author: Montgomery, J.

text:
    CHRISTY v. RICE.
    1. Malicious Prosecution — Advice of Counsel — Prosecuting Attorney — Evidence.
    Where defendant, on applying to the prosecuting attorney to institute a prosecution against plaintiff for perjury in justifying on a liquor bond, was informed that the prosecutor would act only upon his own investigation, and later, at the prosecutor’s request, swore to a complaint prepared by the prosecutor, the prosecutor and not defendant was responsible for the prosecution, notwithstanding the prosecutor is unable to state to whom he applied for information while conducting his own investigation.
    2. Same — Investigation by Prosecuting Attorney — Effect.
    Where defendant, on applying to the prosecuting attorney to institute a prosecution against plaintiff for perjury in justifying on a liquor bond, was denied a warrant until the prosecutor had made an independent investigation of the facts, he had a right, when subsequently informed by the prosecutor that he had satisfied himself by an investigation that there was probable cause for instituting the prosecution and requested to make oath to a complaint prepared by the prosecutor, to assume that the prosecutor was instituting the prosecution on behalf of the public.
    3. Same — Perjury—Evidence—Materiality.
    In the determination of the question whether in fact there was probable cause for instituting a prosecution for perjury in justifying on a liquor bond the material facts were, (1) what property had accused at the time, and (2) was it worth, over and above exemptions, $3,000 ? If it was not, was the difference so wide as to justify a fair inference that accused knowingly falsified? Whence the attitude of the complaining witness with respect to accepting the bond, and his previous statement that he considered accused qualified, were immaterial, and of no importance in a subsequent action for malicious prosecution.
    Error to Kent; Perkins, J.
    Submitted April 10, 1908.
    (Docket No. 31.)
    Decided May 1, 1908.

      Case by William H. Christy against Frank E. Rice for malicious prosecution. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Smedley & Corwin, for appellant.
    , Dunham & Dunham, for appellee.
   Montgomery, J.

The defendant was, in May, 1906, president of the village of Sparta. There was presented to the common council of the village a saloon-keeper’s bond signed by the plaintiff and one F. J. Baird as sureties. This bond was approved by a majority vote of the council, and a day or two later, the defendant, at the request of, or, at least, after a conference with, other citizens of the village, and after a paper had been circulated signed by numerous parties, and among others, the defendant, providing for furnishing the means of prosecuting the case if necessary, went to Grand Rapids and called upon the prosecuting attorney of the county, stating that he came to institute prosecution against Mr. Christy, the present plaintiff, for perjury in justifying upon the bond, in which justification Christy had sworn that he was worth $8,000 in real estate over and above all exemptions and indebtedness. He stated correctly to the prosecutor what real estate plaintiff owned. He also gave his own opinion as to its value. The prosecutor stated to him that he must understand that a man might place a different estimate upon the value of property owned by himself than others would, and that some allowance must be made for variance in judgment. The prosecutor’s testimony, and it is undisputed, is to the effect that he claimed to Mr. Rice the right to make investigation in defense of the accused parties, and that if they ought not to be arrested, it was their right, at his hands, to be defended against arrest, and this in advance of any prosecution, and that he would not be a party to issuing papers in that kind of a case without investigation, and without satisfying himself that the parties ought to be arrested. He states that the reason he was so emphatic in this matter was that he had known that there were factions in Sparta known as the “wet” and “dry” factions, and that he proposed to act upon his own investigation.

After stating the facts, the defendant then left the prosecutor, and the prosecutor testifies that he made an investigation on his own account, and satisfied himself that the value of the property owned by each of the sureties was far short of the $3,000 stated, and that his judgment was that Mr. Rice had put a fair valuation upon the property, as much as could be realized from the sale of the property at private sale; that four or five days after this conversation defendant came into his office, and that he had then the complaint substantially prepared. He asked the defendant to wait until he had completed it, which defendant did, and then, at the direction of the prosecutor, he went over to the justice’s office, swore to the complaint, and the arrest followed, examination was had, the plaintiff was held for trial at the circuit, and on the trial of the case in the circuit, was acquitted. Plaintiff thereupon instituted this action for malicious prosecution against the defendant.

