text:
    WINTERS v. COOK.
    1. Taxation — Tax Sales — Redemption—Service of Notice.
    Under section 140 of the general tax law (Act No,, 204, Pub. Acts 1899), the purchaser of a tax title must make an earnest effort in good faith to ascertain the record owner of the land, and his whereabouts, and, if he is a resident of the State, give him actual notice, and the statutory opportunity to redeem; until this effort has been made, substituted service is ineffectual to bar his right to redeem.
    2. Same — Notice—Return of Sheriff — Conolusiveness.
    The notice of redemption required of a tax title purchaser by section 140 of the general tax law is not the process that gives the court jurisdiction to issue a writ of assistance, and the sheriff’s return of the notice, or the registry receipt,' or proof of publication, is not a return of process, within the rule protecting returns from collateral attack, but may be contradicted.
    Appeal from Ottawa; Padgham, J.
    Submitted May 2, 1905.
    (Docket No. 133.)
    Decided June 8, 1905.
    Bill by Frank Winters against Percy T. Cook to quiet title to land. Defendant filed an answer in the nature of a cross-bill, alleging a tender of the amount necessary to redeem from complainant’s tax lien, and prayed that his title be quieted as against complainant. From a decree for complainant, defendant appeals.
    Reversed, and decree entered for defendant.

      Walter I. Lillie, for complainant.

      Knappen, Kleinhans & Knappen, for defendant.
   Hooker, J.

The complainant received a quitclaim deed of the premises involved in this suit from Diantha Winters, his stepmother, on April 11, 1903. The only title held by her at that time was based upon an auditor general’s deed, dated August 6, 1902, for the delinquent taxes of 1898. Previous to the date of complainant’s quitclaim deed, Diantha Winters caused a notice, under Act No. 204 of the Public Acts of 1899, to be made, directed to Percy T. Cook, who was the owner of the land, subject to such rights as she had acquired under her tax deed. The following is a copy:

“Notice.
“ To Percy T. Cook, of Grand Rapids, Michigan, grantee in the last recorded tax deed of the property herein described.
“Take notice, that sale has been lawfully made of the following described land for unpaid taxes thereon, and that the undersigned has title thereto under tax deed issued therefor, and that you are entitled to a reconveyance thereof at any time within six months after service upon you of this notice, upon payment to the undersigned of all sums paid upon said purchase, together with one hundred per cent, additional thereto, and the fees of the sheriff for the service of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum pf five dollars for each description, without other additional costs or charges. If payment as aforesaid is not made, the undersigned will institute proceedings for possession of the land.
“Yours respectfully-
“Diantha Winters. “Place of business West Olive, Michigan.”

This notice was not dated, and we have been unable to ascertain when it was placed in the hands of the sheriff, if at all. It bears a certificate purporting to be signed by the sheriff of Ottawa county as follows:

“State of Michigan, Ottawa County.} SS.
“ I do hereby certify and return that after careful inquiry and diligent search, I am unable to ascertain the whereabouts or postoffice address of Percy T. Cook, the grantee named in the last recorded tax deed of the premises herein described, or the heirs of said grantee, or the whereabouts or the postoffice address of the executor, administrator, trustee or guardian of such grantee.
“Henry J. Dykhuis, Sheriff.
“By Hans Dykhuis, Deputy Sheriff.
“ Oct. 16th, 1902.”

Thereupon the statutory notice was published in a weekly newspaper printed and published in said county, and proof of the requisite publication was duly filed. This notice was not dated, but publication began October 9, 1902, and ended November 13, 1902.

As has been stated, Frank Winters received a quitclaim deed from Diantha Winters April 11, 1903. He verified the bill on June 15, 1903. It was filed to quiet his title, and subpoena was personally served on Percy Cook at his home, in. Brooklyn, Jackson county. An answer in the nature of a cross-bill was filed, alleging a tender of the amount necessary to redeem the land, and praying that his title might be decreed and quieted against complainant. Proofs were taken, and a decree was rendered for the complainant. Defendant has appealed.

The validity of the tax proceedings is not questioned. Complainant’s deed gave him all rights held by Diantha Winters. The questions in the case relate, first, to the sufficiency of the notice and service; and, second, whether defendant was not in possession when the bill was filed.

It is contended that the defendant having once been in possession yielded to a vendee under, a contract of sale, who subsequently removed from the premises, and his improvements thereon, leaving one Shearer, a neighbor, in ■charge of the place, he (the defendant) was in actual possession of the premises, and therefore that ejectment, or a writ of assistance under the statute, and not a bill to quiet title, should have been the complainant’s remedy, in the absence of clear proof of intentional abandonment. We find it unnecessary to discuss this subject, as we must dispose of the case upon another and broader ground.

The statute (1 Comp. Laws, § 3959) as amended by section 140 of the general tax law (Act No. 204, Pub. Acts 1899), provides that:

“No writ of assistance, or other process for the possession of any land * * * shall be issued until six months after there shall have been filed with the county clerk of the county where the land is situated, a return by the sheriff of said county, showing that he has made personal service, or until substituted service as hereinafter provided has been made, * * * which notice shall be in the following form: [Here follows the form to which the notice in this case conforms.]
‘ ‘ Provided, That if grantee or grantees, or the person or persons holding the interest in said lands as aforesaid, shall be residents of any county in the State other than the county in which the land is situated, then such return as to such persons shall be made by the sheriff of the county where such person or persons reside: Provided further, If any grantee or grantees, or the person or persons holding the interest in said lands as aforesaid, shall be nonresidents of this State, if from the said record aforesaid, or from inquiry, the sheriff can obtain the postoffice address of such grantee or grantees, or the person or persons holding the interest in such land as aforesaid, or if the said address be known to him, he shall send to such person or persons aforesaid a copy of said notice by registered letter, and return the receipt as receipts received for said letter or letters, with his return to the county clerk’s office:
Provided further, That if any person entitled to notice, as hereinbefore provided, is dead, or if his estate shall be under control of a trustee or guardian, then and in such case notice as hereinbefore provided may be served upon the executor or administrator of said deceased person, or upon his heirs, if there be no executor or administrator, or upon the trustee or guardian of any incompetent person, with like effect as if served upon the grantee, mortgagee, or assignee:
Provided further, That if the sheriff of the county where any such lands are located shall make a return that after careful inquiry he is unable to ascertain the whereabouts or the postoffice address of the grantee named in. the last recorded deed, or the mortgagee named in the last recorded mortgage, or the assignee of record of said mortgage of said premises, or of the heirs of said grantee or mortgagee or assignee, or the whereabouts or the post-office address of the executor, administrator, trustee, or guardian of such grantee, mortgagee, or assignee, then such notice as is herein provided for shall be published six successive weeks in some newspaper published and circulating in the county where such lands are located, and due proof of publication, by affidavit of the printer or publisher of such newspaper, shall be filed with the county clerk, and shall be in lieu of the personal service above provided for.”

This section was designed as a relief to owners of delinquent tax lands, and to prevent the divestiture of their titles, beyond redemption, through ignorance, inattention, or carelessness. It plainly indicates that the purchaser is expected to give an express notice, wherever practicable, with a six-months interval thereafter, within which the land may be redeemed. It imposes upon the purchaser the obligation of good faith, and an earnest effort to ascertain the owner and his whereabouts, and an honest attempt to give him actual notice and the statutory opportunity. Any effort to avoid it through fraud or collusion, or intentional omission to comply with the spirit of this statute, should not be permitted to be effective, if the courts can legitimately avoid it. The statute imposes a duty of ascertaining, if possible, where the landowner lives, and, if it can be learned by reasonable endeavor that he lives in any county in this State, the notice must go to the sheriff of that county for service, and be served by him, if it -can be. Until this effort has been made, there is no occasion or propriety in a delivery of a notice to the sheriff of the county where the land lies, and where it is known that the delinquent owner does not reside; and, if it is done, it should not be held that the law has been complied with. In this cause the purchaser, or her agent in the transaction, had some knowledge, and an opportunity to obtain much information, about the owner of the premises. It must have been known or at least supposed by them that Mr. Cook did not live in Ottawa county, for the notice is addressed, “Percy T. Cook, of Grand Rapids,”yet it was not sent to the Kent county sheriff; nor do we discover any effort by the purchaser, or her husband and agent, to try to find him at Grand Rapids. They did not attempt to send a notice by registered letter, as the statute contemplates. They knew or could easily have ascertained the residence of Jacques, Cook’s vendee, and through him the whereabouts of Cook. Many persons prominent in the neighborhoo'd could have informed them, for it was quite well known where Cook lived. He testified that he supposed Jacques was owner, but never wrote him, and that nobody did. He even knew Shearer, Jacques’ agent, and does not know that he had any talk with him about it, though Shearer testified that he suggested to him that he might write to Cook, and that he replied that he didn’t know anything about it or care anything about it, and Cook could take care of his own affairs. This was before redemption expired. He admitted that he never tried to find out where he lived. Under such circumstances, it cannot be said that complainant has come into court with clean hands. Not until he was served with a subpoena in the case did Cook know of this notice. Complainant seems to have had less difficulty in finding out Cook’s residence than his mother and father had, and caused subpoena to be served upon him. Defendant then made a tender of the taxes, penalty, etc., which was not accepted.

