text:
    BANNISTER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Railroad Crossings — Contributory Negligence.
    One wlio alights from a railroad train at a street crossed by the tracks of several different companies, and proceeds, without looking or listening, to cross the track of another road in front of an engine whose headlight is plainly visible, is guilty of such contributory negligence as will prevent a recovery for his death, although it does not appear that he knew of the existence of the second track.
    Error to Wayne; Hosmer, J.
    Submitted June 17,1897.
    Decided June 28, 1897.
    Case by Augusta M. Bannister, administratrix of the estate of Elijah B. Bannister, deceased, against the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Whitney C. Beckwith, for appellant.
    Wells, Angelí, Boynton & McMillan, for appellee.
   Long, C. J.

Plaintiff’s husband was killed at about 6 o’clock on the evening of February 4, 1893, at the crossing of Holden avenue and the track of the defendant in the city of Detroit. He had come to this crossing on a Grand Trunk suburban train. Holden avenue at this point is crossed by the Grand Trunk tracks. Next to it, and about 76 feet distant, are the defendant’s tracks, and beyond that the Michigan Central tracks. Two other parties alighted from the Grand Trunk train at the same time the decedent left it. They passed along on the westerly side of the avenue, while Mr. Bannister took the walk on the east side. As these other parties came near the track, they saw the defendant’s train, saw the headlight some 30 or 40 feet distant, and stopped until it passed by. The train was an ingoing one, and these parties were some 50 feet nearer it than Bannister. Two witnesses saw him approaching the track,- saw the train, and testify that he walked along, looking ahead of him. He did not stop, did not look around, and was struck before he passed across the track. These were the only witnesses who saw the accident. Upon this testimony the court directed a verdict in favor of the defendant, on the ground of the decedent’s contributory negligence.

Counsel for plaintiff contends here that the court was in error in this disposition of the case. He contends that the evening was dark; that there was smoke coming from the Grand Trunk train, and blowing over and across the defendant’s tracks, at that time, and that the bell of that train was making some considerable noise; and that there is no showing but that the decedent was a stranger there, and consequently did not know of the existence of those tracks. We think the testimony shows conclusively that it was light enough to see some considerable distance. The other witnesses saw and heard the train without difficulty, and, had the decedent been giving any attention to his surroundings, the tracks there could not have escaped his attention. He had traveled some 76 feet after leaving his train before he came to this crossing of the defendant’s tracks. There was nothing to obstruct his vision for several hundred yards down the track. The headlight was on, and one glance in that direction would have been sufficient to warn him. of the approach of the train. Even after he saw the track, one or two steps less and he would not have been harmed. It is apparent that he approached the track without looking or listening. This court has many times held that for one on foot to venture blindly, and without the use of any care, upon a railroad track in front of a train, is negligence preventing recovery. Mahlen v. Railway Co., 49 Mich. 585; Pzolla v. Railroad Co., 54 Mich. 273; Kwiotkowski v. Railway Co., 70 Mich. 549; Gebhard v. Railway Co., 79 Mich. 586.

A motion for new trial was made and denied by the court below. Some question is raised upon that, but there is nothing in that fact which calls for discussion. It was properly overruled.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    BAKER v. BARNETT PRODUCE CO.
    Principal and Agent — Apparent Authority — Secret Limitations.
    One who sells cabbages not yet ready for the market to an agent held out to the public as having authority to contract for future delivery is not bound by a secret limitation between the principal and the agent that only cabbages ready for market can be contracted for by the latter.
    Error to Berrien; Coolidge, J.
    Submitted June 17, 1897.
    Decided June 28, 1897.

      Assumpsit by Vitelus M. Baker against the Barnett Produce Company for tbe breach of a contract to buy produce. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Laiorence C. Eyfe, for appellant.

      E. L. Hamilton, for appellee.
   Montgomery, J.

This is an action for the breach of a contract hy the terms of which defendant is claimed to have purchased of plaintiff his crop of cabbages, at stated prices, according to grade, to be paid for on delivery and inspection at the car. The defense claimed on the trial that there was no authority on the part of the agents of defendant with whom plaintiff dealt to make any contract of purchase, except a contract to buy cabbage then promptly ready for market.

The defendant has an office in Chicago, and owns a farm of some 500 acres in the southern part of Berrien county. It buys cabbages at Galien, and ships those purchased, together with its own product, to various markets. At its farm it employs as manager one Balmer, and in 1894 it also had in its employ a man named Green, who was subject to Balmer. Plaintiff testifies that he made a sale of his entire crop to Green, and Green corroborates him, and testifies that he was acting under instructions from Balmer in making the purchase, and that the terms were reported to Balmer. Plaintiff also' testifies to facts showing a subsequent recognition of the bargain by Balmer.

The chief contention, and the only one which we need discuss, is that there was no authority on the part of Balmer to make a bargain for the purchase of any cabbages which were not then ready for delivery. It is not denied that he had the power to buy for future delivery, —that is, to contract for the delivery of a crop already in condition to deliver at a stated time, when the car should be placed, — but it is claimed that he had not authority to include in the contract cabbages not yet ready for the market. It is apparent, therefore, that he was held out to the public as having authority to contract for future delivery; and the plaintiff and others dealing with him would hardly be expected to suspect secret limitations on his power, depending upon whether the cabbages were in that stage of development at the time of the contract that they were growing better or worse pending the delivery. We think there was abundant testimony tending to show the contract alleged, and the holding out of Balmer as having the authority which he exercised.

Judgment affirmed.

The other Justices concurred.


author: Grant, J.

text:
    ROUSH v. DARMSTAETTER.
    Appeal — Bill oe Exceptions — Assignments oe Error — Court Rules.
    A writ of error will be dismissed on motion where no assignments of error accompanied the bill of exceptions at the time of its settlement, as required by Circuit Court Rule 47, par. (e).
    Error to Saginaw; Snow, J.

      Assumpsit by William T. Roush against Rudolph O. Darmstaetter. From a judgment for defendant, plaintiff brings error. On motion to dismiss.
    Submitted June 15, 1897.
    Granted June 28, 1897.

      Lamson & Denfeld, for the motion.

      John A. Combs (C. H. Gage, of counsel)', contra.

   Grant, J.

A motion is made to dismiss the writ of error issued in this cause. It is time that the profession should understand whether this court will enforce paragraph (e) of Circuit Court Rule 47, or whether it may be ignored with impunity, and virtually abrogated. The provision of the rule is as follows:

“ There shall accompany every bill of exceptions at the time of its service, and at the time of its settlement, a detailed assignment of all the alleged errors upon which the appellant proposes to rely. No bill of exceptions shall be signed unless accompanied by such assignment of errors, and no errors shall be considered by the Supreme Court that are not a part of such assignment.”

This is a very proper case for a determination of the practice, for it involves no hardship to anyone. The case involves only $25, and has been tried once in justice’s court and twice in the circuit court. No assignments of error were incorporated in the bill of exceptions, and were not made or served until some days after the bill was signed. Under the rule, the judge had no right to sign the bill, and the errors assigned cannot be considered by us. The object of this rule is that the attention of the circuit judge may be called to the errors assigned, and that only such testimony as relates to the assigned errors shall be incorporated in the bill. This rule should be rigidly enforced by the circuit judges, and any case not settled in accordance with the rule should be promptly dismissed out of this court.

The motion is granted, and the writ dismissed, with costs.

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

Montgomery, J. Inasmuch as no motion is made to remand this case for resettlement, I concur in the result.


text:
    PEOPLE v. MOLONEY.
    1. Criminal Law — Receiving Stolen Goods — Proof of Felonious Taking.
    Upon a prosecution for receiving stolen property, evidence that the barber shop of the complaining witness was broken open in the night-time, that, when he came there in the morning, nothing was in the place, and that the articles lost, which belonged to him, consisted of those described in the information, was sufficient to justify a finding that the property was feloniously taken.
    3. Same — Identification—Evidence—Question for Jury.
    The testimony of the complaining witness that one of the razors found in the respondent’s possession had a rivet similar to that in one stolen fr.om him, and that he had never seen any other razor with such a rivet, was sufficient to go to the jury upon the question of the identity of the property.

      Error to recorder’s court of Detroit; Chapin, J.
    Submitted June 17, 1897.
    Decided June 28, 1897.
    Michael Moloney was convicted of knowingly receiving stolen goods.
    Conviction affirmed.

      Walters, Humphrey & Walters, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell,. Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

Respondent was convicted of the offense of receiving stolen property, knowing it to be stolen. The sole question presented on this record is whether there was any testimony tending to show that the offense was committed. We think the circumstances testified to by the complaining witness — i. e., that his barber shop was broken open in the night-time; that, when he came there in the morning, there was not anything in the place; that it was all taken out; that the stuff he lost, which was his property, consisted of the property described in the information — tend to prove that the property was taken feloniously. People v. Oblaser, 104 Mich. 579.

The chief contention is that the witness did not identify the property. He testified that the property looked like his, and in answer to the question: “Will you look particularly, and see if there is anything about those that you recognize? Look at those razors, for instance,” — testified :

“This one here, with the rivet in it; that is the only way I could—
“Q. With the rivet?
“A. Yes.
“Q. You recognize that rivet, do you?
“A. I had a razor with a rivet.
‘ ‘ Q. Like that ?
“A. Yes.”

