text:
    LUDWICK v. KENT CIRCUIT JUDGE.
    1. Special Bail—Sureties—Justification by Affidavit—Rules of Court.
    3 Comp. Laws, § 10032 does not entitle a defendant arrested on a capias to be released from custody merely upon the justification of his sureties by affidavit without perfecting the bail according to the rules of court.
    2. Same.
    Where sureties of a defendant arrested on a capias justified by affidavit, the fact that the court had not, prior thereto, made any rule as to the perfection of special bail, did not entitle defendant to be discharged, under section 10032, 3 Comp. Laws, inasmuch as such a rule might be enacted before the expiration of the time limited for the taking of exceptions to bail, and also because the subsequent action of the court, in requiring the sureties to come in and justify, in effect established a rule that the approval by the court of the sureties was necessary to the perfection of the bail.
    Mandamus by John J. Ludwick to compel Willis B. Perkins, circuit judge of Kent county, to grant an application for a discharge from custody.
    Submitted October 4, 1904.
    (Calendar No. 20,757.)
    Writ denied November 1, 1904.

      Adams & Byan, for relator.

      Thomas Sullivan and McKnight & McAllister, for respondent.
   Carpenter, J.

Relator is in the custody of the sheriff of Kent county by virtue of a capias ad respondendum issued by the circuit court of that county. He filed special bail required by section 10029, 3 Comp. Laws. The sureties thereon made the affidavit specified in section 10032, 3 Comp. Laws. This affidavit was made without notice to the plaintiff or to his attorney before the deputy clerk of the court. The deputy was not asked to determine, and did not determine, the sufficiency of the sureties. These same persons who thus undertake to become special bail had been rejected as sureties upon a bond tendered the sheriff for the discharge of relator under section 10000, 3 Comp. Laws. Relator, claiming that under these circumstances he was entitled to his liberty, applied to the court below for a writ of habeas corpus before the expiration of the time given plaintiff by section 10031, 3 Comp. Laws, to take exceptions to said bail. On a hearing in that court opportunity was given relator to obtain his release by producing his sureties in court and proving their ability to justify. Relator refused to produce them until exceptions (the time for taking which had not then expired) had been duly indorsed on said bond. The trial court thereupon denied relator’s application for a discharge. He asks this court to issue a mandamus compelling the granting of that application.

Relator contends that, when the sureties on his bail bond made the affidavit heretofore referred to, that bond became effectual, and he was entitled to his discharge. If he is correct in this contention, the plaintiff had no right to object to his sureties, and no official had a right to reject them, A practice which thus permits sureties to be the final judges of their own qualifications will enable defendants sued by capias to be discharged without adequate security, and will thus defeat what we may presume to be the object of the statute. Such a practice would be clearly distinguishable from the practice respecting sureties on replevin bonds, for those sureties are, in the first instance, approved by the officer executing the writ. See section 10657, 3 Comp. Laws. If the legislature intended to inaugurate such a practice, it may be presumed that it would clearly indicate that intent. It is contended that it has done so in section 10032, 3 Comp. Laws, which reads:

Special bail may justify by affidavit, before any officer authorized to take a recognizance of special bail; and such affidavit shall set forth the township, or city, and county, in this State, in which the bail reside, and that they are severally worth the sum in which the defendant is held to bail, after all their debts are paid.”

Our statute regulating the putting in of special bail has not been materially changed since the laws were revised in 1846. See chapter 98, Rev. Stat. 1846. Section 10032, 3 Comp. Laws, is section 5 of that chapter. That section, however, has an older history, which affords some aid in its construction. Our first statute-regulating bail in civil cases was enacted by the governor and judges of the Territory November 13, 1820, and will be found in the Laws of Michigan of 1827, pp. 303-311. Section 15 of that law was the parent of section 5, Rev. Stat. 1846, chap. 98, and of section 10032, 3 Comp. Laws. It reads:

“ That special bail may justify by affidavit in the court, where the action may be pending, or before one of the commissioners for taking bail, if such bail is pending in the Supreme Court, or before one of the justices of the county court, or a commissioner, if the action be pending in a county court, either in term time or in vacation; and such affidavit shall set forth, that the bail are residents in (mentioning the county), in this Territory, and that they are respectively worth so much within this Territory (mentioning the sum they are bail for), after all their debts are paid.”

This section could not have received the construction contended for by relator, for section 11 requires notice of justification of bail, and section 12 provides for “ an order of allowance ” when sureties justify. The law of 1820 was materially changed when the statutes were revised in 1838. See title 2, chap. 2, Rev. Stat. 1838. Section 5 of that chapter, which corresponds to section 15 of the Laws of 1820, reads substantially as does section 10032, 3 Comp. Laws. That that section could not be construed as contended by relator, is proved by section 4, immediately pre-; ceding, which reads:

“ Exceptions to special bail may be taken and filed within ten days after the expiration of the time limited for filing special bail, and the defendant shall perfect bail within ten days after notice given of such exceptions, to the defendant or his attorney, or to the sheriff or other officer, by whom, or by whose deputy, the original writ in the suit was served: Provided, that it shall be competent for the court having authority * * * to prescribe by general rules * * * when and in what manner bail shall be perfected.”

We come now to a consideration of our present law, adopted, as before stated, in 1846. The section in question (section 5, chap. 98, Rev. Stat. 1846; section 10032, 3 Comp. Laws) was copied almost verbatim from the former law. Did the legislature, in taking this section from the old law, intend that it should receive a different construction ? This seems somewhat improbable, but, if it did, we must look for evidence of that intent not in the language of the section itself, but in other parts of the statute. Nowhere in the statute is it stated that a defendant in custody on a writ of capias ad respondendum shall be discharged when his sureties justify by affidavit. On the contrary, it is clearly made his duty by the preceding section (section 10031, 3 Comp. Laws) to perfect his bail. And such bail is ineffectual if he does not perfect it. See sections 10033, 10036, and 10037, 3 Comp. Laws.

What is meant by a perfection of bail ? This question is answered by sections 10000 and 10033, 3 Comp. Laws, which requires bail to be perfected “according to the rules and practice of the court.” Bail is not, therefore, perfected when the sureties justify, by affidavit without notice and without allowance. And it results that the construction contended for’ by relator cannot be given to section 10032. I agree with the learned circuit judge that that section, properly construed, only prescribes the method of perpetuating the evidence of justification.

The statute clearly recognizes the right of the court to make rules regulating the manner of perfecting bail, and makes it the duty of the defendant to comply with such rules. This court has authority to make those rules (Const. art. 6, § 5), and in the event of its failure to act the circuit court has such authority (section 308, 1 Comp. Laws; Wyandotte Rolling Mills Co. v. Robinson, 34 Mich. 428).

This case must, however, be determined on the assumption that neither the Supreme Court nor the circuit court for the county of Kent ever exercised this authority. What effect has this on relator’s rights? The omission of the court to adopt proper rules cannot deprive relator of his rights. Neither should that omission enlarge those rights to the prejudice of the plaintiff. I think there are two answers to the possible contention that such omission entitles relator to his discharge:

First. We are not at liberty to assume that the circuit court for the county of Kent, having full authority in the premises, may not adopt such rules before the expiration of the time given by statute for the perfection of special bail. That time had not expired, and would not for several days expire, when the proceedings were taken in the court below. If, before the expiration of that period, that court, by the adoption of general rules, should prescribe the manner of perfecting the special bail, it would be relator’s duty to comply therewith.

Second. When it appeared on the hearing in the lower court that plaintiff objected to and proposed to except to the sureties as insufficient, and that they had once been rejected by the sheriff (which of itself has been held to be a sufficient objection; see 1 Burrill’s Practice, p. 367), that court thereupon notified relator, in effect, that he could not perfect his bail until it approved the sufficiency of the sureties. This action at once prescribed and announced to plaintiff the manner in which he must perfect his bail. The manner was obviously proper (see 1 Tidd’s Prac. 259-278; 1 Burrill’s Prac. 366, 367), and the notice, as we have just seen, was timely. Relator obtained in this manner all the rights to which he was entitled and all the rights which he would have obtained by a proper general rule. I do not think he can complain because the court has not expressly stated—as it would had it put its direction in the form of a general rule—that the same just practice will be applied in future cases.

In denying that the statutes should be construed as contended by relator, I necessarily deny his contention that a defendant in custody can, by having his special bail justify, at once anticipate exceptions and obtain an immediate release. Many days must ordinarily elapse before such bail will become effectual. See section 10031, 3 Comp. Laws. I do not think that this consequence furnishes a valid argument against the construction I contend for. An opportunity is afforded a defendant in custody on a capias to secure a speedy discharge by giving a bond to the sheriff conditioned upon putting in special bail. See section 10000, 3 Comp. Laws. The statutory proceedings for putting in special bail were not intended to be expeditious. They were intended for defendants already at large under bonds to the sheriff. If a defendant in custody resorts to those proceedings, he must accept the consequences of having voluntarily rejected an expeditious and accepted a dilatory method of securing his liberty.

In my judgment, the writ of mandamus should be denied.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    MORRILL v. MORRILL.
    1. Husband and Wipe —Tenancy by Entireties — Rights op Wipe.
    A wife has no right to a share of the crops grown on land owned by her and her husband as tenants by the entirety, since at common law the exclusive control of such property was in the husband, and our married women’s act (3 Comp. Laws, § 8690) is not applicable to such estates.
    2. Same—Verbal Agreement.
    A verbal agreement between husband and wife that she shall have an-equal share in the profits of land owned by them in entirety is void as an attempt to control the deed by parol.
    Appeal from Van Burén; Carr, J.
    Submitted April 13, 1904.
    (Docket No. 53.)
    Decided November 9, 1904.
    Bill by Frank E. Morrill against Cora Morrill to restrain the removal of certain crops. Defendant filed an answer in the nature of a cross-bill, asking for the appointment of a receiver and for an accounting. From a decree for defendant, complainant appeals.
    Reversed, and decree entered for complainant.

