author: MoAlvay, C. J.

text:
    ABBOTT v. CITY OF DETROIT.

    1. Municipal Corporations — Personal Injuries — Defective Street — Notice of Claim — Evidence.
    On the issue whether a notice of claim for injury on a defective street was delivered to the head of the law department of the city of Detroit or his chief assistant, as the charter provides, evidence examined, and held, sufficient to support a finding of delivery notwithstanding the testimony of a clerk in the corporation counsel’s office that the notice was handed to him and that he kept it in his desk until after three months had expired without showing it to the corporation counsel or his assistant.
    .2. Highways and Streets — Personal Injuries — Defective Sidewalk — Notice of Defect — Constructive Notice.
    In an action against a city for a personal injury caused by a defective street crossing, an instruction that in order for the plaintiff to recover the defect must have been a patent defect of such a character as to put the walk in a condition not reasonably safe for travel, and must have existed so long that want of knowledge of its condition by the proper city officials was improbable, is sufficiently favorable to the defendant on the question of constructive notice of the defect.
    3. Same — Damages—Loss of Earnings — Instructions.
    Undisputed evidence that plaint.ff suffered loss in earnings while kept from work by reason of the injury; that the injury was serious and permanent and that plaintiff’s earning capacity was permanently impaired, authorizes an instruction that plaintiff’s damages “includes not only loss of time occasioned by the injury past and present and prospective, but it also includes moneys which she has disbursed,” etc.
    4. Same — Speculative Damages — Instructions.
    Instructions on the subject of damages for a personal injury examined, and held, not subject to the criticism that they-allowed the jury to speculate.
    5. Same — Evidence—Accidents to Others. .
    In an action against a city for a personal injury caused by a defective street crossing, it is not error to allow others who were walking abreast with plaintiff at the time of her fall to testify that they also fell at the same time and from the same oause.
    Error to Wayne; Rohnert, J.
    Submitted June 14, 1907.
    (Docket No. 96.)
    Decided December 10, 1907.
    Case by May Ellen Abbott against the city of Detroit for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      J. Walter Dohany (Timothy E. Tarsney, of counsel), for appellant.

      Miller, Smith, Alexander & Paddock, for appellee.

       Rehearing pending.

   MoAlvay, C. J.

In this case plaintiff recovered a judgment of $900 against defendant for personal injuries claimed to have been received by reason of a fall caused by a defective cross-walk in said city. The injury occurred June 9,1904. Plaintiff, about 6 o’clock p. m., in company with three others who were going home from their work walking four abreast, was crossing a gutter plank at a street corner. One of the others stepped upon one end of the plank which caused it to rise up, and all were thrown down. It caught plaintiff’s foot and she was thrown forward upon her hands and knees. One of her knees was severely injured. This gutter plank was six or seven feet long, covering the gutter at the crossing, and was supported by iron lugs at each end resting upon the curbs between which the water in the gutter passed under the plank. It was the ordinary device used in Detroit to cover the gutter at street crossings. The unsafe condition relied upon was that the curb at one end where the lug rested upon it had become worn and broken out so that when this plank was stepped, upon at that place it went down an inch or two, rising up at the other end, and this condition had continued for a long time.

Defendant asks this court to set aside this judgment for several reasons. The principal error assigned and relied upon is that the court should have directed a verdict for defendant because the notice of plaintiff’s claim required by the city charter had not been given. This provision is as follows:

“No action shall be brought against said city, nor any of its boards, commissions or officers for any negligent injury unless it be commenced within one year from the time when the injury was received nor unless notice shall be given in writing within three months from the time of such injury to the head of the law department or to his chief assistant of the time, place and cause of such injury, and of the nature thereof.” Detroit City Charter (1904), § 279.

It is not claimed by plaintiff that personal service was made upon the corporation counsel or his chief assistant, but that this case is ruled by the case of Beattie v. City of Detroit, 137 Mich. 319, and that from the facts the inference may fairly and reasonably be drawn that the notice reached the hands of the corporation counsel.

The service was made by a young man employed in the office of plaintiff’s attorney. The plaintiff’s showing is that he took the notice, which was inclosed in an envelope properly addressed, to the corporation counsel’s office. He made an affidavit at the time— ■

“That he served the notice * * * upon Timothy E. Tarsney, corporation counsel, by delivering the same to Denton Guinness who was in charge of the office at the time, the said Tarsney being absent therefrom.”

As a witness he testified that Guinness and a boy were in the office; that he gave the notice to Guinness and asked him his name; that Guinness left the room and came back and gave him his name; that he did not remember that he went there again or that the conversation occurred as related by Guinness; that to the best of his knowledge Guinness did not say that he was not the proper party to take the notice; that he thought if the circumstances had occurred as claimed by Guinness he would have remembered them. Mr. Guinness was at the time chief clerk in the corporation counsel’s office. He testified that this notice was served on him August 5, 1904, at the office; that he looked at it and told the boy to wait; that the witness took it to Mr. Hally (one of the assistants) and spoke to, him; that he returned with it and explained to the messenger how the charter provided notice should be served, and he then went away; that he returned soon and handed the paper to witness saying he was instructed to serve it upon any one over 21 years of age; witness immediately put the paper in his desk and kept it there for more than three months, when he put it in the files. His duties were to have charge of the law register, to make a record of all cases, and to look after the general clerical work of the office. He says the notice was addressed to the corporation counsel, and that he did not give it to him or to his chief assistant until after three months, for the reason that he had told the messenger what to do and he did not do it, and he thought that was sufficient. The record shows that on August 9,1904, four days after plaintiff’s petition was filed and this claimed service made, the petition was presented to the council by the clerk and was referred to the committee on claims and accounts. Testimony of claimant and her witnesses was taken before this committee, December 6, 1904. .At this hearing Guinness, under instructions, appeared and represented the corporation counsel’s office and examined witnesses. On Tuesday, January 3,1905, this committee reported t,o the council that they had considered this claim, had heard the testimony, and after consultation with the corporation counsel recommended that it be allowed at the sum of $50. This report was accepted and by unanimous vote of the common council plaintiff’s claim was allowed.

If it could be held that the testimony of Guinness is conclusive we should sustain defendant’s contention, for unless the notice did reach the corporation counsel or his chief assistant the ’statute was not complied with. Beattie v. City of Detroit, supra, is consistent with this statement. That case is not authority for the proposition that the notice under consideration is properly served by leaving it in the office of the corporation counsel. It merely holds that from the evidence in the case it might be presumed that the notice so served reached the person to whom it was addressed. This presumption, however, is not a presumption of law. It is a presumption of fact. From the evidence in the case at bar the jury, under the authority of the Beattie Case, might have inferred that the notice reached the corporation counsel. They were not precluded from doing so because of the positive testimony of the witness Guinness. There was the testimony of the messenger and other evidence in the case tending to contradict and discredit the testimony of this witness. His credibility and the weight to be given to his testimony were questions for the jury. Druse v. Wheeler, 26 Mich. 188; Michigan Pipe Co. v. Insurance Co., 92 Mich. 482 (20 L. R. A. 277); Goppelt v. Burgess, 132 Mich. 28. The court was not in error in denying the defendant’s motion for a directed verdict.

Several errors are assigned involving questions of constructive notice and latent defects. These are based upon a refusal to give certain requests of defendant, and to direct a verdict for defendant on the ground that it was not shown that there was any constructive notice to defendant of the defect which is alleged to have caused the injury. As to the condition of the curb and gutter and the gutter plank, a number of witnesses testified on the-part of the plaintiff. This testimony was not contradicted by defendant. It was sufficient to warrant the jury in finding that at this place the cross-walk was out of repair and not reasonably safe for foot passengers, and that such condition had existed for a-long time, and was a condition which would be disclosed by a test in the nature of the ordinary use of the walk. The court charged the jury at. length as to defects and their character. He defined correctly patent and latent defects; told them that if this defect was latent plaintiff could not recover. He correctly charged the rule as to what would amount to constructive notice of a patent defect and the duty of the city in keeping its streets and walks in repair and the condition of safety required; also the conditions under which a city is liable for defective walks, and finally he summarized and repeated, as follows:

“ Before you can find for the plaintiff you must determine that this is a patent defect. Then you must find that it was of such a character as to put this sidewalk in a condition not reasonably safe and fit for travel; you must find that it existed for such a length of time that want of knowledge of its condition by the proper city officials is improbable, and then you must find that the accident did happen to the plaintiff at that point and that injuries resulted therefrom. If you find all of these facts —and you must find each of them — then you will determine an amount that will compensate the plaintiff for her damages. If you find against the plaintiff on any one of these propositions you will find for the defendant.”

Urtel v. City of Flint, 122 Mich. 65; Menard v. Bay City, 114 Mich. 450. See, also, Hunter v. Village of Ithaca, 141 Mich. 539.