At the close of the trial the court was requested to direct a verdict for the defendant on the ground that the advice of the prosecuting attorney in this case afforded complete protection. This was refused, and defendant thereupon presented a formal request, as follows:

- “ It is undisputed in this case that the defendant went to the prosecuting attorney of Kent county and laid the facts before him, and asked the prosecuting attorney for a warrant for perjury against William H. Christy. It is undisputed that the prosecuting attorney refused to issue a warrant without investigating the facts himself; and it is undisputed that the prosecuting attorney did investigate the facts and determined that there was probable cause to believe that William H. Christy was guilty of perjury, and the prosecuting attorney drew the complaint and had the defendant, Frank E. Rice, sign and swear to the same.

‘ ‘ Under the circumstances, I charge you that with the fact that the prosecuting attorney investigated fully the facts and circumstances and acted on his own judgment before the complaint was made and signed by the defendant, Frank E. Rice, was a complete defense, and therefore your verdict will be no cause of action.”

This request was also refused and the case submitted to the jury.

The request presented should have been granted. Under the facts as stated in this request, and which are undisputed, the defendant was not responsible for the institution of this prosecution after the declaration by the prosecutor that he would act only upon his own judgment in the matter. It is contended by the plaintiff that tho whole testimony of the prosecutor leads to the inference that he was not acting entirely on his own judgment — that it is apparent that in doing what he did he relied entirely upon the statements made by the defendant. The only possible basis for such a claim as this is that the prosecutor, while testifying that he did make full investigation on his own account, was unable on this trial to state to whom he applied for the information. This is by no means conclusive, nor is it to be assumed that he is falsifying because of his want of recollection of the parties. He does name two parties of whom he thinks he made inquiry, but is not positive about it.

But this is not all. The question is, What had the defendant the right to assume at the time he called upon the prosecutor the second time and was directed by him to make oath to this complaint ? The prosecutor had declared to him that he would act upon his own judgment and own investigation, and he then assured, him that he had satisfied himself by an investigation that there was probable cause for instituting this prosecution. It must be assumed that defendant, in swearing to this affidavit, if he himself believed the truth of the statements, was acting under the direction of the prosecutor, and had the right to assume that the prosecutor was instituting the suit on behalf of the public. See Smith v. Austin, 49 Mich. 286; Eno v. Allen, 113 Mich. 399.

But it is claimed that the defendant did not state to the prosecuting attorney all the facts within his knowledge. The only facts which it is claimed were omitted were two. There was testimony on behalf of the plaintiff tending to show that defendant had, prior to the meeting of the council, said that he thought Christy was qualified under a $3,000 bond, and that if they could get another as good as he, he thought the people ought not to find fault with it. There was also dispute as to whether defendant had, at the meeting of the council, objected to the acceptance of the bond, although upon this question the testimony strongly tended to show that he had.

If the question of the motives of the defendant were open, these facts might be of considerable importance. But in aiding the prosecutor in determining whether in fact there was probable cause for instituting the prosecution, the material facts were, first, what property Christy had at the time; second, was it worth, over and above his exemptions, $3,000 ? If it was not, was the difference so wide as to justify a fair inference that Christy knowingly falsified ? The question of what defendant’s attitude had been toward accepting the bond was not material to these questions, inasmuch as the prosecutor proposed, on his own authority, and in the outset, to make his own investigation, and so informed the defendant, and defendant relied upon that statement. As a matter of fact, on the present trial 15 witnesses were sworn as to the value and amount of plaintiff’s property. Not one of them, except the plaintiff, placed a value upon the-real estate which was equal to $3,000. Three of plaintiff’s own witnesses fixed values of $2,875, $2,525, and $2,675, respectively, making a reasonable allowance for the life estate which was all the plaintiff had in one piece of property. Whereas the witnesses for the defendant fixed prices upon the property showing a value varying in estimate, over and above exemptions, from $1,305 to $1,785, respectively. But the important consideration is, that the prosecuting attorney assumed to make and did make his own investígation and acted in his official capacity upon that investigation, independent of defendant’s statement. But that this statement represented defendant’s own judgment, is sufficiently evidenced by the fact that his estimate is far in excess of that of several of the witnesses called by the defendant on the trial. In fact, it is next to the highest of any given by the defense.