On cross-examination he testified:

“Q. Those razors that you say look like yours; are you any more positive that those razors are yours than you are that that other stuff is yours ?
ltA. This one here—
“Q. Or do you testify that they simply look like yours? Do they look like yours, or are they yours ?
“A. This one here is the only one. This one here.
“Q. What is the difference between this razor and the regular barber’s razor ?
“A. There isn’t any difference except that I had a razor with a rivet in it.
“Q. Did you ever see a razor before that had a rivet in it?
“A. Yes; not like that, though.”

We think this was some evidence of the identity of the property with that stolen, and was properly submitted to the jury. Cole v. People, 37 Mich. 544; People v. Pitcher, 15 Mich. 397.

Conviction affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. RUSH.
    1. Criminal Law — Offense not Triable by Justice — Warrant —Preliminary Examination. ■
    The examination of witnesses preliminary to the issuance of a warrant in a case not cognizable by a justice of the peace need not be reduced to writing.
    2. Same — Jurisdiction—Sufficiency of Evidence — Presumption.
    Where the warrant issued in such case recites the examination of the complaining witness on oath, but does not show to what he testified, it will be presumed that the evidence was sufficient to authorize the issuance of the warrant, although the written complaint purports to have been made on information and belief. People v. Whipple, 108 Mich. 587, followed:
    3. Same — Jurors — Challenge for Cause — Record on Appeal.
    Error will not lie upon the overruling of respondent’s challenge for cause, where it does not appear from the record that he exhausted his peremptory challenges, or that the challenged person sat as a juror.
    4. Same — Intoxicating Liquors — Unlawful Sale — Detective as Witness — Defenses.
    The fact that a witness to whom an unlawful sale of liquor was made was employed by the prosecuting attorney as a detective with a view to respondent’s prosecution is no defense.
    5. Same — Evidence—Legislative Resolution.
    A joint resolution of the legislature “authorizing the attorney general to commence legal proceedings to quiet title to certain lands in the township of Clay, St. Clair county, State of Michigan, in which this State has a legal interest,” was not competent evidence to contradict that offered by the people, in a prosecution for illegally selling liquor upon such lands, to show that the sale was within the limits of St. Clair county.
    6. Same — Unsurveyed Lands.
    Unsurveyed lands within the boundaries of the various counties and townships of the State are not exempt from the operation of the general liquor law.

      7. Same — Special Laws — Summer Resorts.
    Act No. 116, Pub. Acts 1895, amendatory of an act entitled “An act to authorize the formation of corporations for the purchase and improvement of grounds to be occupied for summer homes, for camp meetings,” etc., does not constitute a special law for the government of such iilaces in such sense as to take them without the provisions of the general liquor law of the State.
    Exceptions before judgment from St. Clair; Vance, J.
    Submitted June 17, 1897.
    Decided June 28, 1897.
    Louis Rush was convicted of illegally selling intoxicating liquors.
    Affirmed.

      B. T. Prentis, for appellant.

      Fred A. Maynard, Attorney General, and Joseph Walsh, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of illegal sales of intoxicating liquors.

The first errors assigned relate to the insufficiency of the complaint, which was made upon information and belief. The record shows the written complaint to have been made upon information and belief. The complaint charges a specific offense by apt words and phrases. The warrant recites, after setting up the making of the complaint, and what it contained, “Whereas, on examination on oath of the said Joseph T. Minnie by me, the said justice of the peace, it appears to me, the said justice of the peace, that said offense has been committed, and there is just cause to suspect the said Louis Rush to have been guilty thereof.” The warrant recites that Mr. Minnie was examined on oath, though it does not show to what he testified. People v. Whipple, 108 Mich. 587. It has been repeatedly held that the examination held before the examining magistrate before the warrant issues does not need to be reduced to writing. People v. Bechtel, 80 Mich. 630, and cases cited. The court did not err in refusing to dismiss the proceedings.

It is assigned as error that the court erred in not sustaining respondent’s challenge for cause to Mr. Spalding, who was offered as a juror. As the record does not show that Mr. Spalding sat as a juror, or that respondent had exhausted his peremptory challenges, it will not be necessary to discuss these assignments in detail. The examination, however, did not disclose that the challenge for cause was well taken. Sullings v. Shakespeare, 46 Mich. 408 (41 Am. Rep. 166); People v. Barker, 60 Mich. 277 (1 Am. St. Rep. 501); People v. Aplin, 86 Mich. 393.

The testimony disclosed that the sales were made to a man by the name of Kerr, who was accompanied by a detective, and also to the detective himself, who was in the employ of the prosecuting attorney for the purpose of learning whether illegal sales were made or not; and the court was asked to charge that the respondent could not be convicted of the offense charged, because the prosecution Was based upon testimony furnished by the detective, for sales made to the detective, in the employ of the pi’osecuting attorney. The judge declined to so charge, and this is said to be error. This question was passed upon in the case of People v. Everts, 112 Mich. 194, and cases cited therein, and the decision was adverse to the contention of the respondent.

It was shown that the sales were made at Muir’s Landing, on Harsen’s Island, below the surveyed portion of the government survey. The treaty and convention between the United States and other powers, 1776 to 1887, showing the boundary line between the United States and Canada at the point indicated, was received in evidence. This was supplemented by testimony that where the sale was made was in St. Clair county. To contradict this testimony, respondent offered in evidence Joint Resolution No. 17, session of 1895, and the files in several cases commenced by reason of that resolution. The court rejected this testimony. As the files were not returned, we do not know what they contain, but the joint resolution was not competent evidence to show that these lands were not in the township of Clay, in the county of St. Clair, and State of Michigan, for it recites that the lands mentioned in the resolution are in said township.

It is urged that, as the land where the sale occurred was not surveyed by the government surveyor, it was not a violation of the law to make sales. There are scattered all through the State meandered streams, lakes, and swamps which have never been surveyed by the surveyors of the general government, but the lands are within the various counties and townships of the State. We are not prepared to decide that, if a person will but seek out these localities, he may engage in the sale of intoxicating liquors without complying with the provisions of -the laws of the State.

It is. claimed by the respondent that the sales were made at a summer resort, which is governed by special law relating to such places. Act No. 116, Pub. Acts 1895. I do not think anything could be further from the thought of the legislature in passing the law just quoted, which is an amendment to an act entitled “An act to authorize the formation of corporations for the purchase and improvement of grounds to be occupied for summer homes, for camp meetings, * * * and for the promotion of the cause of religion and morality,” etc., than that they were so amending the liquor laws óf the State as to permit the sale of liquors at such places without let or hindrance. We do not think the effect of the enactment of the law of 1895 was to suspend the general liquor law of the State.

The other assignments of error do not call for discussion.

The conviction is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    WHITE v. TAYLOR.
    1. Contracts — Consideration.
    Payment of part of the price, and a promise to pay the balance if an option to purchase should be exercised, are a sufficient consideration for a personal agreement by the seller’s agent to return the payment with interest if the option should not be exercised.
    8. Same — Declaration—Common Counts.
    The common counts constitute a sufficient declaration upon a contract performed by the plaintiff, where nothing remains but the payment of money.
    3. Same — Corporations —Sale oe Stock — Substituted Agreement.
    The president of a corporation who accepts from a prospective purchaser of corporate stock a written contract for the purchase of one share, together with a sum of money to be applied upon the purchase price, may, as a part of the same transaction, consent to the annulment of such contract, and to the substitution of an oral agreement that the payment should be so applied only if an option to purchase two shares should be exercised, and that otherwise it should be returned to the purchaser.
    Error to Saginaw; Snow, J.
    Submitted June 18,1897.
    Decided June 28, 1897.

      Assumpsit by Justus A. White against Orsón D. Taylor for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Frank F. Fmerick and James H. Bavitt, for appellant.

      John F. O’Keefe, for appellee.
   Hooker, J.

The plaintiff recovered a judgment for $100 against the defendant, upon a claim that he had paid that amount to him under an agreement that he should purchase from the Columbia River Fruit Company, an alleged Oregon corporation, of which the defendant professed to be president, two shares of the capital stock of said company, of the par value of $800, for the sum of $800, which agreement he asserts was to depend upon his subsequent determination, and that, if he should determine that he did not care to purchase such stock, the money was to be paid back by the defendant. He claims that he made a written contract for one share, and that, after it was signed, an oral agreement as above stated was made for two shares, thus taking the place of the written contract; the number of shares being changed in the writing, which never became operative as a contract. The defendant denies this version of the contract, and produced a writing, signed by the plaintiff, agreeing to take the two shares of stock, and pay therefor the sum of $800 to the company, which is the vendor named in the contract. The plaintiff sued to recover the money paid, and two juries seem to have credited his version. There seems to be no dispute that a valid oral contract might annul a former written one, and that a writing duly, signed might remain inoperative until fully sanctioned.

It is contended by the defendant that this oral contract is void, because within the statute of frauds, in that it was not to be performed within one year. We think, however, that all of the evidence shows that it was to be performed within the year.