Errors are also assigned upon the part of the charge given by the court relative to loss of earnings by plaintiff, and upon refusal to give defendant’s request upon that question. The following is the portion of the charge necessary to quote:

“ If your verdict is for the plaintiff, you will allow her such damages as will compensate her for the injuries she has suffered. That includes not only loss of time occasioned by this injury, past and present and prospective, but it also includes moneys which she has disbursed in and about her cure, and also for the discomfort which is occasioned by the injury, chagrin and mortification which she feels by reason of the injury, and any of these things resulting from the injury. That is, you will allow her for damages an amount which will compensate her for the injury and for the damages which she has suffered, if you find for the plaintiff.”

Also,—

“You will determine her loss of earnings by reason of the injury, and if she has suffered loss you will compute that in damages.”

The objectionable clause in the first quotation is as follows: “That includes not only loss of time occasioned by this injury, past and present and prospective,” etc. There was undisputed evidence that the plaintiff had suffered loss in earnings while she was kept from work by reason of the injury. It was also undisputed that this injury was a serious one and would be permanent; that before the injury she was healthy and strong, now she is not able to walk .to and from her work, and must do work where she can sit all day with her right foot resting upon a block. This plaintiff is, and will be, confined to only such employment as will offer her these conditions. Before her injury she could seek employment of any and all kinds. It is apparent that her earning capacity as a working girl is impaired by reason of this injury.

The charge is not subject to the criticism that it allowed the jury to speculate. It was confined to such damages arising from this injury as the jury from the evidence might find by reason of the impairment of her.earning capacity. There was evidence as to the wages she earned upon which the jury could base their judgment as to the amount of these damages. The small verdict returned is an indication that no speculation was indulged in by the jury.

Error is also assigned because the court allowed two of the young ladies who were with plaintiff at the time of this accident to testify that they also fell down, and how they fell. Plaintiff had testified without objection that all of the girls had fallen when the plank tipped up. It is not claimed that any of the others were injured. The testimony was material as showing the nature of the defects in the crossing at the time.

We find no error in the case. The judgment is affirmed.

Carpenter, Grant, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILKINSON v. DUNKLEY-WILLIAMS CO.
    In JUNCTION — 'V IOLATION — CONTEMPT—DAMAGES RECOVERABLE.
    Where a defendant has been adjudged guilty of contempt in violating an injunction and a reference is made to determine the injury to complainant, complainant is not entitled to recover in the contempt proceeding for the damages done before the injunction was violated, but for those damages must be relegated to the remedy provided in the original decree, • or some other appropriate remedy.
    Contempt proceedings by Thomas L. Wilkinson against the Dunkley-Williams Company for the violation of an injunction.
    Submitted June 18, 1907.
    (Calendar No. 20,623.)
    Decided December 10, 1907.

      Samuel H. Kelley (Colin P. Campbell, of counsel), for the motion.

      Cook & Chandler and Alfred J. Mills, contra.
   Per Curiam.

The case has been here in several of its phases before. See 139 Mich. 621, 141 Mich. 409. In the first of these opinions a decree granting complainant an injunction was affirmed. In the last opinion it was held that the defendant had ignored the provisions of the decree and should be punished as for contempt, and the case was referred to the circuit court commissioner to take testimony to determine the extent of the punishment.

The decree affirmed in the first opinion reads in part as follows:

“That on the 10th day of May, 1903, the defendant, without consent of the owner thereof and without right or authority, entered upon said lots four, five and six, and dug and removed a quantity of earth from said lots and from the street known as Black River street, for a distance of thirty-seven (37) feet and a width of an average of fifty-seven (57) feet, the outer margin of such excavation being circular or elliptical in shape, and the depth of such excavation being sufficient to create a depth of water of several feet, and that said defendant used the said excavation and the water so standing therein as an addition to their turn basin for the turning of their vessels without the consent of the complainant and without any right or authority; and the court doth further find that the complainant has no adequate remedy at law.
“It is therefore ordered, adjudged and decreed, and this court in virtue of power therein vested doth order, adjudge and decree that the injunction theretofore granted and issued, in so far as the same restrains and enjoins entry by the defendant upon that part or portion of said lots that was wrongfully excavated .by the defendant on the 10th day of May, 1903, be and is continued and made permanent, and that the said defendant and its officers and agents be and are hereby enjoined and restrained from going upon any part of said lots embraced within the line of said excavation, with their boats or vessels, except only' for the purpose of replacing the earth taken therefrom and for the purpose of refilling said excavation; and the said defendant is hereby ordered to refill the said excavation within sixty (60) days from the date of this decree, or on its failure so to do the said complainant may so refill said excavation and may recover from said defendant the cost thereof, to be determined by reference to a commissioner of this court under the rules and practice thereof.”

The complainant did not appeal from this decree.

The decree referring the proceeding to the circuit court commissioner reads in part • as follows:

“ It is therefore adjudged and determined, that said Dunkiey-Williams Company is guilty of the contempt of. court as alleged against it. And the complainant now alleging that actual loss and injury has been sustained by him by the misconduct of said defendant and its contempt of court in the violation of said injunction, and that he should be awarded damages pursuant to the statute in such case made and provided: Therefore it is further adjudged and determined, and the court doth adjudge and determine that the matter be and is referred to Oran W. Rowland, Esq., one of the circuit court commissioners in and for the county of Van Burén to take such proofs,” ■etc.

Testimony was taken at very considerable length before the commissioner who has returned the same to this court with his report. Neither party at the time of the taking of the testimony had filled the .excavation mentioned in the decree.

It is the contention of the relator that in this proceeding. he is entitled to recover the damages caused by making the excavation made upon his property, as well as the damage caused by the violation of the injunction, and he put in his evidence before the commissioner upon that theory.

It is the contention of respondent that the only damages which can be recovered are those caused by the violation of the injunction and that none were caused, and therefore there can be no recovery. Neither of these contentions can be sustained. The relator cites Chapel v. Hull, 60 Mich. 167. An examination of that case shows the damage for which recovery was allowed was done pending the injunction. The principle of law which should control is clearly stated in Montgomery v. Booming Co., 104 Mich. 411, and cases cited therein, and it is not necessary to restate it here. The relator cannot recover in this proceeding for the damages done before the injunction was violated, but for them must be relegated to the remedy provided in the original decree, or some other appropriate remedy. He is entitled to recover for the injury caused by the violation of the injunction. It is difficult to determine just the extent of that injury as it is so largely a matter of opinion. It does appear however that the banks of the excavation were caused to fall into the excavation, and it would be a moderate estimate to say the injury amounted to at least $15.

The relator will recover that amount, with costs of this proceeding.


author: Ostrander, J.

text:
    LICKLY v. BISHOPP.
    1. Drains — Review of Proceedings — Certiorari — Notice — Sufficiency — Intervention of Holiday.
    Where a writ of certiorari to review drain proceedings was returned on November 26th, a notice given on that day that the cause would be brought on for hearing on December 1st, was sufficient under section 4346, 2 Comp. Laws, though a holiday (Thanksgiving Day) intervened 'between the giving of the notice and the day of hearing. Circuit Court Rule No. 36 (a).
    2. " Appeal and Error — Assignments of Error — Sufficiency.
    On error to review a judgment for defendant in certiorari to review drain proceedings, an assignment that the court erred in denying plaintiff’s motion for an amended return is too general, and will be overruled, it not being pointed out that any record is omitted from the return, and the brief not directing attention to any specific amendment which should have been ordered.
    3. Drains— Review of Proceedings — Certiorari — Issues of Fact — Trial.
    Plaintiff in certiorari to review proceedings to establish a drain is not entitled to have issues of fact framed upon the affidavit and return and have such issues tried at the circuit.
    4. Appeal and Errors-Assignments of Error —Sufficiency— Certiorari.
    On error to review a judgment in certiorari, the errors assigned in the affidavit for the writ of certiorari will be considered sufficiently assigned for the purposes of a review by this court of a judgment involving the errors so assigned.
    5. Drains — Establishment—Disqualification of Commissioner.
    ■ Under Act No. 27, Pub. Acts 1901, disqualifying a drain commissioner when he is interested by reason of himself, wife, or child owning land that would be liable to an assessment for benefits, and also in cases in which he “maybe otherwise disqualified to act in the premises,” it is not error for the probate court to find a commissioner disqualified by reason of his holding a mortgage upon lands liable to assessment.
    Error to Hillsdale; Chester, J.
    Submitted June 21, 1907.
    (Docket No. 34.)
    Decided December 10, 1907.

      Certiorari by Henry H. Liekly and others to review the action of S. Chase Bishopp, special drain commissioner, in establishing a drain. There was an order dismissing the writ, and plaintiffs bring error.
    Affirmed.

      Barre, Smith & Chase, for appellants.

      Clayton A. Powell, Prosecuting Attorney, and Spencer D. Bishopp (Fellows & Chandler, of counsel), for appellee.
   Ostrander, J.

Henry H. Liekly and Henry E. Tuttle are the only names signed to the affidavit for the writ of certiorari. They profess to represent a large number of interested persons, some of them named in the affidavit, who are not, except by recital, brought upon the record. No legal significance appears to be claimed for the allegation and none is perceived. The return denies that the plaintiffs are other than those above named. The record contains what is called a bill of exceptions of some 30 pages, the matter therein consisting of argument and colloquy occurring at the hearing, and errors are assigned as follows:

“The court erred in overruling their objections to the hearing of said cause on the date the same was heard.
“The court erred in overruling their motion for the amended return.
“ The court erred in rendering the judgment rendered dismissing the said writ of certiorari.
“The court erred in refusing to quash the said drain proceedings.”