      Thomas J. Cavanaugh and L. A. Tabor, for complainant.

      W. G. Howard and A. Lynn Free, for defendant.
   Carpenter, J.

The parties to this suit are husband and wife. They were married about 13 years ago. In December, 1901, they separated, and shortly afterward defendant filed a bill for divorce, which, upon a hearing, was dismissed. They own 80 acres of land as tenants by the entirety, upon which, in 1903, complainant had a crop of grapes. Defendant undertook to harvest this crop. Complainant filed this bill to enjoin such action. Defendant filed a cross-bill averring that she contributed the money for the purchase of this property under a verbal agreement that, while the title should be taken as it was, she should have an “ equal share in the profits arising from said premises.” Upon this ground, as well as upon the ground that she had a similar right as a tenant by the entirety, she prayed for an accounting, and that the property be placed in the hands of a receiver. The controversy was heard by the lower court, and the prayer of this cross-bill granted.

Two questions are raised by this appeal: First. Has the wife a right to a share of the crops growing on lands held by her and her husband as tenants by the entirety ? If the wife has a right to compel her husband to account for a share of the crops on land held by entireties when they are living separate, as in this case, she cannot be denied that right when they are living together. If she has such a right, it becomes important to determine where she obtained it. The common law certainly gave her no such right; for, according to its principles, the exclusive right to dispose of the crops and use the proceeds as he saw fit belonged to the husband. See Pray v. Stebbins, 141 Mass. 219; Buttlar v. Rosenblath, 42 N. J. Eq. 651; Bertles v. Nunan, 92 N. Y. 152. It follows, therefore, that if the wife has that right now she obtained it' as the result of some statute of this State. The only statute which it can be claimed has any bearing on this subject is our married women’s act. Section 8690, 3 Comp. Laws. I think it must be conceded that the decisions of this court have determined that this statute has no application to estates by entirety. See Fisher v. Provin, 25 Mich. 347; Vinton v. Beamer, 55 Mich. 559; Speier v. Opfer, 73 Mich. 35; Naylor v. Minock, 96 Mich. 182; Dickey v. Converse, 117 Mich. 449; Doane v. Feather’s Estate, 119 Mich. 691. I think it unnecessary to determine whether the husband’s exclusive control of these crops is an incident of estates by entirety, or whether, as held in Hiles v. Fisher, 144 N. Y. 306, and Buttlar v. Rosenblath, supra, it is a result of the marital unity. If it is an incident of estates by entirety, then since, under our decisions, estates by entirety remain as at common law, that right continues to belong to the husband. If it is a result of the marital unity, the same conclusion must be reached, because we have held—as we were bound to hold—that the statute does not affect the marital unity. See Snyder v. People, 26 Mich. 106. And accordingly we have—as we were bound to do—rejected the authority of Hiles v. Fisher and Buttlar v. Rosenblath, supra. See Dickey v. Converse, supra. We are compelled to conclude from this reasoning that as a tenant by the entirety the wife has no such interest in the crops as to justify the decree complained of. It is contended, however, that the decision of this court in Dickey v. Converse, 117 Mich. 449, justifies the decree. In that case it was held that no interest in growing crops upon land held by husband and wife as tenants by the entirety was subject to seizure on an execution issued to collect a judgment against the husband; that the levy could not be supported either upon the ground that the husband owned the entire crops or on the ground that as a tenant in common he owned an interest of one-half therein which was subject to seizure. This decision proceeded upon the ground that estates by entirety at the common law continued to exist in this State, and that (quoting from Patton v. Rankin, 68 Ind. 245) “a crop raised on land held by a husband and wife by entireties is held by them in the same manner and subject to the same law as the land itself, and such crop is therefore not subject to levy and sale on an execution against the husband.” To argue that Dickey v. Converse is an authority for the proposition that the wife has an interest in the crops which she did not have at common law is to argue that the conclusion reached in that case compels us to reject the premise upon which it is founded. Such an argument cannot be sound. Dickey v. Converse is, in my judgment, an authority against, rather than in support of, the proposition under consideration. It was there decided that the husband has not—and this certainly means that the wife has not—such an interest in the crops that it might be taken on an execution. If the wife’s interest in such crops cannot be taken on an execution, I do not think that it can be separated or set out to her on an accounting. I think that, construing Dickey v. Converse, as we are bound to do, in harmony with the former decisions of this court, the authority of which it recognizes, we are bound to say that, while the wife has such an interest in these crops that they cannot be taken on an execution against her husband, such interest does not interfere with his power of management, disposition, and control. Nor do I think it can be justly urged that this conclusion makes the right of the wife valueless. There may be instances— and perhaps this is one—where the wife needs legal protection from a cruel husband, who misappropriates property which in a moral sense may be characterized as a trust; but, after all, such instances are exceptional, and when they arise may ordinarily be dealt with in a suit for divorce. As a general proposition, it is of advantage to the wife and to the family that no outside person shall have the right to interfere with a husband who may be safely trusted to dispose of the profits arising from such an estate according to his judgment. It may be conceded that it is anomalous to hold that the wife’s interest in this property is sufficient to prevent its being taken on an execution against her husband, and at the same time it is not sufficient to enable her to use it for her own benefit. But this is by no means a conclusive argument. The truth is, estates by entirety are anomalous. It is anomalous to hold that a wife has such an interest in the profits of such an estate that they cannot be sold for her husband’s debt and at the same time to hold that they cannot be taken for her debt. It would also be anomalous to hold, as we are asked by complainant, that a wife’s interest in the crops raised upon a piece of land is subject to partition and separation, and at the same time to concede, as I think we must, that her interest in the land is not.

Second. Can a wife make a binding verbal agreement with her husband that she shall have an equal share in the profits arising from land held by them as tenants by the entirety? If she can, then by an oral agreement the legal effect of the deed is changed, and it is settled that “no parol proof can be admitted to give the deed a different effect than such as the words in it legitimately import.” Jacobs v. Miller, 50 Mich. 126.

It results from this reasoning that the decree appealed from should be vacated, and complainant be given a decree in accordance with the prayer of his bill. >

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


author: Grant, J.

text:
    FROHLICH v. PENNSYLVANIA CO.
    1. Carriers—Agency of Consignor.
    The consignor is the agent of the consignee in the shipment of the goods and whatever contract he makes with the carrier is 'binding on the consignee.
    2. Same—Defective Car—Selection by Shipper.
    Where a glass manufacturer was accustomed to load such cars as were suited to his needs from among those which came to him loaded with materials, and he selected one which was defective, and injury to a shipment followed, the carrier was not liable on the ground of furnishing an unsuitable car!
    Error to Wayne; Donovan, J.
    Submitted July 16, 1904.
    (Docket No. 73.)
    Decided November 9, 1904.
    Case by Edward Frohlich, doing business as the Edward Frohlich Glass Company, against the Pennsylvania Company for damages to glass alleged to have been shipped in a defective car. From a judgment for plaintiff, defendant brings error.
    Reversed.

      There is no substantial disagreement as to the facts of this case. Plaintiff, doing business in Toledo, Ohio, purchased from the Heidencamp Mirror Company, of Spring-dale, Pa., a carload of plate glass, inboxes weighing from 500 to'3,500 pounds each. The glass was consigned and shipped by the defendant railroad company to the plaintiff f. o. b. Springdale, Pa., freight allowance; consignee to pay the freight at Toledo, and deduct same from purchase price. The glass arrived in good condition. Plaintiff commenced to unload the car, and had removed one case. In attempting to remove the second, the iron roller upon which it was being moved plunged through the bottom of the car, causing a destruction of the contents of the case, weighing about 3,500 pounds. The car was an old ■coal car, with a trapdoor in the center, opening downwards for the purpose of dumping the load. It was worked with a chain, by which it was let down and raised up. In the bottom of the car were several holes. One or two of the plaintiff’s witnesses testified that after it was unloaded they counted 17 holes. The glass was stacked in the two ends of the car, leaving a vacant space of about eight feet in the center. This space had no holes, and to plaintiff’s employés appeared solid when they commenced unloading. The holes were under the boxes, and after their removal its defective condition was apparent. There was evidence that the car was suitable for shipping lumber, coal, or brick, or anything that would not be top-heavy. It is substantially conceded that it was unfit for shipping glass. Plaintiff’s manager testified that he did not think the car fit for hauling glass. One of plaintiff’s foremen testified that he never saw a car of glass loaded on such a car. The car was received on August 14th by the Heidencamp Mirror Company, loaded with sand, and was unloaded in the afternoon of that day. It was loaded with glass on the 15th or 16th, and shipped on the 18th. All the witnesses in the case appear to agree that the car should not have been loaded with glass. The custom between the Heidencamp Mirror Company and the defendant was that the mirror company might take any of its cars which were consigned to that company when unloaded, without asking permission, and use them for shipping their products, provided they were suitable for their use. This car was selected and used by the Heidencamp Mirror Company in accordance with this custom. In furtherance of this understanding, the Heidencamp Company kept inspectors, whose duty it was to select and inspect the cars for shipping their products. One of them testified as follows:
    “My duty was to inspect the cars to be loaded with glass by the Heidencamp Mirror Company, and to have supervision of the loading, * * * and to reject any cars unfit for loading glass.”
    Another testified that he was the yard foreman of the Heidencamp Mirror Company, and—
    “My duties as yard foreman for this company is the loading of cars—seeing to every thing that goes in and out. I do not remember the shipping of a car loaded with glass to Edward Frohlich Glass Company, at Toledo, Ohio. I load too many cars to remember each one. My duties include the inspection of cars, or the repairs, if any are necessary, before shipments are made. If the car is unfit for loading glass in any way, I report it, and reject it. It was part of my duty in August, 1902, to use cars from the railroad company, if any were needed in the business of the mirror company.
    “ Q. What was your custom about using cars which came in on your siding loaded with material consigned to the mirror company, and which you wanted to use ? A. Mr. Agan told me that I could take Pennsylvania cars to load either east or west without asking express .permission, and this is what I have been doing.”
    The freight agent for the defendant testified:
    “ The general custom was for me to allow them to take P. R. R. cars to load east and west for shipments that were suitable for them. The only express request that was necessary was where it was a foreign car which could be loaded only in one direction, and which belonged to other roads, and which must be loaded in the direction of the home route. There was no express request for this particular car.”
    The clerk for the -defendant at Springdale testified:
    “My duties at that time were to keep record of the cars on the siding, and to look after the cars, and to see if they were in good condition. * * * If we find a car in bad condition, we mark it in the book. The inspection I make of the cars is that I take just a quick glance at them. I look inside of it generally to see if it is loaded. If I find a car in bad condition in any way, I mark the car in a bad condition in the book, and what the trouble is, and report it to Mr. Agan. ”
    The above is all the testimony bearing upon the question. The sole act of negligence relied upon is that the defendant furnished an unfit car. The defendant requested the court to direct a verdict for it. This was refused, and the case left to the jury under the instructions, which will be found printed in the margin.