As to the consideration, the promise, though conditional, and the payment of $100, was sufficient consideration for a promise by defendant to repay it with interest if the plaintiff should elect to abstain from a purchase of stock.

The common counts constitute a sufficient declaration upon a contract performed by the plaintiff, where nothing-remains but the payment of money. Numerous decisions of this court sustain this proposition.

To the contention that this money was not paid to the defendant individually, but as agent for the fruit company, it is sufficient answer that the jury found othei’wise, under an instruction that, if it was paid to and received by him as agent, plaintiff' could not recover. It was competent for the defendant to agree personally to refund this money if he chose to do so. The jury have found that he did.

Counsel contend that this money, being paid upon the written contract, became the money of the company, and that the subsequent agreement, if made, did not have the effect of divesting the company of it. The plaintiff’s claim is that this was all one transaction, and we have no hesitation in saying that this alleged president had power to annul the old contract by making a new one, in which case the company would have no claim to the money, and he would have no right to pay it to them. But, as already said, his agreement to repay, if personal, did not permit his liability to depend upon what he saw fit to do with the money. The charge was clear, and the evidence seems to justify the jury in their conclusion.

The judgment is affirmed.

The other Justices concurred.


text:
    KUNZE v. COX.
    1. Partnership — Execution Against Individual Partner — Interest-Subject to Levy.
    While an execution creditor of an individual partner may-levy upon the interest of the, execution debtor in the partnership property, such interest must be treated as consisting of a right to an aliquot share of what remains after the payment of partnership debts and the adjustment of accounts between the partners.
    2. Same.
    A levy, therefore, upon the interest of one partner in a sxiecific pile of partnership lumber, which does not include the whole partnership property, is invalid.
    3. Same — Trover—Parties.
    Partners have a joint right of action for the conversion of partnership property under an invalid levy and sale upon an execution issued against one of the partners.
    4. Trover — Conversion by Officer — Evidence.
    The fact that partnership property is wrongfully levied upon and advertised is not sufficient to establish a conversion thereof by the officer making the levy, but it must also appear, to render him liable in trover, that the partners have been deprived of the possession of the property, by removal or otherwise, under circumstances which show that the officer was legally chargeable with such deprivation.
    Error to Iosco; Simpson, J.
    Submitted June 18, 1897.
    Decided June 28, 1897.
    Trover by Emil E. Kunze and John Sullivan, copartners, against Thomas P. Cox, sheriff of Iosco county. From -a judgment for defendant, plaintiffs bring error.
    Reversed.

      Albert E. Sharpe, for appellants.

      M. J. Connine and N. C. Hartingh, for appellee.
   Hooker, J.

The plaintiffs were copartners in the business of lumbering, and had certain lumber in different piles. It is claimed that the defendant converted two of these piles of lumber, by selling them separately, under different levies, upon an execution for the debt of Kunze, one of the copartners. There is evidence tending to show that the pile first sold was set off to Kunze by direction of Sullivan; but, however that may be, the defendant attempted to show that he sold only the interest of Kunze in that pile, and that the bidders and purchasers at the sale were told by him, and understood, that his interest •only was offered, and that whoever should buy it would take the lumber subject to Sullivan’s right, with whom the purchaser would be obliged to settle, and that Sullivan’s interest could be had for three dollars per M. feet, which price Sullivan had consented to take if the defendant should sell the lumber. This lumber was removed by McDonald, the purchaser. The other pile of lumber was not removed by the purchaser, and remains where it was at the time of the sale. It is clear that it was partnership property, and there may be nothing to show that the sheriff ever took manual possession of or delivered the lumber to any one. He claims to have sold only Kunze’s interest in this pile. The notice of sale advertised a seizure of the property on execution against Kunze and one Frank, and, continuing, said, “All of which I will' expose for sale,” etc. The notice of the other sale was substantially the same. To McDonald the defendant delivered a bill of sale of the lumber first sold, which stated that he “did advertise and sell the said lumber. * * * I hereby convey and set over to said McDonald' all of said culls as levied upon, and all right, title, and interest acquired by and under said execution; and I hereby deliver possession thereof to him.”

It is contended by the plaintiffs:

1. That these notices and bill of sale show a levy and sale of the entire ownership of the lumber levied upon, and that testimony tending to show a sale of Kunze’s interest merely was inadmissible, as it contradicted the writings.
2. That the levies were void, because neither nor both included all of the partnership property, but specific articles of it merely, and that a valid levy must cover the partner’s interest in the entire partnership property.

The action is trover, and, to sustain it, it was necessary that it be shown that some of this property was converted by the defendant. The fact that it was levied upon and advertised is not sufficient to establish a conversion. Some one must have taken it into possession, and deprived the plaintiffs of it, by removal or otherwise, under circumstances which show that the defendant was legally chargeable Avith such deprivation. If, therefore, a sale of Kunze’s interest alone would have been valid under this execution, or if the plaintiffs were not deprived of their property, it was competent to prove that only Kunze’s interest was sold, and that the lumber was never taken possession of or converted in any way. One of these piles of lumber was removed, and to some extent, at least, was converted. McDonald bought some interest in it, and took away all of the lumber in that pile. It does not appear that he ever adjusted the matter Avith Sullivan, and the latter denied having consented that a sale might be made upon the terms stated. If he did, it does not appear by any testimony that the sheriff, sold the interest of both parties under this alleged permission, and it is hardly inferable from any testimony that Sullivan consented to a sale of Kunze’s interest with the expectation that the purchaser and himself might afterwards adjust his interest at three dollars per M.; so that the remaining questions are (1) Whether this levy was upon lumber belonging solely to Kunze; and (2) if not, whether a levy upon the interest of one partner in a specific pile of partnership lumber, which did not include the whole partnership property, was valid.

The first of these questions is one of fact, and we cannot certainly say that the jury found with the defendant upon it. We cannot say that it was an undisputed fact. Upon the second, we think the trial court wag in error in the conclusion that a valid levy upon a specific portion of the stock could be made. A want of uniformity of practice is found upon this subject, but the weight of authority sustains the doctrine that, while the execution creditor of the individual partner may levy upon the interest of the execution debtor in the partnership property, such interest must be treated as consisting of a right to an aliquot share of what remains after the payment of partnership debts and the adjustment of accounts between the partners. As the partner has not the right to appropriate to his own use, as against his partner, specific articles of partnership property, neither can the execution creditor, who cannot stand in a better position than the partner himself. The sheriff, therefore, cannot seize or deliver specific articles, and it may be doubtful if he can do more, in any case, than to sell the entire interest of the debtor, leaving the purchaser to secure his rights by proceedings for an accounting against the copartner of the debtor. This question will be found discussed in 2 Bates, Partn. § 1097 et seq., and 1 Freem. Ex’ns, § 125, where numerous authorities are cited. In our own State this doctrine appears to have been approved. See Sirrine v. Briggs, 31 Mich. 443, where Mr. Justice Cooley said:

“It is plain that he could not, by virtue of an execution against only one of the partners, proceed to levy, as he did, upon specific articles of the stock only. The levy in such a case must be upon the partner’s interest in the whole stock, for the only individual interest that he has is his share in what shall remain after the partnership debts are paid and. the accounts between the partners adjusted.”

Again, in Lambert v. Griffith, 50 Mich. 286, it was said: “The interest of a partner is generally his share of the assets after all accounts are settled among the partners, and the debts paid.” In Haynes v. Knowles, 36 Mich. 407, an attachment upon specific chattels was held to be a trespass; and in Hutchinson v. Dubois, 45 Mich. 143, it was held that a “partner’s interest is not an interest in specific articles^ but only in the surplus,” etc., and “that the utmost extent of the officer’s right, if he can levy at all, must be to seize the interest of the partner, whatever it may be, subject to all the partnership debts and to the final accounting.” In that case the court said, further:

. “But whether he took the whole or only part is immaterial. In either case he seized specific articles, when he had a right to seize an undivided and indefinite interest only. He did this also in total disregard of the plaintiff’s rights; for whereas the judgment debtor, as partner, could only have had joint possession with the plaintiff, the officer, levying on his right, assumed to take exclusive possession and remove the property to another place. As was said by Mr. Justice Campbell in Haynes v. Knowles, 36 Mich. 407, 410: ‘ The partner not sued cannot, on any principle of justice, be placed in any worse condition by a creditor of his partner than he could have been by his own partner.’ At most, for the purposes of his writ, the officer only takes the debtor’s place, and seizes an interest that can only be measured by final account. Vandike v. Rosskam, 67 Pa. St. 330.”

It seems obvious that this levy was invalid, and if the defendant was a party to a wrongful conversion by McDonald, as his bill of sale seems to indicate, he might be liable.

