text:
    MORRIS v. ANDERSON.
    Mortgages — Accounting—Payments— Evidence — Sufficiency.
    On a bill against a mortgagee for an accounting as to transactions between himself and the deceased mortgagor, evidence examined, and held, to support a finding that the amount of a certain mortgage was not included in and discharged by a subsequent mortgage, and to be insufficient to support a finding that certain payments were made by the mortgagor to the mortgagee.
    Appeal from Van Burén; Carr, J.
    Submitted October 18, 1905.
    (Docket No. 70.)
    Decided December 15, 1905.
    Bill by Martha Morris, Laura N. Morris, and May G. Vining against Le Grand R. Anderson and May Grace Hammond for an accounting. From a decree for complainants, defendants appeal.
    Reversed.

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

      David Anderson and Dallas Boudeman, for defendants.
   Montgomery, J.

The complainant Martha is the widow, and her co-complainants are heirs at law, of Amos Morris who died intestate, December 20, 1893, possessed of the legal title to two farms, one of 134 acres in Cass. county, and one of 79 acres in Van Burén county. These farms were then apparently subject to mortgages running to defendant Anderson of $4,200 and $2,000, respectively, each of which had been running many years and bore interest at a high rate. The $2,000 mortgage bore date March 31, 1882, and bore interest at 8 per cent. The $4,200 mortgage bore date March 27, 1886, and bore interest at the same rate. After the death of Mr. Morris, and on the 8th day of November, 1894, and on the 7th day of January, 1895, deeds of conveyance of the two farms, executed by the complainants to defendant Anderson, were signed and acknowledged by all of the complainants, and found their way into the hands of defendant Anderson. Some question is made as to whether they were delivered or whether they were taken by Anderson into his possession without the assent of complainants. This bill is filed for an accounting of transactions between Amos Morris and defendant Anderson. It is sought to review, not only the transactions which have taken place since the making of the mortgages in question, but those which took place some years before. On a hearing before the circuit judge it was found that the value of the two farms exceeded the amount due to Anderson, and a decree in the sum of $7,983.04 was entered for complainants.

It appears that June 19, 1879, Morris borrowed of Anderson $2,000, giving a mortgage on the Cass county farm at 8£ per cent. Again, on April 13, 1880, Morris gave a mortgage to Anderson of $600 upon the Van Burén county land. The $2,000 mortgage of March 31,1882, it is admitted, was given to take the place of the $600 mortgage. The bill also alleges that this mortgage included the interest on the $2,000 mortgage of 1879, which had accrued to that date. This is denied by the answer. The bill further alleges that, when the $4,200 mortgage of March 27, 1886, was made, it was agreed that it was to take the place of both the $2,000 mortgages, and that both were to be discharged. This is denied by the answer. It is admitted that the first $2,000 mortgage on the same land was to be discharged (as it was in fact), but it is denied that the other $2,000 was satisfied by the $4,200 mortgage. The defendants’ claim, therefore, is that in any consideration of the dealings the starting point should be the two subsisting and valid mortgages of $2,000 and $4,200, respectively, while,complainants contend that the latter only represented a subsisting indebtedness.- The circuit judge found against this contention of complainants, and, as we read the record, this conclusion has the support of evidence which is most persuasive, if not conclusive.

On the trial a paper headed “L. R. Anderson Notes” was produced, and it was shown by the cross-examination of the complainant Mrs. Vining that the memorandum was in her handwriting, except the two last items. She testified that she got the items probably about the time of the appraisal of the assets of Mr. Morris’ estate; that she found some of the notes mentioned in the schedule; that these notes had her father’s name on, and were in her mother’s possession. The notes "were not produced, but the schedule showed notes made in 1880 and 1881 prior to March 31, 1883, which, with interest, and entirely exclusive of the $3,000 mortgage of 1879, made up an amount lacking but a few dollars of the amount of the note and mortgage made on March 31, 1883, thus excluding the'idea that the 1879 mortgage or the interest on it was included in the 1883 mortgage.

As to the claim that both $3,000 mortgages were included in the $4,300 of March 37, 1886, this same memorandum goes far to show that this was impossible. The memorandum shows that Mr. Morris borrowed various sums of Mr. Anderson in May, July, and August, 1883, and in February, 1886, which, with interest, aggregated nearly $500, which, if added to the $3,000 and interest thereon, amounts to more than $3,900. We think, in view of the failure of any evidence of payments during this time, the fact that Mr. Morris was frequently borrowing money of Mr. Anderson overcomes any possible presumption that the interest on the $3,000 mortgage was paid, and precludes the idea that both the smaller mortgages were included in the larger one. So we agree with the circuit judge that these two mortgages are shown to have been made upon sufficient-consideration. Considering the length of time which has elapsed since these transactions occurred, we may say that it is surprising that, in the absence of testimony from the defendant himself, so complete a showing of consideration is made.

The complainants, however, claim that from this date payments were made from time to time by Mr. Morris, aggregating large sums. And the circuit judge accepted this contention. The testimony which is claimed to have established such payments consists in certain testimony of payments in detail, to which reference will be made later, of testimony tending to show that Mr. Morris was a man of frugal habits, and possessed of sufficient income so that he might have paid down this indebtedness, and of the statement of Mr. Anderson, when negotiating for the deeds, that a considerable sum would be coming to the complainants on the Van Burén county land.

The memorandum above referred to goes far to over-' come the presumption of payments which might arise* from the evidence showing an income adequate to the purpose of reducing these debts and frugal habits. The fact appears that Morris continued to be a borrower. A small note was given in August, 1887,'another to his brother (afterwards purchased by Anderson) in 1881, and one of $100 to Hammond in May, 1887. Nor does the testimony in the case, when carefully read, justify the extravagant claims made by counsel for the complainants as to the income of Mr. Morris. The Cass county farm was worked on shares by Mr. Vining. The income of Mr. Morris from this source did not largely exceed the taxes and the expense of a new kitchen, new granary, repairs on barn, and a new cistern. The other source of income was a fruit farm in Lawton. The income from this farm varied from year to year, but the average of receipts from 1883 to 1893 was but little over $700 per year, and when the expenses of cultivation were taken out, and the cost of improvements and harvesting and marketing the fruit, it is very doubtful if there was sufficient income from all sources to pay the running expenses of the family, including the cost of nursing during the two last yéars of Mr. Morris’ life. An indorsement appears on the $4,300 note, Dec. 15, 1890, $378.35. This was the year in which the largest income from the fruit farm was had. Mrs. Morris testifies that $600 was paid in this year. On cross-examination, however, it appears that an indorsement was made in her presence of some amount at this time. And what is most significant is that the checks which she testifies were paid amount to precisely the amount of the indorsement on the $4,200 note. It is also significant that in the memorandum above referred to she noted the payments claimed, and under date of October, 1890, wrote a draft or certificate of deposit from the Paw Paw bank of over $200. It is difficult to reconcile these entries with the present claim that this payment was $600.

The testimony of a payment of $400 rests upon hearsay. As to the statement of Mr. Anderson that the Van Burén county land was worth something more than the mortgage, and his offer to make this up by deeding other lands, it may be said that this statement is claimed to have been made prior to the final adjustment. It is undoubted that after having the interest computed in January, 1895, Anderson was asserting that the mortgages and the other claims which he held, or agreed to take care of, exceeded the value of both farms. We are satisfied the deeds were delivered without other reservation than that of the right to have the computation made by Mr. McKeyes. It appears that complainants afterwards learned that the papers were with Mr. McKeyes, but did not have the computation made, but after the lapse of six years filed this bill for an accounting, when, as complainant testifies, “after Mr. Lyle had h'is suit, and public sentiment had worked up enough so that I thought advisable to have an accounting,” she commenced this proceeding. 'We are convinced that the decree was wholly wrong, and that upon a fair accounting for the value of the land, and charging against the same the mortgages, less the payments established, nothing is due complainants.

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

McAlvay, Grant, Blair, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    STERLING v. UNION CARBIDE CO.
    1. Master and Servant — Injuries to Servant — Minors—Dangerous Appliances.
    Whether the exposed rollers of a corrugating machine were dangerous to the life and limb of a child under 16 years of age, within Act No. 113, Pub. Acts 1901, § 3, prohibiting the employment of a child under 16 years of age in any establishment whereby its life or limb is endangered, is a question fior the jury.
    2. Same — Violation op Statute — Negligence.
    Under Act No. 113, Pub. Acts 1901, § 3, the employment of a child under 16 years of age to operate-a machine dangerous to life or limb, whereby he is injured, constitutes actionable negligence.
    3. Same — Proximate Cause.
    The causal connection between the wrongful employment of a child under 16 at a dangerous employment and his injury at that employment is sufficient to constitute such employment the proximate cause of the injury.
    4. Same — Assumed Risk.
    A child under 16 years of age, employed to operate a dangerous machine in a factory in violation of Act No. 113, Pub. Acts 1901, § 3, does not assume the risk of being injured by such machine.
    5. Same — Contributory Negligence.
    In an action for injuries to a child under 16 years of age, wrongfully employed to operate a dangerous machine in defendant’s factory, evidence examined, and held, to require submission of the question of plaintiff’s contributory negligence to the jury.
    6. Damages — Personal Injuries — Longevity—Evidence.
    Mortality tables ai-e not conclusive on the expectancy of life, and in an action for injuries to a child, evidence that plaintiff’s ancestors were long-lived is admissible as bearing on plaintiff’s expectancy.
    • Error to Chippewa; Steere, J.
    Submitted October 18, 1905.
    (Docket No. 74.)
    Decided December 15, 1905.