The writ was returned on November 26th, and on that day notice was given that the cause would be brought to hearing on December 1st, the statute permitting a hearing “upon five days’ notice given to the opposite party.” 2 Comp. Laws, § 4346. On November 30th, counsel for plaintiffs moved for an amended return, specifying 65 particular amendments desired, many of them apparently based upon the idea that issues of fact might be framed and tried in the circuit court. This motion was, on December 1st, denied and an exception taken. The court also held the notice of hearing to be sufficient and counsel for plaintiffs excepted. The objection made was that a holiday (Thanksgiving Day) intervened the giving of the notice and the day of hearing. The notice was sufficient. Circuit Court Rule 36 (a); Anderson v. Baughman, 6 Mich. 298; Gantz v. Toles, 40 Mich. 725. This disposes of the first assignment of error.

The second assignment of error is too general. It is said in the brief that an inspection of the petition and return will show that the points raised could not be properly presented without an amended return, and we are referred to the discussion which took place at the circuit. It is not pointed out that any record is omitted from the return. The brief directs attention to no specific amendment which should have been ordered. The contention that issues of fact may be framed upon the. affidavit and return and tried at the circuit is without merit.

The third and fourth assignments of error are not special and, if consideration of the case was limited by them, would deserve no further attention. In view of the decisions of this court in Berry v. Lowe, 10 Mich. 9; Burnham v. Van Gelder, 32 Mich. 490; Chicago, etc., R. Co. v. Campbell, 47 Mich. 265; Wilson v. McCrillies, 50 Mich. 347, and of apparent lack of uniformity in the practice, it is proper to say that errors assigned in the affidavit for the writ of certiorari will be considered sufficiently assigned for the purposes of a review by this court, upon writ of error, of a judgment rendered in the circuit court involving errors so assigned. We have examined the alleged errors relied upon by counsel for appellants in the brief. It appears that the petition for the drain is sufficient to confer jurisdiction; that plaintiffs were served with the citation issued by the probate court upon the application for appointment of commissioners; that they are two of those who declined to release the right of way and damages; that Henry Lickly, one of the plaintiffs, filed a written demand that a jüry be appointed. To the probate court and to this jury, under the law, is confided the determination of many of the questions now presented here. It does not appear that cause was shown against granting the prayer of the application, that any objections were made to any errors or irregularities in the proceedings. 2 Comp. Laws, § 4325. None of the evidence submitted to the jury is before us. It does not appear that objections were made to the report of the jury or to its confirmation. Indeed, the writ does not run to the judge of probate. Plaintiffs in certiorari occupy the position of affirming the existence of facts not appearing by the files and records in the drain proceedings, which facts are alleged as reasons why the court should declare the proposed improvement to be illegal. They are facts which were properly addressed to the probate court or the jury either as reasons for not appointing commissioners, for not finding the proposed improvement necessary, or for refusing to confirm the report. Many of the objections are specifically answered by the opinion of thfs court in Patterson v. Mead, 148 Mich. 659. We find but one which requires discussion. The proceeding was begun in 1905. S. Chase Bishopp was then county drain commissioner of Hillsdale county, and made the survey and first order of determination. Hissuccessor' in office, appointed in October, 1905, was Joseph H. Edinger. He filed with the judge of probate a petition or suggestion in accordance with Act No. 27, Pub. Acts 1901, in which he stated that he was disqualified to act in this matter “by reason of being the owner of lands subject to assessment for the construction of said drain. ” An order was made, which was duly published, reciting the facts and appointing February 5th for a hearing upon the petition. It does not appear by any record returned here what became of this application. It resulted in no determination or order. On April 4th, upon the application of persons, most of whom signed the petition for the improvement, April 21st was fixed as a day for hearing and notice was published. It is set out in this application that Edinger was disqualified because he was holder and owner of a mortgage upon lands liable to be assessed. On April 21st, the court made and entered an order determining that Edinger, the county drain commissioner, was disqualified for the reason that he was owner and holder of a mortgage upon lands liable to assessment for said drain, and appointed S. Chase Bishopp, found to be a resident freeholder, not a resident of either township affected, and “ a fit and proper person for said trust,” as special county drain commissioner. Meantime, the judge of probate had been solicited by various persons, including the petitioners, to find Edinger qualified to proceed with the matter of the drain. The statute disqualifies when the commissioner is interested by reason of himself, wife, or child owning lands that would be liable to an assessment for benefits, and requires action also “incases where such county drain commissioner may be otherwise disqualified to act in the premises.” The validity of this legislation is not questioned. It is made the duty of the court, upon proper application, to determine, after a hearing, whether the county drain commissioner is disqualified. A proper application appears here. See section 2 of the act. The natural inference from all that is made to appear upon the subject is, that Edinger was, when he asked for the appointment of a special commissioner, disqualified, and that later he sold the land the ownership of which disqualified him and claimed then to be not disqualified. The fact that he owned the mortgage was the only ground of disqualification finally asserted and was the ground of decision.

Plaintiffs in certiorari assert that it was error, as matter of law, to find the commissioner to be disqualified. We are therefore required to consider whether, giving all of the provisions of the statute effect so far as it is reasonably possible to do so, we can say, as matter, of law, that the county drain commissioner was not disqualified. Some meaning must be given to the words “otherwise disqualified to act in the premises.” Before the passage of Act No. 27, Pub. Acts 1901, no statute prohibited the commissioner, because of his interest, from performing all the duties of his office in all cases. It is fair interpretation of the act to say that it is intended to secure an indifferent person to perform such duties, and that, in legislative contemplation, the officer may be disqualified although neither he nor his wife nor child owns land which is liable to an assessment. Undoubtedly, the people of a community are entitled to the services of the officers duly elected or appointed to perform public duties in that community. But no higher public policy is served by any recognized rule of the law than by that rule which demands that indifferent tribunals shall determine private rights. We are not informed concerning the value of the land covered by the mortgage or the amount secured by the mortgage. The affidavit for the writ avers, only, that ‘ ‘ said Edinger was not disqualified and owned no land or property liable to be assessed in said proceedings. At one time he owned a farm but sold it and held the mortgage thereon,” and attached are the petition for and the order appointing the special drain commissioner. It otherwise appears that when he assumed the duties of his office Edinger was disqualified and so, himself, advised the probate court. There was a hearing and an adjudication. We are of opinion, and the case does not require that more shall be said, that upon this record we cannot say that the finding of the probate court should be reversed, because we cannot assume that the owner of a mortgage upon land liable to an assessment for a drain may not be, for that reason alone, disqualified, within the meaning of the statute.

We find no error and the judgment of the circuit court is affirmed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred. ' ■


author: Montgomery, J.

text:
    SUPERIOR DRILL CO. v. CARPENTER.
    1. Evidence — Written Contracts — Parol Evidence — Admissibility.
    A contract of agency for the sale of agricultural machinery provided that the principal would accept without indorsement good farmers’ notes taken for the principal’s machinery. Defendant agent transferred to plaintiff principal notes taken in his other business which were not paid, and on learning of their origin plaintiff refused to accept them and brought suit for the balance represented by them. Meld, that evidence that plaintiff’s State agent had in former years under similar contracts taken notes not given for plaintiff’s machinery was admissible, not as contradicting the terms of-the written contract, but as bearing upon the question of the authority of the general agent to accept that kind of notes, and as bearing upon the truth of his statements as a witness.
    2. Principal and Agent — Authority of Agent — Statements of Agent — Res Gest^ü — Admissibility.
    The extent of the authority of plaintiff’s agent cannot be proved by his own declarations though made as a part of the transaction on which plaintiff relies to maintain his suit.
    3. Same — General Agent — Authority—Evidence—Sufficiency.
    On the issue whether plaintiff’s State agent was a general agent with power to settle generally and close up transactions in such a way as he deemed best for plaintiff, even to accepting settlements upon different terms from those provided by contract, evidence examined, and held, sufficient to go to the j ury upon that question.
    4. Same — Ratification—Evidence—Sufficiency.

      Held, that if it was necessary to bring home to any one other than plaintiff's State agent knowledge of a previous settlement made by him with defendant, the evidence failed to show any such information conveyed to plaintiff’s home office as would justify an instruction on the presumption of ratification arising from knowledge.
    5. Evidence — Written Contracts — Parol Evidence — Admissibility.
    Defendant was allowed to testify that when signing the contract he asked why the words regarding taking notes were there, and was told by the agent that the company would always take notes for their drills, that he would be present personally to make settlement and would take notes for other drills rated good if taken on their blanks. Held, that the testimony was inadmissible as an attempt to vary the terms of a written contract by parol.
    Error to Ionia; Davis, J.
    Submitted June 20, 1907.
    (Docket No. 56.)
    Decided December 10, 1907.
    Assumpsit by the Superior Drill Company against Claude B. Carpenter and George H. Carpenter for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.
    Reversed.

