author: Graves J.

text:
    George H. Van Etten v. William Eaton.

      Corporations: Organization under the general laws: Reports required by §§ 5, 18 and 19 of Comp. Laws, Chap. 63: Their object: Liability of directors for neglect. The general act under which a company becomes incorporated and its articles of association, taken together; constitute the charter of the corporation; the acceptance of which, charges the corporation with knowledge of all the duties prescribed by the act, and of all consequent liabilities.
    The neglect of a majority of the directors to make a report required by §§ 5,18 or 19, or to file it in any one of the places where the act requires it to be filed, will be presumed to be intentional; and such neglect, in the absence of all explanation, will render each director liable for all debts of the corporation contracted during the period of such neglect.
    The object of the Legislature in requiring the reports to be made and filed was to secure accessible means of information respecting the financial condition of the corporation, wherever it should be actually conducting its operations.

      Heard October 6.

      Decided October 12.

      Error to Bay Circuit.
    Eaton, the plaintiff below, recovered a judgment against the Chicago and Milwaukee Salt Company, a corporation organized under the laws of Michigan ( Gomp. Laws, Chap. 68), on which execution was issued and returned unsatisfied. He then brought this action against Yan Etten, the defendant below, alleging that Yan Etten was, and ever had been since its organization, a director of the corporation; that the directors of the said corporation had intentionally neglected to make the reports required by sections five and nineteen of the act, under which the corporation was organized; and that thereby the defendant (Yan Etten ) had become liable to him for the amount of his judgment and costs against the corporation.
    From the articles of the corporation it appeared that the purpose for which it was formed was “ for the manufacture of salt in the State of Michigan.” Article six specifying the place where its business should be carried on, is in these words-: — “ The place in this state where the office for the transaction of business is located, is the City of East Saginaw, and their business is to be carried on in the Counties of Saginaw and Bay, and the adjoining counties, if necessary. ” Copies of the articles of association were duly filed in the office of the Auditor General and in the office of the Clerks of Saginaw and Bay Counties.
    On the trial evidence was offered that the Company kept its office m Bay City in Bay County; and that upon search in said office no report as required by section five, of Chapter sixty-three of the Compiled Laws could be found. The Clerk of Bay County testified that he had made diligent search in his office and had found no report as required by sections five, eighteen, and nineteen of Chapter sixty-three of the Compiled Laws. No evidence was offered to show whether there was, or was not, any such reports filed in the office of the Auditor General or of the Clerk of Saginaw County.

      The Circuit Judge charged the jury that the neglect to file any of the reports required by the statute, must be presumed to be intentional, and that, if any of the reports required were not filed, the defendant would be liable in this action. The jury found for the plaintiff; and the judgment rendered on the verdict is brought into this Court by writ of error.

      Thao. C. Grier, for plaintiff in error.

      H H. Hatch and S. M. Green, for defendant in error.
   Graves J.

Eaton brought assumpsit against Van Etten to recover a demand against a manufacturing corporation organized under the act of February 5, 1853, and of which Van Etten was a stockholder and director. The action was supposed to be authorized by that portion of section 23 of the act, which provides that if the directors of any such company shall intentionally neglect or refuse to comply with the provisions, and to perform the duties required of them by sections three, five, eighteen and nineteen of the act, they shall be jointly and severally liable in an action founded on such statute for all the debts of such corporation contracted during the period of such neglect or refusal. And the liability of Van Etten was claimed to have arisen, by reason of the failure of the directors of the company to report upon the condition of the company, as required by sections five and nineteen of the statute in question.

The assignments of error are quite numerous, but all of them which are now relied on, depend upon the construction to be given to the statutes, and do not require therefore to be separately noticed.

It appeared upon the trial that on the 21 st of March 1862, the plaintiff in error and two other persons, adopted articles of association and formed a corporation for the manufacture of salt, and that the articles stated that the place in this State where the office of the company for the transaction of business was located, was in the city of East Saginaw, and that their business was to be carried on in the counties of Saginaw and Bay, and the adjoining counties if necessary.

Evidence was also given to show that from the winter of 1864, the company had carried on business in Bay County and had kept an office there, and that neither of the reports required by §§ 5 and 19 could be found in the office of the clerk of Bay County, or in the office of the company in that County.

On the part of the defendant evidence was given tending to show, that he was not aware that any law of the State required the making and filing of any reports of the kind mentioned, and was ignorant of any such law; and did not know whether or not the reports had been filed; and had not intentionally neglected or refused to conform to the requirements of the statute and indeed had no knowledge of such requirements and thought nothing about them.

Whether the reports in question had been filed in the office of the Auditor General or in that of the clerk of Saginaw County did not appear, nor was it shown whether the company carried on business in the latter County, unless the statement in the articles of association that at their date the office of the company was there situated, should be considered as evidence of that fact.

First. The plaintiff in error maintained that the requirement in section 19 That the reports should be filed in the office of the clerk of the County in which the business of the corporation should be carried on, had reference only to the County in which was situated the office of the company mentioned in the articles „ of association pursuant to the provisions of section four, and therefore as this office of the company was fixed by the articles of association in the County of Saginaw the omission by the directors to file the report in question in the office of the clerk of Bay County was of no legal consequence whatever.

This construction is thought to be supported by the difference in phraseology discovered in sections 3, 4 and 19.

By section 3, before the corporation can commence business the articles of the association are required to be filed with the “ County Clerk of the county or counties” in which the corporation shall “ conduct ” its business ; and by § 4 the corporation are required to state in the articles, the “place in this State where their office for the transaction of business is located and the county or counties in which their business is to be carried on;” but § 19 requires the report therein specified to be filed in the “■ office of the clerk of the county in which the business of any such corporation is carried on.”

The plaintiff in error contends that this variation in phraseology 'marks the purpose of the Legislature, and shows that where an act was required to be done in more than one county, the phrase “ county or counties ” was used, while in directing any thing to be done in but one county the expression employed was “the county.”

It appears to us, however, that this difference in language was wholly accidental and was never intended to point to the distinction now insisted on.

Section 4 distinguishes between the county in which the business office may be situated, and other counties in which the corporation may carry on business, and thereby repels the inference that the statute in referring to the county in which the business is carried on, must be taken as meaning the same county in which the office is located.

The Legislature contemplated that the company office might be in one county and the-business operations, aside from mere office work, entirely carried on in another county or counties more or less remote ; and it is not wholly unworthy of notice that the only passage in the act which in terms alludes to the company office, speaks of it as the “office for the transaction of business,” and not as the place where the corporation is to “ carry on business ” or “conduct the mining or manufacturing business.”

It is therefore seen that the language of the act which refers to the company office implies that the business spoken of in connection with it, is such as could be “ transacted” at the office, and not actual mining or manufacturing which could only be done elsewhere, and that while the language relating to the office and its business would exclude any operations consisting of the actual working of the mine or manufactory, the other portions of the act which speak of “ carrying on ” or “ conducting ” business are broad enough to include actual mining and manufacturing.

But, turning from this somewhat narrow view of the subject, it seems evident that a leading object of the Legislature, in requiring the reports in question to be made and filed, was to secure accessible means of information to those having business with the company respecting the financial condition of the corporation wherever it should be actually conducting its manufacturing operations. And as its nominal business office might be separated from the place, or places where its works should be fixed, and its material operations carried on, by great distance and many serious obstacles to the communication, there was quite as much reason for requiring the report mentioned in section 19 to be filed with the clerk of the county in which the manufacturing should be done, as in that of the county in which the office for “transacting” business should be situated, if a different one, and upon consideration we think that the Legislature intended by the section last cited, to require the report there specified to be filed in the office of the clerk of every county in which the material business of manufacturing should be done.

Second. It was further objected that as § 23 only fixes the personal liability of the directors when they “ intentionally neglect or refuse to comply with the provisions and to perform the duties required of them by sections 3,5,18 and 19,” their liability cannot arise unless the duties imposed by each and all of those sections shall have been intentionally neglected. This position is plainly untenable.

Section eighteen is expressly applicable and only applicable to mining corporations, and the directors of a manufacturing corporation can commit no fault by non-action under it, since its provisions impose no duty on the officers of such a -corporation.

The provision referred to in § 23 must be taken distributively, and be applied according to the nature of the corporation involved in the duty required.

Third. It was also urged by the plaintiff in error that it was necessary for Baton to show that the neglect imputed to the directors was intentional, and that whatever inference as to intention might properly be drawn from the bare omission to report, the jury were not bound to consider it as sufficient evidence of an intention to neglect the duty in question, although no explanation of the cause or, reason of the failure was submitted.

If the plaintiff should be required in the first instance to prove by direct evidence the actual intent in the minds of the delinquent directors, aud should be precluded from making proof by inference from the fact of omission to perform the act required by the statute, the object of the law would be seriously obstructed, if not in many cases altogether defeated.

The directors might at their pleasure neglect to report, and by a careful abstinence from any overt act or word to mark their design, make their liability depend upon their own. testimony, and a resort to that, by one seeking to fix a liability upon them might be made difficult and sometimes impossible by accident or contrivance.

It is hardly credible that the Legislature could have intended to fetter so beneficial a provision, as that in question, in the manner now contended for.

The organic act under which the corporation was formed, together with the articles of association, are to be considered as the charter of the company, and they are in the nature of a grant from the State to the corporators expressing the rights and privileges conferred and the conditions annexed to them, and the deliberate acceptance of this grant, with the rights and privileges involved in it, is conclusive evidence in the civil proceeding authorized by § 23 of knowledge in the grantees or corporators of all those conditions.

