text:
    KEATING v. HALEY.
    Brokers — Contract—Sale of Real Estate — Right to Commissions.
    In an action by a broker to recover his commission on a sale of real estate not consummated because of a defect in the title of the property offered in part payment by the prospective purchaser, evidence examined, and held, that, under the contract between plaintiff and defendant, plaintiff was not entitled to his commission merely on procuring a satisfactory offer from the purchaser, but only in case he effected a sale or exchange.

    Error to Wayne; Hosmer, J.
    Submitted October 12, 1906.
    (Docket No. 68.)
    Decided March 5, 1907.
    Assumpsit by Maurice J. Keating against Martin Haley for a commission on the sale of certain real estate. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Frank C. Cook, for appellant.

      Hayes & Lawson, for appellee,

       As to performance by real-estate broker of his contract to find a purchaser or effect an exchange of his principal’s property, see note to Lunney v. Healey (Neb.), 44 L. R. A. 593

   Montgomery, J.

This action is brought to recover a-commission claimed to be due plaintiff for finding a customer who would agree to purchase two store buildings belonging to defendant. Yerdict and judgment for defendant. Plaintiff brings error.

It is not disputed that after certain negotiations, to be hereinafter referred to, plaintiff obtained of defendant a memorandum agreement, signed by him, as follows:

“ Martin Haley hereby agrees to sell and convey by warranty deed to Edward E. Kane, lots 7 and 8 in block 15, Reeder, Jerome and DufBeld’s Sub. of E. 354 ft. of P. C. 39 (being N. 125 ft. of lots 7 and 8, Bib. 15), in the city of Detroit, Wayne county, Michigan, for and in consideration of a mortgage on said property back to him in the sum of $2,750.00, payable in five years with interest at six per cent. (6f«) per annum, payable semi-annually, and a warranty deed from said Edward E. Kane to him, conveying lots 25, 27, 29, 31, 33, and 35 of the plat of the subdivision of part of P. C. 171 lying N. of Michigan avenue, according to the plat thereof recorded in liber 12 of plats, on page 24, Wayne county records. Said lots being on the easterly side of Wesson avenue between Michigan avenue and Buchanan street; and said Edward E. Kane agrees to make and deliver said warranty deed conveying said lots 25, 27, 29, 31, 33 and 35, and to make and deliver said mortgage in consideration of said conveyance of said lots Nos. 8 and 9 from said Martin Haley to him. Title to all property to be free and clear of all incumbrances at time of conveyance. Burton or Union Trust Co. abstracts to be delivered with each lot by Edward E. Kane, one of which said abstracts shall be certified. Said Martin Haley also agrees to furnish Burton or Union Trust Co. abstract covering said lots 7 and 8.
“Martin Haley.
“Edward E. Kane.
“Detroit, May 7, 1904.”

Plaintiff had previously agreed upon these terms with Kane, and, after defendant signed the agreement, procured Kane’s signature. It transpired that Kane’s property was subject to certain tax titles, and these not having been cleared up by the 14th of June, and one of the titles being held by one Mary Thomas, whose whereabouts were still unknown to Kane, defendant, acting upon advice of his attorney, declared the contract at an end.

Plaintiff maintains that his commission was earned when he procured Kane to agree to make the trade upon these terms. It was unquestionably competent for the parties to make such a contract. The question is, Did they ? We quote plaintiff’s testimony at some length in order that no misapprehension may arise. The material portion of his direct examination is as follows:

“ I know Martin Haley, the defendant, and have known him upwards of 10 years, and have been doing business with him since about 1900. I remember his coming into my office and speaking about selling some property on Fort street west. He spoke to me several times about it before he gave me a description and put a price on the property. ■ This he did probably the early part of April, 1904. He told me that he was going to get rid of the stores. I carried the insurance on them for him for some years before that, and he gave me a description of them and put a price of $6,000 on them. He said the rental was $55 per month; and that he would take some vacant property •which was .free of incumbrance in exchange and a mortgage on the property. He asked what the commission would be, and I told him 3 per cent, on whatever price he might accept. He was satisfied with that. I immediately went out into the market and tried to find some one who had property that he would exchange, or who would buy Haley’s property. I got an offer and submitted the offer to him about a week after the first conversation, but it was not accepted by him. The other side withdrew it. A few days after that I submitted another, and I think I submitted three propositions to him, which he told me he looked into. Mr. Kane, Mr. Jerome, and myself have connecting offices. I was talking with Mr. Gore, another real estate agent, about one of these propositions, and Mr. Kane, who was standing in his office, heard the conversation I was having with Mr. Gore, and asked me about it. I told him about Mr. Haley’s property, and he said, ‘ If Haley’s store is all right, I have got some lots on "Wesson avenue, and I will make a deal with him. ’ He made me a proposition, which was not satisfactory to Mr. Haley, and Mr. Haley and I went out to look at these lots. We talked it 'over, and his wife suggested that he have some friend of his go and look at the lots. He afterwards told me the friend did go and look at the lots. After that I met him again, and there was some dickering as to the price of the lots, and as to the amount of the mortgage; Mr. Haley saying that, if I could get $5,500 for his place, he would sell it, although he gave me the price $6,000 before. If he could get $5,-500, or its equivalent, for the place, he would take it. He was thinking, then, that Mr. Kane’s lots might be too high, but, if I could get the lots at that price and his price was kept up, it would even matters up; so there was a difference, I think, of $100 or $150 on the amount of the mortgage. He told me that, if I could get Mr. Kane to agree to give him six lots and a mortgage back of $2,-750, he would then pay me $150. This conversation was on Michigan avenue, about the last part of April, 1904. I am not sure as to the street. It was on the southwest corner of Michigan avenue and Junction avenue, or a block from it. There is a large store there. We were standing there one night about 10 o’clock. We had just come away from looking at the lots. I presented this proposition to Mr. Kane the next morning. It was not accepted by Mr. Kane at that time. I had to see Mr. Haley again. Mr. Haley would not change from his position, and I finally came back to Mr. Kane, and Mr. Kane said he would do it, and then I went up to Mr. Haley and told him that Mr. Kane had accepted, and Mr. Haley accepted, and I drew up the contract in the barn of the police station on Saturday afternoon. The paper marked ‘ Exhibit 1 ’ is the contract which I drew up, and was signed by the parties to this suit. This is the original contract in my handwriting. Mr. Haley signed it in the police barn Saturday afternoon, the 7th day of May. Mr. Kane also signed the contract, Exhibit 1, the next Monday morning in his office.”

The plaintiff’s counsel base the contention that the commission was earned when the contract was signed upon the statement in the testimony as follows:

“ He [meaning defendant] told me that, if I could get Mr. Kane to agree to give him six lots and a mortgage back of $2,750, he would pay me $150.”

v This language cannot in fairness be thus segregated. Unquestionably the arrangement before this alleged conversation was that plaintiff should, in order to entitle him to a commission, actually effect a sale or exchange. It is in the light of this, and of the fact that the disagreement between defendant and Kane concerned the consideration for defendant’s property, that this language must be construed. So construed, it meant no more than if defendant had said:

“If Mr. Kane will assent to modify his proposition and give me six lots and a mortgage back for $2,750, I will make your commission $150.”

This obvious construction was the one upon which plaintiff acted, for he interested himself in attempting to clear up Kane’s title after the memorandum agreement was signed. It appeared that on June 20th Mr. Kane had perfected his title and offered to perform. Plaintiff asked an instruction that this was, in view of the fact that defendant signed a duplicate contract on June 13th or 14th, within a reasonable time. This so-called “duplicate” does not appear in the record, nor does it appear that it was ever delivered to Kane. The court was not in error in submitting the question of whether Kane offered performance within a reasonable time to the jury. The case was fairly submitted.

Judgment affirmed.

Grant, Blair, Ostrander, and Hooker, “JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    AUDITOR GENERAL v. BOLT.
    1. Appeal and Error — Questions Reviewable — Points not Raised Below.
    Where the record contains all the facts necessary for the proper consideration of a point raised by this court, it will be considered' though not raised or passed upon in the court below.
    2. Drains — Establishment—Proceedings—Review.
    Section 4346, 2 Comp. Laws; points out the mode of review of drain proceedings, and unless that method is pursued the legality of the drain cannot thereafter be questioned in any suit at law or equity.
    3. Same — Special Drain Commissioner — Oath op Oeeioe — Necessity.
    The statute does not require a special drain commissioner to file an oath of office.

      4. .Same — Disqualification—Highway Commissioner.
    Section 4317, 2 Comp. Laws, disqualifying a highway commissioner to act as a special drain commissioner, does not disqualify a county roa'd commissioner, a different officer.
    5. Same — Jurisdiction—Petition — Subsequent Irregularities.
    Where a special drain commissioner is regularly appointed by the probate court, pursuant to a sufficient petition of free holders, he has jurisdiction to proceed, and subsequent irregularities do not affect the validity of the special taxes spread for the work.
    Appeal from Muskegon; Sessions, J.
    Submitted October 12, 1906.
    (Docket No. 73.)
    Decided March 5, 1907.
    Petition by James B. Bradley, auditor general, for the sale of land delinquent for taxes: On objections of Tom J. G. Bolt. From a decree for petitioner, contestant appeals.
    Affirmed.

      Cross, Lovelace & Boss, for petitioner.

      Stephen H. Clink, for contestant.
   Blair, J.