The levy being void, there is no reason for denying the right of action by the partners jointly.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    SHAKESPEARE v. BAUGHMAN.
    1. Contracts — Meeting of Minds — Instructions.
    In an action upon a contract resting in parol, where the versions of the transaction were so different that the jury might properly have found that the minds of the parties never met on any contract, a charge which conveyed the idea that the minds of the parties did meet, either on the contract alleged in the declaration or the one testified to by defendant, was reversible error, although a requested instruction that, unless the minds of the parties met upon the alleged contract, there could be no recovery, was given in the same connection.
    2. Same — Adequacy of Consideration — Legal Services — Evidence.
    Evidence that the labor performed by plaintiff in obtaining the appointment of a guardian for an incompetent person was light in comparison with the amount which he alleges defendant agreed to pay for his services cannot be adduced by defendant to show an improbability that plaintiff’s version of the agreement is correct, but the inquiry, if permissible at all, must be as to the value of the services contemplated, taking consideration of the contingencies.
    8. Same — Qualifications of Attorney.
    Evidence that the plaintiff in such action is a lawyer of limited practice and experience is inadmissible on the question of probability, where defendant does not profess to have known anything about plaintiff’s qualifications at the time the alleged contract was made.
    Error to Yan Burén; Buck, J.
    Submitted June 18, 1897.
    Decided June 28, 1897.

      Assumpsit by William Shakespeare against Calvin Baughman for professional services. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. J. Cavanaugh and Alfred J. Mills, for appellant.

      Heckert & Chandler, for appellee.
   Hooker, J.

The plaintiff, a lawyer, recovered a verdict and judgment for professional services, rendered upon an alleged agreement to obtain the appointment of a guardian for an incompetent person for the sum of $700, $100 of which he admitted receiving. The case went to the jury upon the single question whether the contract alleged was proved. Counsel for the defendant attempted to cross-examine the plaintiff in relation to the amount and details of the work done. He also asked the plaintiff if he had tried contested cases frequently in the last 15 or 16 years. But the court sustained objections to the questions asked upon these subjects. It is said that this testimony was admissible, upon the question of the probability of the alleged contract.

The court was asked to charge the jury that, unless the minds of the parties met upon the alleged contract, there could be no recovery. This request was given, but the judge gave the jury to understand that the minds of the parties met upon that contract, or upon the one testified to by the defendant. What he said was equivalent to saying that there was no opportunity for the application of that rule, and he might as well have omitted that portion of the charge as to thus modify it. There was evidence of talk that the defendant was willing to pay $200 to have a guardian appointed, and he thought some of the other heirs (of whom there were six) would be willing to do so. Shakespeare testified that there was a talk of 'an hour or more, and it appears that one of the other heirs was present on one occasion. We cannot say that there was no opportunity for a misunderstanding, and therefore think that the case should have been submitted to the jury upon that question. Constable v. Lefever, (Sup.) 21 N. Y. Supp. 38; Barney v. Fuller, 133 N. Y. 605.

The defendant sought to show by the cross-examination-mentioned that the plaintiff was a lawyer of limited practice and experience, and that the labor performed was light in. comparison to the alleged contract price. As counsel suggested, this court has recognized the propriety of permitting a defendant to show known inadequacy of consideration for the purpose of corroborating a defendant where the parties dispute as to the terms of a contract. Thus, in Campau v. Moran, 31 Mich. 282, it was said:

‘ ‘ When the parties were thus distinctly at issue upon the terms of the contract, evidence that the cost of performance of such a contract as the defendant set up would he greatly in excess of the contract price would certainly afford some reasonable ground for believing that defendant is in error on the facts. We can very well conceive of cases in which such evidence might be very forcible,— much more so than it could possibly be in this case.”

The same view was taken in Richardson v. McGoldrick, 43 Mich. 476. That was a case where the two parties were in conflict as to the terms of the contract, and Mr. Justice Campbell said:

“In such a conflict of evidence between the only two persons knowing the facts, corroborating circumstances may very fairly be regarded.”

■ Counsel cite also the cases of Misner v. Darling, 44 Mich. 438, and Banghart v. Hyde, 94 Mich. 49, where this rule is applied. It is noticeable that these are cases where the parties disagreed, and there was no other witness to the contract; and, as said by Mr. Justice Long in the latter case, the evidence bears on the question of credibility. It will also be noticed that in Campan v. Moran, supra, the right to such testimony is based upon a conflict of testimony between the parties, and great inadequacy of consideration. Mr. Justice Grant said in Short v. Cure, 100 Mich. 420, that “such testimony is admissible only in cases where the difference in value is so great as to be beyond the range of a fair difference in judgment.”

While this court has been careful to limit such proof to cases where there was irreconcilable conflict between the parties upon the question, which all of those cases show, it has never distinctly held that such testimony was inadmissible in a case where one of the parties was corroborated by other witnesses to the making of the contract; and we are inclined to doubt that an arbitrary rule of that kind should be laid down. Counsel cite cases which do extend the rule. Thus, in Minnesota it does not seem to depend upon a want of corroborating witnesses. Saunders v. Gallagher, 53 Minn. 422; Schwerin v. De-Graff, 21 Minn. 354. Johnson v. Harder, 45 Iowa, 677, seems to imply that great caution should be used in admitting such testimony, but does not limit it to cases where the parties only testify to the terms of the trade, as several witnesses were produced in that case.

The case of Barney v. Fuller, 133 N. Y. 605, is much such a case as this, where evidence of the value of the services was given; but it does not clearly appear that the value of the services actually rendered, as contradistinguished from those agreed upon, was proved. Here, if this kind of testimony was admissible at all, it would have been competent to show what the value of the services agreed upon was. This was not exactly what the' question sought to do, the inquiry being directed to the services actually rendered in accomplishing the promised result. We may take judicial notice that, the contract being to accomplish a certain thing, the services required might depend upon the nature of the opposition; and it is not unreasonable to suppose that parties contracting to secure a certain result in legal proceedings to be commenced would contract with a view to the probable, if not possible, contingencies. Evidence of the value of the services contemplated, taking consideration of the contingencies, rather than of those actually found necessary, would bear upon the question, the latter being likely to throw very little, if any, light upon it. Were the element of uncertainty out of the contract, the services actually rendered and those agreed upon might be the same, and the many cases cited would be applicable. See Cornell v. Markham, 19 Hun, 275; Cornish v. Graff, 36 Hun, 160; Knallakan v. Beck, 47 Hun, 117; Sturgis v. Hendricks, 51 N. Y. 635. The exclusion of the answer to the question asked was not, in our opinion, erroneous.

We attach no great importance to the number of cases that had been tried by the plaintiff. There is nothing to indicate that the defendant knew anything about his qualifications, but rather that he did not, and therefore the answer, whatever it might have been, would not have increased the probability of the defendant’s version.

For the error mentioned, the judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    BUCHANAN v. MOORE.
    Attorneys at Law — Interest in Suit — Dismissal oe Appeal.
    In this case the attorney’s ivotest against the disjnissal of the appeal on petition of the parties to the litigation was overruled.

      Certiorari to St. Clair; Yance, J.

      Mandamus by Arthur L. Buchanan to compel Alexander F. Moore, circuit court commissioner, to issue a writ of restitution in summary proceedings brought before him wherein relator was complainant and one Joseph Marsh defendant. The application was granted, and, upon petition of Marsh, the proceedings were removed to the Supreme Court for review on certiorari. On relator’s motion to dismiss.
    Submitted April 27,1897.
    Granted June 28, 1897.

      Chadwick & Mclhvain, for the motion.
    JR. L. Campbell, contra.

   Moore, J.

Joseph Marsh filed a petition asking for a writ of certiorari to review the action of the circuit judge of the St. Clair circuit court in directing the above-named respondent to issue a writ of restitution in favor of the above-named relator, which would have the effect to put him in possession of certain real estate, in relation to which there has been litigation between said Buchanan and said Marsh. Since the petition was filed in this cause an affidavit has been filed with the court, made by said petitioner, in which he states, among other things, that he now recognizes the right.of said Buchanan to have the exclusive possession of the land in controversy, and asks that these proceedings be discontinued. A stipulation has also been filed with the clerk of this court, signed by both Buchanan and Marsh, asking that the petition for certiorari be dismissed. The attorneys for Mr. Buchanan move the court to dismiss the proceedings. This motion is opposed by the attorney for Marsh, upon the ground that he and one Lemke have interests in the litigation which would suffer if the petition is dismissed.

It would not be profitable to any one to recite in detail the facts shown by the record. It is sufficient to say that an inspection of the record does not show any satisfactory reason why the parties to the litigation should not be allowed to end it if they desire to.

The motion to dismiss the proceeding is granted, without costs to either party as against the other.

The other Justices concurred.


text:
    ANN ARBOR SAVINGS BANK v. ELLISON.
    Mortgages — Forgery—Appeal.
    Upon, a review of the evidence, the conclusion of the lower court that defendant never executed the mortgage sought to be foreclosed was affirmed.
    Appeal from Wayne; Donovan, J.
    Submitted June 10, 1897.
    Decided June 28, 1897.
    Bill by the Ann Arbor Savings Bank against Oscar L. Ellison and Mary D. L. Ellison to foreclose a mortgage. From a decree dismissing the bill as to defendant Mary, complainant appeals.
    Affirmed.

      James H. McDonald, for complainant.