      Angelí, Boynton, McMillan & Bodman, for appellant.

      Wilkinson & Younglove, for appellee.

       “ This is an action or suit where the plaintiff claims damages by the negligent act of the defendant in furnishing a car that failed to bear up a package of glass which they claim tipped over and broke.
      “ I will first call attention to what I believe to be the law of the case, and then a moment to the facts of the case; and why I call attention to the law of the case is this:
      “It is held in 22 Wallace—that is, the United States Supreme Court Report—page 123 in the Pratt Case (reading a part from the head-note 2):
      “ ‘ If there is competent evidence of such a contract of a character to put before the jury, the weight, force, and degree of evidence is not open for consideration by the court.’
      “That is, it means you should judge of the weight of it. I will read another paragraph in the same case :
      “ ‘ If a common carrier [that would be a railroad company] by rail is negligent and careless in furnishing cars, and shall furnish cars unsuitable for the case, even though they be cars for cattle, which cars the owner himself sees, and which cattle the owner himself attends [that is, where he goes along with them], a common carrier [that would be the railroad company] is not relieved from responsibility, even though there have been an agreement that it should not be responsible.’
      “That is, they will not allow a company to contract that they will not be responsible if they are in fact.
      ‘ ‘ A little more from the same case. They say here, in summing up the New York Cent. R. Co. v. Lockwood, 17 Wall. 357, that the following propositions were established. These propositions that I am about to read were established in the case' we are talking about; that is, I mean, in the case I am reading about:

        ‘‘First. That a common, carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law.
      “ Second. It is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for negligence of himself or his servants. You see, they cannot even stipulate to cover negligence of their own.
      “ Third. In this case he might have gone much further than he did, and find, if the company had been careless and negligent in furnishing cars, they should not be relieved from responsibility for it, although it might be found that they were liable therefor.
      “ I am requested to charge you, and do charge you, this. Well, I will read their requests first. On the part of the plaintiff, I am requested to charge you, and do charge you— And what I read from their manuscript will be considered the same as though I read from a lawbook, and be adopted by the jury. I believe it to be the law. So far as you are concerned, it will be the same as though I read it out of the Reports.

        “ I charge you that, under the plaintiff’s evidence in this case, you would find a verdict for the plaintiff for the sum of $470, taking their evidence. That is their claim. That is their side of the case.
      “ I charge you that the testimony is uncontradicted that the car in which the glass was transported was a defective car, and not such a one as the company were carrying glass in.
      “There is no evidence in this case that the Heidencamp Mirror Company had any notice or knowledge of the defective condition of the car, and that there is proof that the defendant company or inspector or agent had opportunities, and did examine the car before it was loaded. Whatever examination that was, is for the jury.
      “I charge you that the testimony is undisputed that the plaintiff used the ordinary appliances for unloading the car—that is, such as they had used before; the same appliances which had been used before and since without accident—and that he was without negligence in using the usual appliances for unloading the car.
      “I charge you that if the Pennsylvania Company, through its agents, by proper care, might have discovered—by ordinary care might have discovered the condition ordinarily of this car—then the defendant would be liable for damages that arose by use of the same.
      “ If the oar in question was unfit for the purposes to which it was applied, and if the unfitness was of such a character as to imply a fault on the part of the company or its agents in allowing it to be used, then the company would be responsible.
      ‘ ‘ I will put that in another way: Negligence—and this would be like an action for negligence—negligence, as defined in our State, is the doing of some act by a party which one of ordinary care and prudence would not do; doing something that is not carefully done—ordinarily and prudently done—or leaving undone something which an ordinarily prudent and careful person would not leave undone. Now, see what I mean by that. Leaving undone would be leaving an open well, or an opening somewhere that people might get into without some notice. Doing what they should do would be to take the affirmative; to take the burden and give notice. Transportation, we will say, on these street cars—when we get on we have a right to presume that they are whole; that they will not blow up; that there is no broken machinery in them that will throw us off the track. Affirmatively, the company who undertake to carry us, our horse, or our stuff—affirmatively they assume they will do it with the ordinary car’e; with the ordinary prudence of ordinary people.
      “ Now, if the goods in question had been bottled goods, whether any kind of bottled goods put up in cases and different boxes, and it „ should turn out that the packing was not suited to bottled goods —they broke by reason of the bad packing—theh the fault would be the packer, or, if the breaking of this glass had been traced to the actual packing of the boxes, then the fault would be the shipper or packer. But you have a peculiar case here. We have a case here where the buying itself is a little remarkable—where the buying makes the buyer liable from the time it is loaded on the car away down there at the purchasing place. Where the seller delivers the goods, whether it be a bale of cotton or wool, or a case of clothing, or a barrel of oil, or whatever it is, he delivers the goods before he gets any pay. But here the purchase is made away down in Pennsylvania, and the buyer, Frohlich & Co., assumed all the risk.
      “Well, now, their duty is to be careful—to use ordinary care— but I call your attention to this: The Pennsylvania Railroad Company furnished cars; knew the nature of the business going on, the mirror business, the glass business, the shipping business. It must have had some knowledge of that kind of business. Just as they knew in the case I mentioned this morning, in the Armory case— The Wabash knew that he was taking trunks over their line. They knew that they were sample trunks. They knew that they had samples in them, for they knew that they were not hand baggage, with a few shirts and drawers and collars, and the like, and they knew that they were sample cases, and that they have to care for the cases, with a view of their value in that way. So this railway knew that this was a glass business, and that any of the cars they put in the yard suitable for glass. That was some knowledge what they were to be used for. This is a peculiar case about that. They took a sand car, when they had sand in it, and loaded it up with glass. A little more: You will not need to dispute among yourselves about the utter and absolute unfitness of these cars, because that is conceded. The young men argqing the case say it was unsuited.
      “You will ask yourselves— About the first th ing you do, after you have elected your foreman, you will ballot on one question—guilty or not guilty of negligence. If guilty of negligence— I mean the defendant, I am talking about, because you can take a ballot either way. You can take a ballot for plaintiff or defendant. You can take a ballot on the negligence, guilty or not guilty, and then you can take a ballot of what is the amount due. I am not going to tell you how much is due. That is for the jury. I will not tell you which side is negligent. That is a matter for you to consider. Consider all the circumstances, like candid men, and say, if you find for the plaintiff, the verdict is $474, as I understand it, in round numbers. That figures interest and all. If you find for the defendant, it would be no cause of action. That is the way I figure it. Still there is some testimony that the claim was presented for $360.
      I leave that to the jury.

        “Mr. Wilkinson: There is no testimony of that kind, but the statement of counsel, entirely unsupported by the evidence.

        “The Court: I will put it this way, then: You will either find a verdict for the plaintiff for $474, or find a verdict of no cause of action. That is entirely for you now. Follow an officer.

        “Mr. Bodman: There were some requests—
      “ The Court: I marked them.

        “Mr. Bodman: I want to take the customary exceptions. I want to take an exception to the refusal of the court to charge as requested by the defendant in its 1st, 2d, 3d, 4th, 5th, 6th, and 7th requests to charge. I except also to the charge as given by the court as a whole, and to each and every part thereof, and particularly to the giving of such of the plaintiff’s requests as were given.

        “Mr. Wilkinson: I want to except to the refusal of the court to give the 1st, 3d, 4th, and 5th requests to charge as given, and to the charge of the court as a whole.”

   Grant, J.

(after stating the facts). In a well-considered case by this court it was held that the consignor is the agent of the consignee in the shipment of goods, and that whatever contract he (the consignor) makes with the common carrier is binding upon the consignee. McMillan v. Railroad Co., 16 Mich. 79, 118. It was there said that the authority of the consignor to enter into special contracts with the carrier is to be presumed, and the carrier is under no obligation to inquire into it. The same rule is held in Ryan v. Railway Co., 65 Tex. 13, where many authorities are cited.

Upon the record now before us, there was an agreement between the Heidencamp Mirror Company and the defendant that the mirror company, from among the cars delivered to it upon its side track, might select such as it should deem fit and suitable in which to ship its glass. There is nothing in this agreement contrary to public policy. . The mirror company knew the character and weight of the products it shipped, knew what kind of cars were suitable for that purpose, and agreed to assume the risk of selecting. Every freight car is not suitable for the transportation of all kinds of products. A car suitable for the shipment of sand is not necessarily suitable for the shipment of cases filled with glass, and very heavy. An old coal car, suitable for shipping coal or like material, is not necessarily suitable for the shipment of glassware. There was no guaranty on the part of defendant that all its cars were suitable, in form or structure, for the shipment of glass. Under the agreement the mirror company undertook to select such cars only as were suitable for its purpose. The plaintiff and consignee, under this record and the authorities above cited, were bound, under this agreement, by the acts of their consignor, the Heidencamp Mirror Company. If it selected a car unsuitable for the transportation of the goods sold, the only remedy for the consignee is against the consignor.