On the 28th day of July, 1902, 13 “freeholders of the' townships of Moorland and Egleston, in the county of Muskegon,” filed with the county drain commissioner an application for the widening, deepening, straightening, and cleaning out of a certain drain known as the “ Big and Outlet Drain.” On August 6, 1902, the application, together with a certificate of the county drain commissioner that he was interested in the drain, were filed with the judge of probate, who made an order for a hearing on the 25th day of August, 1902. On September 2, 1902, the day to which the hearing was adjourned, the judge of probate made an order appointing Fred D. Hoogstraat, of the township of Ravenna, in said county, to act as special county drain commissioner to carry on and complete the proceedings on said drain. On the 7th day of April, 1903, Hoogstraat made his final order of determination, and on the following day filed a certified copy thereof with the county clerk. On October 12, 1903, the original order of final determination was filed with the county clerk.. Thp records and files of the county clerk’s office show the following:

“October 12, 1903, exemplification of the record of the probate court filed.
“ October 12, 1903, opinion of drain commissioner as to necessity, etc., filed.
“ October 12, 1903, first order of determination filed. Exhibit D.
“October 12, 1903, 10 releases of right of way filed.
“October 12, 1903, final order of determination filed. Exhibit E.
“October 12, 1903, apportionment of benefits filed.
“October 12, 1903, drain special assessment, roll filed.
“October 12, 1903, notice of letting contract filed.
“October 12, 1903, affidavit of publication of notice of letting drain contracts filed. Exhibit E.
“October 12, 1903, financial statement filed.
“January 11, 1904, drain commissioner’s bill filed. Exhibit G.
“August 13, 1904, affidavit of posting notice of letting drain contract filed.
“August 15, 1904, proof of personal service of notice of letting drain contract filed.
“August 15, 1904, proof of service of notice of letting drain contract by leaving copy at residence filed. Exhibit H.
“October 12, 1904, financial statement filed.
“November 25, 1904, commissioner’s receipted bill filed. Exhibit I.
“ October 9, 1905, 26 contracts filed.
“October 9, 1905, profile filed.”

Mr. Bolt was assessed for taxes, on account of this drain, to the amount of $326.49. He refused to pay any portion of the assessment. His lands were returned as delinquent for the taxes, and the auditor general included these lands in his petition for the sale of lands in Muskegon county for delinquent taxes. On April 16, 1906, Mr. Bolt filed 21 specifications of objections to the making of a decree for the sale of his lands as prayed for by the auditor general. The matter having been fully heard by the circuit court in chancery, the said objections were on the 35th day of April, 1906, overruled by order of the court, from which order an appeal has been taken to this court.

Counsel for appellant relies in his brief upon the following objections:

Hoogstraat was disqualified to act because (1) he filed no official oath of office; (3) he was a county road commissioner, and therefore disqualified by section 4317, 3 Comp. Laws.

The probate court had no jurisdiction of the proceedings because: (1) The petition does not state that the petitioners are the owners of lands liable to assessment; nor show how many are residents of Moorland; nor how many are residents of Egleston; nor whether a sufficient number of them are liable to assessment for benefits. (3) Petition prays that drain may be widened, etc., “in the manner above set forth,” while petition is silent as to the manner. (3) The certificate of the county drain commissioner as to his interest is not sufficient. (4) No petition for the determination of his disqualification was filed with the judge of probate by county drain commissioner. (5) Affidavit of publication of order fixing day of hearing question of county drain commissioner’s qualification insufficient. (6) Hoogstraat was special commissioner in name only. The proceedings were really conducted by the county drain commissioner. (7) Financial statement required by section 4314, 3 Comp. Laws, was not signed by the commissioner.

In pursuance of section 193, 1 Comp. Laws, this court requested briefs upon the question ‘ ‘ whether the objections made by Mr. Bolt in view of the, provisions of section 4346, 3 Comp. Laws, are open to him.” Such briefs have been furnished, defendant contending that:

(а) Section 4346 can only relate to proceedings had by one having official power to act and acting in accordance with the forms of law.

(б) Section 4346 relates to irregularities, and not to jurisdictional defects.

(c) This point was not raised or passed upon in the court below, and cannot be considered in this court.

c. This contention is disposed of by the fact that the point is raised by this court, and the record contains all of the facts necessary for its proper consideration. In Gadd v. City of Detroit, 142 Mich. 683, the record did not purport to contain all the testimony, and available testimony may have been omitted because the point was not raised.

a, b. As we said in Strack v. Miller, 134 Mich. 311:

“ The purpose of the statute undoubtedly is to give an opportunity to have a speedy hearing upon any question of jurisdiction or any question of irregularity.”

There was no constitutional objection to this statute. It provides an adequate remedy for any person aggrieved by the proceedings to establish a drain, and protect the public and its officers against the expense and delay which might ensue if the proceedings could be otherwise attacked. The statute points out the mode of review, and unless the method is pursued the legality of the drain cannot “thereafter be questioned in any suit at law or equity.” Crandall v. McElheny, 146 Mich. 191. Doubtless, if the records disclosed that a person without color of authority had conducted the proceedings to lay out a drain, such proceedings would be a mere nullity and might be attacked collaterally, but no such case is presented by this record.

The statute does not require the special drain commissioner to file an oath of office, but only a bond, which was filed. Neither does the statute disqualify a county road commissioner, but applies only to a highway commissioner, a different officer. The special commissioner was regularly appointed by the probate court, and had authority to conduct the proceedings. In Hall v. Slaybaugh, 69 Mich. 484, the court said:

“It is the petition in this class of cases which gives the commissioner jurisdiction, and, if that is sufficient, the other proceedings after that, if not in accordance with the statute, become irregularities of more or less importance,” etc.

Even if the petition was open to attack in a collateral proceeding, we think it was sufficient, and, as there-were no other defects in the proceedings which were open to attack, the decree is affirmed, with costs to complainant.

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


author: Moore, J.

text:
    DONLEY v. FOWLER.
    1. Replevin — Bond—Sufficiency—Amendment.
    A writ of replevin for distrained beasts will not be quashed and the suit dismissed because plaintiff gave an indemnity bond instead of a replevin bond, where he supposed he had given a proper bond and does file a proper bond on being given opportunity to do so. Sections 10409, 10410, 3 Comp. Laws. Grant and Carpenter, JJ., dissenting.

      %. Animals — Running at Large — Impounding—Evidence —Sufficiency.
    In an action of replevin for impounded cattle, evidence as to whether they were running at large when talren up by defendant examined, and held, by a divided court, that the question was one for the jury.
    Error to Hillsdale; Chester, J.
    Submitted October 17, 1906.
    (Docket No. 15.)
    Decided March 5, 1907.
    Replevin by William Donley against Durell Fowler. There was judgment for plaintiff, and defendant brings error.
    Affirmed by divided court.

      F. A. Lyon, for appellant.

      Frankhauser & Cornell, for appellee.
   Moore, J.

This is an action of replevin brought to recover the possession of distrained beasts. The case was tried by a jury, which returned a verdict in favor of plaintiff. The case is brought here by writ of error. The record is a long one, containing 46 assignments of error. They have all had our attention, but we do not deem it necessary to discuss them all.

The plaintiff has 57 acres of land where he lives. He also has 40 acres of land used chiefly for pasturage. The farm of defendant separates the two tracts of land owned by the plaintiff. The method of getting from one tract of land to the other is by the use of the public highway. Not far from the dooryard of plaintiff there is a running stream of water in the highway, at which plaintiff’s cattle were accustomed to drink when on the way from the home farm to the pasture farm. It is the claim of plaintiff that one morning in June six cows after being milked were turned into the highway from the barnyard for the purpose of being taken to the pasture. They were accompanied by one calf; that within five minutes after they were turned into the highway they were taken by the defendant into his inclosure.

Defendant claimed the cattle were running at large, and had been permitted to do so, and that no one had charge of them. Plaintiff further claims he made a demand for the cattle, which demand was refused rmlaga he would pay 50 cents a head for them. This he declined to do. He sued out a writ of replevin, which was delivered to the sheriff. The writ was served, the sheriff making a return thereon, among other things, as follows:

“ And I do further return that afterwards, on the 19th day of June, 1905, I delivered the goods and chattels, so replevined, to the within named William Donley, the said William Donley having first executed and delivered to me the requisite bond under the statute, with L. B. Wolcott and Ralph W. Hayes, of the city of Hillsdale, in said county, as sureties.”

The defendant moved to quash the writ and for a discontinuance of the case for several ^reasons, and other proceedings were had, which it is not material to set out here. On the hearing it was made to appear that the bond which was given was not a replevin bond, but the indemnity form of a bond was used. The circuit judge was satisfied that plaintiff had attempted to give the proper bond, and supposed he had done so. Against the objection of defendant plaintiff was allowed to file a new bond. Later the case was tried with the result before stated.

Defendant claims:

“1. That no valid service was made of the writ of replevin, and therefore that the court obtained no jurisdiction to hear, try and determine the case.
“ 2. That upon the trial of the case there was manifest error in the rulings of the court on the admission and rejection of testimony.
“3. That by the undisputed testimony in the case — by plaintiff’s own showing — the cattle were running at large at the time they were impounded, within the purview of the statute, and the court should have directed a verdict for the defendant.
“4. That in any event the court’s charge as given did not properly guard the rights of the defendant, and did not correctly state the law as applicable to the case.”

Counsel quotes the statute (3 Comp. Laws, § 10707):

“The writ shall be served, and the property shall be appraised, and before delivery thereof to the plaintiff, a bond shall be given in like manner, and with the same effect as in other cases of replevin; but such property shall not be removed by the officer until such bond shall be given; and if such bond be not given within the time limited for that purpose, the property shall be relinquished by the sheriff and such failure shall be deemed a discontinuance of the suit by the plaintiff ” — and contends that it is mandatory.