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

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    UNION TRUST CO. v. CHARLOTTE GENERAL ELECTRIC CO.
    1. Mortgages — Foreclosure — Receivers —Appointment —Propriety.
    On an appeal from an order appointing a receiver pendente lite, on a bill to foreclose a mortgage upon the property of an electric lighting company, evidence examined, and held, that there is an entire failure to show extravagant or inefficient management, or a disposition to let the plant depreciate in value, as alleged.
    2. Same — Grounds.
    Under section 11006, 3 Comp. Laws, the trustee in a trust mortgage is entitled to a receivership pending the foreclosure of the mortgage only upon a showing that there is danger of ultimate loss to the bondholders by permitting the property to remain in possession of its owners until the final decree and sale, notwithstanding a clause in the mortgage requiring the trustee to apply for foreclosure and a receivership on default.
    Appeal from Eaton; Smith, J.
    Submitted April 10, 1908.
    (Docket No. 20.)
    Decided May 1, 1908.

      Motion by the Union Trust Company, trustee, against the Charlotte General Electric Company for the appointment of a receiver pending the foreclosure of a mortgage. Erom an order granting the motion, defendant appeals.
    Order vacated.

      Russel, Campbell, Bulkley & Ledyard (Colgrove & Potter, of counsel), for complainant.

      Henry & Robert Newbegin and Huggett & McPeek, for defendant.
   Moore, J.

This is an appeal from an order appointing a receiver pendente lite of the property and business of the Charlotte General Electric Company. The suit is commenced under a trust mortgage given to secure an issue of bonds, and as representing $13,000 of the $30,000 bonds issued. The receivership is sought as relief ancillary to the main purpose of the suit, which is to foreclose the trust mortgage.

The application for a receiver was made upon the sworn bill of complaint, certain letters of the president and majority stock and bondholder in defendant company, and an affidavit of William W. Potter supporting some of the allegations in the sworn bill. Twelve days’ notice of this application was given to the defendant company, which appeared in open court on the day set and contested the application. The bill of complaint contains the usual allegations of a foreclosure bill, including the execution and delivery of the bonds and mortgage, the issuance of the bonds, the fulfillment of all conditions prerequisite to a foreclosure in case of default, and the defaults in payments of interest coupons on bonds represented by complainant trustee and covering the dates of January 15, 1906, July 15, 1906, January 15, 1907, and July 15, 1907. It further avers that the first three of said defaults in payment of interest have continued for more than six months after due notice and demand, and that in consequence the complainant trustee has exercised the option given it, in terms, by the trust mortgage, to declare the principal of the bonds due and payable forthwith, and has commenced these proceedings.

In addition to these usual and formal averments, the bill charges insolvency of the defendant. It is charged on oath that this is a “ one man ” company; that all the stockholders and directors are nonresidents of this State and give the concerns of the company no personal attention; that, with the exception of one share, all the stock is owned by one family, and by far the majority by one man; that this man is the president of the defendant company, and has acquired and now holds a majority of the bonds secured by the trust mortgage under foreclosure, and is endeavoring to freeze out the minority bondholders represented by the complainant from any substantial realization upon their security; that, pursuant to this unlawful intent, the plant is being allowed to run down, the interest on the bonds has not been paid for four consecutive interest periods; that the good will of the company is being destroyed, and destructive competition by outside concerns is imminent; that the controlling stockholder and president of the company has offered to buy the holdings of these minority bondholders at 33-J- cents on the dollar, and, on their refusal to sacrifice their bonds for any such figure, is endeavoring, as charged, to freeze them out. Letters of W. P. Engel, president, majority stockholder and majority bondholder in the Charlotte General Electric Company are made a part of the bill. These letters read as follows:

“Defiance, Ohio, 9-20-07.

“The Union Trust Company,

“Detroit, Mich.

Gentlemen: As the owner and holder of a majority in number and amount of the bonds of the Charlotte'General Electric Company, of Charlotte, Michigan, of which you are trustee, I hereby notify you and request you to take no action either towards declaring the principal or interest of said bonds, or any part of them due or toward the enforcement or foreclosure thereof, and I notify and request you to cease any such action.

‘ ‘ I own and hold in my possession said bonds Nos. 1 to 24 and 51 to 60, inclusive, being 34 in all of said issue, and hereby offer to produce same to you in evidence of ownership and to secure and indemnify you in all respects as required by you under the mortgage or trust deed.