The plaintiff in error and his associate corporators must therefore be considered as having been acquainted with the requirement to make and file reports of the condition of the company; and we think that in view of this circumstance, and, in the absence of all explanation, or countervailing proof, of the omission by the directors to file the report in the office of the clerk of Bay County was sufficient evidence to require the jury to find that the neglect was intended, and that the Circuit Judge was warranted in directing the jury accordingly.

Fourth. It was finally insisted that VanEtten could be made answerable only in consequence of his own intentional neglect as a director, and not by reason of the neglect of his co-directors, who constituted a majority of the Board, and this position was supposed to be supported by the language of § 23 itself.

This view however cannot be maintained. A majority of the directors are required to make the report specified in §19, while §23 expressly authorizes -an action against all the directors jointly in case of an intentional neglect to make it, and this, notwithstanding the minority of the board may have been ready to comply, while the controlling majority involved the whole in disobedience.

It will be observed likewise that the passage in the last named section, which makes the neglect to report a misdemeanor, expressly confines the criminality to such of the directors as were “present and acting” at any time during the neglect. This denotes that the Legislature were of opinion that a director would be exposed to the civil remedy, although he had never been present and acting, since the only difference in the circumstances as stated in the section, to authorize a civil or criminal proceeding, is caused by the restrictive paragraph just cited.

These considerations are deemed sufficient to show that the Legislature intended, that a director guilty of no personal neglect might be made liable for the debts of the corporation, in case a majority of the directors should intentionally neglect to report as required, and hence, it is not thought necessary or expedient to extend this opinion by pursuing the question further.

Whether under the circumstances of this case, the omission to put any report on the files of the company' office in Bay County, was attended by any legal consequence need not be determined, since the neglect which was clearly established, to file it in the office of the clerk of that county was, of itself, sufficient. It will also be observed, in this connection, that in 1867 and 1869 the Legislature so amended section five, in respect to the report there specified, as to make it subject to an interpretation quite different from that which it called for before. Laws 1867 p. 126; Laws 1869 p. 116.

The positions taken by the plaintiff in error have been examined, and it appears to us that they fail to show any error committed by the Court below, and we think the judgment should be affirmed with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Ohristiancy, J.

license: Public Domain

text:
    Erastus Thatcher v. The West River National Bank of Jamaica, Vermont.

      Evidence : Of coipoi'ations: Variance in name. Documentary evidence of the existence of a corporation under the name of “ The West River National Bank of Jamaica,” described as located in the town of Jamaica, County of Windham, and State of Vermont, is admissible, under the general issue, to prove the corporate existence of the party plaintiff styled in the declaration— “ The West' River National Bank of Jamaica, Vermont.”

      Organization of National Banks : Compliance with prerequisite forms: Bowers of the Comptroller: Identity. It is no objection to the admission in evidence of the certificate of the organization of a National Bank, that the Notary before whom it was acknowledged appears to be one of tbe share holders of the Bank. That is a question for the Comptroller. His certificate of compliance with the act of Congress removes any objection which might otherwise have been made to the evidence on which he acted.
    The fact, that a bank is shown to have been doing business before the date of the certificate of its organization under the act of Congress, does not prove that it is a different body from that named in the certificate. § 4á of the act (B. 8. 8tat. at large, vol. 13, p. J.12) makes full provision for banks incorporated under State laws to organize as National Banks.

      Bromissory notes: Without consideration to maker : Made for accommodation of payee; Broof of endorsement. It is no defence to an action on a promissory note by an endorsee against the maker, that it was made without any consideration to the maker, or that it was understood between him and the payee that the latter was to take care of it; and this, although the holder had, when he took the note, full notice of the circumstances under which it was made.
    A copy of a promissory note and of its endorsement were served witfi the declaration, and were offered in evidence and read without objection to the jury. Any further proof of the endorsement was unnecessary.

      Heard October 7.

      Decided October 12.

    Error to Saginaw Circuit.
    This was an action of assumpsit upon a promissory note brought by a corporation plaintiff, whose name was stated in the commencement of the declaration to be — “ The West River National Bank of Jamaica, Vermont.” The note declared on was made by E. Thatcher, the defendant below, and was payable to the order of “L. N. Sprague, Ag’fc.” The defendant pleaded the general issue and gave notice that Sprague, the payee named in the note, was the agent of the Jamaica Leather Company, and that the note was given without consideration to the defendant, and for the accommodation of the Leather Company, of which the plaintiff had notice.

      On the trial the counsel for the plaintiff offered and read in evidence the note, a copy of which, and of the endorsement of “L. N. Sprag-ue ag’t” thereon, was attached to the plaintiff’s declaration. And further, offered in evidence a document purporting to be a certified copy of the organization certificate of “The West River National Bank of Jamaica,” dated August 17, 1865, to which the Comptroller of the Currency certifies that the original was filed and recorded in his office on the 25th day of August, A. D. 1865; and which document contained the following recitals :

      “First — The name and title of this association shall be The West River National Bank of. Jamaica.”

      “Second — The said association shall be located and continued in the town of Jamaica, county of Windham and State of Yermont, where its operations of discount and deposit are to be carried on.”
    And also a certificate of the Comptroller of the Currency in the following words:
    “TREASURY DEPARTMENT.
    “ Office of Comptroller of the Currency, )
    “ Washington, September 21, 1865. [
    “ Whereas, By satisfactory evidence presented to the undersigned, it has been made to appear that ‘The West River National Bank of Jamaica,’ in the town of Jamaica, in the County of Windham and State of Yermont, has been duly organized under and according to requirements of the Act of Congress, entitled ‘An Act to provide a National Currency, secured by a pledge of United States Bonds, and to provide for the circulation and redemption thereof;’ approved June 3, 1861, and has complied with all the provisions of said Act required to be complied with before commencing the business of banking under said Act:
    “Now Therefore, I, Freeman Clark, Comptroller of the Currency, do hereby certify that ‘ The West River National Bank of Jamaica/ in the town of Jamaica, in the County of Windham and State of Vermont is authorized to commence the business of banking under the Act aforesaid.
    “In Testimony Whereof, Witness my hand and seal of office, this twenty-first day of September, 1865.
    “FREEMAN CLARK, Comptroller.”
    Currency Bureau, Seal of the Comptroller of the Currency, Treasury Department.
    It appeared by the certificate of acknowledgment of the document first mentioned, that the acknowledgment was taken before Jno. A. Butler, Notary Public; and by said document it further appeared that J. A. Butler was a subscribing shareholder named therein. To the reading of these papers in evidence, the defendant objected; — (3) That the name of the plaintiff in this suit is “The West River National Bank of Jamaica, Vermont,” and not the name of the institution set forth in said documents: (2) That the certificate of acknowledgment of said first named document is not sufficient, because it appears upon the face of said first mentioned document that the Notary Public, taking said acknowledgment is one of the share-holders mentioned in the document: And (3) that it is not alleged in the declaration that the plaintiff is a corporation, nor that it is organized in manner and form as set forth in said documents.
    The Circuit Judge overruled the several objections and allowed the documents to be read in evidence; to which the defendant excepted.
    Evidence was offered by the defendant to show the knowledge of the Bank of the circumstances under which the defendant signed the note : but the view taken by the Court of this point in the defense renders it unnecessary to state in detail this evidence, or the ruling of the Court below upon its admissibility and effect.

      The defendant requested the Court to charge the jury that it was necessary for the plaintiff to prove the endorsement of the note; the Judge declined, but charged the jury that the note and endorsement had been read in evidence without objection, and there was no affidavit denying the execution of said endorsement, the defendant was therefore precluded now from disputing it; to which the defendant excepted. The jury found for the plaintiff, and the judgment entered on the verdict is brought into this Court by writ of error.

      M Thatcher, plaintiff in error in person.

      W. T. Webber, for defendant in error.
   Ohristiancy, J.

There was no error in allowing the plaintiff below (defendant in error) to introduce, for the purpose of proving its corporate existence, the organization certificates, upon which was certified by the Comptroller of the Currency that the- original was filed in his office, nor in the admission of the certificates of said Comptroller (of Sept. 21 1865), that the bank had complied with the provisions of the act of Congress, “To provide a National Currency” etc., of June 3, 1864.

The objection made by defendant below was, in substance, that by the declaration, the plaintiff claimed to be a corporation by the name of “The West River National Bank of Jamaica, Vermont,” and that the certificates did not tend to prove the existence of a corporation by this name, but only of one by the corporate name of The West River National Bank of Jamaica.”

There being no plea in abatement, and the objection arising upon the general issue, the question is whether this is a substantial variance; or rather it is merely a question of identity arising upon the evidence; and no slight variation, which does not go to raise a doubt of the identity, is to be regarded.

The plaintiff is described in the declaration as “ The West River National Bank of Jamaica, Vermont,” a corporation organized under the act of Congress entitled” etc., ([giving the title of the act.)

The organization certificate filed with the Comptroller of the Currency, it is true, declares that “the name and title of this association shall be “ The West River National Bank of Jamaica;” but it also declares that “ the said association shall be located and continued in the Town of Jamaica, County of Windham and State of Vermont, where its] operations of discount and deposit shall be carried on.” And the certificate of the Comptroller, showing a compliance with the provisions of the act of Congress, recites, that “ Whereas, by satisfactory evidence presented to the undersigned, it has .been made to appear that ‘The West River National Bank of Jamaica,’ in the County of Windham, in the State of Vermont, has been duly organized” etc.