He concedes that if the bond had simply been defective it might have been amended under the ruling in Bublitz v. Trombley, 113 Mich. 414. He insists, however, that the bond which was given was not a replevin bond at all, but was an indemnity bond, and that the court was without jurisdiction to make any order in the case. Justice Montgomery, speaking for the court, in Bublitz v. Trombley, supra, said that, in construing the statute above quoted, account should also be taken of the provisions of section 10410, 8 Comp. Laws. He used language indicating that, where a proper bond had not been given, plaintiff might be given the opportunity to file such a bond as the statute required. A reference to sections 10409 and 10410, 3 Comp. Laws, will show the language used is very broad. In the first of these sections it is said:

“ Whenever a bond is or shall be required by law to be given by any person, in order to entitle him to any right or privilege conferred by law, or to commence any proceeding,” etc.

In the following section it is said, “Whenever such bond, ” and it then provides what may be done. We think the trial judge was well within these provisions of the statute when he permitted a new bond to be filed.

The other important question is raised by counsel’s requests to charge. It will be sufficient to quote three of them:

“13. Upon this branch of the case, I charge you that the only real issue of fact is as to whether these cattle were running at large upon this highway at the time in question. If so, then your verdict must be for the defendant. As to this, I charge you that ‘ running at large ’ upon the highway, within the meaning of our law, means strolling without restraint or confinement; as wandering, roving, or rambling at will unrestrained.
“ 14. In order to be under restraint, within the meaning of this law, there must be some one sufficiently near to restrain them from doing damage. And unless there was some one sufficiently near to these cattle at the time in question to restrain them and keep them from doing damage, they were running at large within the meaning of this statute.
“15. In this case I charge you that by the undisputed evidence these cattle were running at large, within the meaning of our law, and your verdict must be for the defendant.”

The judge declined to give these requests, but charged the jury:

“ I will define what is meant in the law by running at large. Running at large means strolling without restraint or confinement, as rambling, roving, or wandering at will, unrestrained; that is, without any one to hinder or direct them. Of course, in this case, gentlemen, you must understand that this strolling or rambling or roving or wandering must be in the public highway. To be under restraint, it is not necessary that some one be in front of the cattle, and some one following at the heels of the cattle. It is enough if some one, either the owner or some one hired by him, was keeping them in view, and was sufficiently near and ready to restrain them if they were about to do damage.
“Then, gentlemen, if you find that these cattle were running at large on the 16th day of June in the public highway in front of defendant’s premises, that is, that they were strolling along without any restraint or confinement, and that there was no one watching them and keeping them in view who was sufficiently near and ready to restrain them if they were about to do damage, then you will find for the defendant.
“ On the other hand, if you find that these cattle were on this highway for the purpose and intention of in due time taking them on further to pasture, and that they were in plain view of the plaintiff or some members of his family who were watching them for the purpose of taking ing them to pasture, and that the person who was watching them was sufficiently ne,ar and was ready to restrain them if they were about to do damage, then you will find for the plaintiff.”

Counsel contends that under the undisputed testimony the cattle were “strolling without restraint or confinement, as wandering, roving, or rambling at will, unrestrained,” and were running at large within the meaning of the statute — citing Bertwhistle v. Goodrich, 53 Mich. 457; Blanck v. Hirth, 56 Mich. 330, and many other cases. Before deciding whether counsel is right in f.hia contention, it is .necessary to consider some of the testimony offered on the part of the plaintiff. It has already appeared that plaintiff claimed the cows were turned into the highway for the purpose of being taken to the pasture. Mrs. Donley testified:

“ On the 16th of June, last, we were milking six cows. I did the milking both night and morning. * * * On the morning in question there were six cows and one calf turned out in the road. * * * These cows were being pastured on this 40 acres of land that we have west of Mr. Fowler’s house. * * * They had been running there about six weeks at that time.
Q. What was your habit about taking these cows back and forth — who did it ?
“A. Well, different ones of the family; sometimes it was the little boy, sometimes the oldqr boy, sometimes I did, and sometimes Mr. Donley. * * * When the boy went to school he would drive them — that was on his way to school. They got accustomed to going back and forth to that 40 acres, so that they would go in that direction themselves. When they would get down to that corner 20 rods south of our house, they would go down into the creek and drink, and then they would go on. * * * There was some wood in the yard that I wanted piled back of the house, and I told the boy to turn the cows out and I would drive them, as I was going up there anyhow, and he did so, and he was to pile this wood. * * * The boy let them out and came in and told me. He said: ‘ Now, the cows I have let out, and you take them;’ and I said: ‘All right, I’m ready,’ and I went to take them, and, as I went past th6 couch, the baby sat on the couch, and reached for me. Of course, he didn’t reach me, and he fell, and I stopped to quiet him a few minutes, not more than a minute, I am certain. I took him out on the stoop and nursed him, and I watched the cows as they turned the corner and saw them as they went down into the creek, and then they were out of my sight for awhile, and I went into the house with him and staid a minute or so longer in the house, and gave him over to one of the children, went out into the road to take them, and I saw this Durell Fowler driving them up the road. They had got a little past where I had last seen them. * * * He took them out of the highway. They were not on his premises.
Q. Now, were those cows at any time all out of your sight for any considerable time ?
“A. Not for any length of time.
Q. State whether or not they were under your eye all the time ?
“A. Well, when they were down in tne water I couldn’t see them; but as they came up out of the water I could. If they had been on his premises, I could have seen them. I saw them when they got to the corner, I saw them turn the corner. After they got past the hollow where they drank, I didn’t see them until I saw him taking them up the hill.
Q. Now, how long would you say to the jury that it was between the time when the boy told you, ‘Now, mother, I have let the cows out, and you go and take them,’ until you saw Durell Fowler drive them up the road ?
“A. Well, I should say somewhere' near about five minutes. Those cows were not out of my sight more than a minute when I saw Durell Fowler taking them up.”

The plaintiff and his son corroborated this testimony. A reference to the Michigan cases cited by counsel for appellant will show that, so far as they are an authority in this case, it is in' favor of the claim of plaintiff. The defendant denied the truth of many of the statements made by the plaintiff’s witnesses. We think it cannot be said, in view of this contradictory testimony, as a matter of law, that the cattle were running at large within the meaning of the statute. An instructive case is Eklund v. Toner, 121 Mich. 687. See, also, Russell v. Cone, 46 Vt. 600; Elliott v. Kitchens, 111 Ala. 546 (33 L. R. A. 364); Wright v. Clark, 50 Vt. 130; Thompson v. Corpstein, 52 Cal. 653.

Judgment is affirmed.

McAlvay, C. J., and Blair and Montgomery, JJ., concurred with Moore, J.

Grant, J. The parties to this suit are farmers living near each other. Defendant distrained seven of the plaintiff’s cattle, claiming that they were running at large in the public highway, opposite defendant’s premises, contrary to the statute. Plaintiff, claiming that they were not running at large, brought this action of replevin to obtain possession. He obtained a verdict and judgment.

The statute provides a special remedy for replevying distrained beasts and excludes any other action for obtaining possession. Cox v. Chester, 77 Mich. 494, and cases cited. The statute (section 10707, 3 Comp. Laws) requires the plaintiff in replevin to give a bond—

“In like manner and with the same effect as in other cases of replevin; but such property shall not be removed by the officer until such bond shall be given; and if such bond be not given within the time limited for that purpose, the property shall be relinquished by the sheriff, and such failure shall be deemed a discontinuance of the suit by the plaintiff. ”

No such bond Was given. Plaintiff gave to the sheriff only an indemnity bond to protect the sheriff against costs, damages, etc., incurred by him (the sheriff) in the suit. Defendant moved for a discontinuance of the suit under the above statute, for failure to give the required bond. His motion was denied, and the court permitted plaintiff to file a new bond.

I think the action of the circuit court is not authorized by the statute of amendments. There is not a sentence in the bond which shows that it was intended as a bond provided by the statute. It was not a defective bond subject to amendment. So far as protecting the rights of the defendant under the statute, it was as worthless as a deposit of money by the plaintiff with the sheriff to protect him from damages and costs, or a promissory note or any other obligation given for the same purpose. The statute could only be complied with by giving an entirely new bond, different entirely in terms, from the one which the sheriff took. The effect of the bond cannot be determined by the intention of the sheriff or the plaintiff. It must speak for itself. The question is, Did the plaintiff give any bond contemplated by the statute as a protection to the defendant, and essential to plaintiff’s right to maintain the suit F It seems to me clear that he did not. After defendant’s motion was overruled the question was properly raised by a plea upon which issue was joined, evidence taken, and the plea overruled.^

Counsel for the plaintiff insist that this case is controlled by Bublitz v. Trombley, 113 Mich. 413. The sole question in that case was whether the filing of a proper bond was waived. The bond was in compliance with the statute, except that it had only one surety instead of two. There was, therefore, a bond showing upon its face an attempted compliance with the statute, which made it a proper subject of amendment. All the amendment required was the addition of another surety. In this case the bond in no respect complied with the statute. Counsel for the plaintiff discuss the hardship to the plaintiff if his suit must go down because he filed no bond. This is not a case for the application of sympathy, for plaintiff, under his own testimony, might have obtained his cattle back upon payment to defendant of $1, less than one-third the statutory penalty, but he preferred a lawsuit.

Were plaintiff’s cattle running at large contrary to the statute, which says—

“It shall be lawful for any person to seize and take into his custody and possession any animal which may be in any public highway, and opposite the land owned or occupied by him, contrary to the provisions,” etc.? 2 Comp. Laws, § 5608.

