text:
    H. M. TYLER LUMBER CO. v. CHARLTON.
    1. Sale — Passing of Title.
    Defendants, the owners of certain lumber piled on a dock in charge of an agent, offered in writing to sell it to plaintiff at specified prices per M. for the different grades, according to an inspection to be made by a named person; which offer was accepted. The agent remained in control of the lumber, and defendants retained their insurance thereon. No notice was given the dock owner of any change of ownership. The lumber, when shipped, was to be put over the rail of the vessel by the dock owner, under his contract with defendants. No payment was made on the lumber except as it was shipped. Held, that title did not pass to plaintiff on its acceptance of • defendants’ offer.

      2. Same.
    The rules laid down in Idngham v. Eggleston, 27 Mich. 324, for determining when title passes on a sale of chattels, are approved.

      Error to Cheboygan; Shepherd, J.
    Submitted March 6, 1901.
    Decided October 1, 1901.
    Replevin by the H. M. Tyler Lumber Company against John Charlton, Thomas Charlton, and Justus A. Rogers. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Alex. J. Groesbeck (Watts S. Humphrey, of counsel), for appellants.

      C. S. Beilley (Frost & Sprague, of counsel), for appellee.
   Moore, J.

This is an action of replevin. There is almost no dispute about the facts. The firm of J. & T. Charlton were the owners of logs which were manufactured into lumber by the Cheboygan Lumber Company in the city of Cheboygan in the spring of 1899. This lumber was piled on thé docks of the Cheboygan Lumber Company. It was known as “Lots 6 and 7 O. K. stock.” Lot 6 was piled in its own piles, separate from lot 7, and separate from all other lumber; and so lot 7 was piled separate from lot 6, and separate from all other lumber. There were scattered among these piles other piles of lumber, but no other lumber was ever put in a pile of lot 6 or lot 7. The lumber was all marked. Lot 6 was plainly and distinctly marked “Lot 6 O. K.,” and in addition the initials of its manufacturers, “J. & T. C.” Lot 7 was similarly marked. These marks were placed on the lumber at the time of the piling. They were put on with lampblack. The sawing of lot 6 was finished on May 22d, of lot 7 on June 12, 1899. Mr. Rogers had charge of the lumber for the Charltons.

On July 17, 1899, Mr. Thomas Charlton handed the plaintiff the following proposition:

“North Tona Wanda, N. Y., July 17, 1899.
“The H. M. Tyler Lumber Company,
“North Tonawanda, N. Y.
Gentlemen: We agree to sell you the lumber now piled on docks of Cheboygan Lumber Company at Cheboygan, Mich., known as ‘Lots 6 and 7 of the O. K. stock,’ containing, according to estimate, about 2,250 M. Price to be $15.50 per M. for merchantable, and $9.50 per M. for mill culls. Shipments to be made as follows: Lot 6 to be shipped by July 25th, and lot 7 by August 20th. Settlements to date from these dates in case the lumber is not moved. Lumber to be inspected by J. W. Ritchie, of Bay City, Mich. Terms 1£ per cent, off for cash or 90 days’ paper. Yours truly,
“ J. & T. Charlton,
“PerW. T. Charlton.”

The offer was accepted as follows:

“We hereby accept the above offer.
“H. M. Tyler Lumber Company,
“By H. M. Tyler, Yice-President.”

After this agreement was entered into, an officer of the plaintiff came to Cheboygan, and examined and counted the piles of lumber, and checked it off on its memoranda. He did not place any one in charge of the lumber, nor did he notify the dock owner of any change in the ownership, nor did the plaintiff place any insurance upon the lumber. Mr. Rogers continued in charge of the lumber as before. A large amount of insurance had been placed upon the lumber by the Charltons, the last of it about the middle of June. This insurance was not changed after the correspondence, but continued as before. On or about August 15, 1899, the plaintiff procured in the neighborhood of 500,-000 feet of this lumber to be shipped, for which an invoice was sent to plaintiff. On August 25, 1899, the plaintiff gave its check to the defendants Charlton for $7,958.71 in payment of the same. Each party paid one-half the inspection bill.

The plaintiff did not move the lumber within the time mentioned in the correspondence. Its claim is that it could not get the boats to do so. It is the claim of the defendants that, had plaintiff been willing to pay current rates of freight, it would have had no difficulty in getting boats. The dock owner desired the room on the docks occupied by the lumber, and so notified Mr. Rogers, who notified the Charltons. The defendants urged plaintiff to move the lumber. It not having done so, the defendants sent it the following letter:

“North Tonawanda, N. Y., Sept. 12, 1899.
“The H. M. Tyler Lumber Company,
“North Tonawanda, N. Y.
“Gentlemen: You will please take notice that you are hereby required to carry out on your part the terms of the contract entered into between your company and ourselves, dated July 17, 1899, for the purchase by you of the lumber then piled on the docks of the Cheboygan Lumber Company, of Cheboygan, Michigan, before the 19th day of September, 1899. In case you do not have the lumber mentioned in said contract removed from those docks by that time, we shall consider forfeited whatever claim you might otherwise have to the lumber mentioned in said contract and not already removed. It is unnecessary for us to inform you that this lumber has already remained on the docks much longer than has been reasonably inquired to remove the same, and that the continued storage of it is causing us large expenses.
“ Respectfully yours,
“J. & T. Charlton.”

The plaintiff made no reply to this communication. On September 22d plaintiff had a tow at Cheboygan to take the lumber, but the defendants refused to deliver it. At that time Mr. Ritchie, the inspector, acting for plaintiff, made a demand upon Mr. Rogers, agent for the Charltons, for the lumber. He refused to accede to the demand. When the demand was made, no money or notes were tendered, and Mr. Ritchie had no money or notes to pay for the lumber if it had been delivered to him. The captain of the tow then telegraphed the plaintiff that the defendants refused to deliver the lumber. On receipt of this telegram, Mr. H. M. Tyler and his brother called on Mr. Thomas Charlton, and demanded the lumber. He said his brother was absent, and refused to accede to the demand. He said, however, if the plaintiff would pay one dollar a thousand more for the lumber, he would take the responsibility of letting it go. Mr. Tyler then delivered to Mr. Charlton the following letter:

“A. M., September 22, 1899.
“Messrs. J. & T. Charlton,
“North Tona wan da, N. Y.
Gentlemen: We have just received a message from Captain Little, of the Green tow, which says that he arrived at Cheboygan last night, and that your man refused to let him take away the lumber. We also have a telegram from the inspector, Mr. J. W. Ritchie, to the same effect; and this is to notify you that, in case we are unable to remove this lumber in consequence of such refusal, and there is any demurrage caused by delaying the tow there, we shall hold you responsible for it, and for all the damage we may sustain in consequence of your refusal to permit us to take this lumber. We have done our best to get a tow there, and finally got one by paying-50 cents per M. above the market rate, and they would have been there on the 19th had not Providence interfered with a terrible gale on Lake Huron, which held them a long time at Port Huron. If you need a settlement for any part of this lumber, we are and have been ready to make settlement at any time requested.
“ Hoping that we may obtain this lumber at once, and save trouble and unpleasantness, which might otherwise occur, we remain,
.“Yours very truly,
“H. M. Tyler Lumber Company,
“Die. J. S. T. By John S. Tyler, Treas.”