      H. J. Horrigan and B. A. & W. E. Hawley, for appellant.

      B. A. Colwell and A. A. Ellis, for appellees.-
   Montgomery, J.

This action is brought to recover a balance of $120 claimed to be due from defendants to the plaintiff on account of agricultural implements sold and delivered to the defendants in the year 1901 under a contract dated March 9th of that year. It is conceded that this sum is due plaintiff from defendants unless by a settlement two notes made by one H. T. Berndt in the sum of $60 each and payable to the plaintiff should be credited to defendants, in which case the account stands balanced.

The defendants were by the contract of 1901 constituted plaintiff’s agents to represent them in certain territory. On the first page of the cover of the contract appeared the following statement:

“ This contract is subject to the approval of the Superior Drill Co., and contains the full and entire agreement between the parties hereto and no outside verbal understanding is of any force or effect whatever. Settlement will be required in accordance with this contract.”

The contract provided terms of payment, and in writing on the margin appeared these words:

“ Good farmers’ notes taken for sale of Superior Drills and approved by first party and local banks at the time of settlement to be accepted without indorsement.”

Then follow other statements, concluding with this:

“ This paper contains the full and entire agreement between the parties hereto, and no outside verbal understanding is of any force or effect whatever.”

At the time of these transactions W. W. Miller was the general State agent of the plaintiff, and, as he testified, had charge of the Michigan business of the Superior Drill Company. He testified that he constituted and appointed defendants his local agents; that he settled with them under the contract of 1901, receiving the two Berndt notes in question. That at the time he received these notes he had not received any information from the defendants that the Berndt notes or any other accepted by him were given by the maker for any other goods or property than those manufactured and furnished to defendants by the plaintiff. The statement of this witness that he had no knowledge that defendants were turning out other notes than those received in payment of goods sold to defendants by plaintiff is disputed by defendants’ testimony.

The Berndt notes were not paid at maturity, and subsequently P. A. Miller, a traveling agent for the company, went to Lake Odessa, where defendants reside, and asked about the maker. At that time he did not have the notes in his possession but was told by defendants that they thought the notes would be paid. Several weeks later he again went to Lake Odessa and later on called up defendants by telephone, and finally in July or August, 1903, went to Lake Odessa and saw Berndt. He was informed by Berndt that the notes were not given for goods or machinery of plaintiff but were given in a horse trade made with defendants. He returned to Lake Odessa and told defendants what he had learned from Mr. Berndt, and it is claimed that this was the first information that the company or any of its agents had that the notes were not taken for any of the goods sold by plaintiff to defendants..

Defendants however claim that there was information in the transaction itself by reason of the fact that more' notes were turned over to the agent, Miller, in the settlement of the 1901 deal than the number of drills which were sold would amount to, and further, that from the course of dealing in previous years the plaintiff’s agent, Miller, knew that notes not taken for goods sold by plaintiff had been tendered and received.

On the occasion in August, 1903, Miller left the Berndt notes with one of the defendants and took his receipt. The notes were not paid, and in February, 1904, the plaintiff sent these notes to Henry J. Horrigan, its attorney at Ionia, Michigan, who on the 15th of February, 1904, wrote defendants stating that the notes had been received with the understanding that they were given for machinery of plaintiff’s sold by defendants, and that plaintiff ascertained some time later that these notes were not given in payment for goods but taken in a horse trade, and that plaintiff declined to accept the notes. In July, 1904, no adjustment having been made, these notes were ten-\ dered back to defendants and left with them and still remain in their possession.

The verdict was in favor of the defendants. Plaintiff brings error. The errors assigned relate to the admission of testimony and the charge of the court. Evidence was offered by defendants tending to show that under contracts containing the like provision as that in the contract of 1901 the plaintiff had on previous occasions (in previous years) settled with defendants taking farmers’ notes not given for goods of plaintiff sold by defendants. This was objected to but received, and afterwards a motion was made to strike it out. We think this testimony was admissible, not for the purpose of contradicting the terms of the contract, but as bearing upon the question of the authority of the general agent, W. W. Miller, to accept this kind of notes, and as bearing likewise upon the question of the truthfulness of his statements. It is true this testimony was received before Miller’s deposition was introduced, but as the deposition later made it competent for this purpose no prejudicial error would have resulted, from its admission on that ground.

Subject to objection and exception, defendant Claude Carpenter was permitted to testify to statements of Miller to the effect that he had authority to accept notes of the character in question. At the close of the case, an instruction was requested that statements of Miller as to the extent of his authority should be stricken from the evidence, on the ground that an agent’s authority cannot be proved by his statements made outside of court. The court admitted this testimony as part of the res gestee, presumably on the authority of Haughton v. Maurer, 55 Mich. 323. We are disposed to think that the doctrine of that case has been misunderstood. The statement is. made in the headnote that,—

“Declarations by a person claiming to be an agent, and constituting a part of his transactions as such, may be shown as res gestee on the question of his authority.”

What was said by the court in the case was:

“We have found no evidence admitted as to declarations of Hamilton which did not form part of transactions which he was assuming to conduct as agent. If he had authority they were therefore admissible as res gestee.”

This is quite a different thing from saying that such declarations are admissible for the purpose of proving his authority. The exact reverse is implied by the decision, viz., that before his declarations are admissible as a part of the res gestae, his authority should be proven; and it would follow that upon the question of authority they are not admissible. The rule is settled that the authority-of an agent cannot be proven by his own declarations. Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 253; Hatch v. Squires, 11 Mich. 185; Gore v. Assurance Co., 119 Mich. 136; Mechem on Agency, § 276.

The case was submitted to the jury upon a charge which in the main fairly presents the issues. It was submitted to the jury to determine as to whether the State agent, W. W. Miller, was a general agent with power to settle generally and close up transactions in such way as he deemed best for the interests of the company. It is contended on the part of the plaintiff that there was no evidence tending to show this authority, and on the part of the defendants it is contended that such authority was conclusively shown. We think the circuit judge properly submitted this question to the jury. Mr. Miller himself testified that he was the general agent representing the company in this State. But the record is silent as to whether that agency included the extraordinary power of accepting a settlement upon different terms from what the contract provided. It was open to inference by the jury that he did have such authority, and if he possessed that authority the case was fully within Inglish v. Ayer, 79 Mich. 516. The doubt we have had is as to whether the inference should not have been drawn as a matter of law. But we incline to the view that the correct result was reached.

The court, in instructing the jury as to what would amount to ratification by the company, instructed them in effect that if the company permitted a general agent to make settlements in which it was agreed to take farmers’ notes without reference to whether they were taken for the company’s drills or not, he would have authority to do so in this instance. Defendants asked the court to charge the jury that there was no testimony tending to show that plaintiff was ever informed that the notes received by Miller on settlement of the contract of 1899 were not given for the sale of its goods. The court, in refusing this request, charged the jury that they must be satisfied that plaintiff either had a direct knowledge of the facts as to these notes they had so accepted and acted upon and collected, or that they had such control of those matters as would lead an ordinarily reasonable man to the conclusion that they ought to have been informed as to the condition from the fact that they collected them, sent them back to their agents for the banks, or that they collected them from the parties who gave them, and that all of those things might be considered as bearing upon whether they did have any knowledge of the transaction. If it was necessary to bring home to any one other than Miller the knowledge of the settlement in 1899, the evidence failed to show any such information conveyed to the plaintiff’s home office in Ohio as would justify this instruction.

We think the other questions presented are not likely to arise upon another trial. As there must be a new trial there is one question not distinctly raised by the assignments of error which should be noticed. One of the defendants was permitted to testify that, when signing the contract with the company with the provision relating to the taking of farmers’ notes received on sale of drills, he asked Miller why he wanted those words in the contract, and was permitted to testify that Miller stated that the company would always accept notes taken for their drills and that he would be present personally to make settlement and would take notes for other drills rated good if taken on their blanks. This was clearly an attempt by parol to vary the terms of a written contract. It may be said that this testimony did not refer to the particular contract in issue, but the obvious purpose was to show that the provisions of the contract as written meant something quite different from what their terms imported.

For the error pointed out the judgment will be reversed, and a new trial ordered.

Blair, Ostrander, and Moore, JJ., concurred. Hooker, J,, concurred in the result.


author: Carpenter, J.

text:
    HAMMOND v. NOBLE.
    Specific Performance — Existence of Contract — Evidence.
    On a bill for specific performance of an oral contract for the sale of corporate stock, evidence examined, and held, insufficient to establish the contract as claimed by complainant.
    Appeal from Wayne; Mandell, J.
    Submitted October 9, 1907.
    (Docket No. 7.)
    Decided December 10, 1907.
    Bill by Charles F. Hammond against Herbert W. Noble for the specific performance of a contract. From ■ a decree dismissing the bill, complainant appeals.
    Affirmed.

      Thomas A. F. Weadock, for complainant.

      Charles F. Delbridge, for defendant.
   Carpenter, J.

Complainant brings this suit in equity to specifically enforce a contract whereby he agreed to buy and defendant agreed to sell 100 shares of the stock of the Michigan Fire & Marine Insurance Company. The circuit court dismissed his bill and he appeals to this court.