      Case by Charles A. Sterling, by next friend, against the Union Carbide Company for personal injuries. There . was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Warner & Sullivan, for appellant.

      Chapman & Larmonth, for appellee.
   Montgomery, J.

The plaintiff sues, by his next friend, to recover for injuries suffered while in defendant’s employ. The plaintiff was at the time of receiving the injuries less than 16 years of age, he being at the time 15 years and 11 months old. The plaintiff had been at work for defendant three days when he received the injury complained of. At first he was employed cleaning up the floor, later he was set to cutting metal in two, and the last afternoon he was set to work on the notcher and corrugating machine. Before he had been at work on this machine an hour the injury occurred. In this last work the plaintiff stood between two machines. The first was a machine for clipping corners off the sheets of metal which were afterwards put through the corrugating machine. After this was done the sheets were separately taken in the plaintiff’s hands and passed through the corrugating machine. This machine consisted of rollers through which these sheets of metal, about 40 by 22 inches, were passed. The machine was constantly in motion, operated by a belt which could be thrown off and the machine stopped by means of a lever within reach of the operator’s hands. Plaintiff knew what the lever was for and how to stop the machine.

In the ordinary operation of feeding the metal into the corrugating machine, it was only necessary to push the sheet far enough in to reach the roller, so that the plaintiff’s hands would be no nearer to the roller than the width of the sheet metal. The plaintiff wore canvas gloves. While operating the machines he discovered that the notching machine did not always cut the corners of the sheets of metal clear off. Occasionally the corner would hang on. When this was noticed by plaintiff, he would, with his fingers, take hold of the corner and separate it from the sheet. While putting one of the sheets through, and when the other edge was 12 to 18 inches from the rollers, plaintiff discovered that one of these corners still adhered to the sheet of metal, and reached over to remove it. His hand was drawn into the rollers and severely injured.

The plaintiff testified that he knew that he was liable to get hurt if his fingers were caught in the rollers, and that he would have known that, if he reached over and grabbed at the iron when it was most through, he would be liable to get his fingers caught, but that he did not have the danger in mind. He also testified that it did not occur to him while at work on the machine that he was in danger of getting, hurt, and that, if he had thought that it would drag his fingers in, he certainly wouldn’t have tried to pull off the corners. He also testified that he was given no instructions when put to work on the machine. The plaintiff recovered, and the defendant brings error.

The instructions of the learned circuit judge briefly stated embodied three propositions: First, that it was a question for the jury as to whether the plaintiff was put to work at employment whereby his life or limb was in danger; second, that, if the first proposition should be found in the affirmative, it would follow that the negligence of the defendant was prima facie established; third, that the question of plaintiff’s contributory negligence was one of fact for the jury.

There can be little doubt that the question of whether these exposed rollers were a danger to the life or limb of a child under 16 years of age was, in the most favorable vie^, a question of fact for the jury. The statute takes cognizance of the immaturity of judgment of children under 16. It provides (Act No. 113, Pub. Acts 1901, § 3):

“No child under the age of sixteen years shall be employed by any person, firm or corporation, conducting any manufacturing establishment in this State at employment whereby its life or limb is endangered. * * * ”

To construe this statute as designed to protect children from such dangers only as could not be obviated by persons of mature judgment would render it nugatory.

Upon the question of whether the employment of plaintiff at an employment whereby his life or limb was endangered constitutes negligence, there is no direct authority in this State. In Borck v. Nut Works, 111 Mich. 129, recovery was denied, although the boy was under 14, but it was stated in that case that there was no count in -the declaration for negligence in employing the plaintiff. There are, however, numerous cases in this State which declare and apply the well-recognized rule that, where a statute requires an act to be done or abstained from by one person for the benefit of another, an action lies in favor of the latter for a failure to observe the requirements of the statute. Ferguson v. Gies, 82 Mich. 365 (9 L. R. A. 589); Ashman v. Railroad Co., 90 Mich. 567; Bahel v. Manning, 112 Mich. 24 (36 L. R. A. 523); Jones v. Railroad Co., 127 Mich. 208; Sipes v. Michigan Starch Co., 137 Mich. 258. See, also, Wharton on Negligence, § 443.

It is insisted by appellant’s counsel that the employment of the plaintiff was not the proximate cause of the injury. Whatever view may be entertained under statutes differently worded, we think it entirely clear that the disregard of the inhibition of this statute, by placing the plaintiff at work at an employment where his life or limb was endangered, constituted the negligence or wrong of which plaintiff has the right to complain, and that the causal connection between that wrong and the injury to plaintiff is clear. Perry v. Tozer, 90 Minn. 431; Marino v. Lehmaier, 173 N. Y. 530 (61 L. R. A. 811).

Closely connected with this question is that of assumption of risk. This qudstion we- regard as settled by the case of Sipes v. Michigan Starch Co., supra. See, also, Hall v. Mill Co., 39 Wash. 447.

The question of plaintiff’s contributory negligence was properly submitted to the jury. The statute upon which this action is founded clearly recognizes that a child under 16 years is immature in judgment. It was doubtless with this in view that this statute was enacted. The plaintiff was not instructed, and, when a condition arose-calling for prompt action on his part, he acted doubtless hastily, but whether with such judgment as could be expected in a boy of his years, acting without specific instruction, was properly a question for the jury. See Perry v. Tozer, and Marino v. Lehmaier, supra. And see, also, Ertz v. Pierson, 130 Mich. 160; Allen v. Jakel, 115 Mich. 484.

Error is assigned upon the admission of testimony tending to show that plaintiff’s ancestors were long-lived. As we have frequently held, the mortality tables are not conclusive as to the expectancy of life. We are not prepared to say that such testimony as that in this case is not competent as an aid to the jury. Nelson v. Railway Co., 104 Mich. 582. Were this more doubtful, the amount of the verdict in this case indicates that defendant was not damaged by the testimony.

The judgment is affirmed.

McAlvay, Grant, Blair, and Hooker, JJ., concurred.


text:
    HEINEMAN v. GANS.
    Contracts — Consideration—Forbearance.
    After a fire in leased premises the lessee executed an instrument for the purpose of facilitating the making of repairs on the building by which the lessee surrendered its right to the lease to the lessor to remove persons who were in possession for the purpose of removing damaged goods, so that the contractor might have possession after ten days. The person in possession agreed to vacate and remove all rubbish from the building if given eight days. Held, that the instrument was not a mere license, that it gave him the right to remove the occupant immediately, and that forbearance for eight days was a sufficient consideration for the occupant’s promise to remove the rubbish.
    Error to Wayne; Kohnert, J.
    Submitted October 19, 1905.
    (Docket No. 80.)
    Decided December 15, 1905.
    Assumpsit by Eanny Heineman and others.against Leo Gans for breach of an agreement to vacate certain premises. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Bowen, Douglas, Whiting & Murfin, for appellant.

      David E. Heineman (C. D. Joslyn, of counsel), for appellees.
   Montgomery, J.

This action was originally brought against the two named defendants. At the opening of the trial the court directed a discontinuance of the case as against the Western Salvage Wrecking Company, and the case was continued against defendant Leo Gans alone.

The plaintiffs are owners of a building in the city of Detroit known as the “ Arcade Building.” In February, 1901, the building was occupied by the Dresskell-Jupp Paper Company as lessee. A fire occurred in that month by which the building was seriously damaged, as was the stock of the Dresskell-Jupp Company. In the adjustment of the Dresskell-Jupp loss the insurance companies took over the damaged stock and made an agreement with defendant Leo Gans, assuming to act for Samuel Gans, manager of Western Salvage Wrecking Company, by the terms of which agreement the salvage company engaged to take the damaged stock, renovate and market it, and account for the proceeds. Defendant Leo Gans appears to have had personal charge of the business. Instead of removing the stock in its then condition he caused machines for trimming the paper to be put in the building and commenced to trim the paper on the premises. ■

The plaintiffs were desirous of repairing the building promptly, and the Dresskell-Jupp Company was likewise anxious that it should be done. Some impatience was felt at the delay, and on February 36th a written surrender and authority in the following words was executed:

“For the purpose of facilitating and expediting the making and completion of the necessary repairs in the premises and buildings known as 48 and 50 Larned Street West, Detroit, Michigan, it is hereby agreed and the said Dresskell-Jupp Paper Company hereby agrees to surrender all its right, title, and power in and to its lease of the premises, to Fannie, Solomon E., and David E. Heine-man, of -Detroit, Michigan, Flora H. Thurnauer and Emilia H. Pritz, of Cincinnati, Ohio, heirs and devisees, under the last will and testament of Emil S. Heineman, deceased, or their agent, to eject and remove parties and all persons who are now in possession of said premises for the purpose of removing a certain stock of paper and other things from said building, and to put out and eject said person or persons, so that the contractor to repair and rebuild said building may have possession of said premises from and after 10 days from this date; and said parties are hereby authorized to take all steps necessary to eject and remove said person or persons from said premises, but for this purpose and no other. The said lease of said premises to continue and be binding upon the parties hereto except as herein provided.”