No money or notes were tendered at this time, unless what is said in the letter is regarded as a tender. It was the custom at Cheboygan for the manufacturer of the lumber to deliver the lumber .on the rail of the vessel, and' the expense of doing this was included in the price paid for manufacturing the lumber. Both parties knew of this custom.

After the refusal of the defendants to deliver the lumber, the plaintiff commenced this suit in replevin. Defendants gave the statutory bond, and kept the lumber. Upon the trial it was the claim of plaintiff that two piles of the lumber were marked “sold to the H. M. Tyler Lumber Company,” and that Mr. Rogers admitted to the sheriff he had so marked them. This was denied by Mr. Rogers, and it appeared he had never been directed or authorized to so mark them. There is no claim that any change was otherwise made in the marks which were upon the lumber when the correspondence began. Upon the trial the plaintiff waived a return of the lumber. The court directed the jury that the title was in the plaintiff, and to assess its damages at the value of the lumber. The jury returned a verdict for upwards of $31,000. The case is brought here by writ of error.

All of the counsel are agreed that the principal question in the case is, Did the title to the lumber pass to the plaintiff when it accepted the offer contained in the letter of July 17, 1899 ? The counsel for the plaintiff insist that, under the repeated rulings of this court, the title did pass, while the counsel for defendants urge just as strenuously that, under the rulings of this court, the title did not pass. The question involved has been before this court a great many times. The trouble is not so much with the rule of law as it is in the application of it to a given case. No two cases are alike, and what has been said by the court in a given case must be taken in connection with the facts of that case. If this is done, it will go far to reconcile any apparent inconsistencies in the decisions. Plaintiff relies upon Whitcomb v. Whitney, 24 Mich. 490; Lingham v. Eggleston, 27 Mich. 329; Jenkinson v. Monroe, 61 Mich. 461 (28 N. W. 663); Wagar v. Railroad Co., 79 Mich. 651 (44 N. W. 1113); People v. Sheehan, 118 Mich. 539 (77 N. W. 88); and other cases. The defendants rely upon Lingham v. Eggleston, 27 Mich. 324; Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223 (18 Am. Rep. 119); Byles v. Colier, 54 Mich. 1 (19 N. W. 565); Wagar v. Farrin, 71 Mich. 371 (38 N. W. 865); Blodgett v. Hovey, 91 Mich. 572 (52 N. W. 149); Slade v. Lee, 94 Mich. 128 (53 N. W. 929).

Lingham v. Eggleston, supra, has, ever since the opinion was written by Justice Cooley, been regarded as a leading case. In that case, among other things, it is said:

“ In Blackb. Sales, 123, the rule on this subject is very clearly and correctly stated as follows: The question, the author says, is ‘ a question depending upon the construction of the agreement; for the law professes to carry into effect the intention of the parties as appearing fi’om the agreement, and to transfer the property when such is the intention of the agreement, and not before. In this as in other cases, the parties are apt to express their intention-obscurely; very often because the circumstances rendering the point of importance were not present to their minds, so that they really had no intention to express. The consequence is that, without absolutely losing sight of the fundamental point to be ascertained, the courts have adopted certain rules of construction, which, in their nature, are more or less technical. Some of them seem very well fitted to aid the court in discovering the intention of the parties. The substantial sense of others may be questioned. The parties do not contemplate a bargain and sale till the specific goods on which that contract is to attach are agreed upon. But, when the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfillment of any conditions; and when, by the agreement, the seller is to do anything to the goods for the purpose of putting them into a deliverable state, or when anything is to be done to them to ascertain the price, it,is presumed that the parties mean to make the performance of those things a condition precedent to the transference of the property. But, as these are only rules for construing the agreement, they must yield to anything in the agreement that clearly shows a contrary intention.’ * * *
“The most important fact indicative of an intent that title shall pass is generally that of delivery. If the goods be completely delivered to the purchaser, it is usually very strong, if not conclusive, evidence of intent that the property shall vest in him, and be at his risk, notwithstanding weighing, measuring, inspection, or some other act is to be done afterwards. A striking case in illustration is that of Young v. Matthews, L. R. 2 C. P. 127, where a large quantity of bricks was purchased in kilns. Only a part of them were burned, and none of them were counted out from the rest; but they were paid for, and such delivery as, in the nature of the case, was practicable, was made. The court held that the question was one of intention merely, and that it was evident the parties intended the title to pass. To the same effect are Woods v. Russell, 5 Barn. & Ald. 942; Riddle v. Varnum, 20 Pick. 280; Bates v. Conkling, 10 Wend. 389; Olyphant v. Baker, 5 Denio, 379; Bogy v. Rhodes, 4 G. Greene, 133; Crofoot v. Bennett, 2 N. Y. 258; Cunningham v. Ashbrook, 20 Mo. 553. So, if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title may pass, though the quantity and quality, and consequently the price to he paid, are still to be determined by the vendee. Turley v. Bates, 2 Hurl. & C. 200; Kohl v. Bindley, 39 Ill. 195 (89 Am. Dec. 294). And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, — as, for instance, to load the goods upon a vessel for transportation, — the property may pass by the contract of sale notwithstanding. Whitcomb v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520. But the authorities are too numerous and too uniform to justify citation which hold that, where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of those things is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they may and ought to be accepted.”

In Byles v. Colier, supra, the same learned judge who wrote Bingham v. Eggleston said:

“In Bingham v. Eggleston, 27 Mich. 324, it was decided that the question whether a sale is completed or only executory is usually one to be determined from the intent of the parties as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that, where the goods sold are designated so that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery, or that the goods should be in deliverable condition, or that the quantity or quality, when the price depends upon either or both, should be determined, — these being circumstances indicating intent, but not conclusive; but that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of anything indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they appear to be in a state in which they may be and ought to be accepted. This case has been referred to with approval in the subsequent cases of Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223 (18 Am. Rep. 119); Wilkinson v. Holiday, 33 Mich. 386; Grant v. Bank, 35 Mich. 515; Scotten v. Sutter, 37 Mich. 526; Carpenter v. Graham, 42 Mich. 191 (3 N. W. 974); Brewer v. Salt Ass’n, 47 Mich. 526 (11 N. W. 370). The cases elsewhere to the same effect are numerous, and many of them are collected in Mr. Bennett’s note to section 319 of the third edition of Benjamin on Sales. And see Kelsea v. Haines, 41 N. H. 246; Southwestern Freight Co. v. Stanard, 44 Mo. 71 (100 Am. Dec. 255); Shelton v. Franklin, 68 Ill. 333; Straus v. Minzesheimer, 78 Ill. 492; Crofoot v. Bennett, 2 N. Y. 258; Groat v. Gile, 51 N. Y. 431; Burrows v. Whitaker, 71 N. Y. 291 (27 Am. Rep. 42); Dennis v. Alexander, 3 Pa. St. 50; Galloway v. Week, 54 Wis. 608 (12 N. W. 10); Caywood v. Timmons, 31 Kan. 394 (2 Pac. 566). That the cases referred to settle the general principle, at least for this State, is beyond question or cavil. Presumptively, the title does not pass, even though the articles be designated, so long as anything remains to be done to determine the sum to be paid; but this is only a presumption, and is liable to be overcome by such facts and circumstances as indicate an intent in the parties to the contrary.”