It is the claim of complainant that by his contract of purchase — which was an oral contract — he was to take the stock “subject to any assessment thereon on account of recent losses of said insurance company by fire in San Francisco, California, and elsewhere.” It was the claim of defendant that by the contract of purchase complainant agreed to guarantee said assessment. Upon this issue the testimony was in conflict, and we agree with the trial judge that complainant did not establish his case by a preponderance of testimony. In other words, we are not convinced that the contract was as complainant avers, and on this record we are compelled to find that it was as defendant claims. That contract complainant has no right to have specifically performed, for before suit was instituted he refused defendant’s proffer to perform it. It is not to be assumed from this opinion that complainant had a right .to specifically enforce the contract averred in his bill. In the view we have taken of this case it is unnecessary to decide that question and we have not decided it.

Decree affirmed, with costs.

Me Alva v, C. J., and Grant, Blair, and Montgomery, JJ., concurred.


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    WHITE v. SHAW.
    1. Taxation — Tax Sales —Notice to Redeem — Service—Deceased Owner.
    The notice to redeem from a tax sale prescribed by section 140 of the general tax law, in the case of a deceased owner, must be served upon the executor or administrator of such deceased owner or upon his heirs.
    3. Same — Notice.
    Where land belonging to several owners is assessed as an entirety and sold to the State for nonpayment of taxes, a subsequent purchaser of the State’s title is not entitled to go into possession until six months after he has caused the notice provided by section 140 of the general tax law to be served upon each of the owners, and until this has been done any one of the owners or grantees may redeem, notwithstanding he has been served with the notice and the statutory period has elapsed.
    Appeal from Marquette; Stone, J.
    Submitted October 10,1907.
    (Docket No. 13.)
    Decided December 10, 1907.

      Bill by Peter White against George W. Shaw and the Marquette National Bank to redeem from a tax deed. From a decree for complainant, defendants appeal.
    Affirmed.

      A. B. Eldredge and A. E. Miller, for complainant.

      M. J. Sherwood, for defendants.
   Carpenter, J.

The lands in controversy being assessed as an entirety were sold to the State for the nonpayment of taxes. The State after the time of redemption expired sold them — as an entirety — to defendant Shaw. At that time the record title stood in the names of complainant, James E. Jopling, and Henry M. Atkinson, each of whom owned an undivided one-third interest. Shaw served the notice prescribed by section 140 of the general tax law upon complainant and Jopling more than six months before this suit was instituted. Subsequently, Shaw transferred his interest to defendant, the Marquette National Bank. Complainant, having purchased the right of his co-tenant Jopling, brings this suit to obtain a re-conveyance, and prevailed in the lower court. He insists that, notwithstanding the lapse of six months after notice to him, he has the right to a reconveyance of the interest acquired by Shaw because no valid service was ever made on his co-tenant Atkinson.

We are first called upon to determine whether a valid notice was ever served on Atkinson. The bill charges that Atkinson “died ten or twelve years ago.” As this charge is not referred to in the answer, it must be taken as true. Under these circumstances the notice should have been served upon “the executor or administrator of said deceased person or upon his heirs.” Section 140. No such notice was served. This brings us to the important question in the case, viz., Did the failure to serve notice upon Atkinson extend the time in which his co-tenants might demand a reconveyance ? Upon this question we are so well satisfied with the opinion of the learned trial judge that we adopt it. (We have, however, taken the liberty of making a very slight change to better answer an argument of defendant advanced in this court.)

‘ ‘ Each parcel of these lands was assessed, taxed and sold as an entirety. The owners of the different interests might have had their undivided interests taxed separately. They had the right, under the statutes, to pay or redeem their separate interests within the time prescribed by the statutes. This they did not do. When the purchase was made at the auditor general’s office, and the deeds issued to defendant Shaw for the entirety, none of the owners of undivided interests could further claim the right to redeem except upon the payment of the whole sum paid by Shaw with one hundred per cent, additional, and the other sums prescribed by law. What are the rights and duties of the tax title purchaser ? He must give his notice, not to a holder of an undivided interest only, but he must proceed against the * grantee or grantees under the last recorded deed in the regular chain of title to said land.’
“ His notice must be directed ‘ to the owner or owners of any and all interests in the land,”’ and it informs them that he “ has title ” to the land therein described and that they “are entitled to a reconveyance thereof ”on complying with the terms therein stated.
“The assessment, payment and redemption are all regulated by the statute, and if we can correctly construe and interpret the statute, we have solved the problem. It seems very clear that the tax title purchaser cannot go into possession until he has served the notice on all of the grantees under the last recorded deed, and that until he has thus complied with the statute, the right of redemption remains to all of such grantees; and this is rendered very clear by a reference to section 141.
‘“Any grantee or grantees under the last recorded deed in the regulan chain of title, or under tax deeds to such lands, or any mortgagee or mortgagees named in all undischarged recorded mortgages, or any assignee thereof of record at the time of giving of said notice, or any executor, administrator, heir, trustee or guardian of said grantee, mortgagee or assignee, as provided in section one hundred forty of this act, shall be entitled to receive from the person so claiming under and by virtue of such tax deed, at any time within six months after the personal service of such notioe, or the date of mailing said notice by registered mail, or the first publication of such notice, as so provided, a reconveyance of such interests in such land so held, together with all certificates and tax receipts issued as a condition of such purchase, upon payment to the owner of such tax deed, or to the register in chancery of the county in which the lands are located, of the amount paid upon such purchase, together with one hundred per cent, in addition thereto, and the lawful fees or costs for such personal service, or substituted service, which fee shall be the same as provided by law for service of subpoenas, or for orders of publication, or the cost of such service by registered mail, and the further sum of five dollars for each description, without additional cost or charge.’
“ In Pike v. Richardson, 136 Mich. 414, it was held that sections 140 and 141 should be construed together, the period allowed for redemption being coterminous with the period during which the holder of the tax title may-take action, so that the personal service referred to in section 141 contemplates a service completed by filing a return.
“The tax title holder cannot proceed by ‘piecemeal’ to cut off the right of redemption of each part owner. Until he has complied with the statute as to all, the right of redemption remains to all. It seems to me that this is the reasonable construction that is given to these statutes. In the late case of Williams v. Olson, 141 Mich. 580, the Supreme Court s'aid:
‘ ‘ ‘ The legislative purpose is plain, A person who buys delinquent tax lands of the auditor general is not invested with all the rights of a landowner, nor are adverse titles and interests in the land extinguished until the owners of such titles and interests are afforded, by the act of the tax title holder, opportunity to pay the taxes and a penalty, and obtain a reconveyance. A short period of limitation is established, which begins to run upon the giving of the statute notice. The essential idea of the legislation is opportunity for the delinquent taxpayer. The period of opportunity begins with notice, and runs, according to a construction already given the statute by this court, until such time as the tax title holder has brought himself within the statute conditions for taking action. Pike v. Richardson, supra.
“Would the defendant Shaw be entitled to a writ of possession as to these lands by showing six months’ service on White and Jopling only? Clearly not. (See language of section 142.) Then it must be that the tax title holder is not entitled to go into possession until six months’ notice has been served upon all grantees or owners ; and until this has been done, any one of them may redeem.”

The decree is affirmed, with costs.

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


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    MUNCIE WHEEL & JOBBING CO. v. FINCH.
    1. Sales —Implied Warranty —Latent Defect — Burden of Proof as to Character of Defect.
    Where a defect in certain gearing was discoverable by inspection, unless because of the difficulty of removing a steel housing which covered it, the burden is upon the buyer, when sued for its price, to show the means by which the housing was secured, if he would avoid the estoppel which would otherwise arise from his failure to inspect within a reasonable time.
    2. Same — Breach of Warranty — Damages—Harmless Error.
    Where, in an action for the price of certain machinery, in which defendant claims damages because of defects in the articles furnished, the jury render a verdict for the plaintiff for the full amount claimed, thereby showing they had no occasion to consider the question of defendant’s damages, alleged errors in the charge respecting defendant’s damages are immaterial.
    3. Appeal and Error — Assignments of Error — Necessity.
    Questions not raised by any assignment of error will not be considered though discussed in the brief.
    4. Trial —Misconduct of Counsel — Provocation by Party Complaining.
    That plaintiff’s attorney called defendant a liar while cross-examining him as a witness, while not justifiable, will not cause reversal, where the attorney was at the time unde. great provocation., caused by an unresponsive statement of the witness charging him with suppressing evidence, and the court promptly reproved counsel and counsel withdrew the statement and apologized.
    5. Same — Argument—Propriety.
    An argument by counsel that defendant’s contention is not made in good faith will not be regarded as error where the circumstances are such that defendant’s good faith is a proper subject of inquiry and comment.
    Error to Wayne; Murphy, J.
    Submitted October 10, 1907.
    (Docket No. 28.)
    Decided December 10, 1907.
    Assumpsit by the Muncie Wheel & Jobbing Company against Edward B. Finch and William A. Pungs for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Dioight C. Rexford, for appellants.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Carpenter, J.