Plaintiffs’ attorney thereupon wrote the wreckage company demanding that some arrangement should be made to insure the vacation of the premises promptly. In response to this letter defendant Leo Gans appeared. And the testimony of plaintiffs’ attorney, Mr. McNamara, tends to show that in consideration that the plaintiff would forbear to take steps to secure possession until March 6th, defendant Gans agreed to vacate the premises by that ■date, and to cause all rubbish to be removed. This was not done, and the plaintiffs were put to large expense in having the rubbish removed.

The case was submitted to the jury upon the question whether the agreement claimed was made between defendant Gans in his own name and the plaintiffs, and upon a sufficient consideration. The jury found the affirmative in answer to a special question.

It is contended that there was no testimony to show that defendant Gans promised personally. It appears by defendant’s testimony that the wreckage company was a copartnership, consisting of himself, Samuel Gans, and Fred Strauser. It would seem that the nonjoinder of his partners should have been taken advantage of by plea in abatement. See Porter v. Leache, 56 Mich. 40. As this point is not made in the brief we prefer to rest our decision upon the fact that the testimony of Mr. McNamara tends to show that the contract was made with Leo Gans as an individual.

It is urged that no right of possession was given to plaintiffs by the writing signed by Dresskell-Jupp Company until after 10 days from its date, and that a delay of action until March 6th was not forbearance. We do not so read the power. The evident purpose was to give an immediate right to plaintiffs to. demand and receive possession in order to make sure that by the expiration of 10 ■days the repairs might go on.

It is suggested that plaintiffs could not have maintained -an action for the reason that the written power was a mere license. It is clear that the purpose of the instrument was to confer upon plaintiffs a right of possession, which was-valid as against the defendant if delinquent. The postponement of this right was a valid consideration. No error is discovered.

Judgment affirmed;

McAlvay, Grant, Blair, and Hooker, JJ., concurred.


author: Blair, J.

text:
    HICKS v. STEEL.
    1. Assignment — Causes of Action for Tort.
    Under Act No. 195, Pub. Acts 1897, providing when an action of assumpsit may be brought for injuries produced by fraudulent representations, an assignee of a State bank, succeeding a national bank, under section 6106, 3 Comp. Laws, may maintain an action for damages alleged to have been sustained by his assignor in consequence of defendant’s fraudulent conduct as director of its predecessor.
    3. Frauds, Statute of — Fraudulent Representations.
    An assignee of a bank, alleging that defendant, as director, knowing that certain notes belonging to his father were not collectible and that the makers were not financially responsible, represented that they were good, and the bank, relying on such representations, discounted the notes for such father, cannot recover without evidence that the fraudulent representations were in writing.

      3. Banks and Banking — Liability as Director.
    Where a bank director was not acting as a director in obtaining discount by the bank of certain notes belonging to his father, he cannot be held liable because he induced or permitted the bank to extend credit to his father in excess of the legal limit, fixed by the national banking law (§ 5300, U. S. Rev. Stat.)..

      Error to Clinton; Stone, J.
    Submitted October 19, 1905.
    (Docket No. 87.)
    Decided December 15, 1905.
    Assumpsit by John C. Hicks against George A. Steel to recover damages for fraud and deceit. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      William A. Norton and John O. Fooling, for appellant.

      H. F. & E. L. Walbridge, for. appellee.
   Blair, J.

Plaintiff, as assignee of the Gratiot County State Bank, brought this action against the defendant in the circuit court for the county of Clinton to recover damages alleged to have been sustained by his assignor in consequence of certain fraudulent representations of defendant, and a violation of his duty as a director of its predecessor, the First National Bank of St. Louis, Mich. The declaration alleges, in brief, that at the time of presenting certain notes payable to Robert M. Steel for discount and renewal for his benefit the defendant, being a director of the bank, fraudulently represented the notes and the makers and indorsers thereof to be good and collectible, and that, in violation of his duty as a director of the bank, he procured and permitted the bank to extend credit to said Robert M. Steel in excess of the limit fixed by section 5200 of the national banking law [U. S. Rev. Stat.]. The trial court directed a verdict for the defendant'upon the grounds, in brief:

“First. A right of action for damages for a naked fraud is not assignable.
Second. The plaintiff can only recover upon such issues as he alleges in his declaration.
Third. The defendent, as an officer of a bank, may deal with his bank in the same manner as any other patron, providing he does not in the transaction attempt to represent or act for the bank.
Fourth. No person can be held liable for representation as to the credit or financial standing of another person, unless such representations are in writing, signed by the persons sought to be charged thereby.”

Plaintiff brings the record to this court for review upon writ of error.

First. We think the court was in error in holding that the cause of action in this case was not assignable. The First National Bank of St. Louis was organized in 1884 and continued its business down to July 6, 1897, when it was succeeded by the Gratiot County State Bank, in accordance with the provisions of section 6106, 2 Comp. Laws. Under such circumstances the State bank was substantially the same corporation as the national bank,, invested with all its property and possessed of all its rights, of action. First Commercial Bank of Pontiac v. Talbert, 103 Mich. 625; City Nat. Bank of Poughkeepsie v. Phelps, 97 N. Y. 44.

Act No. 195 of the Public Acts of 1897 (3 Comp. Laws, §§ 10421, 10422), took effect August 30, 1897, and provides that an action of assumpsit may be brought for injuries produced by fraudulent representations or conduct in place of an action on the case for fraud or deceit, and that a promise shall be implied to pay all such damages as arise from such fraud or deceit. The second section of the act provides that the cause of action shall survive. The act, in terms, provides for cases where “an injury has been,” as well as to cases where an injury “shall be produced,” and, as we have heretofore held, related to causes of action in existence at the time it took effect. First Nat. Bank of Ovid v. Steel, 136 Mich. 588. The State bank had, as successor of the national bank, a right to bring an action for fraud and deceit against defendant at the time the act took effect, and immediately thereafter it had the right, at its option, to bring an action of assumpsit. As the act provided for the survival of the cause of action, it could be assigned.

Second. The trial court construed the declaration as charging that the defendant presented to the national bank, of which he and his father, Robert M. Steel, were directors, five promissory notes, which were the property of his father, for discount, and' that defendant, knowing that the notes were not collectible and the makers and indorsers thereof financially irresponsible, fraudulently represented that the notes were good and the makers and indorsers thereof financially responsible, relying upon which representations the bank discounted the notes for the benefit of Robert M. Steel and accepted renewals thereof. The court further held that there was no evidence of any fraudulent representations in writing, as required by the statute of frauds, and therefore plaintiff could not recover therefor, as held by this court in St. Johns Nat. Bank v. Steel, 135 Mich. 165. Plaintiff’s counsel concede that “ the declaration as to all but the Mt. Pleasant Lumber & Manufacturing Company note proceeds upon the theory that the notes were the property of Robert M. Steel, and were not the'property of George A. Steel;” but they insist that the declaration charges that the property in that note was in George A. Steel, and that as to such note oral representations were sufficient. We find no such distinction made in the declaration, and think the trial judge was correct in his construction of it. We are also of opinion that the trial judge correctly held that there was no evidence of any written representation upon which a verdict would be justified under the declaration. The essence of the allegations in the declaration was that the fraudulent misrepresentations were made with reference to the identical notes and the renewals thereof at the several times when they were discounted by the bank or renewed, and there was no written evidence of such misrepresentations signed by defendant given in evidence or offered in evidence.

Third. Testimony was introduced by plaintiff tending to show that defendant made false representations as to the notes to his fellow directors at meetings of the board held on October 23, 1895, and January 17, 1896, when it is claimed that he was acting as &• member of the board. On the contrary, defendant contends that the undisputed testimony discloses that he was not at such times acting as a director with reference to the paper involved in this suit, but as the agent and representative of his father dealing with the bank, and this was the view taken by the trial judge. We have carefully considered the testimony contained in the record, as well as that excluded by the court upon this subject, and have come to the same conclusion as that reached by the circuit judge. Our conclusion that the defendant was not acting as a director in obtaining the discount and renewals of the various notes disposes of the contention that defendant was liable because he induced or permitted the bank to extend credit to Robert M. Steel in excess of the legal limit fixed by section 5200 of the national banking law [U. S. Rev. Stat.]. The declaration is framed upon the theory of the violation by defendant of his duty as a director. So far as this question is concerned, Mr. Chief Justice Fuller, in his opinion in Briggs v. Spaulding, 141 U. S. 132, 146, quotes with approval 1 Morawetz on Private Corporations, § 556, as follows:

“ The liability of directors for damages caused by acts expressly prohibited by the company’s charter or act of incorporation is not created by force of the statutory prohibition. The performance of acts which are illegal or prohibited by law may subject the corporation to a forfeiture of its franchises and the directors to criminal liability ; but this would not render them civilly liable for damages. The liability of directors to the corporation for damages caused by unauthorized acts rests upon the common-law rule which renders every agent liable who violates his authority, to the damage of his principal. A statutory prohibition is material under these circumstances merely as indicating an express restriction placed upon the powers delegated to the directors when the corporation was formed.”