It is- believed all the cases cited by counsel come within the law as announced in these cases. If they do not, the court, in disposing of them, misapprehended the facts, for there has been no intention upon the part of the court to depart from the law of these cases.

In Whitcomb v. Whitney, supra, after the agreement was made, advances had been made upon the agreement, and, after the lumber was manufactured, the defendant was notified of that fact. He sent an inspector, who came to the mill, and inspected all of the lumber. It was drawn 40 rods to a dock, ready to be loaded upon the véssel when one should be sent by defendant. Under the circumstances of that case it was held the title passed.

In Jenkinson v. Monroe, supra, the agreement recited:

“The party of the first part agrees to sell, and does hereby sell, and said parties of the second part agree to buy, and do hereby buy, all the lumber,”etc. “The price of said lumber shall be fourteen dollars per M. feet, straight measure. Mill culls to be marked,” etc.; “price at the time they are delivered on dock.”

The logs were cut into lumber, which was delivered on the dock. The court held:

“ The piling on the dock seems to have been intended by both parties as a delivery of the lumber to defendant, who could thereafter ship it without reference to plaintiff.”

In People v. Sheehan, supra, it was agreed that Holmes should sell Sheehan curbstone, and that Sheehan should select it at Holmes’ yard, ‘ ‘ and when the curbstone was thus picked out, and delivered to Sheehan, it should belong to Sheehan, and Holmes would have nothing more to do with it.” The court held the parties had agreed when the title should pass, and were bound by their agreement.

What are the facts in this case ? Plaintiff and defendants both lived in the State of New York. The lumber was in charge of defendants’ agent at Cheboygan, Mich. They offered to sell this lumber to plaintiff, one quality at $15.50 a thousand feet, and the other quality at $9.50 a thousand feet. It could not be known how much there was of the lumber, nor how much there was of each of these qualities, until the lumber was inspected. An inspector was agreed upon, who was to act for both parties, and who was to be paid equally by them. There was no change in the possession of the lumber. It still remained under the control of Mr. Rogers for the defendants. It was in his possession when it was replevied. The defendants retained their insurance upon the lumber. No notice was given to the dock owner of any change of ownership. When the lumber was shipped, it was to be put over the rail of the vessel by the mill-owner, who, as a part of his contract with defendants, was to do this, and in doing it was acting for the defendants. No payment was made upon this lumber, except for the one shipment which had gone forward. Applying the law which we have quoted to the facts of this case, we conclude the title did not pass to the plaintiff.

Judgment is reversed, and, as there is no substantial controversy about the facts, ho new trial will be granted.

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


source: Caselaw Access Project

author: Montgomery, O. J.

license: Public Domain

text:
    MUNROE v. WINEGAR.
    1. Tax Deeds — Collateral Attack — Suit to Quiet Title.
    A tax deed cannot be attacked in a suit to quiet title, even under an answer in the nature of a bill of review, on the ground that the land was held by the State under former bids at the time of the filing of the auditor general’s petition, and should therefore have been excluded therefrom (Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444), but such question can only properly be raised by interposing in the original proceeding. Peninsular Sav. Banh v. Ward, 118 Mich. 87, followed.
    3. Tax Sales — Validity—Purchase from State List.
    A tax sale is not invalid because the land was offered only on condition that the purchaser take the same description from the State tax land list, in accordance with the statute (1 Comp. Laws, § 3893), though the prior sale to the State was void.
    3. Same — State Tax Lands — Payment of Tax Liens.
    The rule requiring a purchaser of State tax lands to pay all taxes remaining a lien thereon at the time of his purchase (Hughes v. Jordan, 118 Mich. 37) does not apply to a purchase of such lands at a public sale by the county treasurer. Ber-Icey v. Burchard, 119 Mich. 105, followed.
    4. Same — Notice of Sale — Sufficiency.
    Under section 79 of the tax law of 1893, requiring a notice of sale of State tax lands to be published “for four weeks successively, which shall be construed to mean four publications-once a week, next previous to the first Monday of December,” a publication once a week, occurring four times next previous to such Monday, is valid, though less than a week transpires between the last publication and the day of sale, and less than four weeks between the first.publication and such day. Bacon v. Kennedy, 56 Mich. 329, distinguished.
    5. License — Purchase of Outstanding Title by Licensee.
    Where a written license to use certain lands excepted “ any rights that may have accrued by trust deed ” from a certain person, the licensee was not precluded from purchasing a tax title to land held by such trust deed.
    6. Equity Practice — Disclaimer—Costs.
    A defendant in a suit to quiet title, who has disclaimed, cannot be subjected to costs.
    Appeal from Ottawa; Padgham, J.
    Submitted April 3, 1901.
    Decided October 1, 1901.
    Bill by Stephen L. Munroe- against William Winegar, Luman Jenison, Lucius Jenison, and the First National Bank of Grand Rapids to quiet title. From a decree for complainant, and an order denying a rehearing, defendants appeal.
    Modified as to defendant Winegar, and affirmed.

      Walter I. Lillie, for complainant.

      James J. Danhof and Bundy & Travis, for defendants.
   Montgomery, O. J.

The original bill in this case was-filed to quiet complainant’s title, which he claims to own by virtue of a tax title for the taxes of 1893. Decree-passed in favor of the complainant, and later on the defendant bank filed a petition for a rehearing, which the court took under advisement, but finally denied. An appeal is taken both from the original decree and from the order refusing a rehearing.

It is contended that the tax title is invalid for the following reasons:

1. Under the decision in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656).

2. Because the land was never legally bid to the State for the taxes of 1893.

3. Because the complainant did not pay the taxes for 1895 at the time he purchased.

' 4. Because there was no legal notice published of the State tax land sale in 1896, at which time Munroe bought.