It is clear enough, therefore, that the bank, the existence of which is proved by the certificate, is “The West River National Bank of Jamaica ” in the State of Vermont. And the addition of the word Vermont, at the end of the proper corporate name in the declaration, rather tends to render the indentity more specific; and may properly be treated as intended only to show in what State the bank was 'located. And, upon the evidence, we see no reason to doubt the identity of the plaintiff with the bank whose existence is proved by the certificate.

The objection that the organization certificate appears to have been acknowledged before a Notary, who by the the same document is shown to have been a shareholder in the bank, is one which might have been raised by, or before, the Comptroller, but of which we can take no cognizance here. It was for him to decide upon the sufficiency of the evidence of compliance with the act of Congress, and we cannot review his decision. His certificate of compliance removes any objection which might otherwise have been made to the evidence upon which he acted.

But it is further objected that the evidence of witnesses in the case goes to show, that the plaintiff was a bank doing business long prior to the date of these certificates, and therefore that the plaintiff cannot be the same corporation to which the certificates allude. This objection is answered by the forty-fourth section of the act of Congress in question, (Statutes at Large, Vol. 13, p. 112), making full provision for banks incorporated under State laws to organize under this act. And we think the fair tendency of the evidence referred to is only to show that this had been such State institution, doing business prior to its organization as a National Bank under the act of Congress.

The evidence of the corporate existence of the plaintiff was full and complete, and there was no evidence of an opposite tendency.

The defense relied upon by the defendant below, without going here into unnecessary particulars, was substantially, that the note was given to L. N. Sprague, agent of the Jamaica Leather Company, (to whose order it was made payable), without consideration, and merely for the accommodation of said Leather Company, upon the assurance of Sprague that the note would be taken care of and the defendant protected; and that the bank, the endorsee and plaintiff below, received it with full notice of these facts. >

The testimony of the defendant himself, and perhaps some other testimony in the cause, tended to show, that the note was given for the purpose above stated, and without consideration, and with the assurance of Sprague above stated.

But the defendant’s own testimony further tended to show that the note was given for the express purpose, and with the full understanding that it was to be negotiated to the bank to enable the Leather Company to raise money upon it. It was also clearly shown by other evidence that the bank did discount the note endorsed in blank by Sprague, as agent, and paid the money for it; and there was no evidence of a contrary tendency.

We think it, therefore, wholly immaterial whether the bank had notice, or not, of the circumstances under which, and the purpose for which it was given, and of the other facts relied upon in the defense. Had the directors of the bank, knowing the nature of the previous transactions between defendant and the Leather Company, been present and heard and known the whole arrangement between Sprague and the defendant, when the note was given, the bank would still be entitled to recover.—See Charles v. Marsden, 1 Taunt. 224; Smith v. Knox, 3 Esp. 46; Thompson v. Shepherd, 12 Met. 311; Brown v. Mott, 7 Johns. 361 Lord v. Ocean Bank, 20 Penn. St. 384; Grant v. Ellicott, 7 Wend. 227; Renwick v. Williams, 2 Md. 356; Molson v. Hawley, 1 Blatch. 409; Caruthers v. West, 11 Q. B. 143.

The want of consideration, and the assurance of Sprague that the note would be taken care of, do not affect the right of the bank as endorsee, though taking it with notice. Mere accommodation paper is generally, at least, without consideration, and such assurances, express or implied, are always given or relied upon, when such aecommodation paper is given. Such facts might constitute a good defense as against the party for whose accommodation it is given ; but to allow them to defeat a recovery by an endorsee who advances money upon it — when that is the purpose for which it is given — would, defeat the very purpose for which such paper is made, and render the transaction absurd.

As between the defendant and the endorsee, the defendant took the risk of Sprague’s assurances being made good, and his remedy is upon him or the party he represented.

These conclusions render it unnecessary to notice the defendant’s requests to charge with reference to the want of consideration, and the question of notice, or the charges given upon these points.

The Circuit Court- was right in holding that there was no evidence tending'to show that the Leather Company had any interest in the money sought to be recovered in this suit.

A copy of the note with the endorsement, accompanied the declaration, and the note and endorsement were read in evidence without objection, and no evidence was given tending to disprove the endorsement. The Court was therefore right in refusing to charge that it was necessary to prove the endorsement in any other way.

We see no errror in the record, and the judgment must be affirmed with costs.

The other Justices concurred.


author: Graves J. Campbell J.

text:
    The People ex rel. School District No. 1 of the Township of Portage v. William Ryan, Supervisor of the Township of Adams.

      M'ection of New Townships: Liability fo7' existing debts: Tbe erection an d organization of a new township severs its territory from the School District within which it was formerly embraced, and there is no general provision of law which charges the property within the new township, with the obligation to pay any debts created for school purposes, which existed at the time of the erection of the new township.

      Heard October 9.

      Decided October 12.

    Application for mandamus-:
    On the petition of School District, No. One, of the township of Portage, to compel the Supervisor of the Township of Adams to levy certain taxes.
    In 1863 the School Inspectors of Portage had. organized the entire township into one graded and high school district, and at the annual meeting of the district in that year, a tax of $5,000 and the issue of bonds for a loan of $15,000, for the erection of school buildings, were authorized. These acts were legalized by Act No. 52, of the Legislature of 1864, with a proviso, that the act should not be construed to prohibit the Board of School Inspectors of said township from setting off or dividing said township into primary school districts, under the law regulating the same, whenever in their discretion the interests of education may require it. “After the voting of said bonds” a portion of the township of Portage was set off -and organized by the Supervisors of Houghton County into a new township by the name of Adams; which organization ivas perfected at the annual township meeting in April following by the election of townslrp officers, who duly qualified and entered on the performance of their duties.
    At the annual meeting of the relator in 1867, taxes for various school purposes, including the payment of teachers, interest on the bonded debt, and $8,000 of the principal, were voted, amounting in all to the sum of $19,500. At a meeting in October, 1867, of the Supervisors of the townships, then five in number, which, at the organization of the graded and high school district were included within its bounds, the tax assessed by the district was proportioned to the several townships ; that of the township of Adams being fixed at $3,087 98. The Supervisor of the township refused to levy it: and the liability of the township of Adams to pay this tax is the question before the Court.

      L. S. Trowbridge and Q. V. N. Lothrop, for Relator.

      O. I. Walker and E. O. Hinsdale, for Defendant.
   Graves J.

The main question to be considered in this case, is, whether the creation of the township of Adams, by the Board of Supervisors out of territory, embraced by School District No. One, of Portage, severed all connection between the district and township; or left the people of the latter subject to the district, and liable for a portion of its debts. In considering this question our attention is properly confined to the case as it stands before us, and our decision will be regulated by what has actually occurred, and not by any supposition of what might have taken place, or what may hereafter be done.

The relators expressly aver in the petition that the township of Adams was set off from the territory embraced in the district, and organized;. and in taking this proceeding against the respondent as the Supervisor of that township, they necessarily assert the complete existence of the latter.

The proceedings of the Board of Supervisors in erecting the township are not before us, and as the record is silent on the subject, and as no claim of a contrary kind is interposed, it is right to presume that the Board made no attempt to impose upon the people of the township any portion of the existing debt of the district, or to subject them to any of the corporate powers, or to the jurisdiction of the latter. And, whether with or without the aid or sanction of an act of the Legislature, directed to that end, any such action could be supported, is a point we do not consider.

That the Legislature were of opinion that no portion of the debts of the district would devolve on the people of the new township, without an express enactment on the subject, is to be inferred from the passage of the law of 1867, which required the Board to apportion the debts when any new township should be formed. Vol. 2 Sess. L. 1867 p. 1,032.

This law however seems to have been passed a short time after the erection of the township by-the Board, and and in all probability without any knowledge by the Legislature that the township had been already formed. The relators do not claim that it had the effect to make the tax-payers of Adams liable for any portion of the debts in question.

Assuming then, as we must, that the new township was duly formed and organized by legislative action under and according to the Constitution, and without any special conditions or restrictions, that it became one of the townships of Houghton County by the same kind of general action by which new townships are commonly, if not always formed, the question recurs, did it when thus formed and organized, possess the same legal faculties, the same immunity from obligations, the same right to order and manage its municipal affairs, as are conceded by the laws of the State to new townships generally?

Was it not required to elect all the officers and to take the steps enjoined by the Constitution and laws upon new townships ?

These questions will admit of but one answer. Hpon becoming one of the organized townships of the State without special conditions, it became a township ” within the meaning of the Constitution and laws, and clothed with the same rights and powers and subject to the same duties which belong to new townships generally. It was the equal in rights and duties of all new townships, not specially fettered by particular legislation.

Such being the status of the new township, the people were entitled and required to conform in all respects to the general laws of the State bearing upon townships and township affairs.

They were required to elect school officers, (Art. 11, § 1 Constitution )j organize school districts, (1 Comp. L. pp. 743, 731, 732, 759, 760, 755); and to institute and set in motion a complete school system from the beginning.

They were entitled to exercise their own discretion, within such limits as the general laws prescribe, respecting the schools they would support; and certainly they could not be compelled to support any other, however desirable m the opinion of the relators, unless constrained so to do by positive law. Nor could the discretion of the people of the new township be in this respect cramped or overborne by the previous action of the school organization in territory formerly comprehending that of the township, unless in virtue of some special statute.

It is nevertheless maintained on the part of the relators that the Legislature by the act of 1855, (1 Comp. L. § 2,411) declared that the boundaries of a school district having a Union School should not be changed without the written consent of the majority of the District Board of such district, and that this was equivalent to saying that no action of the Board of Supervisors in dividing towns, or erecting new ones, should have the effect to change or alter the boundaries of a school district having a Union School.