      V. J. Obenauer (Alfred Lucking, of counsel), for defendant Mary D. L. Ellison.
   Montgomery, J.

The bill in the present case was filed to foreclose a real-estate mortgage purporting to be executed by the two defendants, who are husband and wife and tenants in the entirety in the property covered by the mortgage. The mortgage was executed to Abraham S. Cody. The defense interposed by Mrs. Ellison is that the mortgage, as to her, was a forgery. It is conceded that Oscar L. Ellison signed the mortgage and accompanying note, and the complainant offered testimony tending to show that Mrs. Ellison signed the mortgage also, by her mark.

Oscar L. Ellison made a contract with Cody for the purchase of patent-right territory, and agreed to give a mortgage upon the property in question, and a deed of other property. The mortgage and deed were prepared, and taken to defendants’ residence. The execution of the deed is admitted, and this was witnessed by the mother of Mrs. Ellison, who was living in the house. Her purported signature to the mortgage was not witnessed by the mother, but by the notary and another witness, who had witnessed the signing by the husband. It appears by the undisputed testimony that during the negotiations the husband had stated to Cody and to Lowrie, the notary, that his wife wouid not sign the mortgage. His version is that Lowrie then said to him that, if he ('Ellison) would sign the mortgage, he (Lowrie) could persuade Mrs. Ellison to sign it; that he executed it on this understanding, and accompanied Lowrie to the house; that the deed was signed; that Mr. Ellison then left the room for a few moments, returned to the room, inquired of Lowrie if all the papers were signed that it was necessary to sign, and was told that they were; that they then left to go down town, and Lowrie told him that he had secured Mrs. Ellison’s signature. He further testifies that he learned the same night from his wife that she claimed not to have signed any papers except the deed. Mrs. Ellison and her mother both testify that but one paper was executed. This testimony was disputed by Lowrie, but it is significant that he did not inform Mrs. Ellison of the nature of the instrument, and this notwithstanding that he had previous notice that she had refused to sign the mortgage; and it is also significant that, while the deed was witnessed by the mother, ho attempt was made to have an additional witness to the mortgage.

The circuit judge reached the conclusion that Mrs. Ellison never signed the mortgage. In a doubtful case, the determination of the trial judge, who has the opportunity of seeing the witnesses, is entitled to some weight, particularly in a case where there is a direct issue of veracity, and where the appearance of the witnesses upon the stand furnishes such direct aid in determining the fact.

On the whole case, we think the decree should be affirmed.

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


text:
    FUCHS v. MEISEL.

    «Churches — Schism—Property Rights.
    Where all of the members and officers of a voluntary religious organization for years recognized themselves and the organization as belonging to the Evangelical Association of North America, submitted to its rules and discipline, and were supported in part by the general conference, it was not within the power of a bare majority of the local organization to withdraw from the association, and deprive those persons who represented the regularly organized body of the church, and were its regular appointees, from using the church property.
    Appeal from Bay; Maxwell, J.
    Submitted January 1-1, 1897.
    Decided July 13, 1897.
    Bill by John M. Fuchs and others to restrain Herman Meisel and others from interfering with the administration of the affairs of Zion’s Church, Bay City, in accordance with the rules and discipline of the Evangelical Association of North America. From a decree dismissing the bill, complainants appeal.
    Reversed.

      T. A. E. & J. C. Weadock, Ediuard B. Esher, and William Ritchie, for complainants.

      Van Kleeck & Anneke, for defendants.

       Rehearing denied September 15, 1897.

   Grant, J.

After the former decision of this court (102 Mich. 357), the case was remanded, issue properly joined, proofs taken in open court, and a decree entered dismissing the bill. The issues involved and the principles governing the case were fully discussed and enunciated in that opinion. The only question, therefore, now before us, is, have the complainants brought themselves within the allegations of the bill? We said in that opinion (page 374):

“If complainants maintain the allegations of their bill, —that they represent the regularly organized body of the church, and are its regular appointees, — they are entitled to the relief prayed. ”

All the material allegations are established by the proofs, and a discussion of the evidence would be useless. From the inception of the church at Bay City down to 1893, when the attempted withdrawal was made by a standing vote of the congregation, which vote did not represent more than one-half of the church members, all the members and the officers of this church recognized themselves and their organization as belonging to and being a part of the Evangelical Association of • North America. They were governed by its rules and discipline, were supported in part by the general conference, and received donations from it for the purchase of their property. In all their deeds and papers they referred to themselves as “Zion’s Church of the Evangelical Association of North America.” Complainants Hettler and Fuchs represented the regular general conference and body of the church, and, under its rules and discipline, were entitled to the use of the church and parsonage and the other emoluments of their offices.

The decree is reversed, and a decree entered in this court for the complainants, with costs of both courts.

The other Justices concurred.


text:
      In re BREWSTER’S ESTATE.

    1. Appeal froii Probate Court — Administrator’s Account— ' Extraordinary Services — Question for Court.
    On an appeal from the allowance to an administrator in his final account of a sum for extraordinary services, the question of fact as to whether any such services were rendered was properly reserved by the court for its determination, without submission to the jury.

      2. Same — Findings of Fact — Evidence.
    The circuit judge was justified in finding' that the administrator rendered extraordinary services, entitling him to extra compensation, where it appeared that, for some time after the intestate’s death, he advised with a surviving partner of the latter in respect to the partnership business, and entered actively into the management of the financial affairs of the firm, and, after a sale of the interest of the deceased, procured, through arbitration, a reduction of 81,000 in the amount of a claim for carrying on the business, preferred against the estate by the surviving partner.
    3. Executors and Administrators — Deposit of Moneys — Liability for Interest.
    An administrator who deposits estate money, amounting to 836, - 000, subject to check, instead of upon certificate, and allows it to remain in such account for 3 months and 12 days, is chargeable with interest thereon at bank rates.
    4. Same — Accounting—Res Judicata.
    The administrator is not relieved from liability for such interest because the question was not raised upon the first accounting after the distribution of the principal among the heirs, but it is a proper charge against him in his final account.
    5. Costs on Appeal — Printing of Record and Brief — When Limited.
    The decision of the circuit judge being sustained save for a single modification, the number of pages of record and briefs, for which appellant was allowed costs of printing was limited to that reasonably necessary to present the question determined in his favor.

      Error to Wayne; Lillibridge, J.
    Submitted April 7, 1897.
    Decided July 13, 1897.
    Frances M. Britton appealed from an order allowing the final account of Albert Ives, Jr., as administrator of the estate of James E. Brewster, deceased. The order of the probate court was affirmed in the circuit, and said Britton brings error.
    Modified and affirmed.

      James II. Pound {Ralph Phelps, Jr., of counsel), for appellant.

      Dickinson & Thurber and Charles B. Warren, for appellee.

       Rehearing denied January 18, 1898.

   Montgomery, J.

This is a proceeding to review an order allowing the final account of Albert Ives, Jr., administrator of the estate of James E. Brewster, deceased. The items of the account contested were a claim for extra compensation of $1,000, and a charge for attorney’s fees for services rendered the estate. The estate was inventoried at $160,032.47. $63,091.90 consisted of the interest of the deceased in the partnership of Brewster & Stanton, a firm engaged in the wholesale clothing and furnishing trade in Detroit. There was $2,070.57 of other personal property, and the balance of the inventory was made up of real property. A large part of the personal property was converted into money, the debts of the estate paid, and the balance of the estate in a large part divided among the heirs prior to the 27th of February, 1888, at which time the administrator filed 'an account with the probate court. In that account he asked for $1,624.89 for services and expenses. The account was allowed as presented, leaving a balance in the hands of the administrator of $418.09. After this date a claim was made by Marvin M. Stanton against the estate, which was subsequently arbitrated, and this arbitration was not concluded until the 20th of April, 1891. On the 28th of July, 1891, the administrator filed his present account. The account was allowed by the probate court, and an appeal was taken to the circuit, but the case was not brought on for trial until February, 1896. The circuit judge affirmed the order of the probate court, after having submitted to the jury the question of the reasonableness of the attorney’s fees. The jury found the value of the attorney’s fees to be as fixed by the probate court.

An exception was taken to the refusal of the circuit judge to submit to the jury the question of fact as to whether any extraordinary services were rendered for Which compensation should be allowed the administrator, but we think the circuit judge followed the correct practice in determining this question.

The character of the services was very similar to those rendered in Mower's Appeal, 48 Mich. 441. It appears by the finding of the circuit judge that the copartnership still had one year to run at the time of the death of Mr. Brewster; that, immediately after his appointment, the administrator, being in the confidence of the surviving partner, continued to advise as to the value and condition of the property, and from that time until the sale of deceased’s interest in the firm he advised with him almost every day, and frequently several times a day; that this advice covered the subject of purchases and sales, and, in general, the financial affairs of the firm; that the surviving partner did not feel himself capable of assuming the responsibility of that part of the business, and that the administrator actively entered into the management of that part of the business, in connection with the surviving partner, with the intention to give sufficient time to it to do it justice; and that this continued until the sale of the estate’s interest, which occurred on the 2d of June, 1887. The surviving partner subsequently made a claim against the estate for $4,000 for carrying on the firm’s business. The administrator disputed this claim, which was subsequently submitted to arbitration, and allowed in the sum of $3,000. The administrator proposed, and succeeded in carrying through, this arbitration. We think there was sufficient evidence to justify the circuit judge in finding that this service was extraordinary and unusual, and, as was held in Mower’s Appeal, 48 Mich. 451, where facts exist calling for the exercise of judicial discretion, we are not at liberty to interpose the judgment of this court in place of that of the circuit judge; certainly not except in the case of clear abuse, which does not appear here.