5. It is also contended on the part of the defendants that the complainant was not in a position to purchase a tax title, and file a bill against defendants based on his alleged possession of the premises, because prior to his purchase of the tax title he had obtained, through one Jenner, a license from Mr. Jenison to build a street railway across these premises, under which license he had built such street railway, and was maintaining and operating it on these premises at the time he tried to devest the title of his licensor by purchasing the alleged tax title.

It is claimed that, at the time the proceedings were taken to foreclose the lien for the taxes of 1893, the lands had been previously bid in to the State for the taxes of 1892, and were so held, and that, therefore, the sale for the taxes of 1893 is invalid, under the decision in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656). We do not think this question can be raised fin this collateral proceeding. This is a bill filed to quiet title. The complainant makes his title under an unreversed decree. This defense seeks to attack that title by averring that the court erred in granting the decree. The question is not different from that which would arise in an action of ejectment. In either case it is a collateral attack. Peninsular Sav. Bank v. Ward, 118 Mich. 87, 93 (79 N. W. 911). It is suggested that the amended answer, if a rehearing be granted, is in the nature of a bill of review. But it is to be borne in mind that tbe State was interested in tbe original proceeding. Tbe auditor general was a party to that proceeding. If the decree is vacated, the State will be called upon to reimburse the purchaser a,t the tax sale. The only proper way of raising the question would be by interposing in that proceeding.

It is said that the lands were never properly offered for sale, because, when offered, the purchaser was required to take the same descriptions of land from the State tax land list, and that, as the previous sales to the State were void, the land was never properly sold. We think this position cannot be maintained. On the face of the records, the lands were held under previous State bids; and we think it is not the intention of the law that a sale under a regular decree shall be vitiated because the purchaser is also required to pay the taxes apparently due the State under previous sales.

It is also claimed that the title of complainant fails because the purchaser failed at the time of the purchase to pay the taxes of 1895, which had been returned delinquent and remained unpaid. Defendants rely in support of this contention upon the case of Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134). But this case was distinguished in Berkey v. Burchard, 119 Mich. 105 (79 N. W. 908), in which case it was held that the rule in Hughes v. Jordan does not apply to a purchase of the State’s title on a public sale by the county treasurer. Counsel urge at considerable length that, under the language of section 70 of the tax law (Act No. 206, Pub. Acts 1893),, the same rule should obtain as to taxes returned delinquent as was applied in Hughes v. Jordan. But the case of Hughes v. Jordan rested upon section 84 of the act, and the case of Berkey v. Burchard was intended to cover all cases of sales by the county treasurer.

The infirmity alleged in the notice of the sale at which complainant purchased is this: The notice was published on November 14th, 21st, and 28th, and on December 5th, and the sale took place on December 7th; and it is claimed that, inasmuch as the first publication was less than four weeks prior to the sale, the notice was insufficient. Counsel rely upon the case of Bacon v. Kennedy, 56 Mich. 329 (22 N. W. 824), to sustain their contention. In that case it was held that, on a statutory foreclosure, the notice should be published for 12 successive weeks, and that the sale could not take place in less than 12 weeks from the first publication. It was said in reaching this conclusion, “ The statute does not say that notice shall merely be published 12 times, 'once a week, but once a week £ for 12 successive weeks.’ ” The language of section 79 of the tax law, as it stood when this proceeding was had, was as follows: “The auditor general shall cause tobe published for four weeks successively, which shall be construed to mean four publications once a week, next previous to the first Monday of December in the years provided by this act, a notice,” etc. It will be seen that the publication next previous to the first Monday could not be a full week prior to Monday. It would be during the week. And so with the preceding weeks. The publication must be once during each of the weeks. We think that, under this statute, a publication once a week, occurring four times next previous to the first Monday, is valid, though less than a week transpired between the last publication and the day of sale, and less than four weeks between the first publication and the day of sale. The statute itself prescribes its own rule of construction.

But one other question remains to be considered. It is contended by the defendants that the complainant’s possession was derived through a license which reads as follows:

“For and in consideration of the construction of a street railway to be constructed by George Jenner through Washington street, in the city of Grand Haven, along Water street and lake shore to Highland Park, in said city of Grand Haven, I hereby consent that said street railway may cross any real estate belonging to me on the lake shore between the westerly terminus on Water street and the said Highland Park.
“Dated April 15, 1895.”

The above was in typewriting. There was added with a pen:

“ I hereby sign the above without consenting or in any way assigning any rights that may have accrued'to me by trust deed from J. W. Boynton.”

And this was signed by Luman Jenison. It is claimed that Jenner was acting for complainant in securing this license, and that, having gone in under the license, complainant could not become a purchaser of an outstanding title.

We think this contention fails, for the reason that we do not find that the license covered the land in question. We are satisfied that the lands l’eferred to as held by trust deed from Boynton were the identical lands here involved. While the testimony of Mr. Jenison is not very clear, he does state that the writing he gave Jenner would be according to the facts as they were at that time. There is testimony of a surrender by Boynton of his contracts to Jenison, although the contracts are not produced; but it is evident from this testimony that this surrender must have been after the execution of the above license.

The record shows that, long before the original bill was filed, the defendant Winegar had parted with his title to the land. When brought into court, he disclaimed. But the complainant continued to prosecute his suit against him, and a decree was entered in complainant’s favor against him, as well as against the other defendants, for costs. We think in this respect the decree was erroneous, and the defendant Winegar will be permitted to recover his costs of this court, and those incurred in the circuit after the filing of the disclaimer, to be taxed. In other respects the decree will be affirmed, and complainant will recover costs against the other defendants.

The other Justices concurred.

       But see Youngs v. Povey, 127 Mich. 299, par. 2, and cases there cited.


author: Moore, J.

text:
    JAMISON v. RAMSEY.
    Divorce — Desertion—Nonresident Defendant — Jurisdiction-Operation of Statute.
    By 3 Comp. Laws, § 8621, desertion for two years is made ground for divorce. Act No. 202, Pub. Acts 1895, prohibited the granting of. a divorce against a nonresident defendant on substituted service, unless he should have been domiciled in this State at the time the “cause for divorce arose.” Act No. 116, Pub.' Acts 1897 (3 Comp. Laws, § 8624), provides that, where a divorce is asked for desertion, the desertion shall be deemed to have occurred in this State, when the parties were actually and in good faith domiciled in- this State at the time of the abandonment. • Held, that the act of 1897 might be invoked to justify a decree, though the bill was filed and publication had under the act of 1895. '
    Error to Ionia; Davis, J.
    Submitted April 17, 1901.
    Decided October 1, 1901.

      Assumpsit by Emma O. Jamison against Samuel S. Ramsey for breach of promise of marriage. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      McCormick & La Grou and A. A. Ellis, for appellant.