Counsel insists upon complainant’s right to a technical construction and application of this statute, and of the rule that an officer’s return cannot be attacked collaterally; insisting that it was a return of process in the original tax case. If this notice can be called process, it was fraudulently obtained by complainant’s grantor, and abused; and we have found that it was used as a pretext to obtain a title to another’s land, which might be called, in the language of Mr. Justice Campbell in his opinion in the case of Michels v. Stork, 52 Mich. 260, an abuse of process for illegal purposes. A purchaser of tax titles may have a writ of assistance upon application to the court which thereby enforces its decree. See 1 Comp. Laws, §§ 3895, 3958. The remedy' is the usual one by petition. See 1 Comp. Laws, § 3960 (Act No. 236, Pub. Acts 1903, § 141). And the notice and return of the sheriff, or receipt for registered letter, is not the process that gives the court jurisdiction over the defendant or the subject-matter. Both have to be pleaded in the petition, and both must be proved, if denied. See 1 Comp. Laws, § 3960. And either is subject to contradiction as in other cases. An analogous case is the requirement of many local laws as to notice or filing of verified claims in accident cases. They are essential to a complete case, but the jurisdiction of the court over the subject-matter is not dependent upon them.

The defendant may take a decree in accordance with the prayer of his cross-bill, with costs of both courts, subject to the deduction of the amount due the complainant for taxes, penalty, and interest at the time of the tender.

Moore, C. J., and Carpenter, McAlvay, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    ALEXANDER v. HILLEBRAND.
    1. Guardian and Ward — Equitable Guardian — Trustee—Support of Ward.
    Where the eldest son in a family, and the only child of age, was, after their parents’ death, appointed guardian of his brothers and sisters, but, on account of being unable to procure a bond, never qualified, but took possession of their persons and estate, and reared them, he was their equitable guardian, and, as such, entitled to an allowance from the estate for their support.
    2. Same — Propriety of Allowance.
    Evidence and circumstances attending a settlement between a girl of 20 and her brother who was her equitable guardian examined, and held, that the allowance for her support was not excessive.
    3. Same — Settlement—Minor Ward — Use as Evidence.
    Though a settlement with a ward of the age of 20 years is not binding on her, it may be given weight as evidence, she being old enough to give evidence.
    Appeal from "Wayne; Rohnert, J.
    Submitted May 2, 1905.
    (Docket No. 131.)
    Decided June 8, 1905.
    Bill by Emma Alexander against Mary Hillebrand, administratrix of the estate of Frank Hillebrand, deceased, for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Lehmann & Biggs, for complainant.

      Edward McNamara, for defendant.
   Carpenter, J.

Johanna Bayer, formerly Johanna Hillebrand, a resident of the city of Detroit, died intestate, in May, 1875. At that time she owned certain personal property and certain real estate situated in said city of Detroit. This property, subject to the payment of debts, descended to her children. There were six of these children. Defendant’s intestate was the oldest of these children, and was at that time 24 years of age, and complainant was the youngest, 8 years of age. The ages of the other children ranged from 11 to 18 years. Letters of administration were granted to Joseph Bayer, Johanna’s second husband — not the father of her children — but he, instead of administering the estate, turned the same over to the oldest son, Frank, defendant’s intestate. Frank was also appointed guardian of his minor brothers and sisters, but he was unable to filé a bond, and never qualified. He did, however, assume control of his mother’s property, and, as the head of his mother’s family, assumed to control and maintain his minor brothers and sisters, with the exception of his sister Elizabeth. Complainant became an inmate of his family, and was supported and sent to school by him from the time she was 8 until she was 14 years of age. In 1887, when complainant was about 20 years of age, she made a settlement with Frank, and quitclaimed to him her interest in her mother’s estate in consideration of the sum of $125, which he paid to her at that time. In 1896, eight years after complainant had reached her majority, and after Frank had sold the real estate to a bona fide purchaser, complainant filed this bill against her brother Frank, who was then living, for the purpose of obtaining an accounting for her share of her mother’s estate. The case was heard by Judge Steere, acting as one of the Wayne circuit judges, who, on the 8th day of April, 1897, rendered a decree adjudging “that said defendant held one-sixth of the estate of Johanna Bayer in trust for said complainant,” and referred the cause to a circuit court, commissioner “to take account of the doings of said defendant as trustee, and report the same to the court.” For some reason immaterial to this case, this account was not taken until 1903. In the meantime the complainant had moved to the State of Wisconsin, and defendant Frank had died.

The testimony taken on said accounting convinced the trial judge who rendered the decree appealed from that Frank Hillebrand had, by caring for and maintaining complainant, already paid her all that was her due, and he accordingly entered a decree dismissing her bill of complaint. Complainant asks us to reverse that decree. She insists that the estate of Frank Hillebrand had no right to make any charge for the maintenance of his sister during the time that she was an inmate of his family. "We are convinced by the testimony that Frank Hillebrand intended to make a charge for this support and maintenance, and the circumstances were such that this intention should have been inferred by any one familiar with the situation. When the settlement was made in 1887, complainant, then 20 years of age, undertook and agreed to compensate her brother for this care and maintenance. Under these circumstances, it would be inequitable to deny compensation. It is clear under our decisions, that Frank, had he qualified as guardian, would have been entitled to compensation. See Chubb v. Bradley, 58 Mich. 268; In re Ward’s Estate, 73 Mich. 220; Jacobia v. Terry, 92 Mich. 275. Though, strictly speaking, Frank was not complainant’s legal guardian, he was most clearly her natural guardian. It may also be said that, as Frank was the only one of the children of full age, it was proper for him to assume control of the property jointly owned by them. In everything except in the failure to observe a legal formality, Frank was complainant’s guardian. According to the principles of equity invoked by complainant, he should be regarded as her guardian, and is therefore entitled to a reasonable allowance for her support and maintenance. See Hovell v. Noll, 31 N. Y. Supp. 440.

Complainant also insists that the decree appealed from is erroneous, in that it allows the estate of Frank Hillebrand an excessive amount for the care, maintenance, and support of his sister. It is difficult, on this record, to say precisely what amount Frank did expend for his sister. I think, however, that the settlement made between them in 1887 affords satisfactory evidence of the state of the account at that time. It is true that, as complainant was then a minor, she was not bound by said settlement; but she was old enough to give evidence, and therefore the settlement she made may be given weight as evidence. The weight of that settlement as evidence of the state of account is materially increased by the circumstance that Frank made a similar settlement with his other brothers and sisters, some of whom were of full age. In each of those settlements what he had furnished in the way of care and maintenance was taken into consideration. No one of the other children received more than $100. On this record, we cannot say that Frank spent less in caring for complainant than for any other of his brothers and sisters. I am satisfied that, under these circumstances, we may assume that, on a fair settlement at that time, Frank owed complainant only the amount paid her. The only ground, then, upon which complainant is entitled to a decree, is that she is entitled to be paid a second time this balance due her. Complainant does not ask that. On the contrary, her counsel concede in their brief in this court that defendant’s intestate should have credit for that payment.

I conclude, therefore, that the decree appealed from should be affirmed, with costs.

Moore, C. J., and McAlvay, Blair, and Hooker, JJ., concurred.


text:
    MILLER v. CITY OF KALAMAZOO.

    Municipal Corporations — Street Grade — Change—Power to Contract — 'Waterworks.
    With respect to changing the grade of streets, a city exercises a legislative power which it cannot bargain away, and hence a city cannot be liable in damages to a landowner for the freezing of service pipes connected with the city waterworks, caused by exposure consequent on lowering the grade of the street, on the theory that by contracting to supply water through the pipes the city impliedly agreed not to lower the grade and thus freeze them.
    Error to Kalamazoo; Adams, J.
    Submitted May 3, 1905.
    (Docket No. 135.)
    Decided June 8, 1905.
    Case by Mary C. Miller against the city of Kalamazoo for damages to a water pipe caused by freezing. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Harry C. Howard (William R. Fox, of counsel), for appellant.

      Osborn & Mills, for appellee.

       Rehearing denied October 2, 1905.

   Carpenter, J.