A number of assignments of error are based upon the rulings of the court in admitting testimony, but these need not be discussed, as we are convinced that no error was committed which has resulted in prejudice to the appellant in this regard.

We are not able to agree with the circuit judge as to-one of the items. The court refused to charge the account of the administrator with interest. It appears by the testimony that, on the sale of the copartnership property, there was deposited in the bank with Ives & Sons, of which firm the administrator was a member, the avails of this sale, amounting to some $36,000, and that this sum remained on deposit for some 3 months and 12 days before it was divided among the heirs. It is true the testimony shows it was deposited subject to check, but it might have been deposited on certificate had the administrator taken the precaution to do so, and we think he should be charged with bank rates on this deposit, which are shown by the testimony to amount to $274.32. The circuit judge seems to have been of the opinion that this charge of interest should have been made at the first accounting; that the account then showed that this money had come into the hands of the administrator, and been disbursed; but we think the item is not in fact involved in the account, and it is not in accordance with the theory of the administrator that the account was final.

We think the allowance should be reduced in the sum-of $274.32, and in other respects the order of the circuit judge will be affirmed. The appellant will recover costs of this court; but, as we think the record needlessly full for raising the only question upon which the decision of the circuit judge was not sustained, the costs of printing the briefs and record will be limited to 50 pages.

The other Justices concurred.


author: Geant, J.

text:
    SCRANTON v. WHEELER.
    t. Jurisdiction of Courts — United States Interests — Defense in Ejectment.
    ■The fact that a defendant in ejectment is in possession of the disputed premises on behalf of the general government is insufficient to deprive the court of jurisdiction, but, to constitute a defense, it must appear that the right of the government is paramount to that of the plaintiff.
    "2. Riparian Rights — Navigable Streams — Improvements by United States.
    The title of the riparian owner to submerged lands along navigable waters, and his right of access thereto, are subject to the paramount right of the United States to use the land in aid of navigation, without compensation to the owner, in such manner as it shall determine to be necessary.
    Error to Chippewa; Steere, J.
    Submitted April 9, 1897.
    Decided July 13, 1897.
    Ejectment by Gilmore G. Scranton against Eben S. Wheeler. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    This case originated in the circuit court of the county of Chippewa in May, 1891, to recover possession of the following-described parcel of land:
    “An undivided one-half interest or portion of, in, and to private land claim number 3, Whelply’s survey, in the village of Sault Ste. Marie, Michigan, including therein that portion of the land beneath the water of St. Mary’s river from the river bank on said lot to the thread of the stream of said river, which forms a part of said lot, and all riparian rights belonging and attached thereto and being a part .thereof, which said premises the plaintiff claims in fee.”
    The defendant was then the superintendent of the St. Mary’s Falls Canal, under the authority of the United States government. After issue was joined, a petition was filed by the defendant for the removal of the cause to the federal court, for the reasons (1) that defendant was in possession for the United States, as superintendent of the canal, and that the United States was the real party in interest; (2) that the suit arose under the laws of the United States. Thereupon the suit was removed, and was tried in the circuit court of the United States for the Western district of Michigan, September 14, 1892, resulting in a judgment for the defendant. The case was then removed by a writ of error to the United States court of appeals, and there affirmed. G C. C. A. 585, 57 Fed. 803. It was then appealed to the Supreme Court of the United States, and dismissed from that court, and remanded to the state court for trial, for the reason that the pleadings did not show any federal jurisdiction. Thereupon trial was had in the state court, resulting in a judgment for the defendant, and the case is now in this court on a writ of error.

      Harloiv P. Davock and John C. Donnelly, for appellant.

      John Poiver, U. S. District Attorney, for appellee.
   Geant, J.

(after stating the facts). The learned circuit judge directed a verdict for the defendant upon the ground that the judgment against the defendant, Wheeler, would, in effect, be a judgment against the United States and its property. In this the court was in error. When one in the actual possession of property defends his right of possession upon the ground that the government, state or national, has placed him in possession, he must show that the right of the government is paramount to the right of the plaintiff, or judgment will go against him. This point has been settled by the decision of the Supreme Court of the United States rendered May 10,189?. Tindal v. Wesley, 167 U. S. 204. In that case the authorities upon this point are reviewed at length, including the case of Stanley v. Schwalby, 162 U. S. 255, upon which defendant mainly relies.

The United States government took possession of the submerged land of the plaintiff for the purpose of erecting thereon piers in aid of the immense navigation upon the Great Lakes and the rivers connecting them. That the improvements made were necessary to aid and protect this navigation is established beyond dispute. Had the government the right to make these improvements upon the submerged land without compensation to the adjoining owner ? It is conceded that under the law of Michigan the title to submerged land is in the adjoining owner to the thread of the stream. It is insisted in behalf of the plaintiff that the government possesses no right to so use his land, although submerged, and although necessary to so use it in aid of navigation, as to cut off his access to the open water. It is contended on the other hand that this title to submerged lands along navigable waters, and the right of access thereto, are subject to the paramount right of the United States to use this land in such manner as it shall determine to be necessary in aid of navigation. The court of appeals was unanimous in its opinion against the plaintiff’s claim. In a very able opinion delivered by Judge Lurton the facts are clearly stated, the authorities cited, and we think the conclusion there reached is the correct one. We therefore deem it unnecessary for us to enter into a long discussion of the law and the authorities. The case of Hawkins Point Lighthouse, 39 Fed. 77, appears .to be exactly in point, and to rule the present case.

We think the conclusion reached by the court below was a correct one, although it gave a wrong reason.

The judgment is affirmed.

The other Justices concurred.


text:
    HOGAN v. HADZSITS.

    1. Limited Partnerships — Renewal Affidavit — Statutory Requirements.
    At the expiration of the period covered by articles of special partnership, like articles were signed, reciting that the special partner had “contributed to the capital stock of the firm the sum of §10,000.” The affidavit of one of the general partners recited that the special partner had actually, in good faith, contributed such sum in cash to the capital stock. At the expiration of the period covered by the new articles, the firm went out of business, and a sale of the partnership property under a mortgage failed to bring enough to pay unsecured creditors. In an action by a creditor for goods sold to the firm, it was contended that the certificate and affidavit were false, in that they stated the contribution of the special partner to be in cash, whereas it consisted of his interest in the partnership which had expired, and that, in consequence of the alleged false statement, the special partner was liable under 1 How. Stat. § 2349, for all the engagements of the general partners. Held, that the execution of the new articles was in effect a renewal of the former partnership in accordance with section 2352, 1 How. Stat., and that the statement in the renewal affidavit should be referred to the time of the formation of the partnership.
    2. Same — Withdrawal of Interest — Liability to Creditors.
    To render a special partner liable for firm debts on account of his withdrawal of interest or profits, one of the conditions in-escribed by 1 How. Stat. § 2355, to wit, the reduction of the capital stock below the sum stated in the certificate, or the insufficiency of the assets to pay the partnership debts, must " exist.
    Error -to Wayne; Frazer, J.
    Submitted. June 9, 1897.
    Decided July 13, 1897.

      Assumpsit by Walter G. Hogan against George Hadzsits, Herman Beckmann, and Herman Rohns, formerly copartners as George Hadzsits & Company, for goods sold and delivered. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellant.

      John W. McG-rath, for appellee Bohns.

         Rehearing denied September 23, 1897.

   Moore, J.

February 4,1888, the firm of George Hadzsits & Co. was organized. Herman Bohns was the special partner.' The other two defendants were the general partners. The special partner contributed to the capital stock of said firm the sum of $10,000 in cash. The partnership was to terminate on the 3d day of February, 1892. There is no question raised as to these papers being properly executed to create a limited partnership. At the expiration of this partnership, like articles of special partnership were signed, reciting that the partnership was to commence on the 4th day of February, 1892, and to terminate February 3, 1896. The articles recited that “said Herman Bohns, special partner as aforesaid, has contributed to the capital stock of said firm the sum of $10,000.” These articles of copartnership were acknowledged February 6, 1892, and on the same day there was attached to said articles an affidavit of the general partner Hadzsits, who swore “that the said Herman Bohns, who is therein named as special partner, has actually, in good faith, contributed in cash to the capital stock of said business the sum of $10,000.” The record shows that Mr. Bohns did not contribute any cash to the capital stock of said partnership after February 4, 1888. It also shows that February 6, 1892, the excess of the assets of the firm over its liabilities to persons other than the partners was upwards of $34,000, and exclusive of all liabilities, including the liability to the partners, was upwards of $4,000. The contribution of Mr. Bohns to the firm in February, 1892, was his interest then in the firm. The record shows this was worth upwards of $10,000. After February, 1892, Mr. Bohns drew out of the firm, at intervals, sums of money which amounted, during the four years the partnership continued to exist, to $3,850, under an arrangement between the partners by which he was to be allowed 10 per cent, on the amount of his investment as interest. On the trial the jury found, in answer to a special question submitted to them, that the property of George Hadzsits & Co. was sufficient on the 6th day of February, 1806, to pay the partnership debts. At the expiration of the second partnership, in February, 1896, the firm went out of business, having-given chattel mortgages on all its property. These chattel mortgages were foreclosed. The property did not bring enough to pay the unsecured creditors. It was the claim of the defendants that the property was sacrificed at the chattel-mortgage sale. The plaintiff has a claim of about $1,800 against the company, for which he seeks to hold the special partner.