      B. A. Hawley, for appellee.
   Moore, J.

This suit was brought by plaintiff against defendant for breach of promise to marry. The plea is the general issue, with notice that defendant would prove an offer on his part to carry out his agreement of marriage, which plaintiff refused to do, and that by reason thereof he was released from his engagement. The plaintiff offered evidence of an offer of marriage on the part of defendant, and an acceptance on the part of plaintiff; that the date of said marriage was set for the 1st day of October, 1898, and that she was then ready to, carry out the contract, and that the defendant refused so to do; that she had been before married, of which fact defendant was informed; and offered to prove by the records and files of the Kent circuit court, in chancery, in the case of Jamison against Jamison, that she had duly and legally obtained a divorce.

The bill was filed June 8,189?. It alleged the marriage of complainant to Mr. Jamison in December, 1873, at Lowell, Mich.; that the parties lived and cohabited together from that time until December, 1894; that complainant, at the time of the filing of the bill, was a resident of the State, and had been continually since said marriage. It alleged defendant deserted complainant for a period of more than two years immediately prior to the filing of the bill. In June, 1897, Mrs. Jamison made an affidavit, stating, among other things:

“That said defendant is a nonresident, and resides out of the State of Michigan, and that it cannot be ascertained by her in what State or county said defendant resides; that the last she heard of or from said defendant was through a brother of his, to the effect that the said defendant was then at the city of Ft. Wayne, State of Indiana, and that such information was received several months ago; and that she has inquired of said defendant’s own people, his father and mother, residing in the township of Bowne, in said county of Kent, to ascertain said defendant’s whereabouts, and she says that he has not been residing in this State of Michigan for more than two years last past.”

On June 11th an order of appearance and publication was entered in said cause, which was not personally served on defendant, but was published for six successive weeks in a newspaper printed, published, and circulated in the said county of Kent; the last of said publications being on July 30, 189?, and on that date the affidavit of publication was made and sworn to. November 15, 1897, an affidavit of regularity was filed, a hearing was had in open court, and a decree of divorce was granted. Objection was made to the introduction of these files and the decree in evidence, which objection was sustained. A verdict was rendered in favor of defendant. The case is brought here by writ of error.'

The sole question in the case is whether the court erred in holding the chancery court did not obtain jurisdiction to grant the decree. It is insisted that, as the bill of complaint was filed while the provisions of Act No. 202 of the Public Acts of 1895 were in force, the desertion was not complete, so as to constitute a cause of action, until two years had elapsed, and, as defendant was not a resident of the State when the two years elapsed, personal service was necessary to give the court jurisdiction; citing Bentley v. Wayne Circuit Judge, 110 Mich. 626 (69 N. W. 660).

It is true, the affidavit for the order of publication sets up, we think as a conclusion from information given complainant in answer to her inquiries, that defendant at that time was, and for two years had been, a nonresident of the State. The record does not disclose what testimony was taken before the circuit judge upon the hearing. It may have been shown to the entire satisfaction of the judge that the defendant was domiciled in the State during the entire period of desertion.

The causes for which divorce may he granted are to be found in sections 8621-8623, 3 Comp. Laws. They have remained the same since prior to 1894. Act No. 202 of the Public Acts of 1895 did not change the causes for divorce. It provided what must be made to appear before the decree should be granted. This law remained in force until August, 1897, when its place was taken by an amended section. Act No. 116, Pub. Acts 1897; 3 Comp. Laws, § 8624. This section provides what must be made to appear upon the hearing before a decree should be granted. Among the provisions contained in the later act was the following:

“In all cases where a divorce is asked on the ground of desertion, such desertion shall be deemed to have occurred and taken place in this State, for the purposes of this act, when the parties, complainant and defendant, shall have been actually and in good faith domiciled in this State at the time the defendant actually abandoned the complainant.”

The bill of complaint shows the parties were residents of this State when the desertion began. This fact is nowhere contradicted in the record. The act of 1897 does not change the causes for divorce, but does change the requirements which must be shown upon the hearing before a decree shall be granted. This law had been in effect some time when the decree of divorce was granted. At that time it was controlling. See Beebe v. Birkett, 108 Mich. 234 (65 N. W. 970); State Sav. Bank v. Matthews, 123 Mich. 56 (81 N. W. 918); Judd v. Judd, 125 Mich. 228 (84 N. W. 134). The court had jurisdiction to make the decree.

• The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    PUNGS v. AMERICAN BRAKE-BEAM CO.
    1. Contract of Employment — Discharge—Action for Salary —Pleading—Recoupment—Evidence.
    Where an employé was discharged before the expiration of his contract, in an action for salary due on the theory of a special contract fully performed, it was competent to show his neglect of the business, and the nonperformance of his several undertakings, by way of defense, notwithstanding the absence of a notice of recoupment.
    2. Same.
    And this is none the less so because, by the terms of the contract, defendant reserved the right to terminate it at any time.
    3. Same.
    Such testimony was also proper as bearing on the nature and value of the services, in case the action was regarded as one not on a contract performed, but for services rendered.

      Error to Wayne; Frazer, J.
    Submitted April 18, 1901.
    Decided October 1, 1901.

      Assumpsit by William A. Pungs against the American Brake-Beam Company for salary due under a special, contract. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      ■Russel & Campbell, for appellant.

      Barbour & Rexford, for appellee.
   Hooker, J.

A former review of this cause is reported in 124 Mich. 344 (82 N. W. 1066), where it was held, on the evidence then before the court, that the judge erred in holding that there was no evidence of the value of the plaintiff’s services, upon the theory that the cause was, in that instance, tried upon the count for work and labor, and not upon the special count, or in reliance upon a right to recover as upon a contract fully performed. As we understand the record, the case has now been tried upon the theory that the special contract was performed. The plaintiff might, therefore, rely upon the common counts, which would be' a good and sufficient declaration upon that theory, or upon the theory that he had not performed the contract, but was entitled to pay for what he had done. Upon the first theory it would be necessary for plaintiff to prove the contract and its performance. He would fail upon that theory if defendant should show that he had not performed the contract according to its terms, and would then be left to an action for services rendered. Upon the latter theory the plaintiff must show the rendition of services, and make some proof of their value. As we held on the former hearing, the writing would constitute some evidence of value. It would not be conclusive, however, and it would be proper to show the true value of the services actually rendered; and in attempting this it would be defendant’s right to introduce evidence showing the true character of the services, and that they did not come np to the standard required by the contract, upon which the contract price was fixed. It would also have been competent to show that the services were actually worth less than 'the contract price. The defendant’s counsel sought to show, by a cross-examination of the plaintiff and by the testimony of others, that the plaintiff did not give the defendant the time and attention necessary to the performance of the contract according to its terms. They offered to show that he did not provide the material on the best terms possible, by showing that he secretly received commissions from the houses from which he purchased material for the defendant, and that he did not turn out good work. The court excluded all such testimony, and directed a verdict for the plaintiff.