The declaration alleging a violation of defendant’s authority as such agent, to the damage of his principal, it was essential to a recovery that he should show such agency. This he failed to do. - We do not intend to intimate that under a broader declaration a cause of action might not be established by the facts disclosed by this record. We have considered the assignments of error not herein discussed, and find no errors committed by the trial court.

The judgment is affirmed.

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


text:
    TRAVERSE BEACH ASS’N v. TOWNSHIP OF ELMWOOD.
    Taxation — Assessment—Review—Correction.
    The board of'review is the constituted tribunal for the correction of the injustice of unequal assessment, and a taxpayer who is subject to the board’s jurisdiction and fails to make his appeal to that tribunal cannot later appeal to the courts for redress. Sections 3851, 3853, and 3899, 1 Comp. Laws.
    Error to Leelanau; Mayne, J.
    Submitted November 8, 1905.
    (Docket No. 101.)
    Decided December 15, 1905.
    Assumpsit by the Traverse Beach Association against the township of Elmwood for taxes paid under protest. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Dwight D. Boot, for appellant.

      Patchin & Crotser (A. F. Bunting, of counsel), for appellee.
   Montgomery, J.

This action was brought to recover taxes paid under protest. In one respect the case is similar to the case of the same title decided at this term. Ante, 78. In this case, as in that, it appears that the board of review of the township held regular sessions as required by the statute, and that no one appeared on behalf of the plaintiff to object to the assessment roll as made by the supervisor. This fact must be held decisive against the plaintiff’s claim.

There is no contention but that the plaintiff’s property was subject to assessment in the defendant township. The sole complaint is that the assessment of the supervisor was relatively so unequal, as compared with the assessment of other property in the township, as to indicate fraud on the part of the supervisor. Section 3851 of 1 Comp. Laws provides for a board of review. Section 3853 provides that the board shall, at the request of any person whose property is assessed or of his agent, and on sufficient cause being shown, correct the assessment as to such property in such manner as in their judgment will make the valuation thereof relatively just and equal. It is clear that this board is the constituted tribunal for the correction of the injustice alleged by plaintiff. We have repeatedly held that the taxpayer who is subject to the board’s jurisdiction and who fails to make his appeal to that tribunal cannot later appeal to the courts for redress. Township of Caledonia v. Rose, 94 Mich. 216; Hinds v. Township of Belvidere, 107 Mich. 664.

Section 3899, 1 Comp. Laws, providing that a tax may be held illegal where it appears “that the supervisor or board of review in assessing a person or property for taxation, or in the apportionment of the tax to the person or property in question, acted fraudulently,” should be construed with reference to and in connection with section 3853. It cannot be held that it was intended to permit the taxpayer to ignore the tribunal especially established for the very purpose of enabling him and others similiarly situated to have a correction of inequalities. For fraud in the board of review, or for subsequent fraud of the supervisors, section 3899 affords a remedy, but for antecedent fraud of the supervisor the remedy is by appeal to' the board of review. The provisions of section 3899 above quoted have been a part of the tax law since 1883. See Act No. 9, Pub. Acts 1883, § 85; Act No. 153, Pub. Acts 1885, § 90. The cases above cited are therefore decisive.

The judgment for defendant is affirmed.

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


author: Ostrander, J.

text:
      In re EMMONS’ ESTATE.
    1. Homestead — Surviving Widow — Debts—Liability of Homestead.
    A homestead may be subjected iu proper proceedings to payment of the debts of the deceased owner, though it does not fall into the estate before the time limited by statute for closing the estate, or before the time when the estate is actually closed.
    2. Same — Rights of Creditors — Laches.
    Where a widow remarried before the estate of her deceased husband, who had owned a homestead worth not more than §>1,500, had been closed, and all those interested had knowledge of the cessation of the homestead right, an unexcused delay on the part of creditors for more than six years after the closing of the estate prevents them from enforcing their claims against the homestead.
    Error to Lapeer; Smith, J.
    Submitted November 15, 1905.
    (Docket No. 136.)
    Decided December 15, 1905.
    William Gaskill, administrator de bonis non of the estate of B. Ridgeway Emmons, deceased, filed a petition for the sale of certain real estate for the payment of claims allowed against said estate. The petition was granted, and Henry B. Lippincott appealed to the circuit court. There was judgment affirming the order of the probate court, and contestant brings error'.
    Reversed, and petition dismissed.
    An administrator de bonis non of the estate of B. Ridge-way Emmons was appointed, upon whose petition, showing debts unpaid, an order was granted by the probate court of Lapeer county for the salé of certain real estate to pay such debts. Upon the appeal of Lippincott, the matter was heard at the circuit by the judge sitting without a jury. The amended findings of fact and conclusions of law state the case:
    “Findings op Fact.
    “1. ThatB. Ridgeway Emmons'died July 19, 1893.
    “2. That there was an administration of his estate. Administration of his estate was first committed to Rebecca Emmons, his widow, who was appointed administratrix September 7, 1893.
    “3. She filed an inventory of the said estate October 5, 1893, and it included lands now sought to be sold by the administratrix de bonis non. It also included other lands.
    ‘ ‘ 4. License to sell the real estate of the deceased was granted July2, 1894.
    “5. The sale under said license took place prior to August 27, 1894, and all lands were sold, except the parcel sought to be sold in the present proceedings.
    “6. The sale of the real estate was confirmed by the probate court August 27, 1894.
    “7. Proceedings were taken to fix and determine the S. W. i of the S. W. i of section 7 of Almont, Lapeer county, to be a homestead, and the probate court of Lapeer county set off such land to the widow as a homestead July 2, 1894.
    “8. Appraisers were appointed by said court to appraise the ‘homestead,’ and they reported its value to the probate court at $1,500. This report was prior to July 2, 1894, and was confirmed by the probate court November 30, 1894.

      “ 9. No commissioners on claims were appointed, but claims were heard by the judge of probate. On March 7, 1894, the probate judge allowed claims to the amount of $2,508.04. On April '4, 1894, he allowed claims to the amount of $205.53, and on May 14, 1894, he allowed claims to the amount of $19.64. The total amount of claims allowed by the probate court against the estate was $2,734.16. The hearing of claims was closed May 14, 1894. Twenty per cent, of said claims were paid by the administratrix. Eighty per cent, remain now un-J paid.
    “ 10. Rebecca Emmons, administratrix, filed her final account, which was allowed, February 25, 1895. The order allowing said account is as follows :■
    “ ‘State ok Michigan, )
    County of Lapeer, ss.:
    “ ‘ Probate Court for said County.
    “ ‘At a session of probate court for the county of La-peer, holden at probate court in the city of Lapeer, on the 25th day of February, 1895.
    “‘Present. — Edgar S. Hough, Judge of Probate.
    . “ ‘In the Matter of the Estate of B. Ridgeway Emmons, Deceased and Incompetent.
    “ ‘ Rebecca Emmons, administratrix of said estate, having on the 30th day of November, A. D. 1894, filed in the court petition for final settlement as such administratrix, and this court having appointed the 2d day of January, 1895, for hearing said petition.
    ‘ ‘ ‘And it satisfactorily appearing by due proof on file that due notice of the hearing of said ■ account has been given to all persons interested, as directed by the court, and the hearing on said account having been continued from time to time.
    “ ‘ Now comes into court said administratrix, and, after a full examination and hearing on said account.
    “ ‘ It is ordered and decreed by the court that upon said administratrix filing receipts from the several claimants for 20 per cent, of their several .claims, as allowed by probate court, said residue of said estate, as specified in said account, shall be turned ove^ to said Rebecca Emmons as widow of said deceased.
    “ ‘And it is ordered and decreed that said administratrix do pay all the claims as allowed by probate court at 20 per • cent, of said claims as so allowed within one year from this 25th day of February, 1895, and upon the payment of said 20 per cent., as-above stated, the said Rebecca Emmons, as such administratrix, shall be discharged and said estate closed. The above-mentioned 20 per cent, being the dividend due the several creditors of said estate, as determined by this court after a full hearing and examination of said account.’
    “ 11. On October 7, 1896, the probate court entered an order discharging the administratrix and closing the estate. The order in full is as follows:
    “ ‘State oe Michigan, |
    County of Lapeer, }ss.:
    “ ‘Probate Court for said County.
    “ ‘ By Edgar S. Hough, Judge of Probate.
    “ ‘In the Matter of the Estate of B. Ridgeway Emmons, Deceased.
    “ ‘ Whereas, it appears by the records and proceedings of said court, you, the said Rebecca Emmons, have in all things faithfully and justly performed and discharged all and singular the duties and obligations, which by law and the orders of said court were required of and enjoined upon you as such administratrix, and that you have duly and fully accounted for and administered all of said estate which has come into your possession in pursuance of law.
    “ ‘ Therefore, in consideration of the premises, you, the said Rebecca Emmons, administratrix aforesaid, are hereby discharged, exonerated, and acquitted from any and all liabilities and troubles concerning your administration of said estate, and your doings and proceedings are forever quieted, your administration bond canceled, and your letters of administration heretofore granted arc hereby revoked and annulled.
    “ ‘ In witness whereof, I have hereunto set my hand and affixed the seal of said court at the probate office, in the city of Lapeer, this 7th day of October, A. D. 1896.’
    “ 12. There was no appeal from the order of the probate court allowing the final account of said administratrix or any proceedings to set aside said order, nor was there any appeal taken from the order of the court of date of October 7, 1896, discharging the administratrix and closing the estate, nor were any proceedings taken to set aside said order.
    “13. Rebecca Emmons, widow of the deceased, remarried January 9, 1896, to Henry B. Lippincott, the appellant in the present proceedings.