Defendants, doing business as co-partners, contracted with the plaintiff to purchase 15 automobile gears. The controversy in this case relates to seven of those gears. These gears were received by defendants as early as June 27, 1904, and were by them returned to plaintiff . August 23, 1904, on the ground that the teeth did not mesh. Plaintiff seeks in this suit to recover the contract price of said gears. Defendants resist this claim and ask damages for the breach of the contract. The case was submitted to a jury who rendered a verdict for plaintiff for the full amount of its claim.

The trial court charged the jury:

“The burden rests upon the purchaser of goods, such as are involved in this case, within a reasonable time to make such a reasonable examination and inspection of them to discover any defects, and if there were any defects in the goods on their receipt, discoverable in such a time, and if they were not discovered, the defendants could not set up those defects; they are supposed to be es-topped from setting them up.” .

Defendants contend that this charge was erroneous. They insist that the defect in the gear was a latent one, and that instead of leaving the question to the jury, the trial court should have decided that they were under no obligation to discover it within a reasonable time. The defect in question was discoverable by an examination, but it required the removal of the housing — steel casting —which inclosed the gear. Defendants insist that it also required the removal of the grease upon the gear, but it cannot be said that it is shown by this record — it is certainly not conclusively shown — that there was any grease upon the gear when received by them. Defendants’ obligation to remove the housing and examine the gearing is one which might depend on the method by which said housing was attached in place. If, for instance, it was fastened by a thumbscrew and removable at will, it would present no obstacle to a discovery of the defect in question, while it might be otherwise if it were rivetted in its place. There is nothing in the record which shows how said housing was attached. What inference shall be drawn from this omission ? Manifestly that depends on where the burden of proof lies, and the inference will be against the party who has that burden. Under the principle of Smith v. Pickands, 148 Mich. 558, the burden rested upon defendants who had accepted the gears to prove that they had a right to return them. To meet this burden, the testimony must, at the very least, satisfy the tribunal to which it was addressed that they could not, by the exercise of reasonable care, have discovered the defect within a reasonable time. If they were prevented from making this discovery by an irremovable housing, they could easily have proved it, and it was their duty to prove it. Not having done so, they cannot complain because the question was submitted to the jury.

Complaint is made because the trial court left it to the jury to say, in the event of their finding that defendants were entitled to damages, whether plaintiff had notice that the gears in question were intended to be used on a certain contract, the profits of which it is claimed defendants lost because the gear was defective. Defendants say that this was erroneous because the notice to the plaintiff was proved by the undisputed testimony. While I do not think that the notice was established by undisputed testimony, I think it best to answer defendants’ complaint by saying that the jury having rendered a verdict for the full amount of plaintiff’s claim, they had no occasion to consider the question of defendants’ damages. As they made no use of the charge complained of, we are not called upon to determine its correctness. Brown v. Harris, 139 Mich. 374; Sterling v. City of Detroit, 134 Mich. 33; N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212.

It is said in defendants’ brief:

“The court erred in instructing the jury that if they (defendants) accepted them (the gears) they were not entitled to damages for delay.”

No assignment of error raising this question is referred to, and we can discover none. We, therefore, do not consider it.

Misconduct of counsel. Complaint is made because plaintiff’s counsel, in cross-examining defendant Pungs, said: “You are a liar, Mr. Pungs.” We answer this complaint by quoting from the opinion of the learned trial judge in denying a motion for a new trial:

“The entire testimony bearing upon the incident referred to should be borne in mind. While the statement of plaintiff’s counsel was not justified, yet he was under great provocation offered by the defendant Pungs, who was being cross-examined by him at the time. The charge made by the witness, and it was not responsive to any question put to him, was couched in this language: ‘You know as well as I do that you have got that letter and can produce it if you want to.’ (And it was in reply to this accusation that counsel called witness a liar.)
“The manner of the witness and the directness of his statement left no doubt, I think, in any hearer’s mind that he was charging the examiner with the suppression of evidence. This manifest meaning was later withdrawn and the colloquy between counsel and the witness at that time was such as to have removed from any intelligent mind the prejudice, if any, which the use of the term ‘ liar ’ had raised against the witness. But, moreover, there was reproval by the court, and specific remedial instructions to the jury twice during the episode. * * * To this should also be added the admission of impropriety and the apology made by the offending counsel. It seems to me it would be a wholesome practice to leave a witness who, by an unwarranted charge, provokes prejudicial language from an examiner, in any situation which might naturally be expected to arise and which does follow from such impropriety. However, this was not done, but care was taken by the court to remove any resulting harm.”

Complaint is also made because plaintiff’s counsel charged that defendants’ contention that the gears were defective was not made in good faith. We also answer this complaint by quoting from said opinion of the trial judge:

“ I do not think that counsel for plaintiff transgressed the bounds of legitimate argument or examination as urged. It was plaintiff’s contention that the gears in question were up to the required standard. Payments on account were made by the defendants after the time when they, according to the present claim, had knowledge of the alleged defects now complained of. As late as July they talked about ordering additional gears for a racing machine. Under these circumstances the good faith of the defendants was a proper subject of inquiry and comment.”

Other complaints are made. We have examined them and find them devoid of merit. They raise no question which demands discussion.

Judgment affirmed.

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


text:
    CITY OF PORT HURON v. WRIGHT.
    1. Taxation — Property Taxable — Credits—Executors—Claims Due from Legatees.
    Where a testator bequeathed to his partners his interest in the partnership assets, consisting largely of the stock in trade, fixtures, etc., of a merchandising business, on condition that they pay 90 per cent.' of its appraised value to his executors in 15 equal annual installments, with interest, the legatees, by remaining in possession and making some of the payments, entered into a contract and incurred an indebtedness to the executors which might be enforced by an action, and created a credit which was taxable to the executors under section 3837, subd. 6, 1 Comp. Laws.
    2. Same — State Tax Commission — Review of Assessments — Notice — Sufficiency.
    A notice published by the State tax commission May 13th of a hearing to review assessments to be held May 18th is a sufficient five days’ notice under section 152, Act No. 154, Pub. Acts 1899.
    3. Same — Credits—Assessment—Including Exempt Property.
    A claim that an assessment of credits due to the executors of an estate was excessive because that portion of the estate constituting the residue thereof, bequeathed to certain benevolent societies, was exempt under section 3832, subd. 1, 1 Comp. Laws, is untenable, where only one of such societies was incorporated under the laws of this State, and it does not appear by the record that the interest of that one was in- ■ eluded in the assessment. .
    4. Same— Overassessment — Including Exempt Property.
    Where the entire of the credits due to executors of an estate was not the property of a benevolent society-as residuary legatee, but only so much thereof as should remain after paying expenses of' administration, debts, and specific legacies, a claim that the assessment of such credits was excessive because the interest of the benevolent society, exempt under section 3832, 1 Comp. Laws, was included, amounts only to a claim that the assessing officers placed too high a valuation on the taxable portion of the credit, an exercise of judgment which cannot be collaterally attacked.'

      5. Judgment — Res Adjudioata —Probate Court — Inheritance Tax — Basis of Assessment — Conolusiveness on Assessing Officers.
    A decision of the probate court that the amount, of inheritance tax to be paid to the State by executors should be fixed not “at the present value of the future payments to be made by ” certain legatees, but “from time to time as the money or the property of the estate should come into the hands of the executors,” is not an adjudication that the executors have no such property in the possible future payments by the legatees as to make • the same taxable to the executors as credits under section 3837, subd. 6, 1 Comp. Laws.
    Error to St. Clair; Tappan, J.
    Submitted October 14, 1907.
    (Docket No. 182.)
    Decided December 10, 1907.
    Assumpsit by the city of Port Huron against Asa H. Wright and Charles E. Boyce, executors of the last will and testament of Frederick Saunders, deceased, for taxes. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Phillips & Jenks (Jasper O. Gates, of counsel), for appellants.