But this position cannot be supported, even if it be conceded that this law is applicable to the graded schools established under the act of 1859.

The law of 1855, (§2,411 Comp. L.) if still in force, could never have been intended to take from the Board of Supervisors their constitutional power to erect townships, since-that would have been impossible, and we must therefore suppose the prohibition was intended for the Inspectors and inhabitants in whom was the exclusive power to form and alter school districts. The law of 1855 could, therefore, have formed no impediment to the action of the Board of Supervisors, or m any manner have modified the consequences of such action.

The view we have taken of the question which has been considered makes it unnecessary to notice the other and less important points, which were argued for the respondent.

We are satisfied that the rights, powers and duties of the township, as erected, are wholly inconsistent with the claim set up by the relators.

The position taken by the district could only be sustained by abridging some of the present legal rights and powers inherent in the township, and by dispensing with some of the duties now cast by law upon it.

We are therefore of the opinion that the motion must be denied with costs.

Campbell J.

The statutes, while they might have made such a provision without difficulty, have not authorized primary school districts of the ordinary kind to exist separately, and under separate control, within a graded district. Two sets of officers are not allowed, at the same time, to act independently within the same organization. And the distribution of school moneys, and other necessary arrangements, could not be readily made on any such basis, without further legislation.

When, therefore, the statute of 1864, legalizing the erection of the township of Portage into a single district, provided further that it should not prevent the school Board of the township from creating new districts whenever they might find it expedient, it was equivalent to placing this district, except as to its internal management, on the same footing with ordinary districts, and giving to the School Board the same power to divide it, that they would have had in case it had been a common district. In other words, it was so far made subject to the ordinary incidents of the town authority.

As the school Board of Portage township could not lawfully exercise power in another township, it followed that, when the town of Adams was set off, that territory fell under the control of the school Board of Adams, and they have exercised their powers by organizing a new district, and have thereby severed it from the old graded district, if the organization of the town had not already done so— upon which I am not clear, and express no opinion.

The liability to taxation for any school purpose must exist by statute before it can be enforced in the ordinary way. The statute of 1867 shows plainly enough that the Legislature then intended to make the whole of the original district responsible for the loan made on its credit. But that law is not operative in this case; and there is no other law providing for any such state of facts as we find here. Until some new law provides some rule of apportionment the Courts cannot interfere to devise one.

I agree, therefore, in refusing the mandamus.

Cooley Oh. J., and Christiancy -J., concurred in the foregóing opinions.


author: Campbell J.

text:
    Martin Geiger et al. v. Albert M. Harris.

      Contract for Sei'vices: Duties of Employees. One employed by the year, on a salary, is bound to devoto his time diligently and faithfully to the business interests of his employers, and to do nothing which will hinder or compete with those interests; but this will not prevent his rendering civilities and services for others which do not conflict with his duties to his employers. And in seasons of leisure, or when their work cannot be done, he is his own master.
    A traveling commercial agent commits no violation of duty by taking, gratuitously, orders for goods upon a house in whose service he has formerly been engaged; he not having solicited them, and it not appearing that such orders were in any way prejudicial to the interests of his employers.

      Heard October 9.

      Decided October 12.

    Error to Wayne Circuit.
    Harris brought an action of assumpsit, against Geiger & Hoyt, in the Wayne Circuit Court for a balance due to Mm under a special contract to serve them as their clerk or agent for one year, at the rate of $1,000 per annum. He commenced services under this contract on the 12th day of September, 1867, and on the 20th of March, following was discharged, as he alleges, without fault on his part. The defendants below pleaded the general issue; and on the trial gave evidence to show that the contract for hiring plaintiff' was for an indefinite time at the rate of $1,000 per annum ; that one Bentley occupied a portion of their store as a wholesale dealer in oil, aud that about the time plaintiff commenced traveling for them they made an arrangement with Bentley whereby they were to receive a commission on all orders for oil that they should furnish him, and that they directed plaintiff to procure such orders; that plaintiff did, to some extent, procure such orders, and that on the first order thus procured he claimed the commission, but that the defendants claimed that it belonged to the firm, and that the plaintiff yielded, and it was paid to them; that a short time prior to plantiffs discharge defendants were informed and believed that plaintiff had been selling oil on commission for A. B. Hinman & Co., of Detroit, while in defendants’ employ, without their knowledge, and that for this, and other reasons, they discharged him; but that they never stated to plaintiff that they had been so informed, nor did they allege that, as a reason for discharging him, and that they paid him in full to the time of his discharge; that prior to his engagement by defendants, plaintiff had been engaged for a considerable time selling oil for A. B. Hinman & Co., at a commission of fifty cents per barrel, which was the regular commission that said firm paid to all who sent (hem orders; that, subsequently, while plaintiff was in defendants’ employ, between November 15, and February 28, A. B. Hinman & Co. had received 15 orders for oil, amounting to 24 barrels in all, which were entered upon their books as having been sent them by plaintiff; that all these orders were from dealers in the interior of the State — -old customers of A. B. Hinman & Co., —to whom plaintiff had sold for them before he was employed by defendants; that if plaintiff had set himself about selling oil for said firm, he ought to have sold a great deal more than 20 barrels in that length of time; that plaintiff has never been paid or claimed any pay for any of these orders, so taken while in defendants’ employ; that, after his discharge by defendants, plaintiff again sold oil on commission for them, and that he had presented his bill for all his commissions on oil sold for them both before and after he was in defendants’ employ, and had been paid in full therefor, but had never said anything to Mr. Hinman about that sold while in defendants’ employ, and that said firm expected to pay commissions on said orders and were ready and willing to do so.
    On the part of the plaintiff rebutting evidence was given to. show that defendants never instructed him to sell oil for said Bentley; that the orders for oil taken by him for Hinman & Co. came from old customers of Hinman & Co., to whom plaintiff had before sold oil for them; that he did not solicit any orders, but these customers came to him knowing that he had before sold oil for said firm, and asked him to take the orders for them, as he was coming in, or to send them in by mail; that he told these persons he was not selling for Hinman & Co., but that he could take their orders as an accommodation to them; that some of said orders came from persons to whom he sold lamps and glass goods for defendants, and others were given to him by persons as they stood by while he was exhibiting or selling goods for defendants, or came to him voluntarily; that he took no time that belonged to defendants, in taking or sending these orders, and that the taking of them did not in any way interfere with the discharge of his duties to the defendants; that he took said orders out of courtesy to Mr. Hinman, and that he did it without any expectation of receiving any commission or pay for it, and he never had received or asked for any; that he had an understanding with Mr. Hinman from the first that he was not to receive any commission or pay from Hinman & Co., while in defendants’ employ, and, for that reason, Mr. Hinman had furnished him with a few stamped envelopes to send such orders as came to him for oil, without expense to him.
    The jury found a verdict for the plaintiff of $550; and the judgment entered thereon, the defendants below bring into this Court by writ of error.

      Wallcer & Kent, for plaintiffs in error.

      Wilhinson & Post, for defendant in error.
   Campbell J.

Harris sued Geiger & Hoyt for his salary for a year, having been employed by them as a traveling agent and they having discharged him without a cause.

The defense set up was that Harris had taken orders during the period of his agency, for Hinman & Co., who were oil merchants. Geiger & Hoyt were in the glass and lamp business, and there was conflicting testimony as to their having agreed to get orders for another oil house for which they were to receive commissions.

The orders which Harris sent or brought in to Hinman were all, — as appeared by the only testimony in the cause, —given to Harris, without his solicitation or procurement, and were transmitted by him gratuitously; while before and after his connection with Geiger & Hoyt, he had obtained such orders from Hinman upon commission.

Plaintiffs in error requested the Court to charge “That if the jury find from the evidence that plaintiff (Harris) was in the habit of procuring orders for oil for Hinman & Co., while in the employ of defendants, and without their knowledge, and that Hinman & Co., were accustomed to pay a commission for-such orders, and that plaintiff knew of such custom, that the obtaining of such orders, was a breach of plaintiff’s duty to defendants, and that this breach of duty was a sufficient justification' for the discharge of plaintiff, even though the original contract was for one year.” This the Court refused, but did charge as follows: “I cannot charge you in the language requested. If you shall find that the plaintiff was in the habit of procuring orders during the time that the defendants were entitled to his services under the contract, then you would have a right to consider that. That would be a breach of the contract, — to be engaged in other business during the time that they were entitled to his services. But you will make the distinction. If you find, as testified to by plaintiff, that he did not seek any orders, that he did not take any time from the defendants, that these were mere requests to him to hand in orders, and, as he testified, and as Hinman testified, they were all Hinman’s old customers, he had no control over them; if you find he merely did that, so as not to interfere with his duties to the defendants, that would not be a breach of his contract. In other words, if he fulfilled his duty to the defendants, as he was bound to do under the hiring, the contract would not have been broken upon his part in that regard; but if you shall find, as I said, that he took the time that belonged to the defendants, and engaged in a business contrary to the hiring, then that would be such a violation of the contract as would prevent his recovery.”

The claim of the plaintiffs in error is placed upon the assumption that an agent employed as Harris was, is during the agency so bound to his employers, that all of his time belonged to them, and all of the profits and' fruits of his labors or occupations, of whatever kind belonged to them and not, to him, so that any use of his time for any but them is a violation of:' duty.