The undisputed facts are that plaintiff’s son turned the cattle from his yard into the highway, and left them without any one in charge to drive them to the pasture, along the public highway, opposite the defendant’s farm. To all appearances there was no one in control, or in sight of them, to watch them. A neighbor and his son drove by with a horse and buggy and saw no one. Their horse shied, being somewhat frightened by the cattle'. The only pretense that one was in charge of them was that the wife of the plaintiff was in her house attending to her household duties, attempting to keep the cattle in view. Meanwhile they had roamed along the public highway about 30 rods, to the turn of the road, and had gone about 5 rods farther to the creek — where they usually drank, and where they were out of sight of plaintiff’s wife — and then went 15 to 30 rods farther, opposite defendant’s premises. According to plaintiff’s evidence, it was about five minutes from the time they left plaintiff’s yard until they were distrained by the defendant. According to defendant’s evidence it was about half.an hour. The question of time is immaterial. The fact remains that these cattle went unattended and unrestrained, roaming at their will for about 40 rods, until they were opposite the defendant’s premises. Who was there to prevent them from trespassing upon the defendant’s premises in sufficient time to prevent damages ? Could the plaintiff’s wife, the only one who plaintiff claims was left in charge of them, run 40 rods in time to prevent damage ? Manifestly these cattle were unrestrained and running at large, with n’o one sufficiently near to control them.

The court instructed the jury:

“ To be under restraint it is not necessary that some one be in front of the cattle, and some one following at the heels of the cattle. It is enough if some one, either the owner or some one hired by him, was keeping them in view, and was sufficiently near and ready to restrain them if they were about to do damage. * * *
“ If you find that these cattle were on this highway for the purpose and intention of in due time taking them on further to pasture, and that they were in plain view of the plaintiff or some members of his family who were watching them for the purpose of taking them to pasture, and that the person who was watching them was sufficiently near and was ready to restrain them if they were about to do damage, then you will find for the plaintiff.”

It is a fair inference from the instruction of the court, considered as a whole, that the intention of the plaintiff was controlling. His intention under the facts of this case was wholly immaterial. Under the defendant’s evidence the cattle were in the highway unattended for half an hour. Under the court’s instruction the jury might have found that half an hour was due time for plaintiff’s wife to carry out her “ intention of taking them further.” We are not dealing with a case where one’s cattle are upon the highway without the owner’s knowledge or consent, as where some third person may have opened a gate or taken down a fence and driven them into the highway, or, where a windstorm has blown down a legal fence through which the cattle have entered upon the highway. We are dealing with a case where the cattle were intentionally turned into the highway, and left to go unattended for 40 rods or more. Suppose defendant had no fence along the highway — and the law does not require him to fence — would these cattle have been running at large ? Does the statute contemplate that, with no fences along the highway, or with poor fences, a party may turn his cattle in the highway, “intending in due time” to drive them along the highway, as he has a perfect right to do, and then say that he has them under control when they have gone 40 rods unattended, with a woman in the house as the sole person to watch or keep them from trespassing? The plaintiff, evidently in order to prejudice the jury against the defendant, was permitted erroneously to introduce evidence that the defendant’s fences were in bad condition. This error may possibly have been cured by the instruction of the court that the defendant was under no obligation to fence his land along the highway. If his fences were in bad condition, or if there were no fences, all the greater the necessity that plaintiff should closely follow his cattle along the highway to the pasture.

Counsel for the plaintiff rely upon Eklund v. Toner, 131 Mich. 687. I have read the record and briefs in that case, and it appears from them, as well as from the opinion, that the issue was not framed, nor was the case tried, under the statute. No testimony was given in the case with the view to determine whether the cattle were running at large. The only testimony was that the people there were in the habit of turning their cattle into the highway to feed upon a common not far away, and, in opening the defendant’s case to the jury, defendant’s attorney expressly stated, in reply to a question by the court, that they did not claim under the statute. The record does not show what supervision Mr. Eklund exercised over the cattle or how near he was to them. The court expressly refused to submit any such question to the jury. Mr. Toner claimed that he took the cattle damage feasant, but Mr. Eklund claimed that Mr. Toner drove them i;rom the highway into his field, where the damage was done. On these two claims the case was submitted to the jury. This question was therefore not in that case, and what we then said is dictum. It was not necessary to a decision of the case. The difficulty experienced by the jury under this instruction is manifest from the fact that after a while they returned into court and asked:

‘ ‘ How far cattle shall be, and what situation they shall be in, in order to be out of the restriction of the owner, or the one who is supposed to.
The Court: Well, I defined that to you, gentlemen, in the charge. Is it the charge that you do not understand ?
The Foreman: Yes, sir.”

The court then repeated that part of the charge above quoted. So far as controlling the cattle or preventing trespass and immediate damage, Mrs. Donley might as well have been a half a mile distant as to have been 40 rods. If plaintiff had thus turned his cattle into a street of a populous community, where there were houses and yards every few rods, would they have been under his control after they had strayed 40 rods, while his wife sat in the house or on the porch pretending to watch them ? It was shown to have been the common thing for the plaintiff to let his cattle, horses, hogs, and sheep run at large in the public highway. This testimony was competent. Decker v. McSorley, 111 Wis. 91. To such an extent was this done that plaintiff admitted that most of his neighbors were his enemies. See Shipley v. Colclough, 81 Mich. 625; Robinson v. Railway Co., 79 Mich. 323; O’Mally v. McGinn, 53 Wis. 353; Hinman v. Railroad Co., 28 Iowa, 491.

I think the judgment should be reversed, and the suit quashed with the costs of both courts.

We think' this record unnecessarily long. There was testimony offered which the court would have been justified in excluding on its own motion. We think a record half the length would have been sufficient for a proper presentation of all the questions raised. For this reason only one-half costs for printing the record should be allowed.

Carpenter, J., concurred with Grant, J.

Ostrander and Hooker, JJ. We concur upon the point last discussed, being point No. 2


author: Moore, J. Montgomery, J. Hooker, J.

text:
    DAVIS v. CITY OF ADRIAN.
    1. Municipal Corporations — Highways and Streets — Personal Injuries — Notice of Claim for Injury — Sufficiency.
    Under the charter of the city of Adrian, a notice of claim for injury on a defective sidewalk is sufficient though the items of expense caused claimant by the injury as far as known at the time of filing the claim are not set out, where the city made no suggestion that it wanted a more detailed claim, but referred it to a committee and afterwards rejected it.
    3. Evidence — Photographs—Admissibility.
    In an action for a personal injury, a photograph of a sore claimed to have been caused by the injury is admissible in evidence.

      3. Municipal Corporations — Highways and Streets — Personal Injuries — Notice of Defect.
    In an action against a city for personal iujuries caused by negligent removal of a grating from an area in a sidewalk and failure to properly guard the same, evidence examined, and held, sufficient to show that the city officers had knowledge ' of the defect.
    4. Same — Duty of Municipality — Acts of Individuals.
    It is the duty of a municipality to keep its streets reasonably safe and fit for travel, and it is not relieved of that duty because the street is made unsafe by the act of third persons.
    5. Trial — Argument of Counsel — Prejudice.
    The act of counsel in drawing a contrast between the financial situation of the parties in a personal injury case, held, not prejudicial in view of prompt correction by the court.
    Error to Lenawee; Shepherd, J., presiding.
    Submitted November 15, 1906.
    (Docket No. 13.)
    Decided March 5, 1907.
    Case by Garfield Davis against the city of Adrian for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Wallace Westerman, for appellant.

      J. L. O’Mealey and Bird & Sampson, for appellee.

       For use of photographs as evidence, see note to Dederichs v. Salt Lake City R. Co. (Utah), 35 L. R. A. 802.

   Moore, J.

The plaintiff recovered a judgment against defendant for injuries received by him caused by his falling through an opening in the sidewalk from which the grating had been removed. The defendant has brought the case here by writ of error.

The assignments of error may be grouped as follows:

(1) That the notice given to the city of the claim of plaintiff is insufficient.

(2) The admission of a photograph in evidence.

(3) The exclusion of an entry in the books of the contractor who was doing the repairs on the building in the course of which the grating was removed.

(4) Failure to give certain requests, and especially the one instructing the jury that plaintiff had failed to make a case.

(5) The improper argument made by the attorney for the plaintiff.

We will take up these groups in the order presented; but before doing so it is important to have knowledge of the general features of the case.

Main street runs north and south through defendant, city. Maumee street crosses Main street at right angles. This intersection is in the business portion of the city. About 100 feet south of Maumee street, on the east side of Main street, was a building known as the “Donough Building.” Extensive repairs were made upon the building, among other things a new front was put in about a foot or 18 inches nearer the curb than the old front; the new front being upon the street line of the adjacent buildings. To accomplish this work the two gratings in the sidewalk were removed. One of the openings had been covered by putting the grating over it. Loose boards, about six or eight inches wide, seven-eighths of an inch thick, and from four to eight feet long, were put over the other one. Some of the debris from the building was piled near the curb, some of it going into the street, and about three or four feet of it extended upon the walk. The walk was about 13 feet wide. Counsel for plaintiff make in their brief the following statement, which we think there is testimony to sustain:

“Plaintiff did not know that repairs were going on at said place, and did not know the condition of the sidewalk. On the night of July 16, 1903, he was walking north on the sidewalk, on the east side of Main street, in company with Merton Smith, an associate, and when they approached the Donough building they met four or five ladies and two gentlemen walking south on the same sidewalk. The rubbish piled in the street and on the outer portion of the walk caused these ladies to crowd in toward the building in order to pass the same, thereby crowding plaintiff and Mr. Smith over next to the building, and while next to the building, and in the act of passing, plaintiff, who was on the side next to the building, stepped into this opening in the sidewalk and was seriously injured. ”

It is plaintiff’s claim that a shadow was cast upon the area because of the pile of debris.