If this car had been furnished at the express request of the consignor, and the defendant, knowing the purpose for which it was to be used, had furnished the car in response to such express request, the defendant would have assumed all liability for defects, and would not be permitted to say that the defects were open to the knowledge of the shipper, who therefore assumed the risk.

The rule applicable in the case before us is thus stated by the text-writers:

“ Where the shipper exercises his own judgment, is not deceived or misled by the carrier, and chooses a car for the transportation of his property, the carrier is not answerable for the sufficiency of the car, for in such a' case he does not trust to the carrier, nor rely upon the duty of the carrier, but, on the contrary, freely exercises his right of choice, and relies entirely upon his own judgment, so that there is no reason for affirming that the carrier was guilty of any wrong.” 4 Elliott on Railroads, § 1480.

Hutchinson on Car. § 295 c; Chicago, etc., R. Co.v. Van Dresar, 22 Wis. 511; Ross v. Railroad Co., 49 Vt. 364; Harris v. Railroad Co., 20 N. Y. 232; 6 Cyc. 385.

Under this record, it was error not to give the following request:

“ If the shipper seizes a car which has been delivered to it loaded with sand, and, on its own account loads it with a commodity for which it is unsuitable, and damage to the goods results, the railroad company is not liable on the ground of negligently furnishing an unsuitable car.”

The learned counsel for plaintiff cite and rely upon Hunt v. Nutt, (Tex. Civ. App.) 27 S. W. 1031. They say that case is on all fours with this. The consignor in that case shipped a car load of meal. He asked for a car for the purpose. The car was furnished. It was, to all appearances, suitable. The meal was in fact damaged by some substance that smelled like creosote or “ sheep dip.” The company in that case furnished the car. Something had been previously shipped in it which caused the damage. The shipper had no choice of selection, had not agreed to inspect, and the defect was a hidden one. It is clear that the railroad company was liable.

In Pratt v. Railroad Co., 102 Mass. 557, a specific car, at the shipper’s request, was furnished to plaintiff for a specific purpose. It was defective. It was important to the plaintiff to ship his stock at once, rather than wait a week for better cars. He used the one furnished. It was defective, and there was evidence tending to show that he knew it. The court held that the carrier was bound to furnish a suitable car, and was not exonerated from liability, even though the plaintiff knew it to be defective, accepted and used it. It was said:

“ Nothing less than a distinct agreement by the plaintiff to assume the risk would have that effect. ”

It was also said:

‘' If the plaintiffs expressly agreed to assume the risk of defective cars, rather than wait a reasonable time for other cars, they cannot recover.”

This case was affirmed by the Supreme Court of the United States. Railroad Co. v. Pratt, 22 Wall. 123. If there had been other cars, and the plaintiffs in that case had been authorized to inspect and select one that was suitable, and they had chosen one that was unsuitable, the obvious conclusion is that the court would have held the carrier not liable, provided the defects in the car selected were obvious. We are therefore of the opinion that the selection by the Heidencamp Mirror Company of unsuitable cars is binding upon it and its consignees, and that x defects in cars suitable per se, which were so open as to be easily discernible upon inspection, were assumed by the plaintiff through the acts of its consignor.

The record in this case suggests another important question, but, as the case does not appear to have been tried upon that theory, and is not fully presented here, we decline to pass upon it. It is this: Assuming that the car upon which the goods were shipped was suitable in character and structure, and proper for use in the shipment of such goods, but was unsuitable and unsafe in consequence of hidden defects, such as decayed flooring, or flooring of insufficient strength, would the. defendant, under such circumstances, be liable ? Or, perhaps, better stated thus: Did the arrangement for selection and inspection between the Heidencamp Company and the defendant impose upon the consignor the responsibility for hidden defects in cars otherwise suitable ?

Reversed and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    FLYNN v. KALAMAZOO CIRCUIT JUDGE.
    Sheriffs—Return—Amendment.
    An .amendment to a sheriff’s return as to a matter of fact must be made by the sheriff voluntarily, and cannot be compelled by the court.
    Mandamus by Lawrence Flynn to compel John W. Adams, circuit judge of Kalamazoo county, to vacate an order denying a motion for an amended return.
    Submitted October 4, 1904.
    (Calendar No. 20,634.)
    Writ denied November 9, 1904.

      William A. Luby, for relator.

      Osborn & Mills, for respondent.
   Hooker, J.

A judgment having been rendered against the relator in the circuit court for the county of Kalamazoo, an execution was issued. The sheriff returned that he levied the same upon real estate belonging to the execution debtor, had it appraised under the law pertaining to homesteads, and sold it at public auction for $2,300. Relator claimed that this was a false return, and, on a motion to vacate the sale, sought to contradict the return. This court held that this motion could not prevail in the face of the return standing of record in the case, and it was intimated that a proper'practice would he to obtain an amendment of the return. See Flynn v. Kalamazoo Circuit Judge, 136 Mich. 23. Thereupon the relator filed a motion for an amended return, which was denied by the -circuit judge upon the ground that an amendment to a return as to a matter of fact must be made voluntarily, and could not be compelled. The following cases cited by the respondent’s counsel seem to sustain the decision:

In the case of Sawyer v. Curtis, 2 Ashm. 127, decided in 1830, it was held that—

“Where the sheriff has returned his writ ‘Executed,’ and he does not ask permission to alter or modify his re: turn, the court has no power to do it, and cannot compel him to make any alteration in it as to matter of fact; and the sheriff is responsible for a false return to the party injured.”

In Humphries v. Lawson, 7 Ark. 341, it was held that—

“The circuit court cannot compel a sheriff to amend his return to a writ, nor to return any particular state of facts. He has the privilege of amending, and is responsible for a false return.”

See, also, Boas v. Updegrove, 5 Pa. St. 516.

In Hewell v. Lane, 53 Cal. 217, the court said:

“We are satisfied, however, that the sheriff cannot be compelled in this manner to contradict his return. He cannot, it is well settled, be compelled by the court to correct his return on file against his will.”

In Wilcox v. Moudy, 89 Ind. 232, it was said that “a sheriff’s return to a writ is made on his official responsibility, and he only can afterwards amend it, but it must be on leave. The court cannot compel him to correct it.”

In Washington Mill Co. v. Kinnear, 1 Wash. T. 100, it was held:

“If the return be defective, he may be compelled to perfect it; but, if the record shows the return to be com-. píete and perfect, the party who desires to traverse it is required to bring his action against the sheriff, who, on a proper showing, may be compelled to respond in damages for any injury resulting from a false return.

“It is said in Clarke v. Lyman, 10 Pick., page 47:

“ ‘ The sheriff and his deputies have great and confidential powers intrusted to them. Their returns on writs and precepts are received as true, and are not to he controverted, except in an action for a false return, and then the falsity must be proved.’

“And in 2 Ashmead, Sawyer v. Curtis, page 127:

“ ‘ Where the sheriff has returned his writ executed, and he does not ask permission to alter or modify his return, the court has no power to do it, and cannot compel him to make any alteration in it as to matter of fact. The sheriff is responsible for a false return to the party injured.’

“To the same effect, McBee v. State, 1 Meigs, 122; Mentz v. Hamman, 5 Whart. 150; Sample v. Coulson, 9 Watts & S. 62.”

See, also, note to case of Malone v. Samuel, 13 Am. Dec. 173 (3 A. K. Marsh. 350), and authorities there cited. In Smith v. Gaines, 93 U. S. 343, the Federal Supreme Court said:

“ As regards the effort to compel the marshal to amend his return, we think his answer contains a reply which is conclusive. In making that return he acts under a heavy official responsibility. If false, he is liable to plaintiff and to defendant for any damages resulting from it. He must therefore be at liberty to make his own return, subject to that responsibility. Nor do we think his return can be questioned by the sureties. It is declared by the law to be the appropriate evidence of the right to proceed against them. It is an official act. If they had desired him to exercise it otherwise than he did, they might, by showing him property, have possibly rendered him liable for a false return, and, by paying the debt, avail themselves of this liability. But we do not think that either the spirit of the statute or the justice of the case permits an inquiry into the truth of the officer’s return in the subsequent proceeding against the sureties. It is analogous to the return of nulla bona, as the foundation of a creditors’ bill in chancery, which, cannot be questioned.”

Counsel for relator cites several cases said to support Ms contention, but the most of them fall short of it. See Stetson v. Freeman, 35 Kan. 530; Boyer v. Lincoln, 3 Ky. Law Rep. 537.

In Davis v. Weyburn, 1 How. Prac. 153, it was held that a sheriff could be compelled to perfect an incomplete return. The same was held in Berry v. Griffith, 2 Har. & G. 343.

Counsel for relator asserts that our former holding was, in effect, a decision that an amendment may be compelled, but we think it contains no such implication. It held merely that without an amendment the relief sought could not be granted.

The writ must be denied.