In the court below, plaintiff recovered damages; the same being the amount of money expended by her in repairing a water pipe frozen in consequence of the alleged negligence of defendant. The case made by the plaintiff may be briefly stated as follows: Plaintiff owns a residence in the defendant city. Defendant owns and maintains a waterworks system. Its main passed on the opposite side of the street upon which plaintiff resided. Plaintiff owns the service pipe connecting with said main and running to her residence. Defendant lowered the grade of said street, and, in consequence thereof, plaintiff’s .service pipe was frozen, and the damages for which she brings suit were thereby occasioned.

Had plaintiff a right of action ? This is the important question presented on this record. Defendant clearly had a right to lower the grade of its street (see City of Pontiac v. Carter, 32 Mich. 164), without thereby incurring .any liability to plaintiff, unless such liability arose from the grant of the right of the plaintiff to connect her service pipe with the main pipe in the street. The position of plaintiff is shown by the following statement taken from the brief of her counsel:

“ No doubt the city had the right to change the grade of one of its streets, but when a city goes into the business of selling water, and requires its customers to furnish the water pipes from which the water passes from its mains, it cannot negligently expose those pipes to frost, and exempt itself from legal liability for damages to its customers in consequence of its negligent acts.”

The assumption that defendant was negligent presupposes a duty owed by it to the plaintiff not to lower the grade of the street. Was there such a duty ? There was not, unless it may be said that it was created by the contract made between plaintiff and defendant. The ground upon which we have held that a municipality may change the grade of its street without incurring a liability to abutting owners is that in changing said grade the municipality exercises a legislative power. See City of Pontiac v. Carter, 32 Mich. 164; Larkin v. County of Saginaw, 11 Mich. 88; McCutcheon v. Village of Homer, 43 Mich. 483; Burford v. City of Grand Rapids, 53 Mich. 98. It is fatal to plaintiff’s contention that a municipality cannot bargain away this power. Says Judge Cooley in his Constitutional Limitations (6th Ed.), p. 250, in speaking of municipal bodies:

“Such a body has no power, even by contract, to control and embarrass its legislative powers and duties, * * * In this way the legislative powers essential to the comfort and preservation of populous communities might be frittered away into perfect insignificance. To allow rights to be thus parceled out and secured beyond control would fix a principle by which our cities and villages might be broken up. Nuisances might and undoubtedly would be multiplied to an intolerable extent. And on the same ground it is held that a municipal corporation, having power to establish, make, grade, and improve streets, does not, by once establishing the grade, preclude itself from changing it as the public needs or interest may seem to require, notwithstanding the incidental injury which must result to those individuals who have erected buildings with reference to the first grade. So a corporation having power under the charter to establish and regulate streets cannot, under this authority, without explicit legislative consent, permit individuals to lay down a railway in one of its streets, and confer privileges exclusive in their character and designed to be perpetual in duration.”

See, also, Jamaica Pond Aqueduct Corp. v. Inhabitants of Brookline, 121 Mass. 5; City of Brenham v. Brenham Water Co., 67 Tex. 542; Columbus Gas Light & Coke Co. v. City of Columbus, 50 Ohio St. 65 (19 L. R. A. 510). It is true that in the case'at bar plaintiff is not endeavoring to prevent the municipality from changing the grade of its street. She is merely seeking damages (as was plaintiff in City of Pontiac v. Carter, supra) because it did change such grade. This distinction is unimportant. The same principle which prevents the city from contracting not to change its grade obviously exempts it from liability for damages for breach of such contract. Plaintiff can maintain her action only upon the assumption that the city had power to make such contract. As it had not that power, plaintiff has no cause of action.

Judgment should therefore be reversed, and no new trial ordered.

Moore, C. J., and McAlvay, Blair, and Hooker, JJ., concurred.


text:
    McKEE v. CITY GARBAGE CO.
    1. Creditor’s Suit — Creditor Entitled to Maintain — Judgment —Lien—Corporations.
    A creditor having neither a judgment against, nor a lien upon, the property of his debtor, has no right to complain of the distribution of that property, though the debtor is a corporation, is insolvent, and has no expectation of continuing its business.
    2. Corporations — Insolvency—Assets—Rights op Creditors— Trust Fund Doctrine.
    The doctrine that the creditors of an insolvent corporation have an equitable lien on its assets and are entitled to them pro rata does not obtain in this State.
    3. Same — Banking Corporations — Statutes.
    Sections 9763-9774, 3 Comp. Laws, relative to proceedings against corporations, apply only to corporations having banking powers; and therefore section 9769, authorizing a creditor of a corporation to charge its directors or superintending officers on account of any liability created by law, also applies to such corporations only as have banking powers, and does not apply to corporations generally.
    4. Same — Creditors Entitled to Sue.
    The “ creditor” who is entitled to sue under section 9759, 3 Comp. Laws, to set aside unlawful alienations of corporate property, as provided by section 9757, must be a judgment creditor.
    Appeal from Kent; Wolcott, J.
    Submitted May 4, 1905.
    (Docket No. 142.)
    Decided June 8, 1905.
    Bill by James Langdon McKee and Oscar E. Belden against the City Garbage Company, Limited, David E. Uhl, and George P. Dowling for the appointment of a receiver and for an accounting. Prom an order overruling a demurrer to the bill, defendants appeal.
    Reversed.

      Grove & McDonald, for complainants.

      Gleason & Lee, for defendants.
   Carpenter, J.

Complainants commenced this suit in the circuit court for the county of Kent, in chancery, by filing a bill which, among other things, charged that the first-named defendant, the City Garbage Company, Limited, 'is a partnership association regularly organized for the purpose of conducting “ the business of collecting and removing garbage in and from the city of Grand Rapids,” under chapter 160 (sections 6079-6089, 2 Comp. Laws); that the individual defendants are the managers and members of said association; that complainant is a creditor of said association, having an indebtedness exceeding the sum of $100; that after complainant’s indebtedness accrued all the property and assets of said association were transferred to and divided by said individual defendants, without any steps being taken to dissolve the association, though the period of its existence had not yet expired. The bill prayed for the appointment of a receiver, a decree compelling a reconveyance of the transferred assets to the corporation, and a distribution of the same among the creditors and other persons entitled thereto. Defendants demurred to the bill on several grounds. The trial court overruled this demurrer, and an appeal was taken to this court. Under the view we take of this case, it is necessary to consider only one of the grounds of defendants’ demurrer, viz., that, as complainants were not judgment creditors, they could not maintain their bill.

The general proposition that a creditor having neither a judgment against nor a lien upon the property of his debtor has no right to complain of the distribution of that property is elementary, and is conceded by complainants. But it is urged that that proposition does not apply to this case, where the debtor is a corporation, is insolvent, and has no expectation of continuing its business. And they cite in support of this contention the following authorities: Doe v. Transportation Co., 64 Fed. 928; Nunnally v. Strauss, 94 Va. 255; 2 Morawetz on Private Corporations (2d Ed.), § 860, and note. The principle underlying these exceptional cases is this: That, when a corporation becomes insolvent and unable to carry on its business, each creditor is entitled to his pro rata share of its assets; that the creditor, under such circumstances,' has an equitable lien on the assets. See Sutton Manfg. Co. v. Hutchinson, 63 Fed. 501. We cannot recognize that principle in this State, because we have already deliberately repudiated it. See Bank of Montreal v. Lumber Co., 90 Mich. 345. Complainants cannot, therefore, maintain their suit on any general principle of equity. Their bill must be dismissed unless they are authorized to maintain it by some statute of this State. Is there such a statute ?

Complainants say there is. They insist that sections 5 (section 9759, 3 Comp. Laws) and 15 (section 9769, 3 Comp. Laws) of chapter 269, constitute such a statute. This chapter was part of the Revised Statutes of 1846 (see chapter 117, Rev. Stat. 1846), and has not since that revision been amended in any respect material to this suit. It was copied substantially verbatim from the laws of the State of New York. See 2 Rev. Stat. 1829, pt. 3, chap. 8, tit. 4, art. 2. It will be seen from a careful examination of this chapter that sections 9 to 20, inclusive (and this includes section 15, one of the sections relied on by complainants), have no reference to ordinary business corporations, but refer solely to corporations having banking powers, and this is the construction placed upon the statute by the court of appeals of New York in Mann v. Pentz, 3 N. Y. 415. See, also, Galwey v. Refining Co., 36 Barb. (N. Y.) 256. Complainants cannot, therefore, claim relief under section 15 (section 9769, 3 Comp. Laws). Are they entitled to relief under section 5 (being section 9759, 3 Comp. Laws) ? As section 5 is to be construed in connection with section 3, we set forth the provisions of both sections:

