceding section shall not prevent any person creating a trust from declaring to whom the lands to which the trust relates shall belong, in the event of the failure or termination of the trust, nor shall it prevent him from granting or devising such lands, subject to the execution of the trust; and every such grantee shall have a legal estate in the lands, as against, all persons except the trustees and those lawfully claiming under them.”

Section 8848, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10688), provides:

“When an express trust is created, but is not contained or declared in the conveyance to the trustees, such conveyance shall be deemed absolute as against the subsequent creditors of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration.”

We think it clear that under the law of this State a purchaser from a trustee takes, not only the legal title, but the beneficial title as well, when the sale by the trustee is made rightfully and under the terms of the trust, or, if made wrongfully, when the purchaser is ignorant of the violation of the trust. 39 Cyc. p. 374, and cases cited.

A conveyance by the trustee ordinarily effects a complete transfer of the beneficial as well as the legal estate. Thatcher v. St. Andrew’s Church, 37 Mich. 264. While it is clear that one purchasing from a trustee is bound to take note of the limitations of the trustee’s title, as contained in the instrument creating the trust, or of such limitations as may be actually known to him, there is no doubt that under our statues, where the deed runs to one as a naked trustee, said trustee can convey to one ignorant of the terms of the trust an absolute title both legal and equitable. In the case at bar the only notice to the defendant or his grantors of the fact that others than Spalding were interested in the lands was contained in the use of the word “trustee” in the granting clause in the patent.

The declaration of trust upon which complainant relies was unrecorded, and the record is barren of proof that either defendant or his grantors had any actual notice thereof, nor does the record show that in disposing of the lands Spalding was, in fact, guilty of any breach of trust. For aught that appears, he may have had the right under the terms of his trust to dispose of the lands held by him; he to account for the proceeds thereof to those interested with him in the lands.

Counsel for complainant say:

“If complainant has any rights in the property under her trust certificate, she is entitled to contribution for taxes paid, under the doctrine of liability of one cotenant to another. If she has no rights under such certificate, she is nevertheless entitled to reimbursement under the doctrine of liability of the owner of property to one who has paid the' taxes in good faith claiming title. Under the first doctrine the contribution should be nine-tenths of the taxes paid. Under the second doctrine the reimbursement should be of the whole amount.”

It will be remembered that the learned circuit judge held that complainant had no rights in the property itself by virtue of the trust certificate, and with this holding we agree. He held, however, that the defendant should pay the taxes paid by the complainant since defendant acquired title to the lands. Exactly upon what theory the defendant was held chargeable with, taxes paid after he acquired title, and relieved from the payment of those paid while the title was in his grantors, the record does not disclose. Defendant is in a court of equity asking affirmative relief against complainant. In our opinion, the maxim, “He who seeks equity must do equity,” is here applicable. There can be no doubt'that the payment of the taxes by complainant and her grantors from the year 1887 down inured to the benefit of the estate now owned by the defendant. The fact that those taxes were paid by the complainant and her grantors, not as cotenant, but in reliance upon void tax titles, does not, in our opinion, affect the equities. In the case of Sanborn Co. v. Alston, 153 Mich. 456 (116 N. W. 1099), this court said:

“The name given to the title acquired by the tax purchaser under the provisions of the law is immaterial. Whether- we call the title absolute or conditional, he has a title which it is his right to protect by payment of subsequent taxes, and, when the original owner demands a reconveyance from him, he ought in justice and equity to be compelled to pay those taxes which the purchaser has been compelled to pay, or otherwise lose his title or lien. * * * It is also held that, where a party pays the taxes in good faith, claiming title, but having none, he is entitled to a reimbursement out of the land. Kemp v. Cossart, 47 Ark. 62 [14 S. W. 465]; Goodnow v. Moulton, 51 Iowa, 555 [2 N. W. 395].”

The stipulation contained in the record fixes the amount of taxes paid by the complainant or her grantors, together with interest thereon, at the sum of $1,-729.30. Under the authority of Sanborn Co. v. Alston, supra, we are of opinion that the decree should be amended, compelling-defendant to pay this amount, instead of the sum of $934.90, fixed by the court below.

With this .modification, the decree is affirmed, with costs to appellant.

Person, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    HECHT v. EBERS.
    Principal and Asent — Contracts—Breach/
    In reviewing a judgment for plaintiff in an action for breach of a contract of sale of a quantity of apples, the charge of the court, submitting to the jury the question of defendant’s son’s agency to enter into the contract, held, to be warranted by the evidence and to cover the issue in a sufficient manner.
    Error to Kent; Perkins, J.
    Submitted October 7, 1915.
    (Docket No. 12.)
    Decided December 22, 1915.
    Assumpsit by Isaac Hecht against Frank Ebers and Avery Ebers, before a justice of the peace, for breach of a contract of sale. From the judgment rendered, an appeal was taken to the circuit court, in which judgment was rendered for plaintiff against defendant Frank Ebers and in favor of defendant Avery Ebers. Defendant Frank Ebers brings error.
    Affirmed.