Was the notice served upon the city before suit of plaintiff’s claim sufficient ? On the 6th of October plaintiff presented to the council a claim in the language following :

“ To the Common Council of the City of Adrian,
Lenawee County :
“Garfield Davis .respectfully shows unto your nonorable body that on the evening, at about the hour of nine o’clock, of July 16, 1903, while walking north on the east side of South Main street, and when adjacent to the Donough building on the corner of South Main street and Fish alley, he fell into the area in front of said building, by reason of the grating having been removed; that some light pieces of wood had been thrown partially over it, but which were insufficient to protect your petitioner from going through into said area; that when he fell into said area he received in consequence thereof an injury to his right leg, and that said injury has ulcerated, and that by reason of said injury he has been confined to the house and has been unable to move about except on crutches since September 12, 1903. Your petitioner further shows that by reason of the premises he has been damaged in a large sum on account of the pain and suffering resulting from said injury, and that will result in the future from said injury, and for the past and future incapacity to labor on account of said injury, and for past and future medical services, nursing and care on account of said injury, and on account of the permanence of said injury, all in the sum of five thousand dollars, which sum your petitioner respectfully asks said council to allow him.
“Garfield Davis.
“ State of Michigan, ) County of Lenawee, j
“ On this sixth day of October, 1903, before me, a notary public in and for said county, personally appeared Garfield Davis, who made oath that he had heard read the foregoing petition, by him subscribed, and knows the contents thereof, and that the same is true.
“Oscar Sheldon, “Notary Public.
“ My commission expires May 21, 1902,”

It is the claim of counsel for the city that the affidavit should have shown in what way the city was in default. He also claims as follows:

“ The facts proven on the trial also show conclusively that the claims of Drs. Treat, Chase, and Kirkpatrick were definite and certain, also the value of the services of the hired help of the plaintiff, if any, were fully known to him at the time the affidavit was made, unless it be, perhaps, the last few days of Dr. Kirkpatrick’s service. These claims should have been set out fully in the affi-^ davit, and should have at least apprised the city of the nature of the claim that was being made against them for damages, and then they could have taken such steps to ascertain all about the facts leading up to the injury, the names of witnesses and such other circumstances as would have enabled the city council to have given a fair consideration to any just claim the plaintiff might have.”

The city made no suggestion it wanted a more detailed statement of the claim of plaintiff. The claim was referred to a committee, which made a report to the common council, and on the 4th of January, 1904, the claim was rejected. We think the notice and claim were within Wilkins v. City of Flint, 128 Mich. 262.

Did the court err in allowing a photograph to be introduced in evidence ? It was the claim of plaintiff that as the result of one of his injuries an ulcerated sore formed on the front of his leg just above the ankle. The photograph was of this sore and was taken some weeks after the injury. The record discloses that some days after plaintiff was hurt he went with a ball team of which he was a member to Hudson and to Dundee to participate in games of ball. At Hudson he did some batting, another player running the bases for him. At Dundee he was not called upon to take any active part in the game, and it is his claim that he suffered no aggravation of his injury by reason of what he did. He also claims that what he did was by the advice of his physician. Later the sore developed. One of the doctors treated it by the ’use of the Violet rays. It is the claim of defendant that this treatment was harmful, and also that because of it, added to the playing of baseball, the sore shown in the photograph appeared, and that the photograph under these circumstances should not have been admitted. It was shown by the doctors that the in j ury was properly treated. The j ury were carefully instructed as to what consideration they should give to the testimony in relation to the playing of ball and tbe violet-ray treatment. In Archer v. Railroad Co., 106 N. Y. 589, it was held that a photograph, if a fair representation, is admissible, the same as a map or other diagram. In Alberti v. Railroad Co., 118 N. Y. 77 (6 L. R. A. 765), photographs were held admissible to show how the legs of plaintiff had been drawn up as the result of injuries. It has been a frequent occurrence to have photographs used as evidence in the lower court used in the causes presented in this court. We think such evidence is competent to be presented to the jury. See 22 Am. & Eng. Enc. Law (2d Ed.), p. 772, and the many cases cited in the note.

We do not see how the entries in the book would throw any light upon the question of whether the area was properly guarded at the time of the accident.

Did the judge err in refusing to give the requests of counsel ? These requests all revolve about the proposition that a verdict should have been directed for the city (a) because plaintiff was guilty of contributory negligence; (&) that the opening had not been unguarded long enough to make the city liable; (c) that, if any negligence was shown, it was the negligence of the man who was making the repairs, for which the city would not be liable.

(a) We do not think it can be said, as a matter of law, that plaintiff was guilty of contributory negligence. Milliken v. City of St. Clair, 136 Mich. 250.

(b) Was the situation such as to make the city liable ? The grating had been removed for from two to five weeks, and covered in the manner before described. These light boards would frequently get removed. It was shown the mayor had knowledge of the situation; that a policeman had knowledge of it; that one of the aldermen had his office in an adjoining building and passed the walk a number of times each day when the opening was improperly covered; and that the street commissioner worked in an alley by the side of this building for nearly three weeks. Counsel for the city say, in relation to this feature of the case:

“ It seems that two or three officials of the city, whose duty it was, according to their testimony, to see that this walk was safe, are the only ones who have any special knowledge of it, and at the time that they saw it they do not claim that the scaffolding was not up. Their term of office did not expire until the following May after this suit was commenced, and they should be estopped from using their official knowledge in the interest of the plaintiff. They had full knowledge of the facts, and knew, as the record shows, that Mr. Matthes was reconstructing this building on private property. They knew that he was a trespasser and pecuniarily responsible, and under the circumstances disclosed by the record in this case they should have planted their suit against him, when their official knowledge could have been consistently used in the conduct of the case. ”

We think there was sufficient testimony to submit'this feature of the case to a jury. Dotton v. Village of Albion, 50 Mich. 129; Campbell v. City of Kalamazoo, 80 Mich. 655; Blank v. Township of Livonia, 95 Mich. 234, and cases cited; Alberts v. Village of Vernon, 96 Mich. 549.

(c) Was the city excused because the work was done by a contractor ? We think this must be answered in the negative. See Dotton v. Village of Albion, supra. It is the duty of the municipality to keep its streets reasonably safe and fit for travel. It is not relieved of that duty because the street is made unsafe by the act of third persons. In the recentv case of McEvoy v. City of Sault Ste. Marie, 136 Mich. 172, Justice Carpenter, speaking for the court, has considered this question at length. It is not necessary to repeat here his statements.

Should the case be reversed because of the argument of counsel ? The objectionable part of the argument, and it was objectionable and should not have been made, was intended to have the jury draw a contrast between the financial situation of the parties. The court at once told the jury in substance that the parties must be regarded as upon an equal footing. Had counsel desired the jury to be further instructed as to the argument, the court doubtless would have done so upon request.

An examination of the entire record, including the verdict, does not satisfy us that the improper argument of counsel so influenced the jury that we should reverse the case. See People v. De Camp, 146 Mich. 533.

Judgment affirmed.

Carpenter, Montgomery, and Ostrander, JJ., concurred with Moore, J.

Montgomery, J.

(concurring). I agree with Mr. Justice Moore that the judgment should be affirmed, but prefer to state at length my reasons for holding the claim presented to the council sufficient.

The provisions of the charter are as follows:

* ‘ The council shall audit and allow all accounts chargeable against the city; but no accounts or claims or contract shall be received for audit or allowance unless it shall be accompanied with an affidavit of the person rendering it to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city, that the sums charged are reasonable and just, and that to the best of his knowledge and belief no set-off exists, nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim. And every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city that it has never been presented, verified as aforesaid, to the council for allowance, or, that the claim was presented without the affidavit aforesaid and rejected for that reason, or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it. And .all claims for damages against the city growing out of the negligence or default of said city or of any officer or employe thereof shall be presented to the common council of said city in the manner above provided, and the place and circumstances out of which said claim arose shall be fully set forth therein within three months after such claim shall arise, and in case of any default thereof said claim shall thereafter be forever barred. And in any action in any court on any such claim the claimant shall be required to show that such claim has been duly presented in the manner in this section specified to the common council of said city for audit, investigation and allowance.” Act No. 321, Local Acts 1897, § 112.

Before commencing this action a claim in the language set forth in the opinion of Mr. Justice Moore was filed with the council, referred to a committee, and rejected.

The charter provision formerly ended with the words ‘£ pass upon it. ” While in this form the provision was construed in Lay v. City of Adrian, 75 Mich. 442. It was there held that claims for damages for personal injury were not within its terms. It was there said:

££ The claim sued for is not one proper for, audit and allowance by a municipal board. It is for personal inj ury, one in which the items thereof cannot be itemized by the injured party in such manner as to enable an auditing board to pass upon it intelligently without the aid of a court. * * *
“ It will be noticed that it [the charter] requires all the items of such claim to be stated, giving the dates of each, and the further statements that the claimant believes it to be correct; that no part of the same has been paid, unless indorsed upon the account presented; that the sums charged are reasonable and just for the services and property therein mentioned; and that no set-off exists against the claim, and these facts must be sworn to by the claimant.
££ This is not language usually used by courts or legislators in speaking of a claim made by an individual against a city or village, or any other party, for an injury to his feelings, or for mental anguish and physical pain he has suffered through alleged negligence of a defendant.”

After this decision the concluding sentences of the section were added. They should be construed in the light of this decision. The terms of the amendatory provision are as inapt to indicate a purpose to require an itemized statement as were the original provisions. It is true the claim must be presented in the manner provided in the original act, but this can mean no more than that it shall be a verified statement of claim.

When the statement itself is referred to, the requirements are not left in doubt.

“ The place and circumstances out of which the claim arose shall be fully set forth therein.”

If we attempt to speculate as to whether it was intended that some of the requirements for an affidavit accompanying a claim for property or services should be required, we are at sea. Clearly not all of these requirements can. apply, and any attempt to select such as by some stretch might be met is pure speculation. None are entirely apt.

I think the affidavit was sufficient.

Carpenter and Moore, JJ., concurred with Montgomery, J.

Hooker, J.

(concurring). The plaintiff recovered a judgment against the city of Adrian for an injury to his leg resulting from his stepping into an open hole in the sidewalk.