“W. P. Engel.”

“Defiance, Ohio, 9-19-07.

“The Union Trust Company,

“ Charles R. Dunn,

“Detroit, Mich.

Dear Sir: Your notice of demand on Charlotte bonds, you remember I called and had you make a copy of trüst deed and if I am not mistaken I explained how I was caught by L. W. Prior, of Cleveland, in whose hands I had placed the $30,000 bond issue in trust simply holding contract with him to loan me money on these bonds, and before I had received the money he had placed them with other banks as collateral to his individual notes, and the courts held the banks were innocent purchasers and held I must buy them back. Now then Mr. Dunn, I have worked hard, and it seems too bad to pay even more than loaned on these bonds. I have had friends advance me money to buy 17,000 of these bonds at 33£c. I have offered the Guardian Savings & Trust Company 33-Jc. for the $13,000 they hold, and they refuse it. If I understand the trust deed rightly the consent of the majority of the bondholders only can order a foreclosure. Am I right ? I believe I have made a fair offer considering the condition of the plant and its present earnings. Awaiting your reply, I am,

“W. P. Engel.”

“ Defiance, Ohio, Sept. 20-07.

“The Union Trust Company,

“Detroit, Mich.

Gentlemen: Referring to a controversy with the Guardian Trust Company, of Cleveland, Ohio, over the Charlotte General Electric Company bonds, I inclose formal notice to you to take no action in the matter.

“As the owner of a majority of the bonds I have the usual right to control proceedings, and in this case I desire-to assert it for the reason that as I have heretofore explained to you these bonds, which were all my property, were placed by me in the hands of Dennison & Prior, of Cleveland, and a portion of them wrongfully pledged by them without my knowledge with the Guardian Trust Company. I readily settled with the holders of all the bonds except those with the Guardian Trust Company upon a fair basis and made the latter company the same offer. They, however, refused to accept it and have determined to throw the matter into litigation apparently to cause all the trouble possible. Accordingly I hope you will stand impartially and let the Guardian Trust Company fight its own battles.

‘ ‘ Thanking you for your consideration in the past, I remain,

“ Yours very truly,

“W. P. Engel.”

The material parts of the trust mortgage bearing upon the question of receivership are as follows: After a description of the real estate mortgaged as security for the bond issue is the following language:

‘' And all other property of every name and nature now owned or hereafter acquired by first party, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the rents, issues, and profits thereof: To have and to hold the said property, rights, privileges and franchises of the first party hereinbefore granted and conveyed unto the said Union Trust Company of the second part and to its successors, and also all other property, real, personal or mixed, of every kind and nature, including all rights and easements, franchises, privileges, reversions, and income accruing therefrom, which may now belong to said company or which shall hereafter be acquired by it. To have and to hold all and singular the said granted premises, property, franchises, rights, revenues and appurtenances unto the party of the second part and its successors as continuing trustee forever. In trust, nevertheless, for the uses, and purposes herein expressed and declared, and for the equal pro rata benefit and security of all such persons, firms and corporations as shall from time to time be the owners of any of the said thirty thousand dollars of bonds, as the same may be issued, without any preference or priority of any one outstanding bond over another.”

The fifth paragraph of said mortgage provides:

“In case of default in the payment of the principal or interest of any of the bonds secured by this indenture and outstanding and continuance of such default for the space of six months, such payment having been duly demanded, the party of the second part, if it shall elect so to do, may, and if requested in writing by the stockholders of one-half of such outstanding bonds, shall apply to any court having jurisdiction in the premises, for a foreclosure and sale of the mortgaged premises, property and franchises, and for the appointment of a receiver and shall have the right to designate the person to be appointed such receiver, and so far as lawfully may be done, to direct and control the administration of the mortgaged premises, property and estate by said receiver.”

Mr. Engel was not made a party to the' litigation. Upon the heaping Mr. Engel’s affidavit was read, reading as follows:

“William P. Engel, being first duly sworn, deposes and says that he is president of the defendant herein and of his own knowledge familiar with the facts in this case and the affairs of the defendant, and makes this affidavit in its behalf and with its authority:

“(1) That the complainant, the Union Trust Company, is proceeding, as affiant is informed and believes and avers, only at the request of the Guardian Savings & Trust Company of Cleveland, which obtained its holding, $13,000 par value of said bonds as a pledge for a debt of much less amount, from Dennison, Prior & Co., of Cleveland; who had no right whatever to transfer them or pledge them for their debt.