      “14. There was no concealment of the remarriage of the widow to Henry B. Lippincott, and the parties lived together as husband and Wife upon the land sought to be sold continuously from January 9, 1896, to the death of Rebecca Lippincott, October 29, 1903.
    “15. The marriage of Rebecca Emmons to Henry B. Lippincott and their living together as husband and wife was known to some, probably to all, of the creditors whose claims had been allowed by the probate court.
    “16. The probate court of Lapeer county entered an order limiting the time for the settlement of the estate on September 7, 1893, and the limit of the order was one year. No order extending the time for a settlement of the estate was ever entered.
    “ 17. That B. Ridgeway Emmons died intestate and without issue him surviving, and thereafter his widow became entitled to the interest in said lands as provided in 3 Comp. Laws, § 9064, subd. 2. That, at the death of B. Ridgeway Emmons, the brothers and sisters, or their representatives, heirs at law, entitled to inherit the other one-half interest of said lands, were: Jesse Emmons, brother deceased; Sophia Lippincott, sister; Caroline Gaskill, sister; Sarah Keene, sister; William Emmons, brother; Bulah Todd, sister; Elizabeth Rockhill, sister; Mary Van Horn. The appellant, Henry Lippincott, represented the interest as assign of Jesse Emmons and Sophia Lippincott, as well as the interest of Rebecca Emmons Lippincott, and that he represented a five-eighths interest in said lands.
    “18. December 6, 1903, a petition was filed for the appointment of an administrator de bonis non of the estate. On January 4, 1904, the administrator de bonis non was appointed and the same day filed a petition for license to sell the lands in question. License to sell was afterwards granted and an appeal therefrom taken to the circuit court for Lapeer county.
    “ 19. The order allowing claims on file shows the claims to firms in the firm name of such firms and the amounts allowed them are as follows:
    Lamb & Folsom_______________________________ — <¡¡>128 58
    J. W. Cole & Sons................................. 9 00
    D. & A. Cockrane_________________________________ 57 01
    J. C. Lamb & Co______________L................... 21 65
    F. A. Burnett & Co................................. 3 70
    Heenan & Hibler................................... 49 30

      “20. That in. the administrator’s final account no mention was made of the homestead, the S. W. £ of the S. W. £ of section.7, town 6 N., of range 12 E., but the final account did contain the following:
    “ ‘ Your petitioner further represents that no allowance was made for her support and maintenance during the settlement of said estate, nor has any portion of the personal property of said estate been set aside to her as his widow.
    “ ‘ Your petitioner further represents that there remains in her possession the following personal property belonging to said estate, viz.: 19 pigs, 4 cows, 3 sows, 2 horses, one mower, one pair sleighs, one harrow, one set of harness, one hay rack, one pair of trucks, one buggy, one cultivator, one plow, one binder, flock of chickens, one colt, about three tons of hay, about 150 bushels of oats, about 75 bushels of corn, about 150 bushels of wheat, and some household furniture; that the value of said property would not exceed $300.00, and your petitioner prays that an order may be made setting off to her and for her own the personal property above described.’
    “The footing of receipts and disbursements shown by this account are:
    Receipts, including land sold, $456, under license-$6,118 86
    Disbursements allowed__________________________ 9,258 64
    Excess of disbursements by administratrix over receipts---------------------------------------$3,139 78
    “Excess of disbursements over receipts, including appraised value of homestead and not including 20 per cent, to be paid, $1,639.78, but the amount of the disbursements allowed, to wit: $9,258.64, include the following items for incidental expenses of the guardian and for her compensation.
    April 21, 1891, incidentals..........-............. $250 00
    April 21, 1891, guardian’s services................ 200 00
    May 20, 1892, 1 year’s services and incidentals____ 400 00
    May 17, 1893, 1 year’s services.................... 250 00
    May 5, 1894, 1 year’s services..................... 150 00
    $1,250 00
    “21. Henry Lippincott is not a purchaser in good faith for a valuable consideration. He had knowledge of the condition of the estate of B. Ridgeway Emmons and knew that the creditors had been paid but 20 per cent, of their claims, and he claims to have paid only $1 for the deed from Rebecca Emmons to himself.
    “22. On January 9, 1896, at the time Henry Lippincott and Rebecca Emmons were married, they were both old people. Henry Lippincott had no home or property and Rebecca Emmons had no other home on the property in question and had no property except such as she was entitled to as a widow of B. Ridgeway Emmons.
    “23. Henry Lippincott and his wife, Rebecca Emmons Lippincott, occupied said premises as their home from time of their marriage until the death of Rebecca Emmons Lippincott.
    “24. B. Ridgeway Emmons at his death, July 19, 1893, was seised in fee of the following lands situate in Lapeer county, Mich., to wit: E. £ of S. W. i, S. i of W. ¶ of N. W. ¿, all in Sec. 7, T. 6 N., R. 12 E., 178 acres, and no steps were ever taken by the widow to have her dower in said lands admeasured and she never released her dower right in his said lands, except to the E. i of S. W. i, Sec. 7, T. 6 N., R. 12 E.
    “25. Prior to his death Emmons, his wife not joining, had mortgaged the W. % of the S. W. •£ and the S. i of W. i of N. W. i, Sec. 7, T. 6 N., R. 12 E. Subsequent to the sale of the lands under the license of the probate court in 1894, made subject to dower and said mortgage amounting to $1,600, Rebecca Emmons became purchaser of the same, and paid, satisfied, and discharged the mortgage lien on said lands.
    “26. Under the license from the probate court the administratrix sold the N. W. ¿ of S. W. ¿ of Sec. 7, T. 6 N., R. 12 E. and S. i of W. i of N. W. i, Sec. 7, T. 6 N., R, 12 E., to Marvil I. Brabb for $25, subject to the mortgage at that date amounting to $1,600 and dower; and sold under said license the E. i of S. W. -J, Sec. 7, T. 6 N., R. 12 E., to Charlotte I. Lathrop for $431, in the deed of which Rebecca Emmons' joined to release her dower.
    “ 27. The estate of B. Ridgeway Emmons was appraised in the sum of $7,146.30, of which $5,830 was realty and $1,316.30 personalty.
    “28. Rebecca Emmons, as administratrix, never received her statutory fees for her per diem, and percentage for administering said estate, and no compensation was ever allowed her as a credit.

      “29. No statutory allowance was made for widow" except the property mentioned in the order allowing her account amounting to less than $300 turned over to her.
    “30. At the allowance of final account there were no assets of the estate, except the homestead and the personal property reported as on hand and turned over to the widow, with which to pay the claims allowed or any dividends thereon.
    “Findings of Law:
    “1. That the orders of the probate court entered February 23, 1895, and October 7, 1896, allowing the administratrix final account and closing the estate, are not a bar to the subsequent proceedings now sought.
    “2. That a sale in this case is not barred because asked more than four and one-half years after the original appointment of an administrator.
    “3. That the several notes and accounts allowed as valid claims by the judge of probate court, prior to May 15, 1894, became a lien upon the estate, and as such are not outlawed.
    “4. That a sale ought not to be barred by the mere lapse of time since the remarriage of the widow January 9, 1896. That a satisfactory excuse for the delay exists, and that appellant is estopped from objecting that the creditors allowed his wife to retain possession of all the land in question. There were, however, no special circumstances to cause the delay. The delay was mere leniency on the part of the creditors.
    “5. That the order of the probate judge licensing a sale should be affirmed.”
    Counsel for appellant presents and argues propositions stated by him in the following form:
    “ (a) Whether a homestead set off as such during administration, but which ceases to be a homestead by remarriage, nine months prior to the close of such administration, can again be subjected^ to the lien of creditors who have failed to appeal from tlie orders closing the estate where no action has been taken for over seven years after the order closing the estate is entered.
    “ (5) Whether the orders closing the estate are not res judicata as to the status of the property in administration, and estop both creditors and the court and take from each the power to again seek administration Over property once in such administration.

      “(c) Whether the orders allowing the account, assigning the residue, and closing the estate do not pass to the heirs at law all of the estate in such administration free from the equitable lien of creditors.
    “(d) Whether creditors suffering all rights of action against the administratrix to become barred^ have not ceased to be creditors, and for that reason lost all liens against property in the first administration.
    ‘ ‘ (e) Whether appellant, who took as purchaser from Rebecca Emmons Lippincott seven years after the order closing the estate was entered, is not entitled by reason of such lapse of time to claim thaj; the records and files of the probate court and orders closing the estate are res judicata as to all property in administration and render him a bona fide purchaser as against the creditors of the estate.
    “ (/) Whether Rebecca Emmons, who is found to have paid $3,139.78 more than she received and who was required by the court to pay the creditors’ claims at 20 per cent, in addition as a condition of discharge, with no assets of the estate in her hands with which to pay the 20 per cent., and who received no compensation or statutory allowances other than is mentioned in the account and order allowing the account, is not equitably entitled to stand as against creditors as a purchaser for full value at least of such interest as would pass to her as widow under 3 Comp. Laws, § 9064, subd. 2.
    “ (g) Whether there is any statute which authorizes a homestead to be sold after the probate court has allowed a final account, decreed distribution of assets, discharged the administratrix, exonerated the bond, and formally closed the estate.