      Joseph Walsh, for appellee.
    This is a suit to recover city taxes for the years 1903 and 1904. In the circuit court it was tried without a jury, a finding of facts rendered, and judgment entered for plaintiff. We quote from said finding of facts:
    “1. Frederick Saunders, a resident of the second ward of Port Huron, and who in his lifetime had been engaged in business with Albert and Fred J. Dixon under the firm name of F. Saunders & Company, died July 21, 1900, leaving an estate consisting of real estate and personal property, and a will duly executed and admitted to probate in St Clair county, October 8, 1900.
    “2. The fifth and sixth paragraphs of said will are as follows:
    “ ‘5th. I give, devise and bequeath to my partners, Albert Dixon and his son, Fred J. Dixon, to them, their heirs and assigns, forever, all my right, title and interest in the firm, business and property of F. Saunders & Go., including all my interest in the goods, furniture, fixtures, book accounts, notes, dues, claims, demands, teams, horses, wagons, street R. R. bonds, and stock now owned by said firm of F. Saunders & Co., and all my interest in the real estate owned by said firm at my decease and the furniture, fixures and buildings now used by said firm in carrying on their business and the land on which said building stands and used with the same, but all the devises, legacies and bequests contained in this 5th clause of this my will are upon this express condition and with this express reservation that the said Albert and Fred J, Dixon shall pay to my executors hereinafter provided for ninety (90) per cent, of the appraised value of the property herein given to them, such amount to be paid in fifteen equal annual payments or faster if the said Dixons so elect and also shall pay interest annually on all sums unpaid at the rate of one (1) per cent, per annum, such appraisal to be made by appraisers to be appointed by the probate court of St. Clair Go., and their appraisal to be taken as the basis for an estimate for the amount to be paid. And further condition to be complied with by the said Dixons is that they shall give to the said executors security for the payments to be made by them if required by said executors so to do, such security to be to the satisfaction ■of the said executors. .
    “ ‘ 6th. All my private, individual property shall be converted into money by my executors hereinafter provided for, and whenever a sufficient sum shall be realized for a dividend either from my individul property or from payments by the said Dixons or both, such dividends shall be made and the same shall be paid over to the several legatees hereinbefore mentioned pro rata to the amounts given them.’
    “ 3. After making certain specific bequests, aggregating about $22,000, the residue of the property was, by the will, divided equally among five Baptist Benevolent Societies: The American Baptist Home Mission Society, the American Baptist Missionary Union, the American Baptist Education ’Society, Baptist Ministers’ Aid Society of Ohio, Indiana, Michigan, Illinois, and Wisconsin, and the Baptist Convention of the State of Michigan. The interests of all these societies were afterwards transferred to the Baptist Convention of the State of Michigan, a domestic corporation, incorporated under Act No. 42 of the Session Laws of 1842.
    “ 4. The probate court appointed the defendants herein and R. S. Patterson executors and trustees, who qualified and filed an inventory of the property of the estate. Pattersen subsequently deceased. Appraisers were appointed as provided for in the fifth paragraph of the will and the value of the interest of the estate in the assets to be conveyed to them, was as follows: Interest in the partnership assets of the estate of F. Saunders & Company, $47,300; south part of lot three of Block 55, White’s plat of Port Huron, $12,500; total $59,800. Ninety per cent, of this appraised value would be $53,820, and each annual payment $3,588.
    “5. Albert and Fred J. Dixon continued the business under the name of F. Saunders & Co. and were assessed for the personal property, wholesale grocery stock, and real estate, store building of the partnership, and paid taxes thereon, and prior to the beginning of this suit had made to the said executors three of the payments provided' for in the fifth paragraph of the will.
    “6. The first report of the executors to the probate court was made in January, 1902, showing that they had received one payment and interest from the Dixons, and after paying expenses and a percentage of the specific bequests had on hand cash $591.24.
    “7. The executors’ second annual report was filed in January, 1903, showing the receipt of a second payment from the Dixons, and interest, and after payment of expenses and a percentage of the specific bequests, the cash balance in their hands was $869.20.
    “8. The third annual report of the executors was filed January, 1904, showing the receipt of a third payment and interest from, the Dixons, and a balance on hand, in cash, of $4,822.30.
    “9. During each of these years, the executors had no other personal property in their possession or under their control, unless the amounts payable by the Dixons under the fifth section of the will constituted an assessable credit.
    “10. On October 14, 1903, a decree was entered in the circuit court for the county of St. Clair, in chancery, subrogating the Baptist Convention of the State of Michigan in the place and stead of all the other residuary legatees, and authorizing the Dixons to pay all the legacies due to the residuary legatees to the said Baptist Convention.
    “ On December 21, 1903, the probate court for the county of St. Clair made an order in the estate of Frederick Saunders to the same effect and directing that all of the interests of the other residuary legatees be assigned and transferred to the said Baptist Convention, all of the residuary legatees and the executors being parties to both proceedings and consenting thereto. * * *
    “15. For 1903 the assessors of Port Huron assessed the said executors for perspnal property, $23,900. The board of State tax commissioners raised this assessment to $35,900. The notice of the meeting of the board of State tax commissioners to examine and review the rolls of Port Huron was dated the 9th day of May, 1903, the first publication being had May 13th, 1902, the date of the hearing named therein was the 18th of May, 1903, at ten o’clock a. m. * * *
    “Thetotal tax levied upon this assessment for 1903, was $670.07.
    “For 1904 the board of assessors of Port Huron assessed the defendants’personal property $23,900, no change being made by the board of review or the State tax commissioners. The total tax levied upon the above assessment for 1904 was $507.60.
    “ 17. The personal tax assessed, to the executors of the estate of Frederick Saunders for each of the years was based entirely upon the unpaid payments of the Dixons under the fifth section of the will. The said unpaid installments being treated and considered as a credit within the meaning of section six of paragraph 3831, Compiled Laws of 1897.
    “18. January 6, 1904, in the probate court for St. Clair county, an order was entered in the estate of Frederick Saunders fixing and determining the amount of inheritance tax upon said estate due to the estate was fixed at the present value of the future payments to be made by the Dixons. The executors then filed a petition asking for a rehearing in the matter and determining the tax,' and after due notice to all parties interested, including the auditor general of the State of Michigan, the county treasurer of St. Clair, the auditor general being present by his deputy, and one of the deputy attorney generals of the State of Michigan appearing for the county treasurer and the State of Michigan, an order was entered that the prior order determining the amount of inheritance tax be set aside and that the tax as to all legacies be paid and determined from time to time as the money and property of the estate should come into the hands of the executors.”
    The circuit court also found the following conclusions of law: '

      “ 1. The effect of paragraph five of the will of Frederick Saunders was, to provide for a sale of his partnership interest to the Dixons, who by their action entered into contract to pay to the executors the amount of the appraised value, and this action created a taxable credit in the hands of the executors to the amount of 90 per cent, of the appraisal. * * *
    “ 3. The assessment of 1903 and the taxes levied upon it are valid.
    “ 4. The assessment made for 1904 and the taxes levied thereon are valid.
    “5. It is further my conclusion that the several amounts to be paid to the Baptist societies named in the will cannot be'deducted from the amount assessed,, as exempt from taxation. It is conceded in argument that but $100 to the local church has been paid and that it will be several years before the specific bequests are paid and the bequests to these residuary legatees become payable.
    “ I further find that there can be no deduction from the assessment of 1904, $23,900, because of the order of the judge of probate dated December 21, 1903, directing payment of the several bequests to the Baptist societies direct, and discharging the executors as to these payments.
    “The amount originally to be paid by the Dixons was $59,800; the assessment of $23,900 does not indicate that any of the moneys or * credits ’ to be paid by the Dixons either to the executors for the societies, or by the Dixons direct to the society named in the order were assessed at all.
    “There is no proof that either the societies or the executors gave notice to the assessing officers of 1904, of the effect of the order of the judge of probate of December 21, 1903, closing the estate as to the payments to the Baptist societies.
    “ By the terms of the will this portion of the estate could not be closed for several years after 1904.
    “ If the assessors included the amount payable to the Baptist societies defendants cannot complain as the burden was upon them, under the circumstances, to give notice of the change made by the judge of probate’s order.’
    Judgment was therefore directed to be and was entered in favor of the plaintiff and against the defendants for the taxes for the years 1903 and 1904, and the interest and fees thereon amounting to $1,458.25.
   Carpenter, J.

(after stating the facts). First. The first question for our consideration arises from thecontention of defendants that the court erred in his first conclusion of law. They deny that the Dixons have by their áction entered into a contract to pay to the executors 90 per cent, of the appraised value of the estate bequeathed to them. They contend that “ the Dixons are under no absolute obligation, express or implied, to pay to the executors anything whatever;” thát “the title vested in the Dixons by the will was upon a condition subsequent. * * * The probability that the Dixons will continue to make payments is not a credit taxable under section 3837, subd. 6, 1 Comp. Laws. * * * There is no actual indebtedness by the Dixons to defendants which the latter could enforce by an action.”

There would be greater plausibility in these contentions if the property bequeathed consisted entirely of real estate or some other tangible asset which the legatees might use without impairing its value. But the property bequeathed consists largely of personalty which the testator obviously intended his legatees should expose to the hazard of trade. He thus gives them authority to destroy the identity of the property; to sell it or exchange it, and to dissipate the proceeds. His intent that his executors should have no other means of enforcing their claim than a reclamation of property of this character cannot be presumed. Moreover, the existence of such an intent is negatived by the concluding language of paragraph 5, which imposes upon his legatees the duty of giving to his executors satisfactory security for the payments to be made by them. In our judgment, defendants’ contentions are answered by a proper construction of the fifth paragraph of the will and the action of the Dixons. Paragraph 5 is in effect an offer to sell on the terms therein mentioned to the Dixons, and when they accepted this offer — and their acceptance is proved by the fact that they have remained in possession of said asset and paid a portion of the purchase money — a contract was entered into and a credit created which is taxable under the law above referred to.

In principle the case is not unlike that of City of Marquette v. Michigan Iron & Land Co., 132 Mich. 130, and it is ruled by that case. In stating this conclusion we do not mean to say that in the event of the Dixons failing to comply with their contract, that the executors have no other remedy than to bring a suit at law to recover this credit. If they have exercised the care contemplated by the will, they have exacted security for its payment, and of course will have the right to resort to said security in case of default. But their remedies, whatever they may be, do not distinguish the obligation in question from that of an indebtedness secured by a mortgage or by a land contract. They do not render that obligation anything less than a credit.