“ Sec. 3. The circuit court within the proper county shall have jurisdiction over directors, managers, trustees, and other officers of corporations, and over any persons who may have held such offices in any corporation, provided that proceedings are commenced within one year after they have ceased to be such directors, managers, trustees and other officers:
“First, To compel them to account for their official conduct in the management and disposition of the funds and property committed to their charge;
“Second, To decree and compel payment by them to the corporation whom they represent, and to its creditors, of all sums of money and of the value of all property which they may have acquired to themselves or transferred to others, or may have lost or wasted by any violation of their duties as such directors, managers, trustees, or other officers;
1 “Third, To suspend any such trustee or officer from exercising his office whenever it shall appear that he had abused his trust;
“Fourth, To remove any such trustees [trustee] or officer from his office upon proof or conviction of gross misconduct;
Fifth, To direct new elections to be held by the body or board duly authorized for that purpose, to supply any vacancy created by such removal;
“Sixth, In case there be no such body or board, or all the members of such board be removed, then to report the same to the governor, who shall be authorized, with the consent of the senate, to fill such vacancies;
“ Seventh, To set aside all alienations of property made by the trustees or other officers of any corporation contrary to the provisions of law, or for purposes foreign to the lawful business and objects of such corporations, in cases where the person receiving such alienation knew the purposes [purpose] for which the same was made; and,
“Eighth, To restrain and prevent any such alienation in cases where it may be threatened or there may be good reason to apprehend that it is intended to be made.
“ Sec. 5. The jurisdiction conférred in the third section of this chapter shall be exercised as in ordinary cases on bill, or petition, as the case may require, or as the court may direct, at the instance of the attorney general, prosecuting in behalf of the people of this State, or at the instance of any creditor of such corporation, or at the instance of any director, trustee, or other officer of such corporation having a general superintendence of its concerns, or by any stockholders of such corporation.”

It is obvious that the averments of the bill make a case for relief under section 3 if complainant has under section 5 any right to invoke that relief. Does section 5 give to any creditor of a corporation, viz., a creditor at large, who has not secured a judgment, a right to invoke this jurisdiction ? This depends on the proper construction of the following language in section 5:

“ The jurisdiction conferred in the third section of this chapter shall be exercised * * * at the instance of any creditor of such corporation,”

In Belknap v. Insurance Co., 11 Hun (N. Y.), 282, this statute was construed. It was there held that:

“The creditor must be a judgment creditor,” because, as the court well said, “any other meaning of the word ‘ creditor ’ would involve a possible joinder of incongruous causes of action, and triable in a different way. If the debt at largewas claimed to be upon contract, and the contract was denied, and the debt should be averred to be paid, how is the issue to be tried ? When the Revised Statutes were passed, a legal and equitable claim could not be joined in one complaint. [ And this is true in Michigan today.] If ‘creditor’ meant a creditor at large, with an unproven debt, why did the legislature give him a standing in a court of equity, when his very debt must be proven in a court at law.”

A similar decision was made in Cole v. Insurance Co., 23 Hun (N. Y.), 255. It is true that each of these decisions was made by the supreme court, and neither of them was reviewed by the court of appeals. Cole v. Insurance Co., supra, was appealed, but the appeal was dismissed by consent. See Cole v. Insurance Co., 91 N. Y. 641. There is, however, a decision of the court of appeals which throws some light on the proper construction of the statute. That decision is Adee v. Bigler, 81 N. Y. 349. There complainant, an ordinary creditor of a corporation filed a complaint averring that he was a creditor — not a judgment creditor — of a corporation therein specified; that such corporation, being insolvent, conveyed all its property to defendant Bigler, “who well knew, at the time, of such insolvency, with the understanding that Bigler should carry on the business, pay off debts and incumbrances, etc., and, upon repayment thereof and of his claims, reconvey the property; that Bigler has contracted to sell the property, and is about to execute conveyances, and had refused to do anything in regard to plaintiff’s claim. The relief sought was that judgment be rendered against the corporation for the amount of plain-, tiff’s claim, that the transfer to Bigler be set aside, and that a receiver of the property be appointed.” Bigler demurred. The demurrer was sustained, and plaintiff appealed. The court affirmed the case on this ground (we quote from the opinion):

“ That, to entitle a creditor to the aid of a court of equity, there must be a judgment, an execution on the same, and a return. Nor can the action be upheld upon the ground that the appointment of a receiver is necessary to preserve the property from misappropriation and waste pending the litigation. * * * The rule is well settled by a series of adjudications that until a creditor has obtained a judgment at law for his demand against the debtor, and the return of an execution unsatisfied, an action in equity will not lie to reach assets and apply them to the payment of a moneyed demand arising upon contract. [Citing cases.] Before judgment and execution a creditor at large is not entitled to the interference of a court of equity on the ground of fraud. Wiggins v. Armstrong, 2 Johns. Ch. (N. Y.) 144. Nor do allegations of insolvency change this well-established rule. Estes v. Wilcox, 67 N. Y. 264.”

It is to be noted that neither counsel nor court referred to the statute under consideration. If that statute authorizes complainant to maintain this suit, it authorizéd plaintiff Adee to maintain his suit. We are compelled, therefore, to say either that the court, in deciding Adee v. Bigler, altogether overlooked this statute, which it appears was at that time in force (see 3 Banks & Bro. Rev. Stat. N. Y. 1875 [6th Ed.], pt. 3, chap. 8, tit. 4), or that it was of the opinion that it applied only to judgment creditors.

It is not to be presumed that the statute was overlooked. We are therefore of the opinion that Adee v. Bigler, supra, is entitled to some weight in determining the proper construction of the statute under consideration.

The construction placed on section 5 by the New York courts, viz., that the word “creditor” therein means judgment creditor, meets our approval. Complainants, not being such creditors, have no right to maintain this suit. It follows that the learned trial judge erred in overruling defendants’ demurrer.

The order appealed from will therefore be reversed, with costs of both courts, and the record remanded for further proceedings.

We have assumed, in disposing of this case, though we do not decide, that the partnership association defendant is a corporation, as that term is used in the statute under consideration.

Moore, C. J., and McAlvay, Blair, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    LEMON v. OAKLAND CIRCUIT JUDGE.
    Circuit Court Commissioners — Appeal—Dismissal—Vacation— Mandamus — Writ op Error.
    Mandamus does not lie to compel a circuit judge to vacate an order dismissing an appeal from a judgment of a circuit court commissioner, plaintiff’s remedy being by writ of error.
    Mandamus by Walter Lemon to compel George W. Smith, circuit judge of Oakland county, to vacate an order dismissing an appeal from the judgment of a circuit court commissioner.
    Submitted May 23, 1905.
    (Calendar No. 21,111.)
    Writ denied June 8, 1905.

      Lodge, Trevor & Brown, for relator.

      James H. Lynch, for respondent.
   Per Curiam.

Relator applies for a mandamus to compel respondent to vacate an order dismissing an appeal from the judgment of a circuit court commissioner. Relator has mistaken his remedy. If he is entitled to relief, he can obtain it by writ of error. Willis v. Gimbert, 27 Mich. 91.

The writ is denied.


author: Blair, J.

text:
    MAIL & EXPRESS CO. v. WOOD.
    1. Pleading — Notice of Recoupment — Breach of Contract-Issues.
    Fraud in the inception of a contract is not provable under a notice of recoupment setting up specific breaches of the contract.
    2. Same — Contract — Assumpsit — General Issue — Matters Provable.
    In assumpsit on a contract, proof that the contract declared on was never made is admissible under the general issue.
    3. Statute of Frauds — Advertising Contraot — One Year.
    A contract to insert an advertisement in a newspaper for one year is not within the statute of frauds.
    4. Contracts —Proposal and Aooeptanoe — Agency— Question for Jury.
    Evidence examined, and held, that whether an order for advertising was accepted orally by a person assuming to be plaintiff’s agent, and whether such person was plaintiff’s agent, were questions for the jury.
    5. Same — Advertising Contract — Construotion.
    A contract authorizing plaintiff to insert in his newspaper defendant’s advertisement on certain days, to be used during one year, as per copy furnished by defendant, will be construed as an agreement to furnish the copy within a reasonable time.
    6. Evidence — Contraots—Parol Evidence.
    Where a written contract between defendant, a manufacturer,
    . and plaintiff, required plaintiff to insert defendant’s advertisement in plaintiff’s paper on certain days during one year, as per copy furnished by defendant, for which payment was to be made at a specified rate per line, there was no ambiguity, so as to authorize the admission of parol evidence showing when publication was to commence, and showing that it was also understood that plaintiff should distribute certain goods to retailers for defendant.
    Error to Wayne; Donovan, J.
    Submitted February 17, 1905.
    (Docket No. 183.)
    Decided June 12, 1905.

      Assumpsit by the Mail & Express Company against Albert E. Wood for work and labor done. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Clark, Jones & Bryant, for appellant.

      Seward L. Merriam, for appellee.
   Blair, J.