“(2) Affiant says that the appointment of a receiver herein is useless and unnecessary; that it would greatly damage the business standing and credit of the defendant, and destroy its good will, and work irreparable hqrm and mischief to its interests; that there áre no considerable assets to be collected by a receiver, no perishable property to be conserved; that the current taxes and insurance have all been met promptly as they have accrued.

“(3) Deponent says that he has had 20 years’ experience in the electric lighting business and is acquainted with lighting plants over a large extent of territory in Michigan and Ohio and Indiana; was president of the Ohio Electric Light Association for the year 1906-07 with an active membership of 290 central station companies; that the service of the defendant to the city and to private consumers compares very favorably with that of any plant known to deponent in cities of like size or larger, and the outage is low.

“ (4) That business of the defendant has been conducted economically and honestly, and with fair success, and at a much less expense than would be possible under a receivership. The amounts paid the officers and employés for salaries and wages are lower than necessarily would be the case under a receivership, to wit: W. P. Engel, manager, nominally $100 per month. (This has not been paid, and traveling expenses have been paid personally by Mr. Engel.) J. A. Mikesell, superintendent, $60 per month. Engineer, $60 per month. -Assistant engineer (night), $50 per month. Fireman (who also does street light trimming), $50. Lineman, $50.

“ (5) Affiant says that the contract with the city expired about March 31, 1907; that the only competition for the city lighting to be feared is through the introduction of a high tension current generated in part by water power, which could be offered at a price too low to be met by the defendant; that the prospect of this cheaper supply, and not any lack of efficient service by the defendant, is, to the best of the deponent’s information and belief, the controlling reason for the termination of the city contract. The appointment of a receiver would not have any better effect in that regard whatsoever. On the contrary, a receivership on account of its uncertainty, even in the absence of competition, would obviously prevent the renewal of the contract with the city on terms advantageous to the company in point of time or price, and would prevent advantageous private contracts.

“ (6) Affiant says that the physical condition of the defendant’s property is good; that the plant has not been neglected, but had been kept in good repair, and the income applied according to law, all taxes have been kept paid, and the property and buildings adequately insured, and no liens have been allowed to mature against it; that there has not been any stripping or exploitation of the company’s property by it or any one, and there will not be any such, so long as the present management shall control; that a receivership would not in any way better the condition of the property, nor prevent loss or dissipation or depreciation thereof, nor conduce in any way to the better interests of the creditors of the company.

“ (7) That no material repairs or alterations of the plant are necessary or justifiable at this time, and none should be made at the cost of the company or the bondholders nor to be a charge upon the property; that from time to time all additions and improvements necessary to keep the plant and the outside distributing system in good and up to date working order have been made to the full extent of the earnings of the property, supplemented so far as necessary by advancements from this deponent personally ; that there has been a cúmplete overhauling of the plant within the last six or seven years, and new generators, new switch boards and appliances and equipment have been put in sufficient to render the physical condition of the property first class.”

Affidavits of the mayor of Charlotte, of its city engineer and many prominent citizens were filed, showing the plant was in excellent condition, that its service was good, that the reason the city canceled- its contract was not because of poor service, but because it hoped to get a better contract from a power company, but that it was still patronizing defendant company.

When the showing made by both sides is considered, it is clear that there is an entire failure to show extravagant management, inefficient management, or a disposition to let the plant depreciate in value. The circuit judge was of the opinion that.because of the provisions of the mortgage the complainant was entitled as a matter of law to a receivership. The solicitors cite, in support of that conclusion, Michigan Trust Co. v. Lumber Co., 103 Mich. 392; Belding v. Meloche, 113 Mich. 223; Kelly v. Bowerman, 113 Mich. 446, and other cases. We think these cases are distinguishable. The first one of them was a bill filed for specific performance of a contract and for the appointment of a receiver pendente lite. In the court below a receiver was appointed. In this court the order appointing the receiver was vacated. The case of Belding v. Meloche was a proceeding to foreclose a land contract. No appeal was made from the order appointing a receiver. The case is referred to in Fifth Nat. Bank v. Fierce, 117 Mich. 376, where it is said:

“This case was a foreclosure of a land contract, wherein it was agreed that, in case of a default, the grantor should be entitled to possession. It is shown by the opinion that a different conclusion would have been reached had it been a proceeding to foreclose a mortgage. See 2 How. Stat. § 7847; Wagar v. Stone, 36 Mich. 364.”