The other Justices concurred.


text:
    SMITH v. HOCKENBERRY.
    1. Husband and Wife—Criminal Conversation—Connivance-Evidence.
    Evidence that plaintiff’s wife had been criminally intimate with other men before she met defendant, does not warrant an inference that plaintiff connived at defendant’s acts where no knowledge on his part of such prior misconduct is shown.
    2. Same.
    That a witness relied upon to show an adulterous act was plaintiff’s guest at the time he discovered defendant and plaintiff’s wife in a compromising situation, does not warrant the inference that plaintiff knew and consented to the improper relation.
    3. Same—Condonation.
    The fact that when plaintiff was informed of the improper relation between his wife and defendant “he did not make much of a reply,” and continued to live with her, was not evidence that he consented to such relation. By continuing to live with her after knowledge of her infidelity, plaintiff condoned her offense, but not the offense of her paramour.
    4 Same—Conspiracy.
    Testimony of witnesses that plaintiff’s wife had stated that plaintiff “knew of her criminal relations with other men, and didnot object; that she had a network around defendant ; and that she had taken good care, and had good witnesses,” were admissible only on the ground that plaintiff and his wife were co-conspirators, and not as evidence that a conspiracy existed, or of plaintiff’s connivance.
    5. Same—Damages—Evidence.
    Defendant, on the question of damages, may show the prior, but not the subsequent, unchastity of plaintiff’s wife.
    Error to Eaton; Smith, J.
    Submitted October 6, 1904.
    (Docket No. 14.)
    Decided November 9, 1904.
    Case by Howard Smith against Clinton Hockenberry for criminal conversation. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Q. A. Smith and O. J. Hood (George Huggett, of counsel), for appellant.

      Lyman H. McCall and Frank A Dean, for appellee.
   Carpenter, J.

This is an action for criminal conversation. Plaintiff’s testimony tended to prove that his family consisted of himself, wife, and two children; that while they were living in Potterville, Eaton county, defendant induced them to remove to his house in Charlotte, under an arrangement by which he was to room and board with the family. There was positive and direct testimony tending to prove that while this relation existed defendant debauched plaintiff’s wife. This testimony was not contradicted. The jury, however, rendered a verdict for the defendant, finding, as we must assume, and as the charge of the court permitted them to do, that plaintiff connived at his wife’s criminal intimacy with defendant. The most important question presented on this record is whether there was any evidence which justified this finding. There was no testimony directly proving plaintiff’s connivance, but defendant claims that there was testimony from which such connivance might legitimately be inferred. We will proceed to state and discuss that testimony.

(а) There was testimony tending to prove that plaintiff’s wife had been criminally intimate with several other men before she met defendant. It is urged that this testimony warranted an inference of plaintiff’s connivance, because he, “ knowing of his wife’s habits as to consorting with other men, took no steps to prevent it.” It is obvious that this argument, if otherwise sound, is based upon the assumption that plaintiff knew that his wife had consorted with other men. If this assumption is not well founded, the argument must be rejected. There is no evidence that plaintiff had such knowledge. No circumstances of his wife’s prior misconduct is ever shown to have come under his observation; no rumor of her want of chastity is ever shown to have reached him. It cannot, therefore, be assumed that he had such knowledge, unless he is chargeable with constructive notice of his wife’s misconduct. He is not chargeable with such notice unless he owes to the man who wantonly destroys his domestic happiness an obligation of diligence. It is scarcely necessary to say that no such obligation exists.

(б) One of plaintiff’s witnesses, who testifies to improper relations existing between plaintiff’s wife and defendant, was at that tim'e, on plaintiff’s invitation, a guest in his house. The witness had arisen early in the morning, but after plaintiff had gone to work, and in moving about the house discovered plaintiff’s wife and defendant in a compromising relation. We cannot assent to defendant’s contention that, because plaintiff invited the witness to be a guest in his house, it may be inferred that he knew and consented to the improper relations existing between his wife and defendant.

(c) There was evidence that when plaintiff was informed * of the improper relations existing between his wife and defendant “he did not make very much of a reply,” and he continued thereafter to live with his wife. Plaintiff, when told of his wife’s infidelity, was not called upon to assert that he did not consent to the same. His silence, therefore, was no admission of such consent. By continuing to live with his wife plaintiff condoned her offense, but he did not condone the offense of her paramour. See Sanborn v. Neilson, 4 N. H. 501; Sikes v. Tippins, 85 Ga. 231.

In Stumm v. Hummel, 39 Iowa, 478, it was held that the trial court did not err in refusing to charge the jury that* “if plaintiff, after full knowledge of his wife’s infidelity, continued to live with her upon the same terms as before her crime, this would be evidence to show that plaintiff connived at it;” and in charging that “plaintiff’s forgiveness of his wife and continuance of the marital relation did not necessarily have the effect to establish connivance or assent.” It cannot be claimed that this is an authority for the proposition that connivance cannot be inferred because the husband continues marital relations with his wife after knowledge of her infidelity. I think, however, that the language of the court in disposing of the question indicates that such inference cannot be drawn. That language was as follows:

“ The law will not hold a party remediless for an injury of this kind because through the exercise of Christian virtue, the influence of family interest, or even in the want of what may be regarded as true manly spirit, he forgives an erring wife, and trusts in her reformation and promise of future good conduct and virtue.”

The question of whether connivance may be inferred from condonation by the husband of his wife’s infidelity must be disposed of, then, not by authority, but on principle. If the husband did actually connive at his wife’s intimacy with defendant, it might justly be inferred that he- would continue his marital relations with her. But we encounter an altogether different question when we are asked to infer such connivance from a continuance of the marital relations. The husband may have continued the marital relations from one of several possible reasons. He may have continued them because he connived at his wife’s improper conduct, because that course was best for the interests of his children, because he lacked spirit to resent his humiliation, or because he was moved by love for his erring wife or by pity for her condition. There is nothing in this case which enables us to say whether any one of these, or some other possible reason, determined plaintiff’s action. We depart from the law of sound reason and legal evidence and enter the field of pure speculation if, under such circumstances, we attempt to infer the particular reason which moved plaintiff to condone his wife’s offense. Those decisions which deny the right of a jury to attribute to a particular cause an injury which may as well be attributable to another (see Muddle v. Stride, 9 C. & P. 380; Gilbart v. Dale, 5 Ad. & El. 543; Midland Railway v. Bromley, 17 C. B. 372; Marquette R. Co. v. Kirkwood, 45 Mich. 56) are in point, and sustain this conclusion.

(cl) Witnesses were permitted to testify that plaintiff’s wife had-stated, though not in his presence, “that her husband knew of her criminal relations with other men, and did not object; that she had a network around defendant ; and that she had taken good care, and had good witnesses.” These declarations were admissible only upon the ground that plaintiff and his wife were co-conspirators, but they furnished no evidence that the conspiracy existed (see Solomon v. Kirkwood, 55 Mich. 256; Mawich v. Jersey, 47 Mich. 10), and therefore they cannot be considered as furnishing any evidence of plaintiff’s connivance.

Other items of testimony less significant than these are relied upon by defendant. The above reasoning would compel us to say of them, as of these, that they do not justify the inference that plaintiff connived at his wife’s infidelity, and that the court therefore erred in his charge and in his refusal to charge.

As there was no evidence of a conspiracy, the court also erred in receiving in evidence the declarations of the wife that her husband knew of her criminal relations with other men, and that she had a network around defendant.

The trial court permitted defendant to prove that plaintiff’s wife was guilty of criminal intimacy with other men, both before and after* her intimacy with defendant. The testimony relative to such intimacy before plaintiff’s cause of action accrued was properly admitted. The proof that his wife lacked' chastity before defendant met her clearly lessened.plaintiff’s damages. See Ellsam v. Faucett, 2 Esp. 562; Rea v. Tucker, 51 Ill. 110; Torre v. Summers, 2 Nott. & McC. (S. C.) 267. The testimony relative to the intimacy after the cause of action accrued should, however, have_ been excluded. See Ellsam v. Faucett, supra; Rea v. Tucker, supra; Torre v. Summers, supra. The ground upon which this testimony is excluded is not stated in these decisions, but I assume that it rests in part at least upon the assumption that defendant’s wrong may have contributed to the subsequent misconduct of plaintiff’s wife, and that to admit such testimony might enable him to use a circumstance to mitigate damages which actually enhances them. I do not think that any other question presented by the record demands discussion.

Judgment reversed, and a new trial ordered.

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


author: Montgomery, J.

text:
    SKINNER v. KELLEY.

    1. Equity—Pleading—Escrow—Sufficiency oe Allegations.
    A bill to quiet title and to secure a judicial determination of the effect of a deed, alleging that the deed was deposited with a certain person, who was directed not to deliver the same until after the grantor’s death, and then to deliver it to the grantee and to no other person, and that the parties both planned that if the grantor survived the property should belong absolutely to the grantor, sufficiently alleges that the deed was deposited with the direction that it was to be delivered to the grantee only in case he survived the grantor, and at her death.
    2. Escrow—-Condition op Delivery—Evidence.
    In a suit to quiet title and to obtain a judicial determination of the effect of a deed deposited in escrow, evidence held to show that the grantor never authorized the delivery of the deed, except on condition and in case the grantee should survive her.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 6, 1904.
    (Docket No. 24.)
    Decided November 9, 1904.
    Bill by Maurice G. Skinner, administrator of the estate of Amelia W. Kelley, deceased, and others, against Louis W. Kelley to quiet title to land. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Frank A. Stivers (John F. Lawrence, of counsel), for complainants.

      M. B. Salter (J. M. Everden and George P. Stone, of counsel), for defendant.

       Rehearing denied May 12, 1905.

   Montgomery, J.

The bill in this case was filed to quiet title and to have a judicial determination as to the effect of a deed and will, executed by Amelia Kelley in her lifetime, and deposited with Judge Cheever, as hereinafter stated. The claim of complainants is that the deed was deposited with Judge Cheever with the direction that it was to be delivered to the grantee, Obadiah A. Kelley, only in case he survived Amelia, and at her death. The defendant in this court claims that the bill of complaint does not charge such a case.