This case was commenced in justice’s court; the plaintiff declaring in an action of assumpsit on 'all the common counts, and especially upon the following written agreement:

“Detroit, Mich., June 11, 1901.
“Publishers op Mail and Express,
“ New York, N. Y.
“Gentlemen: Please insert in your paper our advertisement of 2,000 lines, Tuesday, Thursday and Saturday, to be used during one year, as per copy furnished by us, for which we agree to pay you 15c. per agate line monthly for space used, reserving privilege of increasing to 5,000 lines, rate pro ratio. Advertisement to be placed in Crittenden and Co.’s space, but when we so desire we can place it in some other part of paper independent of Crittenden.
“ Respectfully,
“Albert E. Wood.”

The defendant pleaded the general issue, with notice of set-off and recoupment. The notice of recoupment is very long, but it seems essential to set it forth at length, in order to a proper understanding of the proceedings in the circuit court upon appeal. It was as follows:

“To the Above Named Plaintiff: Please to take notice that the above named defendant will, on the trial of the above entitled cause, give in evidence and insist under the general issue above pleaded that—
“ The plaintiff has committed acts of great wrong and injury to this defendant by reason of several injurious acts, by violation of its agreement with said defendant, and by misrepresentations, injury and fraud against this defendant.
“ That the said plaintiff agreed and undertook, through its agent, who acted for said plaintiff, and whose acts were afterwards ratified and confirmed by this plaintiff, to deliver and consign to certain druggists and dealers of the city of New York certain of defendant’s goods, wares and merchandise, before the publishing of advertisements in plaintiff’s paper.
“That the defendant, acting in good faith, did, upon the instructions of said plaintiff, through its said agent, one A. E. Miller, send to New York to the C.' M. Crittenden Co. certain goods which plaintiff undertook through its said agent to deliver to certain druggists and dealers and afterwards to advertise that such goods were to be procured of such dealers.
“ But that said plaintiff wholly neglected to carry .out its said agreement and did not and never did deliver said goods to said druggist's and dealers, to defendant’s great damage and injury.
“That plaintiff, in its said announcements and advertisements, for the publication of which a judgment is sought against this defendant, did specifically announce and state that defendant’s said goods were in stock at the places of business of said druggists, although by reason of the default of plaintiff this statement was false, untrue and injurious.
“Defendant will offer evidence to show further that in its said advertisement plaintiff stated that ‘substitutes’ for defendant’s goods would not be offered by such dealers, but that said statement was untrue, for said dealers did constantly offer substitutes.
“ Defendant will offer evidence to show that said plaintiff undertook to publish a list of the dealers to whom plaintiff undertook to deliver and consign defendant’s goods, with their correct city addresses; but that although plaintiff did publish such an alleged list, the addresses were wrong, false and misleading to the public, and that said dealers were not so located and doing business as stated in said advertisements, to the great injury of defendant.
“ Defendant will further offer evidence to show that the false, misleading, and untrue advertisements so inserted by plaintiff were not a benefit, but, on the contrary, a great and permanent injury to defendant’s business.
“That the failure to carry out the agreements on the part of plaintiff, and which agreements were the sole inducement to this defendant in allowing plaintiff to print such advertisements, was a great injury to defendant’s business, far greater than the amount of said plaintiff’s claim.
“That such false and misleading announcements as made by plaintiff through its failure to keep faith and carry out the agreement made and entered into with defendant, worked far greater injury and damage to defendant than the amount of plaintiff’s said claim.
“ That said advertisements, designed to announce to and infprm defendant’s customers where his said goods were to be obtained, were false and misleading and untrue, and that the greater publicity given to such announcements by said plaintiff, the greater the injury to defendant.
“ That said false and misleading announcements instead of benefiting defendant’s trade worked direct injury by reason of the impossibility of defendant’s customers obtaining his said goods as advertised, and by the further reason that said dealers did substitute other goods for his, so making customers for other goods, not defendant’s goods, although by its said agreement and contract, as ratified in tact by the publishing of said announcements, it was expressly agreed and so announced in said advertisements that said dealers would not substitute other goods but would supply only defendant’s goods when asked for same. But by the reason of the violation of plaintiff of its said contract, and by reason of its false and injurious announcements, and its said failure to deliver said goods, defendant’s customers were unable to obtain said goods, thus making the advertisements of direct and great injury to defendant and to his trade in the city of New York, and outside the city of New York, wherever said newspaper published by plaintiff circulated. And by reason of which several fraudulent acts of plaintiff and said plaintiff’s false and misleading advertisements, defendant’s business has been severely injured wholly without his fault, but solely by reason of the wrongful acts of plaintiff.
“And by reason whereof the said defendant has sustained great injury and damage to a large amount, to wit, the sum of five hundred dollars, which said damages the said defendant will recoup against any claim that may be proved against him by the said plaintiff on said trial, and will apply the same, or as much thereof as may be necessary to the satisfaction of said claim, if any, which the said plaintiff may prove, as aforesaid, and will have the balance certified in his favor.
“ Dated Detroit.
“Yours, etc.,
“Anderson & Rackham,
“Attorney for Defendant.”

Judgment having been rendered in favor of the defendant, plaintiff appealed the case to the circuit court. Prior to the taking of any testimony in the circuit court, defendant’s counsel made his opening statement to the jury, in which he said, among other things:

“We claim that this contract was obtained by the fraud of this man Miller; that is, fraudulent representations and inducements were given to Mr. Wood at that time for the purpose of inducing him to sign this order. This order is not the whole contract. We intend to show the fraudulent inducements, which all the authorities hold is proper and competent.
The Court: I suppose in that way it would be offered as bearing upon the consideration.
‘ ‘ Mr. Merriam: And as bearing upon the inducements.
‘ ‘ The Court: Do you object to it as bearing upon that ?
11 Mr. Clark: Yes. This is the first notice we have had of any representation or fraud in this case.
Mr. Merriam: This isn’t the first inducement that you have had. This case was tried in justice’s court, and Mr. Miller was there.
The Court: What do the pleadings show ?
Mr. Merriam: They show quite fully. (Pleadings read.)
The Court: You have alleged far enough to leave him to say the consideration of the contract, the breach of the contract, the fraud in the inception of the contract, that you may enter upon these things. That is apparently the claim, and that you may state to the jury what you expect to prove as bearing upon those things. There is no doubt about the ruling. (To which ruling counsel for plaintiff then and there excepted.)
The Court: The King Will Case held that the counsel may state what he expects to prove by competent testimony on his side of the case.
Mr. Merriam: We claim it was a matter of inducement and fraudulent misrepresentation,” etc.

After this statement of defendant’s theory, as outlined by his counsel in his opening statement and his replies to the court, plaintiff offered in evidence the alleged contract above set forth, and gave evidence tending to show that the advertising called for by the order was published in the Mail & Express beginning July 15, 1901, and ending on December 5, 1901, upon which defendant had paid the sum of $31.88, leaving a balance due to the plaintiff of $268.27. Plaintiff also called as a witness Mr. William G. Bryant, a member of the bar, who had charge of the suit in justice’s court, who testified to a conversation with defendant, Wood, about the account, in which he asked Mr. Wood if the advertisement was inserted, “and he said yes, but it was not inserted according to the talk he had with Mr. Miller, and the agreement they hadn’t carried out — certain terms in the agreement he had made to him in regard to distribution of certain goods, and that certain druggists didn’t have preparations, as they should have had, and it was a damage to him, considerably, in his business. That was the statement he made to me. The only objection he made to it was that they hadn’t distributed the goods in conformity with some oral agreement he claimed to have had with Miller.” Thereupon plaintiff rested his case.

Defendant, to maintain the issue on his- part, called as a witness Mr. Edward Meiser, the business manager of the Free Press, to whom he exhibited the alleged contract, which was marked “Exhibit A,” and propounded the following question:

Q. I show you paper marked ‘Exhibit A,’ dated June 11, 1901, and ask you to read it. It has been read to the jury. * * . *
Q. Does that order state when this advertisement is to start ? (Objected to as immaterial. The order shows for itself. Objection overruled.)
“A. No, sir; it fails to state.
Q. In an order of that sort— In the use of such orders in the publishing business, Mr. Meiser, who would have the right to designate when they are to start ? (Objected to as incompetent and immaterial.)
The Court: I think that comes within the rule that anything that belongs to a special trade or profession, known to them more than a layman — certainly known better than I would know it — we have to take the expert testimony. He is an expert. (To which ruling plaintiff’s counsel then and there excepted.)
The Court: Who would have it?
“A. The advertiser himself.”

Defendant also testified in his own behalf to the writing and mailing of a letter marked “Exhibit C,” as follows:

“Detroit, Mich., July 10, 1901.
“A. H. Miller, Esq.
My Dear Sir: I have sent with mdse, to Crittenden the 38 advertising plates proofed on the enclosed sheet. You will please note that these are numbered and insertions of advs. are to be in order of numbers on proof, viz.: First insert No. 3, then 4 and so on until entire series has been run, when beginning with No. 3, insert again.
“I am preparing the Satin-Skin Powder samples for the druggists who are to have the special advertising, and as soon as same are ready I will make shipment. Meantime, however, on arrival and distribution of the goods you may start insertion of plates, as per above, and indicated on the enclosed sheet.
“Yours very truly,
“Albert F. Wood.”