Before commencing this action, a claim in the language set forth in the opinion of Mr. Justice Moore was filed with the council, referred to a committee, and rejected.

Of this claim it may be truly said (1) that it does not exhibit in detail the items of expenditure which had been incurred previous to the filing of the claim, proof of which was given at the trial; (2) there is no statement that the claim is reasonable or just, and that no payment has been made on account thereof. It was evidently the intention to safeguard the city, so far as possible, against the well-known and common evils «f exaggerated and fraudulent claims, by compelling claimants to furnish the city seasonably with information, apprising it of the time, place, occasion, and nature of the accident, and extent of the injury, and a sworn statement of good faith. With the charter provision before him, there is little excuse for a lawyer’s failure to draw a good claim and affidavit, yet it was not done, as to the particulars mentioned, in this case.

It is suggested that the notice is sufficient in the matter of itemization under the case of Wilkins v. City of Flint, 128 Mich. 262, but in that case the claim and notice filed stated a number of particulars in which the plaintiff suffered injury and claimed damages in a gross sum for such injuries. We said that it was sufficient to state all of the specific injuries which had up to that time developed, and that it was unnecessary to attach to each (item) an aliquot part of the damages claimed. We did not there decide that recovery could be had for expenditures already incurred and not mentioned, nor that the fact that the city had failed to ask a more detailed statement would affect the question. We have held in several cases that the courts should not be overtechnical in requiring specifications of place and nature of defects, especially where those contained in the notice had been acted upon without complaint by the council; thus leading to an inference that they actually afforded the necessary information. See Brown v. City of Owosso, 126 Mich. 91; Wheeler v. City of Detroit, 127 Mich. 331. But we have also held that, while we may be liberal in construing a notice, we “ cannot ignore an express requirement of statute,” even as to the nature of the injury. See Tattan v. City of Detroit, 128 Mich. 651. We must of necessity recognize the fact that the legislature has found it necessary to impose some restrictions and conditions upon those who ask compensation for injuries- from the public, and that it is not for courts to nullify these provisions by relieving parties from the necessity of compliance. So in this case, when we see that the legislature has provided that, “and all claims for damages against the city growing out of the negligence or default of said city or of any officer or employe thereof shall be presented to the common council of said city in the manner above provided, and the place and circumstances out of which said claim arose shall be fully set forth therein, within three months after such claim shall arise, and in case of any default thereof said claim shall thereafter be forever barred. And in any action in any court on any such claim the claimant shall be required to show that such claim has -been duly presented in the manner in this section specified to the common council of said city for audit, investigation and allowance ” —we might hesitate to say that a verified statement of known items is not required by the statute. There is at least some reason for the contention that this notice was defective in one respect and deficient in another, defective in the matter of verification, and deficient in itemization, but whatever view we might take of this claim the latter was not fatal to the cause of action, the deficiency going only to the items, which could have been excluded from the case, and perhaps would have been, had the point been made. We do not discover that it was, however, and therefore we do not pass upon it.

As to the defect of verification, there is some doubt as to the construction that should be given to the statute. It requires the verification, and then provides:

“It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city that it has never been presented, verified as aforesaid, to the council for allowance; or, that the claim was presented without the affidavit aforesaid and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable ’ time to investigate and pass upon it.”

And again:

“And all claims for damages against the city, growing out of the negligence or default of said city or of any officer or employe thereof shall be presented to the common council of said city in the manner above provided, and the place and circumstances out of which said claim arose shall be fully set forth therein, within three months after such claim shall arise, and in case of any default thereof said claim shall thereafter be forever barred. An d in any action in any court on any such claim the claimant shall be required to show that such claim has been duly presented in the manner in this section specified to the common council of said city for audit, investigation and allowance.”

It is with some hesitation that we conclude that this statute means that, unless rejected for the reason that the verification was inadequate, the question is waived. Germaine v. City of Muskegon, 105 Mich. 216; Davidson v. City of Muskegon, 111 Mich. 454; Griswold v. City of Ludington, 116 Mich. 412; Wright v. Village of Portland, 118 Mich. 23; Springer v. City of Detroit, 118 Mich. 69; Kriseler v. Le Valley, 122 Mich. 576; Foster v. Village of Bellaire, 127 Mich. 13.

These conclusions permit of an affirmance of the case.


author: Ostbander, J.

text:
    TOWNSHIP OF DANBY v. BEEBE.
    1 Seals — Effect of Use — Statutory Provisions.
    Section 10185, 3 Comp. Laws, as respects their consideration, places simple executory, and sealed executory, contracts upon the same footing.
    2. Bonds — Consideration—Necessity.
    A sealed bond binding the obligors to pay into the bridge fund of the township in which they reside a certain sum of money, in case the building of a bridge on the line between adjoining townships should be ordered by the board of supervisors, is a mere voluntary promise not sustainable as a gift nor enforceable as a subscription to an object of public utility or necessity.
    Error to - Ionia; Davis, J.
    Submitted November 15, 1906.
    (Docket No. 117.)
    Decided March 5, 1907.
    Debt by the township of Danby against Henry O. Beebe, George Hughes, Thomas J. Lockwood, and Stuart M. McKee for the amount of a bond. There was judgment for plaintiff, and defendants bring error.
    Reversed, and no new trial ordered.
    The bond, the subject of the suit, reads as follows:
    “Know all men by these presents, that we, Henry O. Beebe, George Hughes, Thomas J. Lockwood, and Stuart M. McKee, of the township of Danby, Ionia county, Michigan, are held and firmly bound unto the township of Danby, Ionia county, Michigan, in the sum of five hundred ($500) dollars lawful money of the United States of America, to be paid to the said township of Danby, or to its certain attorney, successors or assigns, and to which payment well and truly to be made, we bind ourselves, heirs, executors, and administrators, and each and every of them, firmly by these presents.
    f ‘ Sealed with our seals, dated the 2nd day of January, A. D. 1903.
    “The condition of this obligation is such that, whereas, the board of supervisors of Ionia county will be petitioned at the January meeting held by them in 1903, by the township board of the township of Portland, Michigan, for an order compelling the township of Danby, aforesaid, to enter into the construction of a bridge across Grand river on the line between Danby and Portland townships, as set forth in the petition herein mentioned, and whereas, the obligors herein mentioned are desirous of having such a bridge constructed at such point, and have agreed with the township board of Danby township to expend not to exceed the sum of five hundred dollars in the construction of the abutments at the Danby end of such bridge, if the same should be ordered constructed by the board of supervisors, and wish to assure the said board of Danby township to that effect:

      “Now, therefore, we, the said Henry O. Beebe, George Hughes, Thomas J. Lockwood, and Stuart M. McKee, do hereby agree to pay into the bridge fund of said township of Danby the sum necessary to construct the abutments at the Danby end of such bridge, not exceeding the sum of five hundred dollars, if the construction of such a bridge should be ordered by the county board of supervisors at their meeting held in the month of January, 1903, before the completion of such bridge, and not later than the first day of January, 1904, and if the said above-named obligors shall well and truly pay for the construction of such abutments or such sum as may be necessary, not exceeding said sum of five hundred dollars, at the time and in the manner herein mentioned, then this obligation is to be void, otherwise to remain in full force.”
    Ht is signed by the obligors and sealed.
    The township of Danby lies.south of Portland township, in Ionia county. At the October session of the board of supervisors of the county, in the year 1902, the township board of Portland presented a petition asking the board to order the construction of a bridge across Grand river on the line between said townships and apportion the expense thereof. Against such action, a remonstrance was filed by the township board of Danby, showing, among other things, that at the annual town meeting in April, 1902, the electors of the township had voted down the proposition to raise $2,000 to construct such a bridge. The matter was referred to a committee, which reported in favor of ordering the bridge to ,be constructed, but the report was not adopted; the vote standing seven yeas and fourteen nays. At the January, 1903, meeting of the supervisors, the petition of Portland township was renewed, and the vote of the board of supervisors, as to numbers voting aye and no, was exactly reversed; this over the repeated remonstrance of Danby township, which was later, in form of a protest and argument and notice that the carrying out of the resolution would be resisted in the courts, served upon the supervisors or upon its committee. This protest asserts that the valuation of Portland is $1,694,049, and that of Danby $732,320, according to which the resolution for an equal division of the cost of the bridge placed 70 per cent, upon Danby and 30 per cent, upon Portland. Litigation ensued, ending with the determination found reported in Board of Bup’rs of Ionia Co. v. Ionia Circuit Judge, 134 Mich. 412. Thereafter the bridge was constructed. It was known in December, 1902, that Portland township would renew its petition to the board of supervisors. Defendants are farmers living in Danby on the road leading to the point of the proposed bridge and especially benefited by the construction of the bridge. They executed the bond in suit. They presented it to the township board of Danby, and asked that opposition to the action of the supervisors be not made, and also preferred a form of resolution, to be passed by the board, to join with Portland in asking that the bridge be constructed. The board rejected the proposition, and defendants filed the bond with the clerk and took a receipt therefor. No express conditions accompanied the delivery of the bond to the township clerk. On the 5th of January, two of defendants appeared before the board of supervisors, represented that they had filed the bond for the benefit of the township, stating, among other things, that if the bridge was ordered to be constructed they would pay the township of Danby $500, exhibited the town clerk’s receipt, and urged that the petition of Portland be granted. Defendants, after the supervisors had ordered the bridge to be constructed, appeared before the town board and asked that further opposition to the bridge be not made. There is testimony tending to prove that it was stated by or for them, to the board, that, if litigation was had, they should consider themselves released from their undertaking. The bond was not withdrawn or demanded. The bond remained on file with the clerk of the township until after the decision of this court which has been referred to. On October 8th, one of defendants demanded the bond from the successor in office of that township clerk to whom it had been delivered. He declined to give it up. Ón October 19, 1903, the town board, by formal resolution, accepted the bond.