We think that while the allegations are not as specific as might be desired, that the theory now presented is fairly foreshadowed. The bill does aver that the deed was deposited with Judge Oheever, and that he was expressly directed not to deliver the deed until after decedent’s death, and then to deliver it to Obadiah A. Kelley, and to no other person. The bill also avers that the parties, Mr. and Mrs. Kelley, both planned and intended that in case Mrs. Kelley survived her husband, the property should belong absolutely to Mrs. Kelley. The facts, as they appear by the record, are as follows: Obadiah A. Kelley .married Amelia Kelley May 29, 1880. About the same year he became involved in a long lawsuit with his son, Louis L. Kelley, about certain lands, which subsequently became the property of Amelia Kelley, and which are the same lands involved in the present suit. The result was a long and bitter contest, and there was intense feeling against Louis L. Kelley on the part of Obadiah A. Kelley and his wife, Amelia. The lands were conveyed to Amelia Kelley by her husband May 13,1882, and the deed duly recorded. Some time previous to November 28, 1892, Obadiah A. Kelley came to the office of Judge Noah W. Oheever, and stated that he and his wife had talked the matter over of making some arrangements for his benefit in regard to these lands. He said they wanted to arrange it so that in case he survived his wife, he could have the title to this land. Mr. Oheever told him he thought he could arrange it. On November 28, .1892, they called at Judge Oheever’s office together. They both then stated they wished to have papers drawn so that in case Obadiah A. Kelley survived his wife, he could have the title to this land. Judge Oheever suggested the making of a deed, and having it delivered to him in escrow. In course of the conversation, after discussing the matter, he'suggested also the will. The purpose of Mr. and Mrs. Kelley, and the object and intent of the papers drawn by Judge Cheever and executed by Mrs. Kelley, as testified by Judge Oheever himself, was as follows:

“ They had both of them, in all the conversations I had with them in regard to this land, stated repeatedly that they did not want the son, Louis L. Kelley, to have this property. They have always stated that, and they stated it then, but they did want some provision made, if possible, so that in case Amelia Kelley died before Obadiah, that he should have the property. They.finally agreed upon the proposition that the deed and will should be executed by Amelia Kelley and left with me, and, in case Amelia Kelley died first, that the deed was to be delivered to Obadiah A. Kelley, and to no one else, and, in case Obadiah A. Kelley died first, that' Mrs. Amelia Kelley should •continue to have the absolute title to this property the same as she had had it. * * *

“ When they stated to me what they wished to do, I did not make any special examination of the authorities upon the question of the delivery in escrow, but I knew from previous examinations that there was a large conflict of authorities, both in the text-books and in the reports, in regard to the validity of such a delivery, if there were any conditions; and to make the thing entirely sure, as it appeared to me, I advised that a will also be drawn and executed to cover that contingency. The reason I suggested a deed in escrow was that, if it would work, it was a cheap and easy way to settle the matter; but feeling that there was some uncertainty as to the law under those conditions, I had the will prepared and executed by her.”

The transaction occurred in the office of Judge Cheever, and both the will and deed are in his handwriting. The deed is the usual form of quitclaim, the consideration being “one dollar and love and affection.” The will devised the land to Obadiah. After the papers were made, Judge Cheever made the following indorsement on the deed:

“This deed has been delivered to me in escrow, to be delivered to the within grantee, Obadiah A. Kelley, on the death of the grantor, Amelia Kelley, and not before.

“Dated November 28, 1892.

. “Noah W. Cheever.”

Judge Cheever testifies that this memorandum was made for his own convenience, and was not made by direction of the parties. The circuit judge treated this memorandum as very persuasive, if not controlling, upon the question of fact, and found that the only restriction upon the depositary was that the deed should not be delivered in the grantor’s lifetime.

A careful consideration of the case leads us to the conclusion that the grantor never authorized the delivery except on condition and in case her husband should survive her—a condition not fulfilled, as Mrs. Kelley survived her husband. The testimony of Judge Cheever is clear and convincing.

No other question need be discussed, as the conclusion reached shows complainants entitled to the relief prayed.

The decree is reversed, with costs of both courts to complainants.

The other Justices concurred.


author: Moore, C. J.

text:
    CASWELL v. PILKINTON.
    Fraudulent Conveyances—Payment of Debts—Husband and Wife.
    The conveyance by a debtor of his interest in a decedent’s estate, to pay an antecedent debt created by the dobtor and his wife, who already had a homestead, for the purpose of purchasing property, the title to which was not taken in the debtor alone, but was taken in the name of himself and wife as tenants by the entirety, was fraudulent as against other creditors of the debtor.
    Error to Ionia; Davis, J.
    Submitted October 6, 1904.
    (Docket No. 26.)
    Decided November 9, 1904.
    Attachment proceedings by Frank E. Caswell against Silas H. Pilkinton. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      B. A. & W. E. Hawley, for appellant.

      Chaddock & Scully, for appellee.
   Moore, C. J.

This case was commenced by writ of attachment. The affidavit states that the plaintiff “has good reason to believe and does believe the defendant has assigned and disposed of a portion of his property with intent to defraud his creditors.” Application was made to dissolve the attachment before the circuit court commissioner. An appeal was taken to the circuit court, a trial was had, and by direction of tho circuit judge a verdict was rendered in favor of the defendant, and the attachment was dissolved, The case is brought here by writ of error.

After the testimony on the part of the plaintiff was closed, defendant offered no evidence, by demurred to that offered on the part of plaintiff, thereby admitting it was true. The appellant insists that, if a verdict should have been directed at all, it should have been for the plaintiff, but, in any event, that the testimony disclosed a case which should have been submitted to a jury.

The plaintiff bases this claim upon testimony which tends to show the following: In 1889 the defendant failed. Prior to his failure he was indebted to Robert Dutton. In 1892, and for a time prior thereto, he owed Mr. Dutton approximately the sum of $2,000. The note involved in this case represents a portion of this indebtedness. It is dated June 15, 1895, and is for the sum of $311.89, payable one year after date. This note was indorsed over to the plaintiff on or about the 15th day of June, 1901. The plaintiff commenced this suit against him on the 14th day of January, 1902. On May 12, 1875, the defendant and his wife purchased two and one-fourth acres of land for the sum of $1,300, of which amount Mrs. Pilkinton furnished $1,160. This land was situated in the village of Portland, and constituted the homestead of the parties. The deed was taken in their joint names. On May 10,1882, the defendant purchased village lots numbered 59 to 67, inclusive, in Bailey’s Addition to the village of Portland, taking the title in his own name. On May 6, 1889, the defendant purchased from Maynard & Satterlee one-half acre of land situated in the village of Portland, and took the title in his own name. On the 9th day of December, 1892, for a consideration expressed in the deed of $300, defendant and his wife conveyed said lots to his father, Stephen Pilkinton. At the same time defendant gave his „ father an assignment of his notes and accounts.

Plaintiff claims there was no actual consideration passed for these transfers, except that the father had signed a note at the bank for the use and benefit of defendant. Defendant claims that he also owed his father $900. The defendant retained the notes and accounts in his own hands, and paid up this note at the bank, all except the sum of $156, which is still unpaid. On the 15th day of October, 1897, Stephen Pilkinton, defendant’s father, conveyed to defendant’s wife the said lots 59 to 67, inclusive, and said half acre of land for an expressed consideration of $156, and, plaintiff claims, without any consideration whatever. On October 10, 1895, Charles H. Maynard and Orville S. Satterlee and wives conveyed to the defendant and his wife 10£ acres of land situated in said village of Portland for an expressed consideration of $666.25. The defendant and his wife mortgaged this parcel, together with their homestead, to Charles H. Maynard, in the sum of $700. This money was used to pay for the 10J acres of land, and said mortgage remained unsatisfied and undischarged at the time of the trial. On May 29, 1902, defendant and his wife conveyed said 10£ acres of land to their children for an expressed consideration of $1 and love and affection, reserving to the said grantors a life estate in said premises. The deed was made subject to the mortgage to Mr. Maynard.

Stephen Pilkinton died on the 30th day of September, 1900, leaving a will. Defendant would be entitled to about $650 from his father’s estate. On November 5, 1900— four days after the will was admitted to probate—the defendant assigned all his interest in his father’s estate to Charles H. Maynard to secure the payment of the balance due on the mortgage given Mr. Maynard on October 10, 1895, and on the same date the assignment was recorded. Plaintiff claims this was done without Mr. Maynard’s knowledge. After the commencement of this suit, and before the trial, the wife of defendant died.

It is the claim of plaintiff that a fair inference from this state of facts is that defendant had conveyed a portion of his property with the intent to defraud his creditors.

It is the claim of defendant that plaintiff has failed' wholly to make a case. He insists that defendant had a right to prefer his creditors, and that, as he owed Mr. Maynard, he might use what was coming to him from the estate of his father to pay that claim, and, as the one claim was equal to the other, the remaining creditors cannot complain. The trouble with this contention is that the debt paid was not simply the debt of the defendant, but it was a debt created by himself and wife when they already had a homestead, for the purpose of purchasing property the title to which was not taken in the husband alone, but was taken in the name of the husband and wife; and when the one-sixth interest which defendant had in his father’s estate which might be reached by the creditors of defendant was used to pay the joint indebtedness of the husband and wife, and thereby cancel a lien on real property owned by them in the entirety, it brought about a result which gave the creditors of defendant a right to complain.

Defendant also claims (we quote from brief of counsel):

“Defendant, at the time he purchased the ten acres, had not one dollar’s worth of property liable to execution. He was not creating an estate in the entirety at the expense of his creditors, and therefore the case of Newlove v. Callaghan, 86 Mich. 297, has no application to the facts in this case.”

Undoubtedly, this was the situation when the 10 acres were purchased; but when, later, he used property which might be reached by creditors to extinguish a lien upon an estate in the entirety, it brought the case within the principle announced in Newlove v. Callaghan, supra. We think there was a case to be submitted to the jury.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    SPROAL v. LARSEN.
    Mortgages—Payment—Subrogation.
    One who advances money on a mortgage to pay a prior mortgage on the same premises, and afterward learns that the mortgagor has no title because of an ad interim conveyance, will be subrogated to the rights of the prior mortgagee, though the property is a homestead.
    Appeal from Mason; McAlvay, J.
    Submitted October 6, 1904.
    (Docket No. 27.)
    Decided November 9, 1904.
    Bill by Oliver Sproal against Augusta Larsen and others to be subrogated to the rights of a mortgagee and to foreclose the mortgage.- From a decree for complainant, defendants appeal.
    Affirmed.