That up to the time of writing this letter he had not designated when the advertisement was to start, nor had he given them any material out of which to start the advertising, nor up to that time had they started to advertise, to his knowledge, nor had his order been accepted in writing. Plaintiff’s counsel objected to the introduction of this letter and evidence upon the ground that it was sought by it to vary the contract by parol, in response to which objection the court said:

“You don’t need to read a word on that. Where there is a reduction to writing on the one side, we have a contract unilateral, as they call it; but where was there a meeting of the minds ? This is a proposal where a party is to do so and so, and where is there a full meeting of the minds ?”

Whereupon the objection was overruled, and plaintiff excepted. Defendant also testified that at the time of writing this letter of July 10th he'sent forward the advertising matter and goods to be distributed to the druggists by freight. In the course of his examination the defendant was asked the following question:

Will you state what the usage is as to its being within the control of the advertiser ordering the advertising to designate when this advertising was to start ? (Objected to as incompetent, irrelevant, and immaterial. Objection overruled and exception taken.)”

He was also asked:

Q. Now, on the order, what, if anything, was said by Mr. Miller to you by way of inducement or promises to obtain this order ? (Objected to as incompetent, immaterial, and irrelevant; also that it was trying to add something or take something away.)
The Court: As a rule, this morning, I think, I apprehend it as bearing upon the consideration; that is, what was to be given or what was to be done, as bearing upon the consideration — whether it would be necessary to do anything more, or whether the contract covered everything absolutely. I think we will hear it.
Mr. Merriam: I think it already appears.
Mr. Clark: I take an exception to that, and object to it for the further reason that there is no such claim made in the notice. The notice is purely one of recoupment; no lack of consideration or fraud or misrepresentation, nor effort to rescind the contract.
The Court: No notice of fraud ?
“Mr. Clark: No, sir; purely and simply one of recoupment.
“Mr. Memam: I don’t know what these words mean, then.
“ The Court: Read it again. (Pleadings read.)
The Court: You have stated that sufficiently to put them on notice.
Mr. Clark- I take an exception to that.
Q. Now, Mr. Wood, will you state what the conversation was with Mr. Miller by way of inducement or promises to you in order to secure from you this order ? (Objected to as incompetent and immaterial.)
The Court: I think we had better put that in this way: Was there anything that you was to furnish, whatever, before they started out with the advertising ? Was there anything that you sent on to furnish before they started advertising?
“Mr. Mérriam: That is only a part of it. We have up to date here — I mean up to the date of this order— nothing in the world but the order that is a contract, under the authorities; and your honor is familiar with cases. You struck the nail squarely on the head when you said it is unilateral. It is there in writing or parol, and, if parol, it isn’t actual contract anyway. We have had to resort to oral evidence. We claim the unilateral contract they had was obtained by a fraud, and the case my brother has read is all the authority we need to come into it.
The Court: I think I will open the door, and you may answer. (To which ruling plaintiff’s counsel then and there excepted.)”

Defendant then testified:

“A. E. Miller came into my office — my factory. He stated he was soliciting advertising; that he represented a combination between the New York Mail & Express newspaper and Charles M. Crittenden, wholesale druggists in New York, who were associated in what was called the ‘Crittenden Space’ in the Mail & Express. That was a number of proprietary manufacturing advertisements grouped together, and at the bottom of this space was a list of the druggists’ names that would keep these goods in stock at all times, and produce them when called for by customers; and I told Mr. Miller that I had sold Crittenden & Co. for years, and also that his price for the advertisement- — 3 5c. a line — was very high, inasmuch as the Mail & Express was a comparatively small newspaper. I believe it has about one-sixth or one-seventh of the circulation of the Detroit News, and I doubted the advertising would be of value, commensurate with the cost.
• “ Clark: I want the record to show a further reason for the objection. It isn’t covered by the notice of pleadings in this case, and I take an exception. * * *
“ This Mr. A. E. Miller stated that if I would give him an order for advertising to be placed in the Crittenden space, and that I was to ship my goods to C. M. Crittenden, to be assigned to all these druggists whose names appeared at the bottom of the space in the Mail & Express. Mr. Miller stated that, if I would give him an advertisement, that he would see my goods were shipped to Crittenden & Co. — were shipped and placed with all these druggists; he would give it personal attention also. And with this inducement or fact that my goods would be placed, I gave him an advertisement here, and shipped the stock of my goods to C. M. Crittenden. * * * I shipped the goods about a month later, when I wrote this letter to Crittenden & Co. Shipped by freight. In this shipment I put the plates for the advertising matter. I didn’t send them direct to the Mail & Express. I put them in the freight shipment to the wholesale druggists.”

Plaintiff contends that the defendant entirely changed his theory of the case in the circuit court; abandoning the claim of a breach of contract set up in his notice of recoupment, and defending upon the ground that he was induced to enter into the contract by misrepresentation and fraud. We think the contention of plaintiff’s counsel in this regard is correct, and that the trial judge erred in permitting testimony to be given of alleged fraudulent misrepresentations or inducements under the notice above set forth, which, though somewhat inartistically drawn, is, in our opinion, clearly a plea in recoupment, claiming damages for the breach on the part of plaintiff of a valid, subsisting contract. The trial judge, however, announced his opinion early, and finally decided the case; directing a verdict for defendant upon the ground that the alleged contract was a mere order, which never ripened into a contract, for the reason that it was not accepted by the plaintiff until after its terms as an order had been lawfully changed by the defendant.

If the court was correct in this view of the relations of the parties, any errors that may have been committed in the admission of testimony would probably have been without prejudice, since this defense was available under the general issue; and it was. conclusively shown by defendant, and not controverted by the plaintiff, that the advertisements were published before the defendant’s goods were distributed as required by his letter of July 10th. It becomes important, therefore, to ascertain whether there was any evidence in the case which would warrant the jury in finding an acceptance of the original order prior to the letter of July 10th. In determining this question it is necessary to bear in mind that the proposed contract was not one which the law required to be evidenced by writing. There is no question of the statute of frauds here. Cohen v. Jackoboice, 101 Mich. 409. The order might have been given verbally and accepted verbally, and, although the order was in writing on the part of defendant, it was competent for the plaintiff or its duly authorized, agent to accept it verbally, and in such case a contract would ensue, binding upon both • parties. Plaintiff’s witness Mulheron testified that he was plaintiff’s advertising clerk. “Exhibit A came to me from the business manager of the Mail & Express in the regular course of business, and I entered it as an order. ” Indorsed at the bottom of the contract appeared the following: “Entered July 13th to July 10th, 1903 E. S.” No explanation appears in the record or briefs of this date, “1903,” and we presume it was so written by mistake for “ 1902,” or is a typographical error. The order was evidently sent down to the advertising clerk immediately after receipt of defendant’s letter notifying plaintiff that he had sent the copy to be furnished by him, and publication was begun on the 15th, which was, of course, after the copy had arrived. Defendant testified:

“ I didn’t draw the order. It was dictated by Mr. Miller to one of the clerks, and afterwards signed by me. I don’t think that Mr. Miller or the Mail & Express accepted this order at that time, except orally. They didn’t sign it. There was no written contract of it. * * *
“ A. E. Miller came into my office — my factory. He stated that he was soliciting advertising; that He represented a combination between the New York Mail & Express newspaper and Charles M. Crittenden, wholesale druggists in New York, who were associated in what was called the ‘ Crittenden Space ’ in the Mail & Express.
“ I don’t know how the Crittenden & Co. obtained the space in the Mail & Express. I know they had the space, and the Mail & Express solicited advertisements for the Crittenden space. * * * Before the advertisement started he was in my place of business, and I made-an agreement with him then and there.”

Mrs. Minnie E. Thompson testified for defendant that she was employed by defendant as order clerk when the order was taken, and wrote it out at Miller’s dictation in the presence of Mr. Wood.

“ After it was finished, Mr. Miller looked it over first, and there was some word that he wanted changed, and then it was handed to Mr. Wood, and it was signed. The change that was made was: It read, ‘ To be used for one year,’ and it was changed, ‘ To be used during one year.’ That change was made by Mr. Miller. He objected to the word ‘for.’ He then handed it to Mr. Wood, and he signed it.”

We do not think it can be said, in view of the foregoing testimony, that there was no evidence to go to the jury as to the agency of Mr. Miller, and his acceptance of the order on behalf of the Mail & Express.