There are two questions involved:

First. Does the fact that Mr. Hadzsits stated in his affidavit made February 0, 1892, that Mr. Rohns had contributed in cash to the capital stock $10,000, when the cash was in fact contributed in 1888, make Mr. Rohns a general partner ?
Second. Was the withdrawal from the firm by Mr. Rohns of sums of money as interest on his investment such a withdrawal of the capital stock as to make Mr. Rohns liable to the plaintiff for the amount of his claim, to the extent of the amount so withdrawn ?

As to the first question, the trial judge charged the jury:

“It is a fact under the evidence in the case, and under the certificate filed and signed by the partners, that the amount of capital stock stated in the certificate was $10,000, which was put in by Mr. Rohns, either in money, or in something equivalent to money, which I charge you is a substantial compliance with the law.”

As to the second question, he instructed the jury that the capital stock of the company must be kept intact, and left it to the jury to say whether it had been impaired by the withdrawal of the money from the firm by Mr. Rohns.

The appellant insists that the disposition of each of these questions by the trial judge is error. It is said on the part of the appellant that:

“1 How. Stat. § 2344, requires the execution by all the members of a special partnership of a certificate which shall state, among other things, ‘the amount of capital stock which each special partner shall have contributed to the common stock.’ Séction 2340 requires that the certificate shall be filed with the clerk of the county in which the principal place of business of the partnership is to be situated. Section 2348 provides that, at the time of filing the certificate and the acknowledgment, an affidavit of one or more of the general partners shall be filed in the county clerk’s office, ‘ stating that the amount in money, or other property at cash value, specified in the certificate to have been contributed by each of the special partners to the common stock, has been actually, and in good faith, contributed and applied to the same.’ Section 2349 provides: ‘No such partnership shall be deemed to have been formed until such certificate, acknowledgment, and affidavit shall have been filed as above directed; and if any false statement be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof as general partners.’ The testimony shows that, to the capital stock of the partnership which was in. existence when plaintiff’s assignors sold the goods on which this action is based, the special partner, Rohns, had not in good faith contributed in cash the sum of $10,000. He contributed his interest in the partnership which had expired on February 3, 1892, — an interest the value of which was entirely problematical. It might or might not have been of substantial value, and whether it was or not could only have been ascertained after payment of the partnership debts, and a sale of the excess of the assets, if any excess there was.”

It is the contention that the statement made in the affidavit that Rohns had contributed in cash to the capital stock of the company $10*000 was not true; that the statute must be strictly followed, and the statutory result of the false statement is that Rohns is liable as a general partner for all the partnership engagements; citing Bates, Lim. Partn. pp. 56, 60, 61; Pierce v. Bryant, 5 Allen, 91; Haviland v. Chace, 39 Barb. 283; Haggerty v. Foster, 103 Mass. 17; Richardson v. Hogg, 38 Pa. St. 153; Eliot v. Himrod, 108 Pa. St. 578; Vanhorn v. Corcoran, 127 Pa. St. 265; Haslet v. Kent, 160 Pa. St. 85; Durant v. Abendroth, 69 N. Y. 151 (25 Am. Rep. 158); First Nat. Bank v. Huber, 75 Hun, 80.

These cases undoubtedly hold that contributions of United States bonds, or of promissory notes or acceptances, or of a stock of goods, or of the property or assets of another partnership, are not to be regarded as payments in cash, in the formation of limited partnerships. Many of these decisions were in States which require the contribution to the capital stock made by the special partner to be made in cash, while in our State the contribution may be made in cash, or other property at cash value. We do not think, however, a fair interpretation of this record will show that what was attempted to be done, or what was in fact done, was the creation of an original limited partnership. It was rather the renewal for another period of four years of a limited partnership then in existence; continuing the same business with the same partners and with the same assets which belonged to the firm at the expiration of the term for which the original articles of partnership provided. Section 2352, 1 How. Stat., provides for the renewal or continuance of such partnerships, and that “a certificate shall be made, acknowledged, recorded, and published in the like manner as is provided in this chapter for the formation of limited partnerships,” etc. It is unfortunate, perhaps, that the statute does not provide just what this certificate shall contain. In Bates, Lim. Partn. § 122, it is said:

“Considering how utterly inadequate in its instructions this section of the statute is [ he is discussing statutes of similar import to ours], it is astonishing that there have been no more decisions upon it. The statute requires the renewal to be certified as in the original formation. As the certificate of formation certified a cash contribution, or in specific articles at a valuation, it is obvious that a literal compliance with the statute is impossible, and no instructions are given to guide us.”

If there cannot be a li teral compliance with the statute, is it just to say that, if there has been a substantial compliance with the statute, and an attempt, in good faith, to comply with its terms, the special partner shall be made a general one because the impossible was not done ?

“The difficulty is to know how minute must be the information to be contained in these documents. A going business is often not susceptible of exact estimate as to its own standing, capital, etc. Its standing of one day is not its standing of the next day, not only because new contracts may be made and old ones completed, and new debtors and creditors created, but because the ebb and flow of markets make the value of the stock a constantly fluctuating amount; and unseen changes in the ability and solvency of those indebted to the firm may affect it to a high degree without any of the partners being at all aware of any change. Moreover, the capital, which originally was cash, is no longer so. It has now become a stock of goods, or improvements, or property and credits. It is perfectly plain that the renewal certificate cannot state that there is a present cash capital, or its accurate value. It would therefore seem that the statute should be construed as allowing a renewal regardless of the condition of the association; that the statutory certificate, record, affidavit, and publication need contain no new matter not in the original certificate, except the statement that the partnership is renewed for a certain further time; and that any other matter analogous to the rerecording of a mortgage of personalty is practically a re-statement of the original facts. Such, judging from the statements of facts in the cases of renewals, had been the practice.” Bates, Lim. Partn. § 127.

Doubtless this was the view held by the person who prepared the certificate and affidavit for the purpose of renewing the partnership. We do not think it unreasonable to say that the statute contemplates that the renewal certificate and affidavit are to be read in connection with the original certificate and affidavit. If this is done, no one can be misled. It would appear from such a reading that the limited partnership was created in 1888; that at that time Mr. Bohns contributed in cash to the capital stock of the company $10,000; and that four years later the limited partnership was continued for another four years. We have not overlooked the decision of Haddock v. Grinnell Manfg. Corp., 109 Pa. St. 382, which reads:

“When a special partnership is continued or renewed, it must be in the same condition, so far as the special capital is concerned, as when it was originally formed. Such capital must be unimpaired. It must be in such condition as to be available for creditors, and it is the duty of the general partner to furnish this information in his affidavit. If this duty is neglected, the partnership becomes general, and the special partner has no immunity.”

The Pennsylvania court held substantially the same doctrine in relation to limited partnership associations, but this court declined to follow that doctrine in the recent cases of Staver & Abbott Manfg. Co. v. Blake, 111 Mich. 282, and Rouse, Hazard & Co. v. Detroit Cycle Co., Id. 251. We think such a construction reads into the statute provisions it does not contain. The court did not err in his disposition of the first question raised.

Counsel for appellant insist that under the provisions of section 2355 the special partner is made liable, to the extent of any unpaid debts, for all sums withdrawn from the firm, and that as the record shows the plaintiff is unpaid, and the special partner withdrew more than the amount of the plaintiff’s claim, the judge should have directed a verdict in his favor. The statute provides for liability for interest or profits withdrawn only in case the withdrawal reduces the capital stock below the sum stated in the certificate, or if, at any time during the continuance or at the termination of the partnership, the property or assets shall not be sufficient to pay the partnership debts. Both of these propositions were submitted to the jury, who found that the capital stock had not been impaired, and that at the termination of the partnership there were assets sufficient to pay the partnership debts.

The judgment is affirmed.

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


text:
    FOWLER v. FOWLER.
    1. Slander — Damages—Evidence in Mitigation — Instructions.
    Where, in an action for slander in imputing to plaintiff a want of chastity, defendant produced testimony tending to show that, at the time of the alleged slander, plaintiff’s reputation for chastity was bad in the neighborhood in which she resided, defendant was entitled to an instruction that, if it should be found that a general rumor already prevailed in the neighborhood of the same tenor as the words charged, plaintiff should not recover as much damages as if no such rumor prevailed.
    2. Same.
    The failure to give such instruction was not justified by the fact that it was claimed by the plaintiff that the defendant was himself responsible for some of the rumors, since .the proposed instruction was proper in the abstract, and might have been qualified, if desired- by the plaintiff, so as to exclude rumors started by the defendant himself.
    3. Same — Quo Animo.
    A defendant in an action for slander may show in mitigation of damages, as bearing on the quo animo, that, before uttering the words imputed to him, he had been informed that stories to the same purport as his subsequent statement were already afloat in the neighborhood.
    Error to Hillsdale; Lane, J.
    Submitted April 14, 1897.
    Decided July 13, 1897.
    Case by Kate Fowler against Frederick Fowler for slander. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Chester & Tiviss (T. E. Barkworth, of counsel), for appellant.