This is á doctrine that cannot be admitted, in regard to free perso'ns. The charge of' the Court below was correct, and the rule laid down is sensible and fair. An agent violates his duty if he neglects to use all reasonable and thorough diligence to further the interests of his employers-He also violates it still more plainly by doing or furthering any business which can in any way hinder or compete with theirs. But there must be seasons of leisure, and there may be circumstances under which their work cannot be done. And in doing their work, he may find it profitable for them to secure bargains or advantages by civilities and services which can in no way prejudice them. They have no claim against him except for faithful service. In every thing else, subject to this, he his own master, and may do what he pleases, so long as they are not prejudiced.

In the present case there was nothing tending to show that Harris had done any more than extend decent civilities, by bringing or sending in gratuitously, orders brought to him by old customers of Hinman & Co., some of which orders were given while he was negotiating sales of wares for plaintiffs in error. It requires no great experience in men to know, that an agent who should be churlish enough to refuse such favors would not be a very popular canvasser. The Court very rightly declined to regard this as any violation of duty in itself, and the jury were sufficiently cautioned to give the employers the full benefit of protection from anything that could have damaged them.

There is no error in the proceedings, and the judgment must be affirmed with costs.

The other Justices concurred.


author: Per Curiam.

text:
    The People ex rel. The Singer Manufacturing Co. v. George L. McAllister.

      Capias : In actions on contract: Hot' a tort. A capias issuing in an action on a contract is irregular, unless it appears from the statement of the cause of action in the affidavit, on which the order to hold to bail is made, that the case is one of those enumerated in §4,119 Comp. Laws.
    And, in actions of tortthe facts and circumstances to establish the tort must be stated in the affidavit. Mere allegations of wrong, which are the deductions of the affiant from states of fact not set forth, will not justify the issuing of a capias.

      Heard and decided October 13.

    Application for certiorari.
    On the 21st of July, 1869, the Singer Manufacturing Co. caused a capias to be 'issued out of the Circuit Court for the County of Hillsdale against George L. McAllister in an action of trespass on the case, for receiving as the agent of said plaintiffs, and fraudulently converting to his own use one hundred and thirty-eight dollars and ninety-two cents, whiGh came to his possession by. virtue of his employment as. such agent. An order to hold to bail was endorsed on the writ, made by John T. Blois, one of the Circuit Court Commissioners for Hillsdale County, upon the affidavit of Homer E. Josselyn alleging :■ — ■
    That on the 30th day of July, 1866, and on other days between that day and the 1st day of May, 1869, George L. McAllister, late of the city of Hillsdale, in the county of Hillsdale and State of Michigan, had delivered to him, by the said Singer Manufacturing Company, a large quantity of sewing machines, parts of machines, needles, and thread, of great value, to wit of the value of eleven thousand nine hundred dollars of lawful money of the United States, of the personal property, goods and chattels of the said Singer Manufacturing Company, which said goods and chattels were to be sold u and disposed of by said George L. McAllister as the agent of the Singer Manufacturing Company and the proceeds thereof paid to said Singer Manufacturing Company.
    That said George L. McAllister' at said dates, as the agent of said Singer Manufacturing Company, received said property, goods and chattels, and afterward, and at different times, sold and disposed of the same, and by virtue of such employment received for the same the sum of eleven thousand nine hundred dollars, and fraudulently converted to his own use, without the consent of said Singer Manufacturing Company, of said amount, the sum of one hundred and thirty-eight dollars and niuety-two cents, so being in his possession by virtue of his said employment as such agent, and has hitherto wholly refused to account for or pay over the said sum of one hundred and thirty-eight dollars and ninety-two cents to the said Singer Manufacturing Company, although demand for the same has repeatedly been made upon him.”
    McAllister was arrested by virtue of the capias, and being in custody, presented a petition to Albert Dickerman, another Circuit Court Commissioner for Hillsdale County^ for a writ of habeas corpus; and was by Commissioner Dickerman discharged from custody.
    The plaintiffs now file the affidavit of Josselyn, their agent, setting forth the proceedings on the habeas corpus, and move that a writ of certiorari be issued to remove the proceedings into this Court.

      II. M. & W. E. Gheever, for the motion.
   Per Curiam.

There is a little difficulty, we think, in ascertaining from the papers before us, precisely what is the nature of the action which plaintiffs claim to have brought against the defendant. The defendant, it appears, has been acting as agent for the plaintiffs in the sale of sewing machines, and has sold to the amount of $11,900. The action is brought for an alleged balance of $138 92 on the sales, for which, it is alleged, he has refused to account, and has fraudulently converted the same to his own use.

If the action is to be regarded as one upon any of the agreements, express or implied, growing out of the contract of agency, it is plain that there was no ground for a capias. The statute ( Qomp. L. § 4,119), authorizes personal actions arising upon contract to be commenced by capias, only to recover damages for any breach of promise to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment. The present is not among the cases enumerated, and therefore, if the action is upon contract, the commissioner was right in discharging the defendant.

Is the action brought for a tort? We take it that in any case where a party claims a right to restrain a citizen of his liberty, it devolves upon him to make out a clear case, bringing himself within some rule of law permitting the restraint.

The papers before us affirmatively show that the cause of action springs from the relation of agency and presumptively is based upon contract. The plaintiff, however, charges the defendant with the fraudulent conversion of a balance due from him as agent. The charge is in the most general words possible, and gives no particulars. It is precisely such a charge as one party might make against another, when the latter refuses to pay over a balance claimed without, as the other believes, a sufficient reason. We have no reason to suppose from these papers that the particular sum of $138 92 in moneys belonging to plaintiffs was in possession of the defendant, and that without right or pretense of right, he has converted it to his own use. On the contrary, the fair inference we think is, that the case is one where the agent, in violation of his contract of agency, has failed to pay over a balance due. An action for such a balance is clearly an action on contract, and if tbe party sees fit to bring one of tort instead, and to cause a capias to be issued, he must make a showing of facts and circumstances to establish the tort, and not content himself with mere general allegations of wrong which are his own deductions from states of fact not set forth, so that the Court is unable to determine whether there is any ground for the deductions or not.

We think there is no ground for a certiorari.

Motion denied.


author: The Court

text:
    William D. Fox v. Joseph D. Shipman.

      Wan'ants for school moneys: Not negotiable. Warrants drawn by the officers of School Districts upon the Township Treasurer to pay school moneys to the Assessor are not negotiable; and. no action can be maintained upon them by any person to whom they may have been transferred.

      Heard and decided October 13.

    Error to Calhoun Circuit.
    This was an action of assumpsit brought by William D. Box against Joseph D. Shipman before a Justice of the Peace for Calhoun County.
    The plaintiff declared verbally as follows: “Plaintiff declares v. defendant on the common counts in assumpsit generally, and specially on an acceptance of a written instrument, which written instrument is in the words and figures following, to wit: “To the Treasurer of the township of Sheridan, pay to S. E. Ceiger, Assessor of School District Number One in said township, the sum of two hundred and thirty four dollars out of moneys voted by the said District, in your hands belonging to said District.
    “Dated at Sheridan, this 19th day of December, 1868.
    “Signed, CHAELES MDEFLEY, Director.
    “Countersigned, HAEVBY B. HALL, Moderator.”

      An acceptance of the order was written at the foot of it,
    “Signed, J. D. SHIPMAN, Treasurer.”
    It was endorsed :
    “Pay to the bearer the within order.
    S. E. GEIGER.”
    . The defense was the general issue and notice. On the trial before the Justice a judgment was rendered for the defendant; and the plaintiff removed the cause, by appeal, to the Circuit Court _ for the County of Calhoun.
    At the trial in the Circuit Court the warrant was offered in evidence and objected to. The Court sustained the objection, and, there being no other evidence directed a judgment of non-suit to be entered; which the plaintiff brings into this Court by writ of error.

      T. G. Pray, for plaintiff in error.

      J. G. Lodge, for defendant in error.
   The Court

held, that the warrant, or school order, — as the bearer of which the plaintiff brought his action, — was not a negotiable instrument: that it was an official order made by public officers, — the Moderator and Director of the school district, (Laws of 1867, p. 43 § 53), upon another, the Township Treasurer, to pay a sum of money to still another, the Assessor, who is the disbursing officer of the district, (Comp. Laws § 2,275); the duties af each of which are defined by the statutes: that the paying and receiving of the money were official acts, performed in the execution of public trusts, and that the Treasurer was under no obligation to pay the money to any other person than the Assessor named in the warrant.

The judgment of the Court below was affirmed with costs.


author:
      Grates J.
      Campbell J.

text:
    Joseph. C. Baker v. John Casey.

      Sheriff's Sale of Personal property. A sheriff’s sale'of personal property, not then within the bailiwick of the sheriff, nor within the view of the bidders conveys no title..

      Water Graft aet qf 186U: Subjects of ju/iisdiciion; Concurrent jw'isdiction of certain Circuit Courts; Bernice of process. A vessel to be subject to the jurisdiction of the state Water Craft act, must be one in use, or capable of use at the time of seizure; not a wreck, incapable of service.
    Section 3 of the Water Craft act, (Laws of 186k, p. 109,) which confers concurrent jurisdiction upon the Circuit Courts of certain adjoining counties over all water craft within the lirqits of either county; and provides that process issued in either may be served in the waters of either, by the sheriff of either county, will not authorize the sheriff of one county to seize property out of his bailiwick, away from the water, nor to pursue and retake there, property which had once been in his custody, under the act.

      Heard October 14.

      Decided October 15.