      “(h) Whether 4-J- years from the granting of administration or 44 years from the closing of administration is a limitation, and, if so, if there is any law authorizing land once in administration thereafter to be sold for the payment of debts of the deceased after such lapse of 4£ years, where the estate has been regularly and formally closed.”
    It is contended by counsel for appellee that but two propositions were involved, which are: ' (a) Whether creditors were guilty of such laches, under all the circum-. stances, as to prevent their having the land sold to pay their claims; and (b) whether appellant is in a position to avail himself of the defense of laches.

      Dwight N. Lowell (Byron R. Erskine, of counsel),, for appellant.

      Geer, Williams & Halpin and Elmer Shumar, for appellee.
   Ostrander, J.

(after stating the facts). While lands of an intestate deceased person descend subject to his debts (3 Comp. Laws, § 9064), an interest or estate may exist in such lands or in a part of them superior immediately to the rights of creditors. The Constitution provides :

“If the owner of a homestead die, leaving a widow, but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner of a homestead in her own right.” Article 16, § 4.

This court has held that this homestead right attaches whether the estate be solvent or insolvent. Koster v. Gellen, 124 Mich. 149; Eagle v. Smylie, 126 Mich. 612. It was strongly intimated that a sale of the homestead property, to pay debts, ought not to be made during the continuance of the homestead interest. Showers v. Robinson, 43 Mich. 502; Zoellner v. Zoellner, 53 Mich. 620. See Louden v. Martindale, 109 Mich. 235. Remarriage of the widow, there being no children, terminates the homestead right, though her dower right is not thereby affected. Dei v. Habel, 41 Mich. 88.

All statutes relating to the settlement of estates of decedents must be construed together; and, so far as is possible, harmonized. Where limitations of time are imposed, they must yield to the consideration that they cannot be held to apply if their application would defeat the general purpose of devoting the estate to the payment of debts. The legislature has recognized that the limits it has set generally to the time within which estates must be closed may not always be observed. Rather, it has made an express exception in 3 Comp. Laws, § 9137, in providing:

“ If the appraised value of the homestead, as fixed by the probate court in the manner provided in section one of this act, shall not exceed fifteen hundred dollars, no further action shall be taken or had in the matter until such homestead shall cease to be exempt from the payment of .the debts of the deceased.”

Manifestly the time when a homestead in lands of a decedent will cease to be exempt from the payment of debts is uncertain, and it may be so exempt for a period greater -than the longest time fixed otherwise for the settlement and closing of estates. See Kraft v. Kraft, 102 Mich. 439, 441. The facts found show the separating of the homestead property, of the value of not more than |1,500, from the other property of the estate, the insolvency of the estate, and the disposition of the remainder of the estate. They show that the homestead property became available to pay debts, if at all, on January 9, 1896, upon the remarriage of the widow. More than seven years •elapsed before the petition for appointment of an administrator de bonis non was filed.

It is contended by counsel for appellant that the statute (3 Comp. Laws, §§ 9134-9137) “in no manner changes or affects the homestead when only of the value of $1,500, and ■does not in direct terms authorize a sale, except when exceeding that value,” and that “there is no provision of lat^ which authorizes a sale except during the administration, and no provision for pursuing it after administration is closed.

If the import of this argument is understood, it is that such a homestead — one in value no more than $1,500— cannot be sold at all, if the statute is followed, unless it falls into the estate before the time otherwise limited by statute for closing the estate, or before the time when the estate is, otherwise, actually closed. Such a holding would do violence to settled rules of construction. There may be difficulties in fact, but there is no legal difficulty in saving both the constitutional homestead for those entitled to it, and, ultimately, the value of the fee for creditors of the decedent. The statute referred to, enacted in 1887, may be presumed to have been suggested by decisions of this court, and to have been intended to set at rest the questions discussed in Showers v. Robinson, supra, and in other of the cases cited.

We are not required to indicate rules of proper procedure in such cases. In the case before us procedure has been adopted, the effect of which is questioned. It is necessary to consider whether, for any of the reasons assigned, the administrator de bonis non is to be held precluded from subjecting the particular homestead to the payment of debts.

The objections made are founded upon (1) the effect of the proceedings to close the estate, and (2) upon the lapse of time. They will be considered together. It is not entirely clear, upon this record, what effect the order of February, 1895, was intended to have. Before his death the estate of Mr. Emmons had been in charge of his wife as guardian, and the probate court considered and attempted to settle, in one proceeding, the accounts of Mrs. Emmons as guardian and as administrator. It is found that, when the final account was allowed, there were no assets except the homestead and the personal property reported to be on hand, and which was, upon conditions named, turned over to the widow. Yet it was, for some reason, perhaps a reckoning of the then present value of the homestead, required that she pay to creditors, whose claims had been allowed, 20 per cent, of their several claims. The statute (3 Comp. Laws, § 9403) provides for the payment of a dividend when there shall not be assets sufficient to pay all of the debts of a class. Claims had been allowed to the amount of $2,734.16. The value of the estate, realized, was $6,118.86. Disbursements were allowed to the amount of $9,258.64. Including the appraised value of the homestead, the excess of disbursements, exclusive of the 20 per cent, of claims ordered paid, was $1,639.78. Of this sum $1,250 was allowed as guardian’s compensation, so that the excess of actual disbursements over total appraised and recovered values was $389.78. Add to this 20 per cent, of claims paid, $546.83, and it appears that Mrs. Emmons disbursed $936.61 over and above the value of the whole estate which decedent left. She was allowed no compensation as administratrix, had no allowances as widow, excepting the personal property described in her final account. Her dower interest was never admeasured. She had herself an allowed demand against the estate for $605. There is, therefore, ground for saying that the orders of February, 1895, and October, 1896, were intended as disposing finally of the rights of creditors in and to the estate upon a basis considered to be equitable. That such was the intention may be further inferred from the following facts: No appeals were taken. When the final order was entered, the homestead interest had for several months been terminated. The widow continued to occupy the homestead with appellant, her husband, until her death, October 29, 1903. Either by will or by deed she conveyed her interest in the land to appellant. Two of the heirs at law of B. Ridge-way Emmons have transferred their interests to appellant, and last, but not least, a fact not found nor requested to be found by the court, but which is shown by the undisputed testimony, none of the creditors who presented claims were concerned in the appointment of the present administrator. The statement in the findings of law:

“ That a satisfactory excuse for the delay exists and that appellant is estopped from objecting that the creditors allowed his wife to retain possession of all the land in question. There were, however, no special circumstances to cause the delay. The delay was mere leniency on the part of creditors” — is supposed to be based in part upon the asserted duty of the administratrix to herself devote the homestead property to the payment of the debts. This finding emphasizes the fact that the asserted neglect of duty and the real rights of creditors have been all of the time known to the creditors. The discharge of the administratrix was evidence to them that further action on her part was not to be expected.

It is argued for appellee that the question whether this estate should be opened has been passed, that it is open and in the hands of an administrator, and that the specific property not having been, in fact, heretofore devoted to the payment of debts, and it appearing that debts remain unpaid, the question of selling, unaffected by the former orders, is the only question here. The petition upon which the administrator de bonis non was appointed is not before us. It cannot, however, be held that the order opening the estate and appointing a representative is conclusive of the rights of owners of property which at some time was part of the estate.- The fee of the particular property descended — one-half to the wife, one-half to the other heirs. It was subject to be set apart as a homestead for the widow, and also to be sold for the benefit of creditors. The homestead right was interposed, and it ceased before the estate was settled and closed, of which facts all those interested had knowledge. If the orders which were entered, the estate being insolvent and the orders, in terms, closing it, were not conclusive upon the matter here presented after the time for appeal had expired, a point upon which no opinion is expressed, it is still true that a time must come in such cases as this when the heirs and the public may safely deal with the property. What is a reasonable period for action is, in this case, a question to be answered by the court. It is answered by saying that the unexcused delay for more than six years must be held to have determined the rights of the creditors to enforce their claims.

It should be certified to the probate court that the order appealed from should be set aside, and the petition for.the sale of the homestead property dismissed. Appellant will recover costs of all courts.

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


author: Hooker, J.

text:
    KIBBY v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Injuries to Freight — Connecting- Roads — Limitation of Liability.
    A carrier may stipulate for immunity from responsibility for damages resulting on connecting roads after his discharge of his full duty of delivering them to another road.
    3. Same — Failure to Furnish Suitable Car — Liability.
    A shipping order for a car of potatoes, in which it is stipulated that no carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, will not absolve the initial carrier from liability for injury to the potatoes by rain coming through the leaky roof of the car . after transfer to a connecting carrier, since it was bound to furnish a suitable car for the entire trip and deliver car and cargo to the connecting line in good condition.
    Error to Ingham; Wiest, J.
    Submitted November 17, 1905.
    (Docket No. 218.)
    Decided December 15, 1905.
    Assumpsit by Myron T. Kibby against the Michigan Central Eailroad Company for breach of a contract to transport certain potatoes. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Clarence D. Clark, for appellant.