      Henry C. Hutton, for complainant.

      Fitch & Beek, for defendants.
   Carpenter, J.

February 18, 1891, the first-named defendant, Augusta Larsen, whose name was then Augusta Ohse, owning the land in controversy, mortgaged the same to one John W. Gary. Soon thereafter Augusta conveyed the same by warranty deed to her husband, August Ohse. August subsequently died, leaving as his heirs at law his widow, Augusta, and two infant children, Paulina and Herman, defendants in this suit. Afterwards Augusta married her codefendant Frank Larsen. In May, 1895, defendant Augusta applied to complainant for a loan for the purpose of paying off said mortgage to Gary, and offered to secure said loan by a new mortgage on said premises. There was presented to complainant’s attorney an abstract brought down to February 17, 1891, showing title in defendant Augusta. Complainant was led to believe, and did believe, that that title continued in her. He thereupon advanced the money required to pay the money secured by said Gary mortgage, which was accordingly' paid, and he obtained a new mortgage on said property, signed by defendant Augusta and her husband. Having subsequently ascertained that defendant Augusta had no title to the mortgaged property, complainant instituted this suit, asking to be subrogated to the rights of the mortgagee in the Gary mortgage, and that that mortgage be foreclosed for his benefit. From a decree granting complainant relief, defendants appeal to this court.

Justice Montgomery, speaking for this court (see Palmer v. Sharp, 112 Mich., at page 423), said:

“In numerous cases in this State, parties who have accepted security in good faith upon a loan made for the purpose of discharging existing incumbrances upon the same real estate have, upon its appearing that the security was ineffectual or invalid, been allowed to be subrogated to the rights of prior lienors; there being no person intervening entitled to superior equities. Such was the holding in Detroit Fire & Marine Ins. Co. v. Aspinall, 48 Mich. 238, and in Lockwood v. Bassett, 49 Mich. 550; and the same doctrine was recognized in Kelly v. Kelly, 54 Mich. 48.”

This principle and these authorities clearly entitle complainant to relief.

The fact that the property is a homestead does not, as contended by defendants, make the doctrine of subrogation inapplicable. That circumstance did not lessen the rights of the original mortgagee, and therefore it does not affect complainant, who, by subrogation, has acquired those rights.

Gerber v. Upton, 123 Mich. 605, relied upon by defendants, is clearly inapplicable. There complainant purchased land at an administratrix’s sale. Part of the purchase money paid by him was used in discharging a mortgage upon the land. His title was held defective because of the homestead rights of children. He was denied the right of subrogation to the rights of the mortgagee because, as it is to be clearly inferred, he knew the facts, and was presumed to know that the law gave the administratrix no right to sell the children’s homestead. In the case at bar, complainant’s mistake was not one of law. He did not know the facts. It may also be said that the defendant in Gerber v. Upton had no right to be subrogated to the rights of the mortgagee, because the property he acquired at the administratrix’s sale was primarily liable for the mortgage indebtedness.

The decree of the court below is affirmed, with costs.

The other Justices concurred.


author: <3rant, J.

text:
    RHODES v. BOULDRY.
    1. Estates Tail.
    An estate tail general is one limited to a man and the heirs of his body without any further specification.
    3. Same—Will—Estate Created.
    A devise of lands “not only to [the devisee] but to the heirs of his body ” creates an estate tail general, and under the laws of this State creates a fee. 3 Comp. Laws, § 8785.
    Appeal from Jackson; Peck, J.
    Submitted October 6, 1904.
    (Docket No. 16.)
    Decided November 9, 1904.
    Bill by Lorenzo M. Rhodes, administrator of the estate of Truman Bouldry, deceased, against Silas Bouldry, George W. Carter, May Covey, Bert Bouldry, Royal Bouldry, and Demmon Bouldry to obtain a construction of the last will and testament of Deming Bouldry, deceased. From a decree for complainant, defendants Covey and Bouldry appeal.
    Affirmed.
    One Deming Bouldry died testate. By his will he devised to Silas W. Bouldry, his stepson, the land described in the bill of complaint. Silas mortgaged the land. The mortgage was purchased by, and duly assigned to, defendant Carter and his brother, now deceased, who were copartners. Said mortgage was foreclosed, and the land purchased by them, and subsequently sold and conveyed to Truman Bouldry, of whose estate complainant is administrator. Truman mortgaged this and other lands, and the mortgage so given and the bond accompanying the same were at the time of the death of Truman owned by defendant Carter. His claim against the estate upon said bond and mortgage was allowed at the sum of $4,611.43. The defendants May Covey and Bert, Royal, and Demmon Bouldry are the children of Silas, who is still living. The personal estate being insufficient to pay the debts and expenses of administration, complainant is compelled to sell real estate for that purpose. The children of Silas claim that their father has only a life estate in the land, under the provisions of the will of Deming Bouldry. The second clause in the will, in the usual language, devises the land to Silas.
    The third clause reads as follows:
    “ I bequeath the above-described lands, not only to the said Silas W. Bouldry, but to the heirs of his body.”
    The object of the. bill is to obtain a construction of the above devise; complainant and defendant Carter insisting that by the will the title in fee vested in Silas. The court below decreed that “the title rests in fee simple absolute in the estate of said Truman Bouldry, as assignee of Silas W. Bouldry, the devisee thereof under the will of Deming Bouldry.”

      Thomas E. Barkworth, for complainant.

      B. S. Woodliff, for defendants Covey and Bouldry.
    . Parkinson & Campbell, for defendant Carter.
   <3rant, J.

(after stating the facts). An estate tail general is one “limited to a man and the heirs of his body, without any further specification.” 1 Washb. Real Prop. § 200. “To hold in fee tail or in tail, is ‘where a man holdeth certain lands or tenements to him and to his heirs of his body begotten;’ that is a general tail.” 3 Stroud’s Jud. Dic. 2004. See, also, 11 Am. & Eng. Enc. Law (2d Ed.), p. 371. The devise in this will created an estate tail general under all the authorities. It would be difficult to find language more appropriate to create such an estate. Estates tail are abolished by statute. 3 Comp. Laws, § 8785. This case is ruled by Goodell v. Hibbard, 32 Mich. 47, and Eldred v. Shaw, 112 Mich. 237.

The decree of the court is correct, and is affirmed, with costs to the complainant.

The other Justices' concurred.


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    NOWLAND v. RICE’S ESTATE.
    1. Executors and Administrators—Accounts—Conolusiveness - oe Allowance.
    The order of the probate court allowing an administrator’s ' first account, if not appealed from, is conclusive upon him, so that the second account should begin with the balance due on the first.
    2. Same—Appeal erom Probate Court—Trial by Jury.
    Disputed questions of fact on appeal from the probate court must, if either party so asks, be tried by jury.
    3. Same—Questions eor Court.
    On the hearing of an account in probate court, the propriety of charges and investments by a guardian, and his compensation, and the allowance to administrators for services, rest with the probate judge or the circuit judge on appeal.
    4. Same—Findings.
    The findings on the hearing of an administrator’s account should state what items are allowed, and what rejected.
    5. Same—Settlement with Heirs.
    Settlement with the heirs does not relieve an administrator from his duty to file an account and obtain a settlement with the probate court. The settlement only affects the matter of distribution.
    Error to Wayne; Donovan, J.
    Submitted October 6, 1904.
    (Docket No. 30.)
    Decided November 9, 1904.
    Moses R. Nowland, administrator of the estate of George Rice, deceased, appealed from the order of the probate court allowing his final account. To review the judgment rendered, the administrator brings error.
    Reversed.
    The appellant was appointed administrator of the estate of George Rice, deceased, in November, 1887. On May 13, 1889, he filed an account. This account was heard by the probate court, passed upon, and allowed, with a balance due the estate of $338.72. He filed no further account until he was cited in February, 1901, to file another account. In accordance with that citation, he filed an account ignoring the first, and making a new one covering the time of the first account. He reported with his first account that a’suit was pending in the circuit court which delayed his final account, and also that there were still some debts which he had been unable to collect. No appeal was taken from the order allowing that account. A hearing was had upon the second account, and the probate court found there was due from the administrator $542.68. From this order he took an appeal to the circuit court, where a balance was found due to the estate from him of $560. A jury was impaneled to try the case, and after it had proceeded for some time the court discharged the jury, took additional testimony, and decided the case, making a written finding of facts and law.

      B. T. Prentis and S. W. Burroughs, for appellant.

      Thomas Hislop, for appellee.
   Grant, J.

[after stating the facts). There are 46 assignments of error, but it is unnecessary to state or discuss them. The order of the probate court allowing the first account, being unappealed from, is conclusive upon appellant. If he desired to dispute any of the findings of the court upon the items of that account, he should then have appealed. He cannot reopen it 12 years after it has been adjudicated, upon the assumption that it is erroneous. Parties interested in the estate had a right to assume that the account as allowed was correct, and to rely upon the order of the court as final. Morton v. Johnston, 124 Mich. 561.

The second account should have been commenced with the balance due upon the first, to which should have been added the receipts, if any, and credits for expenditures, if any. Disputed questions of fact on appeals from the decisions of the probate court must, if either party so asks, be tried by a jury. Grovier v. Hall, 23 Mich. 11; In re Stebbins’ Estate, 94 Mich. 304.

It is established in Gott v. Culp, 45 Mich. 265, 276, that, under the statute (1 Comp. Laws, § 673), in a guardian’s account, the propriety of charges and investments by a guardian and his compensation are things with which the jury cannot meddle.

In Mower’s Appeal, 48 Mich. 441, it is held that the allowance to administrators for services rests with the probate judge or the circuit judge on appeal.