Kelly v. Bowerman, supra, was a case originating in justice’s court by an assignee, of a lease and is not in point.

Section 11006, 3 Comp. Laws, reacts:

“No action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or representatives, for the recovery of the mortgaged premises, until the title thereto shall have become absolute upon a foreclosure of the mortgage.” »

This statute has been before this court many times. Wagar v. Stone, 36 Mich. 364; Beecher v. Rolling Mill Co., 40 Mich. 307; Hazeltine v. Granger, 44 Mich. 503; Fifth Nat. Bank v. Pierce, 117 Mich. 376, 384; Hardy v. Allegan Circuit Judge, 147 Mich. 594 (10 L. R. A. [N. S.] 474). In Hazeltine v. Granger, the mortgage secured to the mortgagee a right to the rents and profits after default and the right to have a receiver appointed without notice. The superior court of Grand Rapids appointed a receiver. This court vacated the appointment. Justice Campbell, speaking for the court, said:

“ The statute does not say that no ejectment shall lie unless there is an agreement to that effect, but that it shall not lie at all. Every mortgage made in common-law form contains words whereby, if applied as they read, possession would belong to the mortgagee and his title would become absolute by default. The whole aim of equity was to arrest this forfeiture, and not to allow the language of a mortgage to have any force against the equity of redemption. The statute is a further step in the same direction for the protection of mortgagors against agreements which, as literally drawn and as theretofore expounded, were deemed dangerous, and against public policy. The language of this mortgage expressly granting rents and profits on default is no stronger than the previous words of grant, and is really narrowed. It was, no doubt, intended to go further and to evade the statute. If it had contained an agreement that ejectment should lie, it could not very well be enforced against the clause of the statute prohibiting it. It can have no greater force in enlarging the jurisdiction of equity to appoint receivers, which we held, in Wagar v. Stone, had been abolished. Any such attempt to create a forfeiture is contrary to equity, and equity will not enforce it. The same principle which makes all original agreements void which destroy the equity of redemption in advance must cover a partial as well as complete destruction.”

See Union Trust Co. v. Railroad, 4 Dill. (U. S.) 114. The right to appoint a receiver depends upon whether a showing has been made that there is danger of ultimate loss to the bondholders by permitting the property to remain in possession of its owners until the final decree and sale. Union Trust Co. v. Railroad, 4 Dill. (U. S.) 114; Union Mut. Life-Ins. Co. v. Plaster Co., 37 Fed. 286.

No fraud is shown. It is not shown that the owners are not economical in the management of the plant, or that they are allowing it to depreciate. The taxes are paid, and the property has been kept in good repair. The language of Justice Montgomery, speaking for the court in Michigan Trust Co. v. Lumber Co., supra, is in point here:

“It has never been the policy of our law to divest the mortgagor of possession until foreclosure and the expiration of the period of redemption; and while we think it within the power of the parties to stipulate that such possession and management of the business may precede foreclosure, and that in such case a court of equity may enforce specifically such an engagement as was held by the court below, and as we think is sustained by the authorities (Shepley v. Railway Co., 55 Me. 395; Shaw v. Railroad Co., 5 Gray [Mass.], 162; Sacramento, etc., R. Co. v. Superior Court of San Francisco, 55 Cal. 453; McLane v. Railroad Co., 66 Cal. 606; Rice v. Railroad Co., 24 Minn. 464), yet such power should be exercised with a full recognition of the settled policy' of this State, and should not be exercised except in a case where the right is clearly given by the engagement of the party. See Beecher v. Rolling Mill Co., 40 Mich. 307.”

See, also, Morey v. Grant, 48 Mich. 326; Hall v. Wayne Circuit Judge, 111 Mich. 395.

The order appointing a receiver should be vacated, and the cause remanded for further proceedings.