    Error to Saginaw Circuit.
    This was an action of assumpsit brought by Baber against Casey, before a Justice of the Peace for Saginaw County for the value of several pieces of engine and machinery, which were taken from plaintiff's possession in Saginaw County, the title to which he claimed through a chattel mortgage; and were carried away by the defendant, claiming title by virtue of a judgment and execution sale, under the Water Craft act of 1864, by which the wreck of the tug EL Johnson had been sold in Bay County, under proceedings in that county. The property, for the value of which this action was brought, was, at the time of the sale, in Saginaw County, some twelve miles distant from the place in Bay County, where the wreck was sold.
    The plaintiff recovered a judgment before the Justice of $300; which the defendant appealed to the Circuit Court, where he obtained judgment, which the plaintiff brings into this Court by writ of error.

      W. L. Webber, for plaintiff in error.

      Gage é James, for defendant in error.
   Grates J.

Baker prosecuted Oasey in assumpsit before a Justice of the Peace to recover the value of certain articles which had formerly belonged to the steam tug “ H. Johnsonand the Justice rendered judgment for the plaintiff for $300 damages, besides costs.

Oasey appealed to the Circuit Court where judgment passed against the plaintiff, who then brought error to this Court.

In January 1867, the property in question was transferred by chattel mortgage from the owner to the plaintiff, and in the summer of 1867 the tug was wrecked by an explosion of her boiler on the Saginaw River, while the property in controversy, which was then used upon her, was on board. In the fall of that year one Rose and the defendant Casey commenced proceedings against the' vessel under the act, commonly called the Water Craft law, in the Circuit Court for the County of Bay, and caused the wreck to be seized by the Sheriff.of that county, under a warrant issued in said proceedings.

After the seizure by the Sheriff and with knowledge of it, the agent of Baker, the mortgagee, removed the property in contest from the wreck to Bast Saginaw, under an understanding that it should be held subject to the Sheriff’s order.

At this time, the wreck was at a ship yard at Portsmouth, in Bay County, some twelve miles distant from the place to which the other property was taken.

In April, 1868, the Circuit Court gave judgment in the proceedings, under the Water Craft law, against the tug, and decreed that the vessel together with her appurtenances, should be sold to pay the judgment, at public vendue, by the Sheriff, after a notice of ten days, to be published in the manner required by the statute in such case made and provided.

In execution of this judgment and decree the Sheriff of Bay County shortly afterward attended at the wreclc in Portsmouth to make the sale directed by the Court. The property in controversy still remained, however, at East Saginaw. The Sheriff opened the sale by saying :

"Gentlemen, I will now proceed to sell this craft: I am offered $500 for itand then declared to Casey that the property was his.

It is through this sale that the defendant claimed to have become owner of the property, and by means of it, to have extinguished the title of the plaintiff.

Aside from the proceedings and sale under the Water Craft law, it was not claimed that the defendant could make any defense to the action for the value of the property left at East Saginaw. And as the defendant deduced his right from the sale, of the invalidity of which we entertain no doubt, we shall confine ourselves to a ruling upon that point.

Whatever grounds may be suggested for discriminating between the formalities, and circumstantial requisites in a sale, under the law in question and other judicial sales, it seems impossible to support the sale in this ease. The property in contest was not in view of bidders, or of the officer,' nor near enough to be examined in any manner, or to be actually delivered, on being struck off, or at the close of the sale. It was twelve miles from the place of sale in another county and beyond the territorial jurisdiction of the officer.

In addition to this, it is to be observed, that the Sheriff seems to have confined his offer expressly to the wreck which was there present, and those things then actually connected with it, and to have made no reference whatever to the property at East Saginaw.

As several rulings of the Court below, which were excepted to and are assigned for error, were contrary to the views here expressed, the judgment of the Circuit Court must be reversed with costs and a new trial ordered.

Campbell J.

I think the proceedings erroneous for the double reason that the property in dispute did not come fairly within the intent of the Water Craft law — -(assuming it to be valid, which it is not necessary now to consider) — and that the Sheriff could not legally transfer it under the circumstances, while it was in another county. These reasons rest somewhat on the same legal foundation.

While the jurisdiction of admiralty has been extended very far, it does not depend on statute and therefore furnishes no aid in this case, and the present statute cannot be assumed to extend beyond its express provisions in authorizing these peculiar proceedings. It seems to contemplate that the subject of jurisdiction must be a vessel in use or capable of use at the time of seizure, and not a wreck incapable of service. It contemplates that the craft may at that time have a master as well as owners, and that it shall be in the water and not on the land. The sheriffs of different counties can go beyond their bailiwicks to serve process on the water, but not away from the water, and the thing seized is supposed to be capable of being brought within the county of jurisdiction when arrested. If this is so, the mass of materials proceeded against here could not be regarded as a vessel within the law, and there was no jurisdiction over it.

The chattels now in dispute were at the time of sale in another county, and, being on land, were not within the reach of the Sheriff of Bay County. He could not act officially where they were in store.

The statute is express that he shall deliver the property sold, and this property he could not deliver.

It could not under any circumstances be regarded as included in the sale, unless the bidders were informed that it would be so treated. But, not being in the county, it was not within the Sheriff’s control, and could not pass by his transfer, even supposing the hulk and engine to have been legally sold.

Judgment reversed, and a new trial ordered.

Cooley Oh. J. and Christiancy J. concurred in the foregoing opinions.


text:
    Louis R. Buchoz v. Christiana C. Walker et al.

      Foreclosure sale: Equitable claim to surplus: Fraudulent competition at the sale. At a foreclosure sale, tlie party in whose favor the decree was rendered bid off the property, under the influence of competition at the sale, at a sum exceeding the amount of the decree, and the value of the property. He now flies a bill, praying to be relieved from the payment of° this surplus, on the ground that he was the equitable owner of the mortgaged premises; and that the competition at the sale, by which his bids had been carried up beyond the value of the property, was not in good faith : *

      Reid: That the facts set up in the bill did not establish his claim to be the equitable owner of the property; nor does the bill make a case of fraudulent conduct at the sale, to a degree, to justify the relief prayed for.

      Dower: Contract by husband for release. A contract by a husband that his wife shall release her dower cannot be enforced in equity — . Weed v. Term 2 Doug. p. 3hh.

      Heard October 8.

      Decided October 19.

    Appeal in Chancery from Washtenaw Circuit.
    Louis R. Buchoz, at a foreclosure sale under a decree in his favor, bid off the mortgaged premises at $2,000. The amount due on the decree, beside interest and costs, was $1,119 25, and the value of the property did not exceed this Bum. He filed a bill in the Circuit Court for the County of Washtenaw in Chancery, to be relieved from the payment of the surplus of his bid over the amount due on the decree; alleging as the ground for granting the relief he prayed for; — 1. That he was the equitable owner of the mortgaged premises; and — 2. That he was induced to make his excessive bid by the vexatious and fraudulent conduct of Christiana 0. Walker, the principal defendant; and by being obliged to act hastily at the sale, without opportunity for consultation or reflection.
    The bill was demurred to; and on the hearing of the demurrer, was dismissed for want of equity. The complainant brings it into this Court by appeal.
    W W. Gheever, for complainant.

      JR. F. Frazer, for defendants.
   Campbell J.

Complainant, having as assignee of a mortgage foreclosed- it in chancery, became the purchaser at a sum exceeding the amount of the decree. This bill is filed to obtain relief against being compelled to pay over the surplus, and the equity relied upon is based upon the facts set forth at length in the bill. The Court below sustained a demurrer for want of equity, and the whole case, therefore, depends upon the substantial merits appearing on the face of the bill.

The facts, so far as they are material, were as follows : In 1861, complainant, owning some improved property in Ann Arbor, desired to purchase the adjoining lot to extend his improvements. The part immediately next to his premises was owned by Gottlieb Walker, and the remainder by James Conlan. Complainant had made a bargain with Conlan; when Walker, ascertaining it, bought out Conlan and gave him back a mortgage signed by himself and wife covering not only the Conlan premises, but also Walker’s own original portion, so as to include the entire lot.

Buchoz then made a verbal bargain with Walker for the purchase of these premises, by the terms of which he was to pay one hundred and ten dollars in money, to assume the payment of the Conlan mortgage and obtain a release of Walker’s personal liability, and to give a mortgage to Walker for the balance to make up twelve hundred dollars. The deed was to be made when the arrangement with Oonlan was completed, and the mortgage was to be given as soon as possession was delivered, the interest on the Oonlan mortgage being computed to such delivery, and the mortgage to Walker to be made for the balance remaining of the full purchase price. Walker subsequently agreed to pay Oonlan’s expenses for coming to Ann Arbor to make the releases, and Buchoz advanced twenty dollars to Oonlan at Walker’s request for that purpose.

The parties, as soon as the bargain was made, went together to Mr. Morgan, of Ann Arbor, and Walker employed him to search the records, and the respective parties also employed him to draw the deed, and the bond and mortgage, which he did at once, making the latter for the supposed balance up to the time when it was proposed to surrender possession.

Complainant procured a release from Oonlan as agreed upon, and in addition to the twenty dollars advanced to him, paid Walker ten dollars in cash, and paid Morgan at Walker’s request, five dollars. Complainant executed his bond and mortgage, and placed it with one hundred dollars in. money in Morgan’s hands to be delivered to Walker when Walker’s wife should sign atrd acknowledge tire deed which Walker executed and acknowledged, and agreed to have executed by her. Mrs. Walker went to Morgan’s office, and after making full inquiries, said she was satisfied, and when the deed was produced for her signature, signed or partially signed it, and then, when Morgan’s back was turned, ran off with it and refused to return it.