In Re Pfeffer’s Estate, 117 Mich. 207, three items were in dispute—the compensation for the administrator, the amount allowed for services of his attorney, and the amount allowed for services of the commissioner on claims. The question of the administrator’s compensation was reserved by the court, and the other two questions submitted to a jury.

Among the findings of the circuit judge is the following:

‘ ‘ I find that a probate case on appeal is to be tried and determined on the same principles that would be administered by the probate court itself. That court, in adjusting accounts of administrators, is governed by broad principles of equity; and it is at all times competent for the administrator, unimpeded by technical rules, to show the fairness of his dealings, the real nature of his transactions, and to restrict the amount for which he should be held, liable to that which equity demands. Upon any other rule, he might be made to bear the burden of events for which he was in no degree responsible, and when he was acting in the most conscientious discharge of his duties; and I have not used any technical rule, but have made most liberal allowance I can conscientiously do towards the administrator. I have not found the administrator liable for the amount found by the probate court due the estate June 27, 1889, with interest to date, which would amount to between seven and eight hundred dollars, but have given him credit for various sums paid by him since, and made liberal allowance for his services, and still find him indebted to the estate in the amount of $560.”

The court did not find what items he rejected and what he allowed. It is therefore impossible, upon this record, to determine whether the court disallowed items which belonged to the jury to determine. If the only item in dispute after the date of the first account were the extraordinary allowance of $100 as administrator, there would have been nothing for the jury to pass upon.

It is urged that the heirs had either expressly or impliedly assented to the action of the administrator in the settlement of the estate and the distribution of the funds. No receipts were taken, and no agreement evidenced by any writing. Some of the heirs dispute any such agreement, or any assent to discharge the administrator without filing an account. We think, under the appellant’s own claim, he was not relieved from his duty to file his account and obtain a settlement with the probate court. If he has settled with the heirs, that question will come up on the distribution of the estate. The sole object of this proceeding is to determine how much of the estate is still in his hands.

Judgment reversed and new trial ordered.

The other Justices concurred.


text:
    FOWLES v. RUPERT.
    1. Appeal and Error—Sufeioiency of Pleadings—Waiver.
    By pleading to a declaration in justice’s court, without object- ■ ing to its lack of formality, defendant waives the right to assign error on the introduction of evidence under it.
    2. Sales—Breach of Contract—Purchaser’s Right to Control Property.
    Plaintiff sold defendant all the hay in certain stacks, to be baled before taken away, defendant to furnish baler and plaintiff to assist in baling and deliver the hay at the railroad. Defendant directed the baler which stacks to bale first, but the baler left the premises because plaintiff forbid his baling unless he baled certain other stacks first. Held, that the purchaser had the right to direct the order of baling, and plaintiff could not recover as for breach of contract.
    Error to Calhoun; Hopkins, J.
    Submitted October 6, 1904.
    (Docket No. 32.)
    Decided November 9, 1904.
    Assumpsit by Louis Fowles against Conrad Rupert for breach of a contract to purchase certain hay. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Tompkins & Stewart, for appellant.

      North & Salisbury, for appellee.
   Moore, C. J.

This case was commenced in justice’s court. The plaintiff filed with the justice a written con-tract, reading as follows:

“ C. Rupert & Sons of Newark, N. Y., bought fromL. Fowles all the hay in stacks on his farm except two stacks which had rain on it after it was cut and before it was stacked for four dollars and fifty cents a ton. Fowles is to cut or rake from stacks all the outside and stained hay not fit for market. Fowles is to help bale and deliver and load on cars at Renton without charge and board men and team and find fuel for engine while baling. Hay to be baled first September or soon after the baler can be got there, R. & Sons to have cars at station to load hay in when baled.”

He declared orally in assumpsit and for breach of contract. The defendant filed a written plea of the general issue and gave notice of set-off. He also set out verbatim the written contract, and averred he was at all times ready to perform it, but was prevented from doing so by the acts of plaintiff, whereby he had sustained damages in the sum of $500, which he would recoup against any claim of plaintiff. A trial was had before the justice, who rendered a judgment in favor of plaintiff. An appeal was taken to the circuit court. A trial was had before a jury, which rendered a verdict in favor of the plaintiff. The case is brought here by writ of error.

The appellee has not furnished us with a brief. The appellant presents 29 assignments of error. We shall discuss but few of them, for the. reason that most of them are eliminated by our view of the effect of the testimony offered on the part of the plaintiff. The defendant was the only one of the firm making the contract who lived in Michigan. He lived in Battle Creek. The hay he purchased was baled and shipped to New York. The evidence discloses that Mr. Rupert hired a man by the name of Brown to bale the hay, and he in turn had as his foreman in charge of his baler a man by the name of McConnell. Part of the hay mentioned in the contract was in one field and a part in another. In one field there was more timothy in the hay than in the other field, which had more clover. The baler was in operation about the 1st o£ September at a neighbor’s of the plaintiff. Mr. Fowles saw Mr. McConnell there, and asked him to bale the stacks of hay having the most clover first. Mr. McConnell replied, “All right.” Later he saw Mr. Rupert, who told him to bale the other hay first, as it was better cured, and he was afraid the clover hay had not had time to sweat out, and would heat in the bales. On Thursday, September 4th, Mr. McConnell moved into the field where the stacks had the most timothy. Mr. Fowles furnished the necessary help, and they commenced baling the hay, and continued to do so until Saturday. As fast as the hay was baled, it was drawn to Renton, and loaded into the cars, all of which were filled, and more bales were carried over to Renton than the cars would contain. It is claimed by defendant that three additional cars were put on the siding on Sunday. On Monday Mr. McConnell quit baling.

The plaintiff testified:

“Mr. Rupert left the premises because I wanted him to go back on the other place and bale the other hay first as he agreed to do. He didn’t do that. He left.”

The agreement here referred to was the talk he had with Mr. McConnell a day or two before the baling commenced at the plaintiff’s. Mr. Carr, a witness for the plaintiff, testified,- referring to a conversation between Mr. Fowles and Mr. McConnell just before the balers left the farm:

“ Mr. Fowles told him that he wanted him to go back and bale this clover hay. The rain would damage it more, and he would have to bale that first. He said Mr. Rupert had told him to go on and bale this timothy, and Fowles wanted this clover baled, and he said if he could not bale the timothy he would move out. ”

On the cross-examination he testified:

“I did not hear Mr. Fowles tell Mr. McConnell that they could not bale any more hay there. We did not go to work, and I could not work unless the rest of them did. Mr. McConnell was not ready to go to work when he came there that morning about seven o’clock. He had not fired up yet. He immediately started to fire up when he came. He was getting ready to go to work. They were talking about the hay business. Mr. Fowles told him he could not bale any more of that timothy hay. He didn’t stop him from baling it. He just told him he could not go up and bale any more of that until he went up and baled the clover.”

The defendant testified:

“ I first learned that Mr. McConnell had ceased to bale there on Monday. I was at my boarding place, and learned it from Mr. Fowles. He called me up on the telephone. * * * He called me up, and told me that they had left. He said he would not let them bale the timothy hay and keep the heavy mixed hay and clover, as he called it. He gave no other reason.”

Mr. McConnell testified:

“We went back there on Monday. We were there between six and seven o’clock in the morning. By ‘we’ I mean my men and myself. Mr. Fowles came down a little while after. His men came down a little while after. I told him Mr. Rupert told me to bale out the timothy hay first, and Mr. Fowles told me I could not do that. He said he was not going to let his timothy go and then have his clover hay on hand. He did not say that the clover hay was liable to be more damaged—not to my recollection. * * * I fired up Monday morning to go to work. Mr. Fowles’ men did not render any assistance in baling that morning. They did not remain there, ready to go to work when I got ready. They went back with Mr. Fowles. One of them stayed a few minutes, but he drove away. When I got ready to press hay that day, none of the assistants to be furnished by Mr. Fowles was present. I remained there, and waited for him until about nine o’clock, I think, in the neighborhood. We then went to Mr. McGregor’s about two o’clock, I should think.”

It is true that upon the trial Mr. Fowles said one reason why he forbid the baling of any more timothy was because there were no cars to load the hay into, but his cross-examination shows he had no information upon that subject until after his talk with Mr. McConnell. The record discloses that he afterward sold all the hay which was not spoiled at an average price of seven dollars a ton, delivered at Battle Creek. This suit was commenced the same day the balers left Mr. Fowles’ premises. He at that time had delivered hay amounting at the contract price to $103, and had received from defendant $50.

The first assignment of error calling for discussion relates to the admission of testimony tending to show a breach of the contract. It is claimed this was inadmissible, for the reason that the declaration did not sufficiently describe a breach of the contract. No objection was made to the declaration in justice’s court. Defendant pleaded to it, set out verbatim the contract referred to therein, claimed he was ready to perform it and was prevented from doing so by plaintiff, and sought to recoup his damages. He did not misunderstand the claim of plaintiff, but tried it out in justice’s court. If the objection had been made promptly, the declaration could easily have been made more formal. We think it too late now to make the objection.

The next assignments of error requiring attention relate to the admission of testimony bearing upon the question of damages and the refusal to strike it out. The claim is that defendant was not shown to have violated the contract. It is very clear, taking the testimony as a whole, that Mr. Fowles insisted upon deciding the order in which the hay should be baled, and, when his right to do so was not conceded, made it impossible for the employes of defendant to go on with the baling. This he had no right to do. Rupert & Co. had bought all of the hay. They had a right to decide the order in which it should be baled, so long as it did not result in loss to the plaintiff. The plaintiff, then, being responsible for the failure to bale the hay, he is not entitled to damages for a failure to bale and take it away. See Hudson v. Feige, 58 Mich. 148; Rayburn v. Comstock, 80 Mich. 448. We think the court should have told the jury that the plaintiff, under his own showing, was not entitled to any damages under his claim of a breach of the contract. We do not deem it necessary to discuss the other phases of the case.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.