Second. The authority of the State board of assessors to raise the assessment from $23,900 to $35,900 in the year 1903 is assailed upon the ground of the insufficiency of the notice of hearing. This notice was first published May 13, 1903, and the day of hearing therein named was May 18, 1903. It is contended that this notice was insufficient under the statute (Act No. 154, Pub. Acts 1899, § 152) reading:

“ The notice of the time and place * * * shall be published * * * at least five days before the time at which said assessor is required to appear.”

The notice was sufficient under the following recent decisions of this court: Chaddock v. Barry, 93 Mich. 542 (18 L. R. A. 337); Crozier v. Allen, 117 Mich. 171; Lemon v. Hampton, 128 Mich. 182.

Third. It is contended that the assessments are excessive because that part of the credit which was bequeathed to the residuary legatees is exempt from taxation under subd. 1, § 3832, 1 Comp. Laws, which reads:

“The following personal property shall be exempted from taxation, to wit: First, The personal property of benevolent, charitable, educational and scientific institutions, incorporated under the laws of this State.”

When the taxes for the year 1903 were assessed, the residuum belonged in equal proportions to five Baptist benevolent societies, only one of which, viz., the Baptist Convention of the State of Michigan, was incorporated under the laws of the State of Michigan. Whether such interest of the Baptist Convention was exempt — the interests of the other societies were certainly not exempt — we are not called upon to decide, for it does not appear by^ this record that such interest was included in the assessment made in 1903. The claim that the taxes for the year 1903 were excessive must therefore be overruled.

Late in 1903 there was transferred to said Baptist Convention the interest of the other Baptist benevolent societies in said residuum, and since that time said Baptist Convention has been the owner of the entire residuum. It is contended that the effect of this transfer to a corporation existing under the laws of the State of Michigan was to exempt said entire residuum from taxation under the law above mentioned, and that this residuum was improperly included in the assessment made for the year 1904. .

If defendants are right in their contention that the residuum is exempt from taxation — and we make this assumption only for the purposes of this decision — the entire credit due from the Dixons was not exempt from taxation, but only so much thereof as represented the value of said residuum. In other words, so much of said credit as would be used in paying expenses of administration, debts, and specific legacies was liable to taxation. Under the theory most favorable to defendants, it was then the duty of the assessing officers to place a valuation on that part of said credit liable to taxation. There is nothing in the record to show that these officers did not endeavor to perform their duty, and it is therefore to be presumed that they did endeavor to perform that duty. The most that defendants can claim — and I am not sure that they have aright to claim that much — is this, viz., that in performing this duty the assessing officers placed too high a valuation on the taxable portion of this credit. If they did, their judgment cannot be assailed in this proceeding. See Williams v. City of Saginaw, 51 Mich. 120; Comstock v. City of Grand Rapids, 54 Mich. 641.

Fourth. The probate court, as appears by the finding of facts, decided that the amount of inheritance tax to be paid to the State should be fixed, not “ at the present value of the future payments to be made by the Dixons,” but “from time to time as the money or the property of the estate should come into the hands of the executors.” It is now contended that this determination of the probate court “is res adjudicata; that defendants have no such property in the possible future payments by the Dixons, as to make the same taxable.” This contention is not sound unless it may be said that the probate court has decided that the obligation of the Dixons is not taxable as a credit under section 8837, subd. 6, 1 Comp. Laws. To us it seems clear that it has made no such decision. It has decided this (and only this) that for the purpose of computing the amount of the inheritance tax — a tax which is not to be paid annually, but is to be paid once for all — the value of the indebtedness due from the Dixons is to be fixed from time to time as payments to the executors are made. In making that determination the probate court was not called upon to determine and did not determine the question involved in this case. It was not called upon to construe the statute involved in this case, but was called upon to construe an entirely different statute, viz., the inheritance tax statute. The decision of that court was not, therefore, res adjudicata.

The judgment of the circuit court is affirmed.

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


text:
    COOK v. HASTINGS.
    1. Arrest — Without Warrant — Authority of Police Officer.
    Except for a breach of the peace committed in his presence, or when he has reasonable ground to believe that the person arrested is a felon; or is about to commit a felony, a police officer has no authority to arrest without a warrant.
    2. Same — Breach of the Peace — What Constitutes.
    The arrest without a warrant of a person suspected on reasonable grounds of having committed a misdemeanor is not justifiable on the ground that, when discovered waiting on the street behind a tree, in the evening, he refused to state his name or business, and gave the police officer making the arrest a false explanation for being there, such acts not amounting to a breach of the peace.
    3. False Imprisonment — Unlawful Arrest — Liability—Participating Officers.
    Officers in charge of a patrol wagon called by the officer making an unlawful arrest, and in which the person arrested was conveyed to the police station, are jointly liable with the arresting officer for the entire damage caused the person arrested, though they had no knowledge of the unlawfulness of the arrest and intended to act in the strict discharge of their official duties.
    4. Courts — Rules of Decision — Application of Law.
    An argument that, under the law declared in the opinion of the court, police officers will be compelled either to neglect their duty of preserving order or to make unlawful arrests, is in effect an appeal for a change in the law and should be addressed to the tribunal having authority to make such change; since the court has no alternative but to apply the law as it is.
    Error to Wayne; Donován, J.
    Submitted October 15, 1907.
    (Docket No. 30.)
    Decided December 10, 1907.
    Case by John Cook against Edward F. Hastings, Thomas Stack, and James McDermott for an assault and battery and false imprisonment. There was judgment for defendants, and plaintiff brings error.
    Reversed.

      Edward 8. Grece, for appellant.

      A. B. Hall, for appellees.
   Carpenter, J.

The three defendants are each members of the police force of the city of Detroit. December 6, 1904, between 8 and 9 p. m., defendant Hastings arrested plaintiff on Columbia street in said city of Detroit. Hastings was looking for a man who had been exposing his person to women and children, and — stating the facts most favorably to defendants — he believed and had reason to believe plaintiff to be that man. The arrest was made because of that belief, and because plaintiff refused to state his name or his business, and gave a false explanation (perhaps it was a false explanation) for waiting on the street behind a tree where Hastings discovered him. After the arrest, Hastings placed plaintiff in a patrol wagon of which defendants Stack and McDermott were in charge, and carried him to the central police station, and the undisputed evidence compels the inference that while in the wagon plaintiff was in the joint custody of the thi 6e defendants. Soon after the patrol wagon reached the central station, plaintiff was given his liberty. He brought this suit to recover damages for false imprisonment. It was tried in the circuit court before a jury. The trial judge directed a verdict in favor of defendants Stack and McDermott, and submitted to them the question of defendant Hastings’ liability, and they returned a verdict in his favor.

The law governing this case is elementary. Except for a breach of the peace committed in his presence, or when he has a reasonable ground to believe that the person arrested is a felon, or is about to commit a felony, a police officer has no authority to arrest without a warrant. In this case there was not only no reasonable ground to believe, but there was not even a suspicion, that plaintiff was a felon or was about to commit a felony, for the offense of which he was suspected was not a felony. It is equally clear that refusal to make any explanation to the police officer was not a breach of the peace. Klein v. Pollard, 149 Mich. 200. The arrest was therefore illegal, and the trial court should have directed a verdict against defendant Hastings. The liability of the other defendants, legally speaking, is equally clear. During his conveyance in the patrol wagon, plaintiff was just as much in their custody as he was in Hastings’. It is then quite correct to say that they assisted defendant Hastings in depriving plaintiff of his liberty. It is true they, rendered this assistance, not by actually laying their hands on plaintiff, but by a voluntary display of force which was intended to and did deprive him of his liberty. The law governing this question is correctly stated in a note, 12 Am. & Eng. Enc. Law (2d Ed.), p. 777 (citing Griffin v. Coleman, 4 H. & N. 265), as follows:

“If an arrest by a constable is in its inception wrongful, all other constables who act and assist in the continuance of the wrongful imprisonment are responsible for the entire damage thereby caused to the plaintiff, although they had no knowledge of the unlawfulness of the imprisonment and intended to act in the strict discharge of their official duties.”

The trial court should have directed a verdict for plaintiff against all of the,defendants.

Defendants’ counsel urge that, under the law declared in this opinion, police officers will sometimes be compelled either to neglect their duty of preserving order — a duty they owe to the public — or to make unlawful arrests, and it is also urged that that alternative was presented in this case. If so, they must either neglect that duty or accept the risk of being held liable for the consequences. For if they are sued, the court will pass judgment on their conduct in accordance, not with the judge’s notion of justice, but in accordance with a law which condemns. It is not for the judge presiding over the court to determine whether or not he will apply that law. He has no choice. He did not make the law, and he cannot change it. That law is as obligatory on him as it is on the humblest suitor who ever appeared in his court. He is bound to apply it in determining controversies. The argument under consideration is in reality an appeal for a change of the law. It should have been addressed, not to a court, but to some other tribunal; a tribunal having authority to change the law.

Judgment reversed, and a new trial ordered.

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