If we correctly understand plaintiff’s brief, the case was rested upon the theory that plaintiff was discharged under a right reserved to the defendant to terminate the contract at any time, and that, therefore, the plaintiff might treat the contract as performed. This was correct if the contract actually was performed, but it did not deprive the defendant of the right to show nonperformance. This contract was terminated because the defendant found that plaintiff was not rendering the service contracted for. The contract was, not that he should give his entire time to the defendant, but that he should do certain work for a given period. The contract contained other stipulations also. It is claimed that at the same time he was performing similar services for, and drawing a similar salary from, another concern. The defendant sought to show that, while he was about its place of business more or less, he did not perform the services agreed upon; that he neglected the business, and actually did not render the services contracted for. We see no reason why it should not have been allowed to do this. In the case of Bolt v. Friederick, 56 Mich. 20 (22 N. W. 187), a man hired out to work by the month. He was under obligation to give his time to his employer. He did so for nearly the whole period, when the service was ended by mutual consent, and the amount his due agreed upon. There was a substantial performance and an acceptance. The defendant afterwards attempted to show, not that he did not substantially perform his contract to give his services, but that he disobeyed his orders. Here defendant attempted to contradict plaintiff’s claim that he performed the services. It cannot be said that the defendant accepted plaintiff’s services as a compliance with the contract. It expressly repudiated them, and, instead of a termination of the contract by mutual consent, it was a termination based upon a claim of nonperformance.

There is no reason for distinguishing the case from any other case of an unperformed contract. Plaintiff had the burden of showing that he had performed the contract. When he failed in that, if he could not show it, he could recover merely for the value of his labor. Defendant had a right to show nonperformance hy way of defense. This seems to have been the view of the writer of the opinion when the case was before us. 124 Mich. 344 (82 N. W. 1066). The case had been tried upon a count for work and labor. No notice of recoupment was filed. It was said that his retention in service was some evidence of right to wages; that he was entitled, not to the contract price,' but the value of his services, of which the contract price constituted some evidence.

The case of Allen v. McKibbin, 5 Mich. 454, was a similar case in some respects. Mr. Justice Campbell there states the rule as follows:

“Where a party fails to comply substantially with an agreement, unless it is apportionable, the rule is well settled that he cannot sue upon the agreement, or recover upon it at allj and under the strict common-law rule he was remediless. But the doctrine has now grown up, based .upon equitable principles, that where anything has been done from which the other party has received substantial benefit, and which he has appropriated, a recovery may be had upon a quantum meruit, based on that benefit. And the basis of this recovery is not the original contract, but a new implied agreement, deducible from the delivery and acceptance of some valuable service or thing. The idea is well expressed in Read v. Rann, 10 Barn. & C. 438, by Parke, J., who says:
“ ‘In some cases a special contract, not executed, may give rise to a claim in the nature of a quantum, meruit, — e. g., where aspecial contract has been made for goods, and goods sent, not according to the contract, are retained by the party, there a claim for the value on a quantum valebant may be supported; but then, from the circumstances, a new contract may be implied.’
“Taking this as the basis of a recovery, there certainly could be no good reason for allowing a party who is in default to recover in any case more than his work or goods may be worth, for that would allow him to speculate out of his own fraud or default; and he should not be allowed more than the same could be obtained for from any one else. To allow him the contract price for what is worth much less would not, in any sense, be allowing a quantum meruit. Parties may, and do frequently, for their own reasons, agree to give excessive prices to have an entire contract literally performed, when a partial performance would never have been contracted for at all; and it does not lie in the mouth of a defaulter to say that the contract is evidence of the true value. It is only by the mercy of the law that he can have any standing in court. We think that the court erred in rejecting evidence that the work was worth less than the contract price.”

The same doctrine is recognized in Wildey v. School District, 25 Mich. 420, and reporter’s note.

The cases of Bolt v. Friederick, supra, and Fuller v. Rice, 52 Mich. 436 (18 N. W. 204), differ from this case in this important respect: That there was a substantial performance, if not an acceptance of the services as sufficient. Here there is a claim of nonperformance, and plaintiff was admittedly discharged .for that reason. It was at the least a question for the jury whether there was a substantial performance which would support a recovery upon the contract, and defendant had a right to show that there was not. If the jury should find there was not, he must fail on the theory of a performed contract, and would be driven to the count for work and labor and the value of his services, as defendant contends. The court seems to have held that the defendant might show that the plaintiff did not render any services, but that, in the absence of a notice of recoupment, it was not proper to show any other breach of the contract by the plaintiff. This was clearly erroneous, for it was essential to a recovery upon the contract that something more than the mere presence of plaintiff be proved. It was necessary to show that he carried out substantially all of his undertakings. As stated, failing in that, he could not recover upon that theory. Again, upon the other theory, the testimony was proper as bearing on the nature and value of the services.

The judgment is reversed, and a new trial ordered.

Montgomery, C. J:, Moore and Long, JJ., concurred. Grant, J., took no partin the decision.


author: Moore, J. Hooker, J.

text:
    HOFFMAN v. MICHIGAN HOME & HOSPITAL ASS’N.
    1. Insurance — Sick Benefits — Proofs of Claim — Waiver.
    Where a sick-benefit insurance company had its own physician examine into a policy-holder’s condition during his illness, and, before the time for filing proof of disability had elapsed, notified such holder that nothing would be paid him, because he had a disease not covered by his policy, and because not entirely confined to the house, it was not necessary for such holder to furnish the proofs of claim provided for by the policy before bringing suit thereon.
    2. Same — Severity of Illness — Right to Indemnity.
    Under a sick-benefit insurance policy entitling the insured, in case of total and continuous disability to attend to business, to a specified weekly indemnity while “ continuously confined to the house, and subject to the personal calls of a physician,” the right to indeinnity for the period of such disability is not lost by the fact that the insured occasionally left the house for consultation with, or by direction of, his physician, and even, under the latter’s advice, went to a distant city for a stay of several weeks. Hooker, J., and Montgomery, O. J., dissenting.

      3. Character oe Disease — Question eor Jury.
    Whether a given .person was afflicted with consumption or another disease is, on conflicting testimony, a question for the jury.
    Error to Kent; Perkins, J.
    Submitted April 19, 1901.
    Decided October 1, 1901.

      Assumpsit by John Hoffman against the Michigan Home & Hospital Association on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Wolcott & Perkins, for appellant.

      McKnight & McAllister, for appellee.
   Moore, J.