Complainant, although using many efforts, never succeeded in obtaining the deed either from Walker, who died in 1862, or from his widow, and never got possession of the land. In 1865 he purchased the Oonlan mortgage and proceeded to foreclose it. TJpon the sale Mrs. Walker-bid the property off at $2,500, and refused to pay her bid. A new sale was had, and complainant was compelled to bid $2,000,' as he says, because a bidder, employed by Mrs. Walker, informed him he should run it up to that amount, and complainant acting hastily and without opportunity for advice, and supposing he was equitably the owner and entitled, to any surplus, was thus induced to bid up to that sum, while, as he avers, the property was worth no more than the mortgage, and no Iona fide bidder would give more.

There are two views in which the complainant’s equities are presented by these facts; first, as supposed to arise out of the contract, and second, as arising from his being the highest actual bidder at less than his last bid.

In the first view, this bill is somewhat in the nature of a claim for specific performance; that is to say, complainant asks to be put in as good a position as if the contract had been performed; and claims to be the equitable owner, if not the legal owner.

The bill does not make him out to be the legal owner. There is one allegation that Walker delivered him the deed; but this is to be considered in connection with the other facts. The dates are very much confused in the bill. But 'at the time of this alleged delivery the preliminary payment and other conditions had not been complied with, and the deed was at once left with Mr. Morgan with the $100 and the bond and mortgage, none of which were to be delivered until Mrs. Walker should execute on her part. It was part of the original agreement that she should sign. It is quite evident no one supposed the deed would be perfect without her concurrence, and that it was never delivered as a complete instrument and therefore never became operative.

Was then the contract such as to vest in complainant an equitable title? It was not valid under the statute of frauds. There was no possession taken under it. There was but a trifling payment in money. The release of Walker’s personal liability is the most serious thing done, and, as that was irrevocable, it might perhaps have been a sufficient act of part performance to raise an equity, if no one but Walker had been concerned. But a contract by a husband that his wife shall release her dower cannot be enforced in equity. Weed v. Terry 2 Doug. R. 344. While it is alleged complainant made efforts to get the deed, it does not appear clearly that he offered to accept it without Mrs. Walker’s signature in full performance. And, inasmuch as the facts showed him in the outset, that his claim would not be complied with, he was bound if willing to take Walker’s deed alone, to use some diligence in appealing to the Courts for relief against what operated as a fraud upon him. Instead of doing this, he waited four years, or thereabouts, and then, instead of filing a bill for specific performance against the heirs, he purchased the Oonlan mortgage, thereby protecting himself against the only serious loss to which he had been exposed, and he proceeded to foreclose it. This proceeding was a waiver of his other claims, even if they had been maintainable.

He cannot, therefore be considered as the equitable owner of the property, and cannot claim the surplus in that capacity.

It remains to be considered whether he is entitled to the surplus as the only bona fide bidder up to the amount due on the decree.

If the bill had shown affirmatively that on the second sale there was no one present who would have given more than the amount of the decree, and that the complainant bid that sum, and that the higher bidding, as at the first sale, was a mere trick, instigated by Mrs. Walker, for fraudulent purposes, there seems to be reason for regarding such a showing as creating some equity, although not perhaps to be enforced in a separate suit. A re-sale would be liable to the same trickery, unless the Commissioner should resort to unusual strictness in requiring instant payment of bids, which would of itself have a tendency to repel bidders. If the complainant had been entitled to possession no great damage could have been done. But while defendants continue in possession they have a strong interest, in appropriating the rents, to use all means to keep off a sale. And as there was no personal remedy for any deficiency, if the property failed to pay the debt, complaniant, who had been entrapped by Walker’s fraud into the necessity of taking, this security, has a right to favorable consideration, and to protection against any further frauds if that can be secured to him. If he was in fact the only real bidder to the amount of his decree, and the sham bids were designed to defraud him into bidding more than the land was worth, to the advantage and by the procurement of the principal defendant, and there was no one else who would have given any more than the amount due, we incline to consider him equitably entitled to relief. Actual fraud would appear in such'a case. But the bill does not go upon this theory, and does not show all these facts. It proceeds upon the claim that complainant really owned the equity of redemption, and the statements of fraudulent bidding and contrivance are inferential and incomplete. The bill is therefore defective on all grounds.

Where the fraud or mistake arises entirely upon the sale and its circumstances, without reference to distinct and original equities, the more obvious remedy would be to apply in the original suit for a re-sale under adequate restrictions, or to pay the surplus money into Court and apply for it, as so much extorted by fraud beyond the highest bona fide bid, which would have secured the property unless outbid for fraudulent purposes. This last course would demand a very conclusive showing.

As tbe complainant seems to have acted in good faith, the bill should be dismissed without prejudice, so that he may, if he sees fit, take such otjier steps as he may be advised. The case is one to which we have found no parallel reported.

With this modification the decree should be affirmed with costs.

The other Justices concurred.


author: Cooley Ch. J.

text:
    Orrin D. Barker et al. v. William H. Cleveland.

      Estoppel of record : Judgment: Substance of issue. A party is estopped to deny tlie validity of a contract for tlie sale of chattels, on which he has brought an action for the breach of a warranty contained in it, and obtained a judgment thereon. Such judgment affirms the validity of the contract; and by such judgment all facts necessarily within the issue, become, as between the same parties res adjudicata.

    To coastitute a judgment in one case a bar to another action, it is not essential that the object of the two suits should be the same; nor that the parties should stand in the same relative position to each other; nor is it necessary that the point in controversy should have been actually litigated in the first suit; it is sufficient if its determination was necessarily involved in the judgment.
    A breach of a warranty may be the cause of action on which a plaintiff declares, or it may be a defense against an action on a contract; in both cases the pleader affirms the contract, and the point for determination is the same.
    But an action of damages, occasioned by a breach of a warranty on a sale of chattels, does not present the same issue, as an action to recover baclc money paid upon a rescinded contract; and proof of part payment on a contract, would not be within the issue of an action founded solely on the breach of warranty, and nothing concerning such part payment, would be concluded by the judgment on the breach of the warranty.
    Nor would an action for the purchase price of chattels be affected by a judgment on a breach of warranty contained in the same contract.

      Heard October 12.

      Decided October 19.

    Error to Lenawee Circuit.
    Assumpsit for goods sold and delivered. Plea, general issue, with notice of set off and breach of warranty; and, puis darr. con. a judgment between the same parties in bar.

      D. B. é R. M. Dujfield, for plaintiffs in error.

      A. L. Millard, for defendant in error.
   Cooley Ch. J.

• The record in this case exhibits the following state of facts:

On January 18, 1868, Cleveland brought suit against Barker & Bewick before a Justice of the Peace of Lenawee County, to recover the price of a quantity of cranberries sold by him to them, together with the packages containing them, and an oil barrel. The defendants pleaded the general issue, with notice of set off, and also the following notice: “That in, to wit, October 1865, the defendants bargained with plaintiff for a large quanitv, to wit, 20 barrels of cranberries, which the said plaintiff promised to sell and deliver to defendants, and promised that said cranberries should be good merchantable cranberries, and of number one quality, and that plaintiff did not keep his promise and undertaking, but instead thereof sent to defendants a lot of poor cranberries of inferior quality, and not merchantable or of any value, which are the same cranberries set forth in the plaintiff's declaration, whereby defendants were put to great costs and loss and expense in and about the premises, and in the payment of transportation, cartage and storage upon said berries, and otherwise were greatly damaged and sustained great loss and damage in the premises, which damages the defendants will recoup in this cause, and have the amount certified in their favor. And that the cranberries set forth in the plaintiff’s declaration, and for which plaintiff seeks to recover judgment, were a poor and inferior lot of cranberries, not merchantable or of any value to defendants, and not such cranberries as the plaintiff promised to sell and deliver to defendants, and that plaintiff promised and agreed that said cranberries should be of good merchantable quality, arid number one cranberries and that plaintiff failed to keep his said promise and agreement. ”

It appears from the record that the issue thus joined between the parties was tried’by, the Justice, and judgment rendered in favor of the plaintiff, from which the defendants appealed.

After the appeal had been taken, and while it was pending in the Circuit Court, Barker & Bewick brought action against Cleveland before a Justice of the Peace of Wayne County, and declared for the same breach of contract on his part which was set forth in their notice of recoupment in the suit in Lenawee. Cleveland pleaded the general issue, and gave notice of the former suit in bar. The suit in Wayne County was tried, and the plaintiff therein proved that the cranberries in question were purchased by sample at Adrian, and were to be sent by railroad to the, plaintiffs at Detroit; that they were sent accordingly, but when received were found to be greatly inferior to the sample; that Cleveland was notified by letter of the deficiency, but returned no satisfactory answer; that after holding them some time subject to his orders, they advertised them at auction and sold one barrel at a small price, but found it impossible to sell the balance at any price, and were finally obliged to throw them out. They exhibited a bill on the trial, wherein Cleveland was charged with freight and other charges, and with one hundred dollars paid on the purchase, and credited with the sum received for. the one barrel sold. The question whether there was any difference in value between the berries bargained for and those actually delivered, was not raised in the evidence on that trial, but the plaintiff claimed that the cranberries were worthless, save what was received on the sale of the one barrel. In their bill of particulars the plaintiffs credited the defendant with the price of the oil barrel he had sold them, and the same was allowed by the Justice in the judgment which he rendered. That judgment was in favor of the plaintiffs for one hundred and twenty-nine dollars and thirty-three cents damages and costs. Cleveland subsequently removed the proceedings into the Wayne Circuit Court by certiorari, but the judgment was there affirmed, and he then paid it.