      Thomas, Cummins & Nichols, for appellee.
   Hooker, J.

On November 4, 1902, the plaintiff shipped from Lansing, Michigan, to the State' of Georgia, a car load of potatoes, in a car furnished by defendant for the trip. It was agreed that plaintiff should go in the car to keep fire, if necessary, to prevent the potatoes from freezing. It was stipulated that the car should be sent to Jackson, over defendant’s road, and it was to be forwarded from there over connecting roads agreed upon. A shipping order was signed by plaintiff, which by its terms provided:

“ It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained, both on the face and the back hereof, and which are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonáble.”

The following were among the conditions referred to:

1. No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control; or by floods or by fire from any cause or wheresoever occurring; or by riots, strikes, or stoppage of labor; or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay; or from any cause if it be necessary or is usual to carry such property upon open cars. * * *
“3. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee.”

At Jackson the car was transferred to a train upon the Cincinnati Northern Railroad, and while in transit to Cincinnati the rain ran through the roof of the car, which was old and leaky, wetting the potatoes and causing them to heat and decay, so that the plaintiff lost about half of them.

This action was brought to recover damages for the value of the potatoes that were lost, expenses incurred in assorting and saving them, and a proportionate amount of the freight which the plaintiff was compelled to pay when the car reached its destination. The defendant has appealed from a judgment for plaintiff of $237.87.

The single question argued by defendant’s brief is that the conditions quoted limit its liability to damages sustained while the potatoes were being transported over its. road, for the reason that plaintiff has so contracted. It is raised by the refusal of the court to so instruct the jury to render a verdict for the defendant. We have repeatedly held that a carrier may stipulate for immunity from responsibility for damages resulting upon connecting roads after his discharge of his full duty of delivering them to another road. See the following cases cited by the defendant: Black v. Ashley, 80 Mich. 90; Smith v. Express Co., 108 Mich. 572; McEacheran v. Railroad Co., 101 Mich. 264; Hope v. Canal Co., 111 Mich. 209.

These cases do not militate against the plaintiff’s claim. The contract for defendant made it obligatory to furnish a suitable car for the entire trip, and deliver the car and cargo to the connecting line in good condition. It did not fully perform its duty of delivering to the connecting carrier the potatoes in a suitable car adapted to their transportation. This was a breach of their contract and they were liable for the consequences. See Searles v. Railway Co., 69 Miss. 186; Alabama, etc., R. Co. v. Searles, 71 Miss. 744; Shea v. Railway Co., 66 Minn. 102; Norfolk, etc., R. Co. v. Harman, 91 Va. 601 (44 L. R. A. 289); Norfolk, etc., R. Co. v. Sutherland, 89 Va. 703; Fox v. Railroad Co., 148 Mass. 220; International, etc., R. Co. v. Anderson, 3 Tex. Civ. App. 8.

The judgment is affirmed.

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


text:
    DENLER v. DENLER.
    Divorce — Settlement of Property Rights — Maintenance of Child — Agreement—Construction.
    A memorandum of agreement by which plaintiff agreed to dismiss her appeal from a decree granting a divorce between her ' and her husband in consideration of the transfer of certain property and other consideration, examined, and held, to ob. ligate defendant, her husband, to pay for the support of their sonfor one year and clothe him until 81, no provision for his support being made by the decree.
    Error to Wayne; Brooke, J.
    Submitted November 9, 1905.
    (Docket No. 110.)
    Decided December 15, 1905.
    Assumpsit by Catherine Denier against John Denier for breach of a contract for support. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Samuel W. Burroughs, for appellant.

      George B. Greening, for appellee.
   Ostrander, J.

Plaintiff sued the defendant in justice’s court, basing her right to recover upon a certain written contract. An appeal was taken to the circuit court, where plaintiff recovered, and defendant has brought the case here by writ of error. The agreement between the parties reads as follows:

“Memorandum of agreement, made and entered into upon the 35th day of October, A. D. 1899, by and between John Denier, of the city of Detroit, Wayne county, Michigan, and Catherine Denier, of the same place, party of the second part, -
“ Witnesseth as follows: Whereas, a decree of divorce a vinculo has heretofore been granted between the parties above mentioned by the circuit court for the county of Wayne in chancery by the Honorable Joseph W. Donovan, sitting as chancery judge; and, whereas, said Catherine Denler is contemplating an appeal to the Supreme Court of the State of Michigan to review said case; and, whereas, both parties are aware that there are no certainties in litigation, and each desires to settle the questions between the parties hereto:
‘ ‘ Therefore in consideration thereof, the said John Denler hereby agrees to give to Catherine Denler the sum of five hundred dollars immediately, and surrender to her, said Catherine Denler, all claim upon any furniture now in house 368 Columbia Street East, Detroit, and further consents also that the decree in this case be amended to that effect upon his (John Denier’s) part, which he hereby does.
“ In consideration of which, Catherine Denler, acknowledging the payment of said sum of five hundred dollars in money, and the transfer of said furniture, and the support of the boy Arthur Denler for one year and clothe him until twenty-one years of age, she, the said Catherine Denler, hereby agrees to waive, and she hereby does waive, any right that she may have to appeal and review the said case in the Supreme Court in the State of Michigan, and she, the said Catherine Denler, does hereby yield up any and every claim which she, the said Catherine Denler, may further have upon the said John Denler or his property beyond what is accorded to her by said decree, and the said decree shall stand permanent.
“It is further agreed that the said John Denler shall have the record testimony proposed for appeal.
“In witness whereof the parties hereto set their hands and seals the day and year first above written.”

On October 3, 1899, a decree was entered divorcing the parties to this suit and making certain dispositions of property by way of permanent alimony to the wife. Claiming to be 'dissatisfied with the decree, she took steps to appeal from the decree, and pending the preparation and settlement of a case on appeal the agreement in question was entered into.

The only child of the parties, Arthur Denler, lived with his mother. He was 16 years of age when the parties were divorced. The recovery below was for the amount claimed to have been expended by plaintiff for the support of the son for one year and for the amount expended for his clothing thereafter until he was 31 years of age. If the agreement of defendant was to support the boy for one year and clothe him until he was 21 years of age, the judgment must be affirmed. The court below, expressing some doubt as to the real meaning of the words used, permitted parol testimony to be introduced of the actual agreement between the parties. The errors assigned are based upon rulings made during the trial, upon the charge given to the jury, and the refusal of the court to grant a new trial. In denying a motion for a new trial, the court said:

“ I am constrained to say, upon further examination of the writing itself, that, had oral testimony as to the agreement not been received, I should have construed the agreement, blind and ambiguous as it is, to mean what the jury found the agreement to be.”

We think the contract is susceptible of but one reasonable interpretation, and that the one given it below, and that the court should have directed a verdict. The parties had been divorced. No provision for maintenance of the child had been made in the decree. His maintenance was a matter in which both were interested. The evidence is undisputed that the plaintiff provided for the young man, for support for one year and for clothing for succeeding years, to the extent of the recovery had. As to the sums of money earned by the young man, it does not appear that they amounted to more, than the fair cost of his board. These conclusions render other questions raised unimportant.

The judgment is affirmed.

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


author: Moore, C. J.

text:
    THOMAS v. BOARD OF SUPERVISORS OF INGHAM COUNTY.
    Health — Board of Health — Employment of Physicians — Liability of County.
    The amendment of 1903 (Act No. 7) of section 4424, 2 Comp. Laws, conferring upon boards of supervisors power to audit claims for services in case of contagious diseases does not authorize the board of supervisors to substitute its judgment in place of that of the board of health as to whether a person had a dangerous communicable disease.
    Certiorari to Ingham; Wiest, J.
    Submitted December 5, 1905.
    (Calendar No. 21,398.)
    Decided December 15, 1905.
    Mandamus by Frank A. Thomas to compel the board of supervisors of Ingham county to audit and allow a claim for medical services in a case of contagious disease. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      Lawton T. Hemans, for relator.