      R. A. & W. E. Hawley, for appellants.

      A. A. Ellis, for appellee.
   Ostbander, J.

{after stating the facts). Passing all contentions relating to the delivery and acceptance, according to its terms, of the bond, we go at once to the further, and the controlling, question, which is, whether, assuming the bond to have been so delivered and accepted, it is a valid obligation in the hands of the obligee. No consideration, in fact, moved from the obligee to the obligors, and no burden has been assumed, or undertaking begun, by the obligee in reliance upon the bond. The act or thing which is recited as a condition precedent to paying the money was not the act of, and did not spring from the action of, the obligee. Nor did it move at the instance of the promisors. At most, they aided action moved for by a third party. The validity of the bond, if it is valid, depends, then, upon the facts that the bridge was of peculiar value to the obligors, and that the execution and delivery to the plaintiff of the bond influenced the supervisors to lay a burden upon the plaintiff township. There is judicial precedent for the proposition that the statute (3 Comp. Laws, § 10186), which provides that in any action upon a sealed instrument the seal thereof shall only b.e presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same effect as if such instrument were not sealed, has no application in a case where a consideration, passing between the parties thereto, was never contemplated. Aller v. Aller, 40 N. J. Law, 446. The reasoning employed is that, no consideration for the promise having been contemplated, in the absence of fraud, illegality, or mistake, the rights of creditors not being involved, the law should, notwithstanding the statute, execute a promise made in a writing, sealed and delivered with the most solemn sanetion known to the law; that, if such an instrument contained the recital that it was given upon no consideration, it would not for that reason be refused enforcement. See, also, Harris v. Harris’ Ex’r, 23 Grat. (Va.) 737. But the effect given to our statute has been stated to be one which with respect to the consideration places simple ex-ecutory, and sealed executory, contracts upon the same footing. Green v. Langdon, 28 Mich. 221, 226; Hobbs v. Electric Light Co., 75 Mich. 550. It must be held, in the. light of the evidence, that the bond is a mere voluntary, gratuitous promise by the obligors to the obligee to pay a sum of money. Being so, it cannot be sustained as a gift in jurisdictions in which a seal may be impeached. 4 Am. & Eng. Enc. Law (2d Ed.), pp. 665, 666; Matter of James, 146 N. Y. 78.

What has been said disposes also of the contention that the promise, though gratuitous, may be sustained and enforced as a subscription to an object of public utility or necessity (Stevens v. Corbitt, 33 Mich. 458; Long v. Mayor, etc., of Battle Creek, 39 Mich. 323), since the promise is not made to one performing or expected to perform anything in reliance upon the promise; nor, treating the promise, as we must, as single, was it made in consideration of other promises or contributions.

The judgment is reversed, and, as it appears that upon no theory can plaintiff recover, no new trial is awarded.

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


author: Ostrander, J.

text:
    BECHTEL v. BARTON.
    1. Courts — Jurisdiction — Probate Courts — Ancillary Questions,
    Where, in proceedings to administer an estate, a woman makes a claim as widow of decedent, the probate court has power to determine whether a marriage between her and decedent existed.
    2. Marriage — Existence of Relation — Common-Law Marriage —Meretricious Origin.
    On the issue of marriage vel non, evidence examined, and held, sufficient to establish a marriage by reputation, notwithstanding the cohabitation had its origin in an attempted common-law marriage, which was claimed to be invalid because the woman had a lawful husband living at the time.
    3. Dower — Release—Effect.
    A contract between husband and wife, by which they agree to separate, and which provides, as an adjustment of their property rights, that the husband shall pay certain sums in money and notes to the wife in full of all claim for dower, support, and otherwise, and that she shall transfer her interest in the household furniture and execute deeds releasing her right of dower in his lands, which contract is fully executed and followed by a separation, operates to prevent the wife from enforcing any claim against the husband’s estate as his widow.
    4. Same — Contract—Fairness—Evidence.
    A contract by which a wife released her claims to her husband’s property in consideration of certain payments of money and notes, examined in connection with the circumstances, and held, inequitable and unfair and properly set aside.
    5. Same — Setting Aside — Returning Payments — Necessity.
    In setting aside contracts by which wives release their interests in their husbands’ property, it is not always necessary that rescission be accompanied by an offer to retransfer the property received.
    Appeal from Kent; Perkins, J.
    Submitted November 13, 1906.
    (Docket No. 132.)
    Decided March 5, 1907.

      Bill by Fred J. Bechtel, executor of the last will and testament of Fred Hodges, deceased, against Angeline F. Barton to enjoin the prosecution of a claim in probate court for a widow’s share of testator’s estate. Defendant filed an answer in the nature of a cross-bill to set aside a contract of separation. From a decree for defendant, complainant appeals.
    ' Modified and affirmed.

      Ward & Brown, for complainant.

      Taggart, Denison & Wilson (J. H. Clancy, of counsel), for defendant.
   Ostrander, J.

In the course of proceedings to administer the estate of Fred Hodges, who died testate January 5, 1905, at Grand Rapids, Mich., and whose will, disposing of all his property, was admitted to probate in Kent county, the defendant filed in the probate court notice of her claim to be admitted to certain rights in the estate, as widow of the deceased, and a petition for an allowance pending settlement of the estate. No provision was made for her in the will. Thereafter, the executors of said estate filed in the circuit court for the county of Kent, in chancery, their bill of complaint, praying for an injunction restraining defendant from presenting or further, prosecuting any petition or petitions in the probate court for the allowance of any sum or for any ■ interest in said estate. The purpose of the bill is to have enforced against defendant, in bar of her asserted interest in said estate, a certain contract, made by her with her husband, and a settlement of property rights made pursuant to said contract ; it being averred that upon presenting said matter to the probate court it was there ruled that said court had no power of jurisdiction to determine the validity and effect of the said agreement. The jurisdiction of the court of chancery is not questioned. The bill alleges a common-law marriage of the parties in December, 1876, and cohabitation thereafter until June, 1902, when they separated. Defendant answered the bill, and, claiming affirmative relief, she asks to have the contract held to be of no validity; that it be canceled, and she be decreed to be entitled to her share in the estate. In the answer to the cross-bill, the executors, upon information and belief, deny that defendant was competent to contract marriage with said Hodges, and deny that any legal marriage ever took place between defendant and said Hodges, again admitting, however, that the parties lived and cohabited together as husband and wife until some time in the year 1902. The impediment to a lawful marriage is not stated. The will of Hodges, executed on the day of his death (there are no children of the marriage), contains the following :

“Ninth. I have not in making this will forgotten my sister * * * and have made a settlement and compromise with my wife, Angeline Hodges, concerning which matter there is at present pending a suit in the courts of this State. I have a brother. * * * ”

The cause came on to be heard in open court, and a decree was entered dissolving the preliminary injunction, dismissing the bill of complaint, holding the contract of June 20, 1902, to be void, and directing the probate court for the county of Kent to disregard said contract in the settlement of said estate, and advising it that defendant is entitled to her share of said estate in accordance with the statutes of this State. From this decree the surviving executor has appealed.

The defendant was a witness in her own behalf, and upon her direct examination she stated that she was married to decedent 28 years ago at some place near Hunger-ford, near Big Rapids, where both of them were working in the woods. On cross-examination, she stated that no marriage ceremony was ever performed; that she and Hodges Simply went to living together as husband and wife; that she was married to a Demetrius Button when she was 17 years old (she was 59 at the time of the hearing), lived with him about 5 years, and had by him one child, now living; that Button is now dead, but was living when she was married to decedent, and for 5 or 6 years thereafter.

Q. You knew he was alive when you contracted this marriage 'with Fred Hodges ?
“A. He didn’t care. Yes, sir; I did. I didn’t live with him. My father came and took me home.”

Upon further direct examination, she testified:

Q. You spoke about Mr. Button, to whom you were first married, and from whom you separated. Did Mr. Hodges know Mr. Button ?
“A. Yes, sir.
Q. Do you know whether Mr. Button was at your house after you and Mr. Hodges commenced to live together as husband and wife.
“A. Yes, sir.
Q. You said something in your testimony on cross-examination in regard to Mr. Button, about your having been married to him, and that ‘ He didn’t care. ’ To whom did you refer as ‘ he,’ ‘ he didn’t care ?’
“A. Mr. Button.
Q. That Mr. Button didn’t care ?
“A. No, because we made an agreement. My father— will I tell you ?
Q. No. I say, who was it you referred to ?
“A. Mr. Button, I suppose.
££ Q. That Mr. Button did not care ?
“A. No.
“ Q. Who was it that didn’t care ?
“ A. Why it was Mr. Button that didn’t care that I was married.
“ Q. I do not quite understand what you say.
“A. I say that Mr. Button didn’t care because I was married, because he took the farm and I took the child.
£í Q. Did Mr. Button continue to live in the neighborhood ?
“A. Yes, sir.
£ £ Q. After you and Mr. Hodges went to living together ?
££A. Yes, sir; he lived there until after we went into business and Mr. Hodges bought his farm. Then he went away.
Q. Bought Mr. Button’s farm?
“A. Yes, sir.
££ Q. Where was that ?
“A. It was sis miles from Big Rapids down in the country.”

What, if any, ceremony attended the marriage of defendant to Button does not appear, nor whether they were ever divorced. Whether defendant’s relations with Button were known to Hodges is a matter concerning which the record furnishes no direct evidence, nor is there testimony of any witness to any other or further ceremony or understanding between defendant and Hodges after the death of Button. This testimony of defendant, with, perhaps, some other, furnishes the reason and the ground for attacking the validity of the marriage. Complainant asks for a decree adjudging the marriage to have been unlawful and void, and that the bill be amended in such manner as to present the issue of marriage or no marriage. On the other hand, counsel for defendant insist that the validity of the marriage is not, properly, a matter for consideration.