The defendant’s counsel also seeks to justify the admission of the testimony and the direction of a verdict on the ground that by the terms of the oral agreement the order was not to become obligatory until the goods were distributed, on the authority of Cleveland Refining Co. v. Dunning, 115 Mich. 238. We do not think the proofs bring this case within the ruling of this court in Cleveland Refining Co. v. Dunning, supra. In that case the defendants signed an order for 10 barrels of oil upon the understanding that it was to be obligatory only in case the defendants should be allowed to cancel a similar order previously given to the Standard Oil Company. There was a clear understanding that the cancellation of the one order was to be a condition precedent to the taking effect ■of the other. In the present case the contention, as stated by counsel for defendant, was:

“We claim that this contract was obtained by the fraud of this man Miller; that is, fraudulent representations and inducements were given to Mr. Wood at that time for the purpose of inducing him to sign this order,” etc.

The testimony of the defendant was in harmony with the theory announced by his counsel, and an expert was called to testify as to the right on the part of defendant, under the order, to designate the time when the advertising should commence. It seems apparent to us that the fact that an agreement in the terms of the order had been entered into by the parties was never questioned, except .-as to its extent, until after the court announced his opinion to that effect. The notice under the plea of the general issue added to and then attacked the performance of the .agreement. The opening statement of his case by defendant’s counsel attacked the contract for fraud. The court took the case from the jury on the ground that there was no contract between the parties at all, because it. was never accepted by the defendant. It is now claimed in addition that the contract, though made, was not to become binding until the goods were distributed. If defendant’s counsel, in stating his theory of the case, was stating the theory upon which it had been tried in the justice’s court, then it seems clear that the plaintiff’s counsel would not be likely to anticipate a change of position in the circuit, involving the whole theory of the defense. We think the case is ruled by Cohen v. Jackoboice, supra, and that the evidence was inadmissible.

We do not think there was any such ambiguity in this •contract as to justify a resort to parol testimony to explain when the publication of the advertisement should begin. Publication was to begin when defendant furnished the •copy therefor, and, no time being specified, the law will imply an agreement to furnish the copy within a reasonable time. Stange v. Wilson, 17 Mich. 342; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147. Plaintiff’s objections to the admission of the testimony of Mr. Meiser and similar testimony should have been sustained.

For the reasons given, we think the judgment should be reversed, and a new trial granted, and it is so ordered.

Carpenter, Montgomery, Ostrander, and Hooker,, JJ., concurred.


author: Ostrander, J.

text:
    MINER v. DICKEY.
    Vendor and Purchaser — Breach of Purchaser — Termination of Contract — Summary -Proceedings.
    Mere breach by the purchaser of the covenant to pay taxes in an ordinary land contract does not put an end to the contract, it not being so provided, nor does it entitle the vendor to maintain summary proceedings for possession of the land without notice of intention to claim a forfeiture and demand for possession.
    Error to Calhoun; Hopkins, J.
    Submitted April 28, 1905.
    (Docket No. 121.)
    Decided June 13, 1905.
    Summary proceedings by Ida M. Miner against Isaac O. Dickey to recover possession of certain premises. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Pringle & Hewett, for appellant.

      Charles F. McKenzie, for appellee.
   Ostrander, J.

Complainant is owner of certain premises. Defendant is in possession under a land contract, of which he is assignee, containing the following provisions :

“ Said party of the second part also agrees to pay all taxes and assessments whatsoever that shall be taxed or assessed on said premises, or upon this contract, or upon the contract interest of said first party in and to said premises created by this contract, including the taxes for the year 1901, and hereby waive any and all claim or right against said party of the first part, her legal representatives or assigns, to any payment or rebate on, or offset against the interest or principal of said contract debt by reason of the payment of any of the aforesaid taxes or assessments. * * *
“It is mutually agreed between said parties, that said party of the second part shall have possession of said premises on delivery of this contract, and shall keep the same in as good condition as they are at the date hereof, until the said sum shall be paid as aforesaid; and if said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such failure, have a right to declare the same void and retain whatever may have been paid on said contract, and all improvements that may have been made on said premises, and may consider and treat the party of the second part as her tenant holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom.”

Taxes' were assessed against complainant upon her interest in the land contract in the year 1903, which defendant refused to pay. There was no other default. On June 2, 1904, defendant called on complainant (his vendor) to make the monthly payment on the contract, when complainant’s husband and agent inquired if he (defendant) proposed to pay these taxes, either to the city treasurer or to complainant. The reply was, in substance, that he did not-propose to pay them to anybody. On the next day, or the day after that, without other notice, and without any demand for possession of the premises, summary proceedings were begun before a circuit court commissioner to obtain possession of the premises. The commissioner determined, as is stated in his return, that defendant was a tenant at will and entitled “to the notice prescribed by law; that such notice was not given.” Complainant appealed, and on the trial in the circuit court, the proofs being concluded, a motion was made for a directed verdict in favor of defendant upon the ground that no notice of forfeiture had been given by complainant to defendant, and no demand for possession of the premises. The motion was granted. Thereafter complainant moved for a new trial, in denying which the circuit judge stated his reasons, which, in part, were as follows:

“ If the complainant was authorized to proceed before the circuit court commissioner to obtain possession without notice to the defendant, it must have been done under and by virtue of the provision of the first subdivision of section 11164, 3 Comp. Laws, such portion of which is applicable to this case reading as follows:
• The person entitled to any premises may recover possession thereof in the manner hereinafter provided in the following cases:
“ ‘ First, When any person shall hold over any lands or tenements * * * contrary to the conditions or covenants of any executory contract for the purchase of lands or tenements * * * and demand of the rent or possession of the premises is waived therein, in writing, and not included in the printed form of the lease or agreement.’
‘ ‘ It not being claimed on the part of the complainant either that the notice to quit which would have brought the subject-matter within the jurisdiction of the circuit court commissioner under the fourth subdivision of the section of the statute above quoted was given, nor that demand of possession of the premises was waived in writing and not included in the printed form of the agreement, inexorable logic forces the conclusion that the circuit court commissioner did not acquire jurisdiction of the subject-matter, and that consequently this court has no such jurisdiction, and could not, therefore, lawfully do otherwise than direct a verdict of not guilty.”

It is the claim of counsel for appellant that upon the breach of the contract by the vendee the vendor had the right to immediately institute proceedings to recover possession. We cannot assent to this proposition. The relations between the parties were contract relations. It is apparent that these relations might continue to exist after breach of the contract by the vendee; the vendor having the right to waive the breach, or to forego her remedy therefor. So long as'the contract relations existed, defendant had the right to possession of the premises — was not unlawfully in possession. We do not mean to hold that parties to such a contract may not stipulate that a specified breach or breaches of the contract shall at once determine the contract relations, and work a forfeiture of the vendee’s rights thereunder. The contract in this case does not so stipulate. The provision is that after breach the vendor shall have a right to declare the contract void. The rule that the vendor must terminate the contract relations by notice of forfeiture or otherwise, or that the defendant must do some act or thing which of itself determines the contract relation, before proceedings to recover possession of premises can be begun, is well settled. Crane v. O’Reiley, 8 Mich. 312; Raynor v. Haggard, 18 Mich. 72; Corning v. Loomis, 111 Mich. 23; Michigan Land & Iron Co. v. Thoney, 89 Mich. 226. The same principle has been applied in cases of leases where the tenant did some act, the effect of which was to end the contract relations entered into. Randall v. Chubb, 46 Mich. 311; Lewis v. Sheldon, 103 Mich. 102; Marvin v. Hartz, 130 Mich. 26. Except that in that case the particular method of giving notice of the election to forfeit was specified in the contract, the case at bar is like that of Crane v. O'Reiley, supra, and is ruled by it.

It results that the-judgment below was right, and is affirmed.

Moore, C. J., and Grant, Blair, and Montgomery, JJ,, concurred.


text:
    CRONENWETT v. UNITED STATES HEALTH & ACCIDENT INSURANCE CO.
    1. Appeal and Error — Briefs—Statement of Facts.
    Where no statement of facts is made in the brief, as required by Rule 40, none will be made by the court.
    2. Same — Questions of Fact — Conclusiveness of Verdict.
    Where, in an action on an accident policy, the only questions raised by the assignments of error are questions of fact, as to which the evidence was conflicting, the verdict will not be disturbed.
    Error to Wayne; Hosmer, J.
    Submitted April 28, 1905.
    (Docket No. 113.)
    Decided June 13, 1905.
    Assumpsit by Catherine Cronenwett against the United States Health & Accident Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Thomas A. E. Weadock, for appellant.

      James Swan, for appellee.
   Ostrander, J.

In this case, counsel having entirely ignored Rule 40 of this court, no statement of facts will be attempted, excepting to say that the suit is brought to recover upon a policy insuring Louis H. Cronenwett against accident resulting from bodily injuries effected solely through external, violent, accidental and involuntary means, of which there shall be external and visible marks upon the body,” etc.