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


author: Blair, J.

text:
    FIDELITY MUTUAL LIFE-INSURANCE CO. v. JOHNSON.
    1. Bonds — Delivery—Acceptance—Evidence—Sufficiency.
    In an action by an insurance company on a bond given by one of its agents, evidence examined, and held, that the bond was never delivered or accepted, the single surety having signed with the understanding that plaintiff’s general agent was also to sign, and the bond in form requiring two sureties.
    2. Same — Failure of Consideration.
    Where an agent furnished a bond on the agreement of his principal to make certain advances and continue him in its employment, and the principal thereupon failed to perform as agreed, there was a failure of consideration for the bond.
    Error to Lapeer; Smith, J.
    Submitted April 10, 1908.
    (Docket No. 21.)
    Decided May 1, 1908.
    Assumpsit by the Fidelity Mutual Life-Insurance Company against James C. Gooch, principal, and Estella M. Johnson, surety, on a bond. There was judgment for plaintiff on a verdict directed by the court, and defendant Johnson brings error.
    Reversed, and ho new trial ordered.

      Herbert W. Smith, for appellant.

      B. L. Campbell, for appellee.
   Blair, J.

Suit was brought in this case by the plaintiff to recover on a bond signed by James C. Gooch as principal and Estella M. Johnson as surety. Plaintiff, an insurance company organized and doing business under the laws of the State of Pennsylvania, through its branch office at Omaha, Neb., entered into a written contract with James C. Gooch, one of the defendants in this case, on the 7th day of May, A. D. 1906. By the terms of this contract, the said Gooch was to work for said plaintiff, and the said plaintiff was to advance to the said Gooch $25 per week, which sum so advanced the said Gooch was to repay to the plaintiff. This contract also provided that the said Gooch was to give plaintiff a bond with not less than two sureties. At the time this contract was entered into, said plaintiff did not require the said Gooch to furnish this bond, but continued to make the advances of $25 per week for 10 weeks, or up to the 9th day of July, A. D. 1906, when the plaintiff refused to make any further advances to said Gooch until he should furnish a bond with two sureties as required by his contract. This money, advanced from the 7th day of May, 1906, until the 19th day of July, 1906, is the amount sought to be recovered in this suit, with interest.

James J. Craig, of Omaha, Neb., was, at the time said Gooch entered into this contract with plaintiff, the agent of plaintiff in charge of its branch office in Omaha, Neb., and had charge of all of the agents working in that field. Some time after the 9th day of July, A. D. 1906, the agent of plaintiff, James J. Craig, orally requested Gooch to furnish a bond with two sureties, and stated to defendant Gooch that, if he would get Mrs. Estella M. Johnson to sign his bond as one of the sureties, he would sign the bond as the other surety. On or about the 17th day of July, 1906, Craig wrote defendant Gooch, requesting Gooch to have Mrs. Johnson sign his bond, and stating that he would also sign the same, and that, if he would furnish this bond, the plaintiff would send him the back advances of $25 per week, and continue to make him the advances, and defendant Gooch could continue to work for plaintiff. Defendant Gooch showed the letter to Mrs. Johnson, and represented to her that Mr. Craig would sign the bond with her as the other surety as stated in his letter, and Mrs. Johnson, relying on the representations sq made, signed the bond. The bond, although actually signed about July 27th, was antedated May 7, 1906. Craig did not sign the bond as agreed, but sent it to plaintiff as received from Mrs. Johnson with only her signature. The plaintiff, upon receipt of the bond, notified Craig August 10, 1906, who, in turn, notified Gooch that plaintiff would not approve of the bond, for the reason that Mrs. Johnson was not “sufficiently strong financially to qualify.”

“ It will therefore be necessary for Mr. Gooch to furnish another bond. * * * Also have new bond signed by two sureties. Pending receipt of new bond, we will hold one we now have.”