The plaintiff obtained a judgment of $150 against defendant. The case is brought here by writ of error. The plaintiff is engaged in the confectionery and bakery business. The defendant is a corporation organized under and in pursuance of the laws of the State of Michigan, doing an accident and sick-benefit insurance business, with its principal office located at the city of Grand Rapids, Mich. In October, A. D. 1894, the plaintiff joined the defendant association. There was issued to him a policy of insurance containing the following agreement :

ct First. If, at any time after this certificate has been in continuous force and effect for ninety consecutive days, said member shall, through any sickness or disease mentioned in Schedule A on the back of this certificate, beginning after the expiration of the above term, become totally disabled, and such disability shall, independent of all other causes, wholly and continuously disable and prevent said member from prosecuting any and all .kinds of business, upon satisfactory proofs to the association of such total and continuous disability said member shall be entitled to receive at the rate of ten dollars per week,, after the first week, during the time he is continuously confined to his bed, or continuously confined to the house, and subject to the personal calls of a registered physician in good standing, not to exceed thirty weeks in any one illness. But if the same member is sick for thirty continuous days, which sickness begins after ninety days from date of certificate, he shall receive, under the terms of this certificate, payment from the date of sickness, without deduction for the first week.”

The diseases covered by Schedule A, among many others, are inflammation of the lungs and la grippe.

The plaintiff kept up his payments from October, 1894, to the 12th day of September, A. D. 1899, paying in advance. It is the claim of the plaintiff that, as the result of la grippe, he had a hemorrhage, which made it necessary for him to call a doctor, and that his illness continued so that he is entitled to recover for a period of 15 weeks. After his illness began, the company was notified of it; and one of its physicians visited the plaintiff and obtained some of his sputum, which the physician examined, and also submitted to another physician, both of whom concluded the plaintiff’s disease was consumption. On the 22d of January, 1900, the manager of the company wrote Mrs. Hoffman, among other things:

“There are two reasons why this claim, in accordance with Mr. Hoffman’s policy contract, is not a legal claim against this association: In the first place, we do not, and never have, paid for consumption. In the second place, article 1, on the face of Mr. Hoffman’s policy, states that the claimant,, in order to be entitled to benefits, must be entirely confined to the house. In accordance with the above statements, Mr. Hoffman’s claim against this association has been rejected.”

In his testimony as a witness the manager testified, among other things:

‘ ‘ The reason I would not submit to paying this claim was because the physicians claimed that he had consumption. I had arrived at the conclusion that the doctors knew what ailed him. I refused to pay the claim because he had hemorrhage of the lungs. The doctors said that resulted in consumption.”

The articles of association provided for an arbitration in case the validity of a claim was in question. March 19, 1900, a stipulation was filed in which it was stated plaintiff asserted a claim which defendant disputed, waiving an arbitration, and consenting that suit might be brought, and that a judgment of the court should be binding upon the parties.

It is the claim of defendant that:

“In order to entitle the plaintiff to maintain a suit upon his policy, he must show:
“1. His sickness, and its nature and duration.
“ 2. That it was one of the diseases mentioned in Schedule A of his certificate.
“3. That these facts must be made to appear in a final proof furnished to the association within 30 days after the end of the sickness for which indemnity is claimed.
“4. That a period of three months, stipulated for the investigation of the claim by the association after receipt of the final proofs, has elapsed.”

The first two of these propositions áre true; but in view of the rejection of the claim, not because of the failure tO' comply with the last two propositions, but because it was claimed plaintiff had a disease not within the terms of the policy, and because he was not entirely confined to the house,- we think defendant cannot now insist upon a compliance with the third and fourth propositions. The case is ruled by O'Brien v. Insurance Co., 52 Mich. 131 (17 N. W. 726); Young v. Insurance Co., 92 Mich. 71 (52 N. W. 454).

It is insisted the court erred in charging the jury as te the degree of illness required to entitle plaintiff to recover. It is said by counsel:

“The standard of the degree and severity of the illness during which the policy holder was entitled to recover indemnity, as expressed in the contract itself, is that he must be continuously confined to his house, and subject to the personal calls of a registered physician in good standing. The meaning of this language, upon its face, is very plain. He must be so ill as to need the attendance of a physician at his house. It is difficult to see how the language of the contract can be construed to mean anything else without doing violence to the plain meaning of the words employed.”

The court charged the jury as follows:

“First, then, what is meant by the provision in this policy, ‘continuously confined to the house, and subject to the personal calls of a registered physician in good standing ? ’ A contract of insurance is to receive a reasonable construction, so as to effectuate the purpose for which it was made. At the .same time, the proper force and effect should be given to all the language used, for the purpose of guarding the association against fraud and imposture. Provisions such as the one under consideration are inserted for this express purpose, as well' as for other purposes.
“The object to be accomplished by this contract is to indemnify the plaintiff from loss from total or continuous disability to prosecute any and all kinds of business! And it is provided, in substance, that he shall receive $10 per week during the time he is continuously confined to the house, subject to the calls of a physician in good standing. That the plaintiff was totally and continuously disabled from prosecuting any business during the time claimed does not appear to be questioned by the defendant in this case. But it insists that he was not continuously confined to his house. Was he, or was he not ? That is the question.
“I charge you, gentlemen, that, to constitute a compliance with this provision, it is not necessary that the plaintiff should remain in the house continuously during the entire time of disability; that to step out of doors now and then, or to occasionally go to the office of his physician, would not be a violation of this clause, or defeat plaintiff’s right of recovery. It may, be that an occasional airing is essential to a speedy recovery. A rule which would make nugatory a contract having for its special object indemnity on account of sickness, because the insured took an occasional and necessary airing, would be unreasonable. Was the plaintiff sick, and with a disease covered by his policy, to the extent that he was totally disabled from prosecuting any business ? and was he continuously confined to his house on account of such sickness, to the extent that he was necessarily and in good faith there the larger portion of his time, and only went forth either from necessity for consultation with, or by direction of, the physician in whose charge and care he was ? An answer to this question will determine this branch of the case. * * *
“ So, gentlemen, I charge you that if you find from the testimony in. this case that the plaintiff was continuously confined to his home on account of a sickness or disease covered by the terms of his policy, to the extent that he was necessarily, in good faith, there the larger portion of the time, and only went forth either from necessity for consultation with, or by direction of, his physician, Dr. Barth, in whose charge and care he was, if you so find, then and in that case the plaintiff is entitled to recover for the term so continuously confined, at the rate fixed in the policy, — $10 per week.”

Questions of a similar character to this were involved in Turner v. Casualty Co., 112 Mich. 425 (70 N. W. 898, 67 Am. St. Rep. 428), and Hohn v. Casualty Co., 115 Mich. 79 (72 N. W. 1105). A reference to these cases will make an extended discussion here unnecessary. The charge of the court followed these cases.

It is said the record does not justify the suggestion of the court that plaintiff left his home and went to Chicago-by the advice of his physician. Counsel must have overlooked the testimony of Mrs. Hoffman, who said:

“ He had a hemorrhage at that time. It was September 11th. He was taken to his bed at that time. He was in the house from that time — oh, six weeks, I guess, or something like that — until he went to Chicago. He went down to the doctor’s to. get some medicine, and the doctor thought it would be a good change for him to get out, because we lived at the rear of the store, and to get away from business. He thought it would help him. He was not able to do any work during this time. I think the date when he went away was about the 25th of October. He didn’t go out only just the day before, when he went for a walk, or he went away. He went to Chicago because the doctor advised him to. He thought it would be good for him.”