      L. B. McArthur, Prosecuting Attorney (Bollin H. Person, of counsel), for respondent.
   Moore, C. J.

The following statement of fact is taken from the brief of counsel for the respondent:

“In September, 1904, the city council of the city of Mason, in Ingham county, acting as a board of health, employed Dr. Thomas, the appellee, to attend a typhoid fever patient residing in that city. The doctor rendered the services required; his first visit being on September 8, 1904, and his last on October 10th of the same year. His entire bill came to $36, and was reasonable in amount.
“Thereupon the local board of health approved and certified to a properly itemized statement of the doctor’s services, and he presented the same to the board of supervisors of said county for allowance and payment, under the provisions of section 4424 of the Compiled Laws of 1897,, as amended by Act No. 7 of the Public Acts of 1903. The bill was presented in two parts, one at the October session of said board in 1904, and the other at the January session in 1905, but the whole matter was finally treated as one bill, and was entirely disallowed by the supervisors at their January session, after fully hearing the claimant and such testimony as he cared to produce in its support.
“The board of supervisors rejected the claim on the ground that typhoid fever was not, in their opinion, a ‘dangerous, communicable disease,’within the meaning of the statute, and for no other reason.
“Thereupon Dr. Thomas obtained a mandamus from the circuit court for the county of Ingham requiring the board of supervisors to allow the bill, and the board has brought the matter to this court by certiorari.
“The circuit judge based his action upon the theory, as we understand his opinion, that the amendment of 1903 gives the board of supervisors no power to determine whether a debatable disease does or does not come within the statute, and that the decision of the local board is yet final on that point.
“Hence, as we understand the record, the only questions on this appeal are:
“jFirst. The power of the supervisors to make such determination; and,
“Second. If they have the power, was their discretion legally exercised upon the evidence given in support of the claim ? ”

In our view of the case it will be necessary to pass upon only the first of these questions. The board of health gets its power to act in these cases from section 4424, 2 Comp. Laws, as amended by Act No. 7, Pub. Acts 1903. The provisions contained in this section, previous to the amendment of 1903, have been frequently construed by this court. See Safford v. Detroit Board of Health, 110 Mich. 85 (33 L. R. A. 300); Village of St. Johns v. Board of Sup’rs of Clinton Co., 111 Mich. 609; Browne v. Board of Sup’rs of Livingston Co., 126 Mich. 276; Zimmerman v. Board of Sup’rs of Cheboygan Co., 133 Mich. 494; Township of Cedar Creek v. Board of Sup’rs of Wexford Co., 135 Mich. 124. These cases held that, when the township board of health had acted, under the provisions of the section, its action was final, and the duty of the board of supervisors was to so treat it. In 1903 the section was amended. The portion of the amendment material here reads as follows:

“And the said board of supervisors shall as soon as may be proceed to audit the said bill, and if found that the expenses were necessarily incurred, the services actually and necessarily performed, and the amounts claimed for such expenses and services are severally just and reasonable under the circumstances, the said board of supervisors shall allow the same or such parts thereof as the majority of the members-elect of said board shall deem just and provide for their immediate payment by the said county, and in auditing such accounts, said several boards of supervisors shall have full power to examine into the merits of all claims presented to them in accordance with the provisions herein contained, and may subpoena witnesses and take any other measures necessary to arrive at the truth of the same.”

It is urged that by reason of this amendment the board of supervisors may substitute its judgment in place of the judgment of the board of health as to whether in a given case a person had a dangerous communicable disease. We do not think such was the purpose or effect of the amendment. The matter of the public health has been the subject of legislation for a great many years. Boards of public health have been created, and large powers given to them when the emergency arises for their exercise. These powers were curtailed in some respects by the amendments which we have quoted, but it is just as much the duty of the board of health to act in case of an emergency now as it was before the amendment.. When the board of health has acted in cases where it is its duty to act, and has filed the statement with the county clerk, as provided by the statute, it is the duty of the board of supervisors to proceed to audit the bill. The board of supervisors is not given the power to decide whether the disease with which the person was afflicted was a dangerous communicable one, but it is its duty to in good faith determine whether the expenses charged in the itemized statement were necessarily incurred, and whether the •services for which charges were máde were actually and necessarily performed, and whether the amounts claimed for such expenses and services are severally just and reasonable. If it is determined they are, they should be allowed. The practical effect of a construction of the statute in harmony with the action of the board of supervisors in this instance would leave the board of health shorn of its powers. We do not think that was the purpose or effect of the amendment.

The judgment is affirmed.

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


text:
    WALHIER v. WEBER.
    Contracts — Illegality—Right to Recover Payments.
    An agreement by -which, plaintiff agreed to pay defendants $Í0 a week for the nse of a liquor license issued to another person for another location, and for defendants’ services in obtaining immunity from police interference, being illegal (§§ 5382-5384, 2 Comp. Laws), plaintiff cannot recover payments made pursuant thereto.
    Error to Saginaw; Gage, J.
    Submitted December 8, 1905.
    (Docket No. 171.)
    Decided December 15, 1905.
    Assumpsit by John Walhier against William E. Weber and Emma Kahn, copartners as the National Brewing Company, for money had and received. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Frank E. Emerick, for appellants.

      Eugene Wilber and Fred L. Eaton, for appellee.
   Moore, C. J.

The following statement of facts is taken from the brief of counsel for the appellee:

“On the trial of this cause the plaintiff stated his case in substance as follows: The plaintiff, about July 1,1904; agreed with the defendants that he would open a saloon in the city of Saginaw for the sale of intoxicating liquors and lager beer, and pay the government tax, and give the bond required by the State law for selling liquor at retail, and also purchase his beer of defendants, who were brewers. In addition to paying for the beer, the plaintiff was to advance the sum of $10 or more each week to the defendants, until sufficient was paid to cover said State tax from July 1, 1904, to May 1, 1905; the defendants agreeing to advance the money for the tax, and obtain a receipt or card for the use of plaintiff in his saloon. The plaintiff purchased his beer of the defendants, and paid the $10 and more every week until the first of January, 1905, the sum then amounting to $172,-when the defendants refused to pay said tax, and obtain for plaintiff the said card. Plaintiff then closed his saloon and demanded the return of the $172 so advanced without consideration, and upon their refusing to pay commenced this suit. The defendants admitted the payment of the money, but claimed it was paid for the use of a card or receipt issued some time before to one Cushman for a number and street different from that occupied by the plaintiff. They claimed that they had advanced $500 to one Cushman for his State tax, but after the license had been obtained and delivered to Cushman, and he had run his saloon for a short time, he ran away, leaving the card in his saloon. The defendants took possession of the card, and retained it until the commencement of this suit. They also claimed they were to obtain protection for the plaintiff from the police and prosecuting attorney, so as to enable him to carry on his business without paying the State tax, and in violation of the law. They made no claim that they ever did obtain such immunity or that this Cushman card or license was ever in the possession of the plaintiff. After the defendants had made this claim in open court, the plaintiff, to shorten the trial, consented that if the court should find under the law that the defendants were entitled to make such a defense their claim might be treated as the true one, but subject to the plaintiff’s objection. This was agreed to by the defendants. Thereupon the court, upon hearing the argument of counsel, directed the jury to render verdict in favor of the plaintiff for the said sum of $172.”

It is the claim of plaintiff that “the action is not brought. to enforce an illegal contract, but in disaffirmance of it, while the defendants seek to make the alleged illegal contract the basis of his defense.”

In a written opinion filed in the case the trial court among other things said:

“It is conceded on both sides that the general rule is that the courts will not aid either party to an illegal agreement by enforcing the same. There are certain exceptions, however, to the rule. One of these is where the party plaintiff can exhibit his case without relying upon illegal transactions. 9 Cyc. p. 550.
This the plaintiff is able to do in this case, unless the defendants can be permitted to set up their version showing the illegality of the contract. Defendants could not have sued the plaintiff on this contract to compel him to carry it out. Why then should they be permitted to use it as a defense ? As we understand the cases in this State, they hold that they cannot do so. c The [illegal] contract as such can neither be set up as the basis of an action, nor as a ground of defense.” Tucker v. Mowrey, 12 Mich. 379; Brazee v. Bryant, 50 Mich. 140. It is a familiar rule of law also that no one should be heard to allege his own turpitude as a matter of defense. The rule above quoted from the Michigan cases is not applied when action is brought to enforce an illegal contract. As in one brought to collect a note or to enforce a mortgage given upon an illegal consideration, or where the transaction was otherwise unlawful. There are many cases in this State holding that in the latter class of cases the illegality of a contract inay be set up in defense. The case at bar, however, is not brought to enforce a contract, but is an action for money had and received, brought after the rescission of the illegal contract.”

It is insisted the trial court was right in the views we have quoted, and in the further view expressed by him that the case presented is an executory contract. It is said by counsel that ‘ money paid on an illegal contract which remains executory can be recovered back in an action founded on a disaffirmance and on the ground that it is void” — citing Wassermann v. Sloss, 117 Cal. 425 (38 L. R. A. 176), and many other cases. For the purposes of this case under the stipulation made in open court we must take the version given by the defendant of the transaction to be true. If this is done, it then appears that an illegal agreement was made (see sections 5382-5384, 2 Comp. Laws), that plaintiff entered upon its performance, and for more than six months, in pursuance of said illegal agreement, conducted the business of a saloon keeper in violation of law, and as part of the illegal agreement, while he was so violating the law, made payments which he now seeks to recover.

The principle involved has been before this court repeatedly, and it has been uniformly held that where money has been paid or goods delivered in pursuance of a contract that is immoral or criminal, or in violation of a statutory provision, and the parties are in pari delicto and particeps criminis, the court will leave them where they have placed themselves. See Bronson Agricultural & Breeders’ Ass’n v. Ramsdell, 24 Mich. 441; Webber v. Donnelly, 33 Mich. 471; Raymond v. Leavitt, 46 Mich. 447; Doran v. Phillips, 47 Mich. 228; Richardson v. Buhl, 77 Mich. 661 (6 L. R. A. 457); Niagara Falls Brewing Co. v. Wall, 98 Mich. 158; Gambs v. Sutherland’s Estate, 101 Mich. 355; Hatch v. Reid, 112 Mich. 433; Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649; Detroit Salt Co. v. National Salt Co., 134 Mich. 103.

Judgment is reversed, and new trial ordered.

McAlvay, Grant, Blair, and Hooker, JJ., concurred.