The cause in Lenawee County was brought to trial in the Circuit Court on May 28, 1869. The plaintiff, Cleveland, proved the sale of the cranberries at the price agreed upon, also of the packages containing them and the oil barrel, and that they were delivered by him to common carriers at Adrian to be transported to Detroit, according to the directions of the defendants. The proof of the sale was oral, and did not show whether the contract was in writing or not, but it does not appear to have been objected to by defendants. The defendants relied upon the judgment in Wayne County as a bar; they having given notice puis darrein continuance of the judgmént as a defense. The Circuit Judge found that there was a valid contract of sale; that the judgment in Wayne County was not a bar, and that plaintiff was entitled to recover the agreed price for the berries, and he gave judgment accordingly. This judgment is the one now before us on writ of error.

As we think the Circuit Judge reached the correct conclusion on the merits in this case, we do not find it necessary to discuss some of the questions raised by the brief of the defendant in error, the plaintiff below, and which are supposed to meet, on grounds of a technical character, the various assignments of error. Somn of those questions are both difficult and important, and it is proper that a decision upon them be postponed until it shall become necessary.

The plaintiffs in error insist, among other things, that the contract of sale, as shown in the court below, should have been held void under the statute of frauds, inasmuch as it was for the sale of goods to the value of more than fifty dollars, and it was neither shown that the contract was in writing, nor that any earnest money was paid, nor that there had ever been an acceptance of the goods as required by the statute in the absence of a written contract or of earnest money. Delivery to a carrier, they say, is not delivery to them; and there was no evidence given in this case to show that the berries ever came to the hands of defendants.

There is an answer to this, which it would seem ought to be conclusive. Not to speak of the facts that it does not affirmatively appear that the contract was not in writing; that the evidence to establish it was received without objection, and that the Circuit Judge finds the contract a valid one, we may inquire whether it does not affirmatively appear that the berries were in fact received and accepted by the defendants in such a manner as to make the contract valid under the statute of frauds.

The plaintiff, it appears, relied upon a delivery to the carrier selected by the defendants as a delivery to and an acceptance by them. If the evidence had stopped here it would have been necessary for us to determine whether the receipt by the carrier was such an acceptance by the purchasers as would satisfy the statute. But it did not stop here. The defendants put in evidence of the proceedings and judgment in Wayne County as a bar to the suit, and by so doing they made them evidence for both parties for whatever they would legitimately prove. And, we think it very clear, that they prove not only satisfactorily but conclusively, both a valid contract of sale, and also that the defendants accepted the articles sold.

It has already been stated that in the Wayne County suit the. plaintiffs counted on the breach of a warranty contained in the contract for the sale of these berries. The Court found their allegations true, and gave judgment for the damages they had thereby sustained. Now, whatever fact became the subject of judicial controversy in that suit, and was relied upon by the plaintiffs therein in support of their action, is necessarily comprehended within the judgment which was rendered by the Court, and is thereby, by inference of law, conclusively settled between the parties to the adjudication.—Jennison v. Inhabitants of W. Springfield, 13 Gray, 544.

When a party declares upon a contract of warranty contained in a sale of chattels, he necessarily affirms the validity of the contract. The warranty does not stand independent of the sale, but is inseperably connected with and forms a part of it. It is only one of the stipulations in the main contract, and it can neither be alleged, or proved or judicially found, except as a part of the sale. It is evident, therefore, that the judgment in Wayne County in affirming the warranty also affirmed, of necessity,. the contract of sale, and that the existence and validity of that contract were therefore necessarily within the issue in that case, and are now res adjudicata.

To constitute the judgment in one case a bar to another action, it is not essential that the object of the two suits should be the same, or that the parties should stand in the same relative position to each other. It would not be claimed by the plaintiffs in error, that because they were plaintiffs in one suit and defendants in the other, that therefore their judgment should not conclude them if the point in controversy were the same in both cases. Nor is it important that in one case it was one stipulation of a contract which was sought to be enforced, while the other suit involved a different stipulation: the validity or invalidity of the contract being adjudged . in the one case, it is settled for the other also.—Betts v. Starr, 5 Conn., 550; Doty v. Brown, 4 N. Y., 71; Williams v. Fitzhugh, 44 Barb., 321; Walker v. Chase, 53 Me., 258; Sawyer v. Woodbury, 7 Gray, 502; Birckhead v. Brown. 5 Sandf, 134; Castle v. Noyes, 14 N. Y., 329. And it is immaterial whether the point was actually litigated in the first suit or not, if its determination was necessarily included in the judgment.—Bellinger v. Craigue, 31 Barb., 537. In the Wayne County suit Cleveland did not dispute the validity of the contract of sale, but as the plaintiffs therein counted upon it, and based their right to recover, upon the failure of the articles they received under it to comply with the warranty it contained, and as they have had the benefit of a recovery upon the contract, they are precluded now from alleging that no such contract was ever made.

But the plaintiffs in error also insist that the Wayne County judgment is a conclusive bar to Cleveland’s suit, and that the Circuit Judge erred in this case in holding otherwise. As we understand counsel, they claim that the question of the payment of the purchase price was necessarily covered by the issue in their suit upon the warranty, that the Court was required to pass upon it in order to determine the amount of damages they had sustained, and that the sum of one hundred dollars actually found to have been paid was taken into account in the judgment rendered. If the plaintiffs in error are correct in these positions, then, unquestionably, the judgment in the case before us is clearly erroneous.

We have no doubt that had Barker & Bewick proceeded in that case upon the theory of the total rescission of the contract and recovered a judgment, such judgment must have been held conclusive. When a vendee puts an end to the contract of sale for the failure of the vendor to perform, and brings suit for the recovery of damages, the object of the suit is to place the plaintiff, so far as the law can accomplish that result in statu quo. It is obvious that in such a case the inquiry is of the first importance, how much has been paid on the contract, since such payment constitutes usually the first and leading item of damages. The purpose of such a suit is to recover back the sums which the plaintiff has paid out upon and in consequence of a contract, the benefit of which he has lost through the non-performance by the other party. — Freeman v. Clute, 3 Barb., The issue

therefore necessarily covers, and the trial, adjusts, all questions of payment of the purchase price, and the vendor is forever precluded from maintaining a suit for the same or any unpaid portion thereof.

But we do not understand that an enquiry concerning the amount of damages sustained by breach of warranty, necessarily involves the question of the payment of the purchase price. If the contract is a valid one, it is immaterial to the plaintiff’s action in such a case whether he bought for cash, or upon a credit not yet expired. The object of the suit is foreign to the question of payment. He sues to recover the difference between the actual value of the articles received on the contract, and what their value would have been had they answered the warranty, and unless the vendor defends on the ground of non-payment of the purchase price, the. Court does not concern itself with that question. The parties in such a case are at liberty to settle their controversies in one suit or by cross actions; but whether one suit is brought or two, the damages are measured in the same way. If the vendee, instead of bringing a cross action, sets up the breach of warranty by way of recoupment, the vendor is entitled to recover the purchase price, while the vendee will have awarded to him, by way of reduction, such damages as he can show he has sustained by a breach of the promise of warranty.—Thornton v. Thompson, 4 Grat., 12. The rights of the parties are adjusted by giving the vendor the purchase price, and then requiring him to make good to the vendee any deficiency in the quality of the articles sold.

If, however, the vendee thinks proper to bring an independent suit upon the warranty, the damages of the respective parties are not measured, by any different standard. If the vendee recovers in that suit, he is conclusively presumed to recover the full difference between the value of the articles delivered, and their value as they would have been had they complied with the warranty. If the only issue m the case is upon the warranty, the Court will not concern itself with the enquiry how much of the purchase price has been paid. — Perrine v. Serrell, 30 N. J., 458. And the vendee, having recovered his damages in that suit, is supposed to be fully compensated for any deficiency in the articles bought, and to be legally bound afterward to pay any balance of the purchase price, without deduction or controversy.

In the present case we do not deem it important to determine whether the Justice in the Wayne County case took into consideration the moneys, if any, paid towards the purchase price. If he did, we think he went aside from the issue to do so, and could not thereby bind the vendor, who did not by his pleadings make that matter the subject of litigation in that suit. Indeed we have reason to suppose that the pleadings in the suit brought by Barker & Bewick were entirely silent on the subject of the payment of the purchase price, and, therefore, that even collaterally the question did not necessarily arise. For although we have not the declaration in that case before us, we are referred by this record to the notice of defense in the Lena-wee suit as embodying the same matters of substance, and that notice appears to be silent on the subject.

The payment of something toward the purchase price appears to have been brought before the Justice in the suit by Barker & Bewick by their exhibiting a bill in which they charged Cleveland with one hundred dollars paid. Cleveland had no interest in disputing the payment in that suit and we do not know whether the Justice did, or did not allow it to affect the damages he awarded. But however, that may be, it is clear, we think, that Cleveland’s suit for the purchase price was not affected by any matter not in issue being brought to the notice of the Justice, and proofs given concerning it by the plaintiffs. The same remark .is applicable to the credit for the oil barrel which the plaintiffs gave in that suit. Cleveland had not made that a set off, and the plaintiffs could not compel him to do so. He already had an action pending to recover the price of it, and could not be forced, against his will, to litigate it in another suit.

We find no error in the record, and the judgment should be affirmed.

The other Justices concurred.