      Taggart & Taggart, for appellant.

      G. A. Wolf, for appellee.
   Brooke, C. J.

Plaintiff is a retail fruit dealer located in the city of Grand Rapids. Defendant and appellant, Frank Ebers, is a fruit grower living near said city. Defendant Avery Ebers is the son of Frank Ebers, and actively interested with his father in the production and sale of fruit. Some time in the latter part of September, 1913, the son, Avery Ebers, inquired of the plaintiff if he wished to purchase some apples. Upon being informed that he was in the market a conversation ensued, which resulted in a written contract in the following terms:

“Sold to I. Hecht about 500 bushels No. 2 apples all clear from worms at 30 cents per basket. Delivered 248 Indiana St. Paid $5.00.
[Signed] “Avery Ebers.”

This contract was prepared by Avery Ebers, executed by him, and he received $5, paid on account by 'the plaintiff, Hecht. At the time this contract was made a duplicate of it was made by Avery Ebers, except that the term “No. 2” was omitted. Upon this contract two or three loads of apples were delivered by Avery Ebers, totaling 139 bushels. Plaintiff made a demand upon defendant Frank Ebers to deliver the balance of the apples, but no further deliveries were made. Plaintiff brought suit in justice’s court for a breach of contract. An appeal having been taken from the judgment there rendered, to the circuit court, a judgment was rendered against defendant Frank Ebers in the sum of $146.80, and in favor of defendant Avery Ebers. Defendant Frank Ebers now reviews that judgment in this court.

Upon the trial plaintiff showed that the defendants were father and son, engaged in producing and selling fruit, and that he had on several occasions bought from one or the other of them fruit which had been delivered. He showed that the wagon from which defendant sold fruit was labeled “Frank Ebers & Son,” and that a similar sign was painted upon the barn located upon the farm owned by defendant Frank Ebers. Both defendants testified that sales of fruit were made indiscriminately by either. It was shown that defendant Frank Ebers, who claimed to be the sole owner of the fruit, had knowledge of the fact that his son, Avery Ebers, had entered into a contract with the plaintiff for the delivery of Certain apples. He claimed, however, that the contract entered into was for apples “table sorts,” instead of apples “No. 2” in quality. He denied the authority of his son to enter into a contract binding him to deliver in the future any specified quantity of apples of a specified quality.

The controlling question presented under the proofs was as to the authority of Avery Ebers to bind his father by the contract in question. Upon the question of agency the learned circuit judge charged the jury as follows:

“On the subject of agency you will take into consideration all the facts and circumstances in the case, the relation of the parties, what they did, their usual course of dealings, what was done with the proceeds, what instructions were given, if any, the conduct of the parties generally, and the nature of the transaction. * *. *
“If you find that the son Avery had general authority from his father to make a contract like the one in question to sell apples, the product of the defendant Frank. Ebers’ farm, then it would follow that the father would be bound by the acts of his son in making such a contract. It is immaterial in this case whether the memorandum was signed by Avery Ebers alone, or by his father, or whether Avery signed his father’s name by him as agent. Earnest money was paid, $5, on the making of this memorandum; a part of the contract was carried out; 139 bushels of apples were' delivered. You have heard the testimony in the case as to what was done by both defendants, Avery Ebers and bis father, Frank Ebers, in carrying out this contract, and what was done with the proceeds of the apples that were actually delivered. From all of these facts and circumstances, you are to say whether Avery Ebers had general authority to make the contract. If you find that he had, then Frank Ebers is liable in this action for the qcts of his agent. Avery. Of course, if you should find that Avery had no authority from his father to make this contract, then Avery would be responsible himself for a failure on his part to perform it. * * *
“In this case the burden of proof rests upon the plaintiff to establish his claim by a preponderance of the evidence. * * * If you are satisfied by a preponderance of the evidence that Avery Ebers was acting for and in behalf of his father, and as his father’s general agent in making this contract with the plaintiff, then your verdict should be against Frank Ebers for the amount you may ascertain under the evidence and the instructions I have given you to be the plaintiff’s damages. If you are not satisfied that he was such agent, then your verdict will be no cause of action against Frank Ebers, but your verdict will be against Avery Ebers for a like amount alone.”

The first eight assignments of error relate to the receipt or exclusion of evidence. These have been examined with care, but we do not find them well founded.

Five assignments of error are based upon the refusal of the court to give the defendant’s requests to charge. Under the evidence in the case we are of opinion that they were properly refused.

The remaining assignments are based upon alleged erroneous instructions to the jury. The charge, as quoted above, on the question controlling the issue, in our opinion properly stated the law of the case and adequately guarded the rights of the defendant. There was ample testimony in the case to support the finding of the jury that Avery Ebers had general authority from his father to make the contract iii question. An extended discussion of the several assignments of error would be profitless.

The judgment is affirmed.

Person, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.