The brief of counsel for appellant recites the errors assigned — none of them based upon exceptions to the admission or rejection of evidence, nor upon the charge of the court to the jury — and contains the following state ment:

“Three questions of fact are fairly raised on this record.
“1. It is admitted the suit was not begun in time unless the company waived it. Did it do so ?
“ 2. Did Louis H. Cronenwett commit suicide ?
“3. Did his intoxication lead to his death ?
“ These questions must each be determined in plaintiff’s favor, or she cannot recover. They can all be determined from this record, for it contains all the evidence.”

These three propositions are discussed in the brief as disputed questions of fact, concerning each of which there was conflicting evidence. No other questions raised by the assignments of error are discussed. Apparently the jury answered these, questions favorably to plaintiff.

We do not find that the brief presents any reason for disturbing the verdict, and consequently the judgment is affirmed.

Moore, C. J.,and Grant, Blair, and Montgomery, JJ., concurred.


author: McAlvay, J.

text:
    MILLER v. SMITH.
    1. Vendor and Purchaser — Contract—Parol Evidence.
    Defendants, who were the owners as heirs of an undivided interest in certain real estate, executed a receipt to plaintiff for $50, reciting that it was the first payment of $11,000 for the price of the property described, the balance to be paid as soon as defendants furnished perfect title; that they agreed to give a warranty deed to plaintiff or his assigns as soon as the price was tendered. Held, that such instrument constituted an unambiguous contract in writing, and could not, therefore, be varied by parol evidence of a condition that it was to be operative only if defendants were able to induce the other heirs to join in the conveyance.
    2. Same — Tender—Waiver.
    Where plaintiff, holding a contract to purchase certain real estate from defendants, mother and son, demanded a deed, through his agent, from the son, stating that the money would be paid when the deed was delivered, and the son stated that his mother refused to sign the deed, that the deal was off, and that they were selling the property too cheap, such facts constituted evidence of waiver of a tender of the balance of the price.
    3. Same — Action—Recovery—Specific Performance.
    Where defendants, who were the owners as heirs of an interest in certain real estate, contracted to sell the same, and agreed to make title to the entire property, the fact that specific performance could not be decreed was no ground for denying the purchaser’s right to damages for defendants’ breach.
    Error to Wayne; Davis, J., presiding.
    Submitted April 12, 1905.
    (Docket No. 59.)
    Decided June 13, 1905.
    Assumpsit by Richard L. Miller against John F. Smith and Mary Smith for breach of a contract to convey certain real estate. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Wilkinson, Post & Oxtoby, for appellant.

      James Swan, for appellee.
   McAlvay, J.

The plaintiff was a real estate dealer in the city of Detroit. Defendants were the owners of an interest in certain real estate situated in said city. This property had belonged to one Henry Smith, who died leaving a widow, the defendant Mary Smith, and ten. children. One of these children quitclaimed to the other nine heirs, leaving each the owner of a one-ninth interest. On June 3, 1903, the widow and one of the sons (John F. Smith), the defendants in this suit, entered into the following agreement with plaintiff, through his agent, R. Z. Chandler, for the sale of this property:

“Detroit, June 3d, 1903.
“ Received of Richard L. Miller $50 as first payment of $11,000 for the purchase of Lots Nos. 8 and 9 block 27, being 100 feet facing Fort Street, and being the northeast corner of Eighth and Fort Streets, Detroit, Mich., the balance of the purchase price being payable as soon as we furnish perfect title to above property, we to furnish a Burton or Union Trust abstract.
“We further agree to give a warranty deed to Richard L. Miller or his assigns as soon as purchase price is tendered.
“John F. Smith.
“Mary Smith.”

The Union Trust Company abstract, duly certified, was furnished as agreed, June 12, 1903, which showed the title as above stated. Plaintiff, at the time he secured the agreement above set forth, from defendants, had a prospective purchaser, and on June 11th entered into a written agreement with him to sell this property for the sum of $12,150. The agent, Chandler, informed defendant John F. Smith that plaintiff was selling the property to Thomas H. Long, and thereupon negotiations were entered into between defendant John F. Smith and Mrs. Long, the wife of Thomas Long, in which Smith agreed to sell the property to her for $11,000, less $50 that had been paid on the property. Defendant Mary Smith refused to sell for less than $14,000. Plaintiff afterwards, through his agent, Chandler, demanded the deed from John F. Smith; stating that the money would be paid when the deed was delivered. Smith said his mother refused to sign the deed; that the deal was off; that they were selling too cheap. The parties understood the condition of the title at the time the contract was made. Plaintiff brought suit upon this agreement to recover his damages on account of the refusal of defendants to perform on their part. The case was tried before a jury, and, upon the close of plaintiff’s case, in which the foregoing facts were made to appear, the court, on motion of defendants’ counsel, instructed the jury to return a verdict for defendants. Plaintiff brings the case to this court on writ of error. Error is assigned upon the action of the court in directing a verdict for defendants, and the charge to the jury in connection therewith. The errors assigned relative to the charge of the court will first be considered.

The court charged that, in order to know what the real contract or agreement was between these parties, it must be supplemented by the oral proof which had been admitted; that by the talk between the parties “it appears and is conceded by counsel that it was contemplated that the other heirs should join in the conveyance, * * * that it was contemplated by these parties, before recovery could be had, there should have been a tender made by the plaintiff, or else it should be shown that there was such a refusal made as would show that he was not resting in his own wrong, or that he was acting wrongfully and contrary to the spirit of this agreement or arrangement between these parties.”

The suit was brought upon the written agreement signed by defendants, above set forth. The writing is unambiguous and complete, and requires no extraneous evidence to explain its meaning. It is fundamental that no oral evidence to change or vary its terms would be admissible. As far as this record shows, the writing was signed by defendants with full knowledge of its contents. It is a clear agreement for the sale of certain real estate, properly described, for a certain price, upon certain terms, and acknowledges the receipt of part payment. Plaintiff, having accepted this agreement by making part payment, became a party to it. In the case of Mull v. Smith, 132 Mich. 618, where, in relation to a memorandum for the sale of real estate, the questions here raised were discussed, the court said :

“When the memorandum of the oral contract is in writing and signed by the vendor, it is not the contract, but a memorandum, which makes it binding upon him if accepted by the vendee. This is valid evidence of the contract. But can it bind him if not binding upon the vendee? The statute differs from the English statute, which binds the one sought to be charged only when he has signed it. Under such a statute it' may be doubtful if, relying solely upon the memoradum signed by himself, the vendor could enforce or recover damages for the breach of the contract. * * * But whether this is so or not, we cannot doubt that, before either party can make the contract the basis of a suit or action, the element of mutuality must be discernible. See Wilkinson v. Heavenrich, 58 Mich. 574. * * * It being admitted that the vendor has made and the vendee accepted such a memorandum, it must, in the absence of fraud, be taken as conclusive, not subject to variation by parol evidence, and, if it contains all of the requisites of a valid contract, it is binding on both; otherwise not.”

In the case at bar the memorandum is much more full and explicit in its terms than in the case above quoted. It contained all the necessary elements of a land contract, together with the acknowledgment of acceptance and payment of a part of the purchase price by plaintiff. It was a valid contract for the sale of land, upon which an action might be brought by either party to recover damages claimed on refusal to perform by the other. It is admitted that the plaintiff knew the condition of the title; that there were others besides the defendants who held interests which must be acquired before defendants could convey to plaintiff. What arrangement these defendants might make with the other heirs in order to secure good title was no concern of the plaintiff. They had agreed to sell the land to him for a certain price, and warrant the title. The contract was not conditioned upon procuring’ the transfers from the other heirs. Defendants had undertaken to procure complete title, and failure to do so would constitute default in their contract.

The demand for the deed and the refusal by defendants in the manner above set forth was evidence tending at least to show that tender of the balance of the purchase price was waived by defendants, and we need not consider at this time whether the circumstances would warrant a holding that a tender would be futile and unnecessary. The court was in error in holding that the writing did not show the agreement between the parties, and in taking from the jury the question of waiver of tender.

The court charged and held that plaintiff could not recover, unless, in a court of equity, specific performance of this contract would have been granted. Specific performance óf a contract to sell land cannot be enforced where the vendor is not the owner. In such case the remedy of plaintiff is in an action at law. Defendants contracted to sell the land in question, of which they owned but an undivided interest. In case of failure to perform on their part, the fact that specific performance could not be enforced would not bar plaintiff from his right of action at law to recover damages for such failure.

As to the instruction of the court to the jury to return a verdict for the defendants, considering our conclusions in discussing other errors assigned in the case, it is only necessary to say that such instruction was erroneous.

The judgment is reversed for the reasons stated, and a new trial ordered.

Moore, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.