The issue of marriage or no marriage might have been determined in probate court. Peet v. Peet, 52 Mich. 464; Burgess v. Stribling, 134 Mich. 33. It is clear that the reason for asking the aid of a court of equity was not to determine the validity of the marriage. We prefer not to rest decision upon the point that the question of the marriage is not before us. Without questioning the rule that cohabitation, as husband and wife cohabit, meretricious in its beginning, will not be held to be marriage after disability to contract marriage is removed, without some further act or agreement of the parties equivalent, in law, to marriage, we have reached the conclusion that the rule should not be applied here, because not convinced that the marriage of Hodges and defendant was unlawful, or, if unlawful for the reason that defendant had a husband living when she contracted marriage with Hodges, that there was not, after the death of Button, a marriage. That from and after 1876 defendant and Hodges lived together as married people do, and were reputed to be married to each other, is not disputed, and the evidence is conclusive that Hodges regarded defendant as his lawful wife.

In 1904, in the circuit court, in chancery, for the county of Delta, he filed his bill praying for a divorce from defendant, and in the bill he sets out that on December 25, 1876, ‘' both of the parties hereto, being single persons, agreed to take each other presently as husband and wife and immediately commenced to live together as husband and wife.”

In her answer to this bill of complaint, the foregoing facts are admitted; defendant asking for affirmative relief by way of divorce and alimony. This cause coming on to be heard, a decree was entered which recites that each of the parties has failed to prove the material facts alleged, and the bill was ordered dismissed with costs to defendant. This decree was entered August 16, 1904. It is said, as explanatory of the conduct of Hodges, that he may have been all of his life in ignorance of the former marriage of complainant. If we were to draw an inference, as we may, from the testimony, it would be that it is improbable that he could have lived with complainant, in the immediate neighborhood of her former home with Button, and have had personal and business relations with Button, as he did have, without learning of the marriage, Defendant’s testimony is that she had been separated from Button for some seven years before she married Hodges. Button lived for six years after she married Hodges. The continued affirmance of the marriage relation by both Hodges and defendant during the life and after the death of Button, the separation and settlement of property rights, the divorce proceedings, and, lastly, the statement contained in the will of Hodges, are circumstances pointing strongly to a marriage, and their effect is not destroyed by the testimony of defendant herein set out. The case is, clearly, not ruled by Rose v. Rose, 67 Mich. 619, or by Van Dusan v. Van Dusan, 97 Mich. 70, and there is presented a stronger case for declaring the existence of the marriage relation than was presented in Barker v. Valentine, 125 Mich. 336 (51 L. R. A. 787).

We have, then, to consider the effect and validity of the contract as one made between husband and wife. It is contended, for defendant, that it is void as against public policy; that it is not binding because procured” by coercion, and because unjust and unconscionable. It is further contended that, if it is found to be valid, it does not, in any event, operate to release or prevent defendant from taking the statute share of the widow in the estate. The contention last stated may well be first considered. If it is sound, we need not consider the adequacy or inadequacy of the settlement provision or the good faith of Hodges. The contract sought to be enforced recites, as inducement, that the parties have lived together as husband and wife for, to wit, 28 years, and, by mutual consent and agreement by and between themselves, they will cease to so live together as husband and wife and live separate and apart; it is desired that an adjustment of their property matters be made. It is therefore agreed that the first party, the husband, will give to the second party $100 cash and nonnegotiable, noninterest-bearing notes for $3,900, due at various fixed dates, “which said notes and cash as aforesaid shall be in full of all claim to and right for dower, support and of all claims of every name, nature and description.” The wife further agrees to transfer her interest in the household furniture, and to execute a deed releasing her right of dower in and to any real estate being in the name of and belonging to the husband. The parties did not thereafter live together. No support was thereafter provided to the wife. The money was paid, and the notes were executed and delivered to the wife. She executed a bill of sale of the furniture, and. later a quitclaim deed of her dower in certain real estate.

We have examined certain decisions to which we are referred — among them Moon v. Bruce, 63 S. C. 126; Kistler v. Ernst, 60 Kan. 243; Jewell v. McQuesten, 68 N. H. 233; Newton v. Truesdale, 69 N. H. 634; Glass v. Davis, 118 Ind. 593 — and are of opinion they do not sustain the proposition that the contract in question, if valid, does not bar the demand now made by the widow. The cases referred to are in various ways to be distinguished from the one at bar. We are not called upon to determine whether, if the estate was intestate, the same ruling should be made. In Glass v. Davis, the deeds which were executed were held to be intended to operate as jointure, to affect the rights of the wife as widow only, and, as the husband died owning other realty, she should take as heir at law under the statute. In Newton v. Truesdale, the agreement did not provide that the parties should live separate, and did provide for a settlement of their respective interests by a division of their joint property. In Jewell v. McQuesten, the question whether by any form of contract the husband could convey or release to his wife, or estop himself from claiming his statutory rights in her estate after her decease, is, expressly, not considered. In Kistler v. Ernst, the wife died intestate without issue, and the contract in question was made before the marriage, and did not in terms exclude the husband from inheriting on the death of the wife. The court approved language used by Chancellor Kent in Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229, to the effect that, if it is intended in a marriage settlement to exclude the right of the husband to a share in the personal estate of the wife in case he survives her, and in default of her disposition of the same by will, an express provision to that effect is inserted in the deed. Moon v. Bruce turned upon a point not here involved.

Whether the arrangement was a fair one is therefore to be considered. In June, 1902, when the agreement was made, Hodges owned property worth from $20,000 to $25,000, and counsel for complainant contend that Hodges gave his wife substantially one-fourth of his property. But is that true? We are not now questioning the proportions stated, but the fact of his having given her property worth $4,000. Assuming the legal right to make the contract (Randall v. Randall, 37 Mich. 563; Rhoades v. Davis, 51 Mich. 306), and that if $4,000 had been given to the wife the arrangement would not have been unconscionable, at least in view of lapse of time without clear rescission would not be set aside, we find that in fact he gave his wife $100 cash, and his unsecured, nonnegotiable notes, one for $400, due six months after date, one for $500, due one year after date, and three for $1,000 each, due in two, three, and four years, respectively, without interest. He paid but one, the first, of these notes. He declined, later, to give interest-bearing demand notes for those he had given, and declined to pay the notes with $1,000 deducted. He stated: “I had an object in drawing the notes as they are, and Mrs. Hodges will never get a damn cent” — this to a banker to whom the wife had applied with the notes, and who, though without authority from the wife so to do, had a conversation with him concerning them. Later he conveyed to his wife a parcel of real estate, worth no more than $1,200, in exchange for $3,500 of the notes. This real estate she sold for $1,000, and for all that it was then worth. This exchange of notes for real estate was made in September, 1902. The argument made by counsel to sustain the division of property as a proper one proceeds upon the idea that $4,000 was given to defendant. We feel obliged to say that neither Hodges nor his representatives may say that the notes were worth more than he paid for them, and that the provision actually made for her was not worth more than $1,700. It'is true thatshehad, when the notes were so returned to Hodges, and perhaps had had before, advice of counsel, and it is also shown that in May, 1903, she executed, as Angeline F. Barton, a quitclaim deed of all dower and other interest, to Hodges, in a parcel of land in Newaygo county. But all of the facts must be considered. She was willing to be reconciled to her husband. It is not made to appear, and the inference may be drawn against the fact of knowledge, that she knew the merchantable quality of the notes to be given to her. Hodges was not able to prove, to the satisfaction of the 'court, the conduct of his wife which was the stated reason for the separation. In his bill for divorce, he avers, as grounds for divorce, the illicit commerce of defendant with a person named, beginning just prior to the separation of the parties, and that from August 1, 1902, to October 1, 1902, she and said party lived “in open and notorious adultery with each ” at a place named, and from about November 1, 1902, to the time of filing the bill they were still, at another place, so living in adultery. This conduct, he alleges, V has brought great disgrace and humiliation upon your orator, and her said actions have caused a public scandal in the city of Escanaba and vicinity and that since his discovery of her offenses on June 18, 1902, he has not voluntarily cohabited with her. Defendant, in her answer, denied these allegations, charges Hodges with offenses of the same nature, and prays for affirmative relief by way of a divorce and permanent alimony. In his answer to her cross-bill, Hodges sets up the contract here in question, and avers that he paid defendant $100 cash, $400 subsequently, and, “at her request and at her solicitation,” in exchange for the remainder of the notes, gave her the real estate already mentioned. The matter was thus put at issue in that cause. His representatives rely upon the settlement of property matters as conscionable when made and as having been in any event ratified and confirmed by defendant; that she has not returned or offered to return the property she received.

We hold the settlement of property rights to have been inequitable and unfair, and also find, in the divorce proceedings, a demand by the wife for further consideration, a protest against the allowance made to her. In such cases, it is not always required that rescission shall be accompanied by an offer to retransfer property received. The case is in some respects like that of Wright v. Wright, 79 Mich. 527. Both parties appeal to equitable considerations, and equity can be done by setting aside the contract upon condition that' there be deducted from the share which would otherwise pass to the wife under the provisions of the statute (3 Comp. Laws, § 9300) the sum of f 1,700; her share in the estate to be reckoned upon the value of the estate which decedent left. We take no account of rents received by the wife while she owned the property. There is imposed, also, the further condition that defendant execute such conveyance as is necessary to release all interest in and to the homestead which Hodges sold and conveyed before his death. It is to be inferred that the sum received by him on such sale has augmented the value of the personal estate.

The decree below will be modified to accord with this opinion, and, as modified, affirmed. As this modification is substantial, complainant should recover costs of this appeal.

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