The plaintiff was a witness and was present at the trial. There was a conflict in the testimony as to whether his illness was consumption or not. The judge said to the jury:

“If you find that the plaintiff, during the time of his disability, was suffering with the disease known as ‘ consumption,’ I charge you that he cannot recover under any circumstances in this case, and your verdict must be, ‘No cause of action.’”

The question was submitted to them. We think the case was properly tried.

Judgment is affirmed.

Long and Grant, JJ., concurred with Moore, J.

Hooker, J.

(dissenting). The contract of the parties is explicit. The defendant has undertaken to pay weekly indemnity, not during the time that the beneficiary should be ill and until his complete recovery, but in case he should become totally disabled, and by a malady which should at the same time wholly and continuously disable and prevent his prosecuting any and all kinds of business, he was to receive indemnity during the time that he should by reason thereof be continuously confined to his bed or to the house, subject to the personal calls of a registered physician, etc. Plaintiff’s own testimony shows that he was taken sick in September, and was confined to his house for six weeks; that about October 20th he went to his physician and said:

“ ‘I am confined up there in that place of business, where I sleep right in the store there, and I don’t think it is very healthy for me.’ I said: ‘I have a friend living in Chicago; he wants me to come there.’ He said: ‘That is all right; that won’t hurt you any to go there.’ He said: ‘You go over there; take care of yourself over there in good shape, and you will come out all right.’ I was confined there all the time, only I used to take a. morning walk. I went over there about the 24th — the 24th of October, I think, or September or August — the 24th or 25th of October. I went down to see Dr. Barth just the day before I started.”

In my opinion, it was error to permit the jury to find a liability during this period. The policy contains the contract which the parties saw fit to make, and we should not enlarge it by construction. It is obvious that during this period plaintiff was not continuously confined to the house, subject to the personal calls of a physician. It ia a radically different contract from those in the cases cited.

The judgment should be reversed, and a new trial ordered.

Montgomery, O. J., concurred with Hooker, J.


author: Montgomery, C. J.

text:
    SEBRING v. HAZARD.
    1. Bills and Notes — Consideration—Life-Insurance Premium —Parol Evidence.
    .In an action on a promissory note given for the premium on a life-insurance policy, evidence that defendant was induced, to accept the policy and give the note by the representation of the agent that he had secured certain work for defendant, which representation was untrue, is not inadmissible as tending to contradict the terms of the note.
    2. Same — Partial Failure of Consideration.
    In such case, however, defendant having retained the policy, and had the benefit thereof, a judgment in his favor as for a total failure of consideration cannot be sustained.
    Error to Kalamazoo; Adams, J.
    Submitted May 7, 1901.
    Decided October 1, 1901.

      Assumpsit by Theron T. Sebring against Charles H. Hazard on a promissory note. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Frost & Jackson, for appellant.

      George P. Hopkins, for appellee.
   Montgomery, C. J.

The defendant and one James McDougal were engaged in the business of roofing. The plaintiff was the agent for the National Life Insurance Company. In October, 1898, the plaintiff delivered to the defendant a binding receipt, and, later on, a policy, in the sum of $1,000, in said company. At the time of the delivery of the policy, a promissory note for the amount of the premium was given. This note matured, and was not paid, and on March 1, 1899, was renewed by the giving of the note in suit, the amount of which is $31.10. This action is brought upon this note. The defense interposed is that, at the time of the execution of this note, the plaintiff’s brother was engaged in erecting a brick building, and that the note was given upon the assurance of the plaintiff that he had secured for the defendant and his partner the job of putting on the roof. The jury, under the instructions of the court, evidently accepted defendant’s version of the transaction as true, and returned a verdict for the defendant. The plaintiff brings error.

It appears to be conceded by defendant’s counsel that it would not be competent to contradict the terms of the note by showing a promissory agreement that the plaintiff would secure the job of roofing for the defendant, or that the note was to be paid out of the proceeds of such contract; but the contention of defendant’s counsel on the trial was that the plaintiff’s misrepresentations related to an existing fact, and amounted to a fraud on the defendant and his partner. If the fact was that the plaintiff, as an inducement to the taking of this policy of insurance, represented to the defendant and his partner that he had secured for them the job of roofing, we see no reason why this is not competent, nor do we discover in what way it contradicts the terms of a written instrument.

The court instructed the jury as follows:

“You are instructed that the delivery of the policy of insurance by the plaintiff in this case to the defendant might constitute a sufficient consideration for the giving of the note in question. That is, if there was nothing else in this case but the question of whether the policy of insurance was delivered, and the note given therefor, then, under those circumstances, the policy of insurance would be a valid consideration for the note in question. Defendant claims that the policy of insurance which is in evidence in this case was not the real consideration for the note upon which the suit is brought, but that the said note was given conditionally, in payment of the performance of a certain contract that was entered into by defendant and plaintiff, but which has not been performed. The jury are instructed that if they find from the evidence that the note in question was in fact given in payment for the performance of a contract entered into by plaintiff, or partly in payment for such performance, and that said contract has not been performed by plaintiff, then it was not necessary for defendant to return to plaintiff the policy of insurance in order to avail himself of his contention in ■this suit. But if you find that the policy of insurance was not returned, or no offer made to return it, by defendant, if it is of any value, in determining the issue in this case, as to whether there was or was not a failure of consideration of the note, you may consider it for that purpose. That is for you to say. ”

—And refused to give plaintiff’s fourth request, as follows:

■ “You are also instructed that if you find that the defendant in this case accepted, at the time of the giving of the original note, an insurance policy on his life for $1,000, and that he understood that the annual premium for the policy was $31.10, and if you also find that he retained said policy, and never surrendered it, and that said policy continued in full force and effect for the period of one year, and that the only consideration given for said policy was the original note, of which the one here in question is a renewal, then plaintiff would be entitled to recover.”

It will be seen that the theory upon which the case was submitted to the jury was, or might be found to be, that the sole consideration for the note in suit was the securing of the job of roofing for defendant and his partner. We do not think the case admits of any such view. Defendant received a policy of insurance, the premium on which was $31.10 for the first year. He retained it during the entire year, and had the benefit of the insurance. He has

received some consideration for the note. It cannot be said that there was a total failure of consideration. The case was not submitted to the jury upon the theory of recoupment. A partial failure of consideration is a defense pro tanto only. Bigelow, Bills & N. (2d Ed.) 89, note; Story, Prom. Notes (7th Ed.), § 187; 6 Am. & Eng. Enc. Law (2d Ed.), 791.

We find there was a mistrial, and the judgment will be reversed and a new trial ordered.

The other Justices concurred.