      C. M. Barre and E. J. March (Watts, Bean & Smith, of counsel), for appellee.
   Montgomery, J.

This is an action of slander. The defendant is accused of making accusations against the plaintiff, imputing to her a want of chastity. Plaintiff is the widow of defendant’s son. The jury rendered a verdict of $10,000. This verdict was afterwards reduced to $6,000 on an order of the circuit court requiring such reduction or granting a new trial. On the trial the defendant produced testimony tending to show that, in the spring and summer of 1893, the plaintiff’s reputation for chastity was bad in the neighborhood in which she resided. At the conclusion of the testimony the defendant preferred the following requests, which were refused:

“If you find that the defendant spoke the words as charged, and find under the evidence and these instructions he has failed to establish his justification, and you further find that a general rumor already prevailed in the neighborhood where plaintiff lived of the same tenor as the words charged, then she could not be entitled to as much damage as if no such rumor prevailed.
“If you believe from the evidence that, at the time of the publication, the plaintiff was a woman of disparaged reputation, then that must be taken into consideration, because a woman whose reputation for chastity and virtue is bad cannot suffer the same damage as a woman of good reputation would if words were spoken about her that reflected upon her chastity.”

We think these instructions should have been given. Nellis v. Cramer, 86 Wis. 337; Campbell v. Campbell, 54 Wis. 90; Burt v. McBain, 29 Mich. 268; Orth v. Featherly, 87 Mich. 320; Newell, Defam. 890.

Plaintiff’s counsel contend that the record shows that defendant himself was responsible for the rumors which existed before and at the time of the utterance of the substantive slander alleged and proved. We do not think this conclusion appears. But it is urged that the requests should have been so framed as to exclude from the rumors which would mitigate damages those which defendant himself started, if any. But defendant’s theory was that he acted upon information of others, and that he did not originate the rumors. The requests were framed in accordance with this theory of defendant, and if peculiar circumstances existed, requiring a modification of the instructions, we think the plaintiff should have called attention to them, or the court, of its own motion, might have properly qualified the instructions. But the requests were proper in the abstract, and were proper if the defendant’s theory was maintained, and there was a total failure to cover the ground. We think this was damaging error.

Defendant also offered to show that he had a conversation with one Eddy, in which Eddy told him (defendant) of stories afloat in the neighborhood which were substantially those which defendant was charged with circulating. This was excluded on the ground that, before evidence of such statements could be received, it must be shown that they were rumors in common circulation. The question presented is whether, as bearing on the quo animo, a defendant may show that, before uttering the words imputed to him, he had been informed that the statements made by him were true, for the purpose of mitigating damages. We think it should be held that such testimony is admissible. Simons v. Burnham, 102 Mich. 200; Huson v. Dale, 19 Mich. 35 (2 Am. Rep. 66); Orth v. Featherly, 87 Mich. 319; Newell, Defam. 890.

The other questions presented are not likely to arise on a new trial.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    De CREMER v. ANDERSON.
    Contract of Guaranty — Notice of Acceptance — When Required.
    Notice of acceptance is essential to bind as guarantors persons who, in response to the request of the principal, sign a guaranty for the payment of goods to be sold him on credit, where the offer of the guarantee to sell the goods was conditional upon his approval of the guarantors
    Error to Marquette; Stone, J.
    Submitted April 16, 1897.
    Decided July 13, 1897.

      Assumpsit by Elorian De Cremer against William F. Anderson and Abraham Boulsom upon an alleged contract of guaranty. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      J. M. Edgerton (Clark & Pearl, of counsel), for appellant.

      McClear & Bell, for appellee Anderson.

      Ball & Ball, for appellee Boulsom.
   Moore, J.

Julius Jacobson desired to buy goods of the plaintiff. The plaintiff sent him a blank paper reading as follows:

“For the purpose of enabling Julius Jacobson to purchase goods upon credit from F. De Cremer, of Green Bay, Wis., we hereby guarantee that said Julius Jacobson shall promptly pay him for all goods which he may hereafter sell to him upon credit, until this guaranty is revoked; said payment to be made within 10 days after receiving goods. Our liability hereunder shall cover any balance to become due, not exceeding $300.”

This was afterwards dated May 2, 1894, and signed by defendants. When this paper was sent to Jacobson, he was instructed to have it signed by responsible parties, and if plaintiff, upon investigation, was satisfied of their responsibility, he was to forward the goods. This guaranty was delivered to Jacobson, and by him delivered to the plaintiff. The plaintiff caused an investigation of the responsibility of the defendants to be made, and notified Jacobson that he was satisfied with the guaranty, but did not notify the defendants. The plaintiff sold goods to Jacobson under the guaranty. May 8, 1895, Boulsom notified the plaintiff that he withdrew from the bond. This notification was in writing, and it was forwarded in =a letter written by Mr. Edgerton, who was then acting as attorney for Boulsom. On the 14th of May the plaintiff wrote Mr. Edgerton, saying:

“Yours, with letter of A. Boulsom, received. Bond ■security of his on J. Jacobson will hold good on all transactions of Jacobson’s before bond is withdrawn. Same will be noted.”

Edgerton handed this letter to Boulsom upon its receipt. At this time there was due the plaintiff the sum of $207.24. Plaintiff did not notify defendants of this amount until some time in October, when suit was brought to recover this balance.

It is claimed by the. defense: First, that defendants were never notified by plaintiff that he accepted them as guarantors; second, that the balance of $207.24 was paid by subsequent payments made by Jacobson; third, that the defendants were not notified in reasonable time of the default of Jacobson.

The circuit judge held that the defendants were entitled to notice of their acceptance as guarantors, before the plaintiff could hold them liable. In support of his contention that the court erred in taking the case from the jury, the appellant relies upon Farmers’, etc., Bank v. Kercheval, 2 Mich. 504, and Roberts v. Hawkins, 70 Mich. 566, and also cites a number of authorities from other States. All of these have been examined, but we shall refer only to the Michigan cases. In both the Michigan cases the guaranty was delivered by the guarantor directly to the party extending the credit. In the former case the guaranty was in the form of a bond under seal, in which the amount of the liability and the time it was to run were stated, and it was accepted by the bank on its delivery. In the case of Roberts v. Hawkins, supra, the obligation was the guaranty of the payment of a note, indorsed on the back of the note itself, which note was payable to the plaintiff, and was delivered to her for the express purpose of procuring from her the $1,000, which she paid upon its delivery to her. The guaranty of payment was part of the contract which induced her to part with her money at the time the contract was made. The undertaking of the defendants was quite different from that of the defendant in either of the above-cited cases.

In Davis Sewing Machine Co. v. Richards, 115 U. S. 524, the rule is stated by Justice Gray, as follows:

“A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter’s agreement to accept is contemporaneous with the guaranty, or if the receipt from him of a valuable consideration, however small, is acknowledged in the guaranty, the. mutual assent is proved, and the delivery of the guaranty to him or for his use completes the contract. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guaranty is, in legal effect, an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract.” 9 Am. & Eng. Enc. Law, 78.

A standard text writer has said:

' “A question often arising upon commercial guaranties is whether, in order to charge the guarantor, it is necessary that he be notified of the acceptance of the guaranty by the person acting upon it. When the guaranty is a letter of credit, or is an offer to become responsible for a credit which may or may not be given to another, at the option of the party to whom the application for credit is made, the great weight of authority is that the guarantor must, within a reasonable time, be notified of the acceptance of the guaranty. The most satisfactory reasons exist for these decisions. It is of the highest importance to the person thus offering his credit that he should know he is to be looked to for payment. Knowing that fact, he can regulate his dealings with his principal accordingly. He will have an opportunity to secure himself and guard against loss. Concerning this subject it has been said: ‘ It would, indeed, be an extraordinary departure from that exactness and precision which peculiarly distinguish commercial transactions, which is an important principle in the law and usage of merchants, if a merchant should act on a letter of this character, and hold the writer responsible without giving notice to him that he had acted on it.’ Another reason much relied upon by the courts is that the transaction only amounts to an offer to guarantee until the party making the offer is notified of its acceptance, when the minds of the parties meet and the contract is completed.” Brandt, Sur. § 186; Craft v. Isham, 13 Conn. 28; Winnebago Paper Mills v. Travis, 56 Minn. 480; Gardner v. Lloyd, 110 Pa. St. 278.

In the case at bar, the guaranty was not signed by the guarantors at the request of the plaintiff. No consideration passed from the plaintiff to the guarantors, or was acknowledged in the guaranty. It was not accepted by the plaintiff at the time it was given, and he did not agree to accept it until he had satisfied himself of the responsibility of the guarantors, which he proceeded to do some days afterwards by correspondence with the register of deeds. Under such.circumstances the guarantors were entitled to know that their guaranty had been accepted, before they were bound.

Judgment is affirmed. '

The other Justices concurred.