On August 16, 1906, Mrs. Johnson’s attorney made a written demand for the return of the bond. Plaintiff did not in any respect keep the agreement, which was the sole consideration for the defendants’ signatures to the bond, and, although treating the bond as in nowise binding on it, coolly insisted on its binding force as to Mrs. Johnson. Plaintiff having brought suit on the bond, defendant Johnson filed a plea of the general issue with notice of fraud in obtaining, want of consideration, nondelivery, and nonacceptance of the bond. She also filed an affidavit in which she set up the principal facts that her signature was obtained by fraud, and that the bond was delivered conditionally, and was never completed. She did not formally deny in her affidavit the execution of the bond. The trial court held that want of consideration was not available under the pleadings, because the execution of the contract was not denied under.oath, and defendant could not impeach the date of the bond. The court also held that there was no evidence that the bond was delivered upon condition that Craig should also sign as a surety, but, at most, upon an expectation on the part of Mrs. Johnson and Gooch that he would so sign. Upon these grounds, the court directed a verdict for th'e plaintiff, and, to review the judgment entered upon the directed verdict, defendant Johnson prosecutes this writ of error.

We are of the opinion that the bond in question was neither delivered nor accepted. The blank-forms of bonds filled out for Mrs. Johnson’s signature contained a special notification that “ not less than two sureties are required in every case,” étc. Craig, an important agent of plaintiff, who required the bond before advancing any more money, was, of course, familiar with the requirement of two sureties, and in his letter to Gooch said:

“Have Mrs. Johnson sign this, and I will also do so, and I will find some place where quick business can be had, so you will again be on your feet in very short time.”

Under such circumstances, Mr. Craig could not have honestly understood that Mrs. Johnson had sent this bond to him with the right to forward it to the company without his signature. He must have understood, just as Mrs. Johnson understood, that his signature was a condition precedent to delivery to the company. That the bond was repudiated, and not accepted by the company, is too plain for discussion. It is clear that the consideration for the bond wholly failed, and, whether the question was properly raised or not, it serves to characterize the unconscionable effort of the plaintiff in this case to obtain from Mrs. Johnson, under the forms of law, money to which in equity and good conscience it is not entitled. Regardless of the question of want of consideration, the bond had no vitality, and a verdict should have been directed for defendant. Weed Sewing Machine Co. v. Jeudevine, 39 Mich. 590.

Judgment reversed, and no new trial granted.

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


author: Ostrander, J.

text:
    PRATHER ENGINEERING CO. v. DETROIT, FLINT & SAGINAW RAILWAY.
    1. Mechanics’ Liens — Foreclosure—Venue.
    A proceeding to enforce a mechanics’ lien is essentially a proceeding in rem, and the subject-matter is local, whence the proceeding is properly brought in the county in which the real estate lies upon which the lien is asserted
    2. Same — Bill—Amendment—New Parties — When Allowed.
    Where a bill to enforce a mechanics’ lien is filed within the year, as provided by section 10718, 3 Comp. Laws, an amendment bringing in a proper party may be made after the year has expired.
    3. Same — Verification of Bill — Amendment—When Allowed.
    An objection that a bill to enforce a mechanics’ lien is not verified may be met by amendment after the year has expired.
    4. Same — Failure to Implead Necessary Parties — Objection-How Taken.
    The objection that the bill does not implead necessary parties may be taken in the answer of at the hearing.
    5. Same — Receivers — Leave of Court — Objection — How Taken.
    The objection that a receiver is made a party without leave may be taken by demurrer.
    6. Receivers — Action Against — Leave of Court — Necessity.
    A receiver cannot be sued without leave of the appointing court.
    7. Abatement and Revival — Another Action Pending — Mechanics’ Lien — Foreclosure — Mortgage Foreclosure — Receivership.
    Where this court has declined to interfere with the action of the circuit court in refusing to permit its receiver to be made a party to a suit brought in another county to enforce a mechanics’ lien upon property in the hands of the receiver, and has held that the court appointing the receiver has jurisdiction to determine the lien claimant’s rights, a decree dismissing the bill to enforce the lien will not be disturbed, irrespective of whether leave to make the receiver a party is jurisdictional, and whether, the action being statutory and local, there is jurisdiction to entertain it, although leave to make the receiver a party was not obtained; since it will not be assumed that the court appointing the receiver will relinquish jurisdiction, leaving the lien claimant without a remedy.
    Appeal from Saginaw; Gage (William G.), J.
    Submitted April 10, 1908.
    (Docket No. 33.)
    Decided May 1, 1908.
    Bill by the Prather Engineering Company against the Detroit, Flint & Saginaw Railway and others to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Keena, Lightner & Oxtoby, for complainant.

      Bundell & Stockton, for defendants.
   Ostrander, J.

The Detroit Trust Company, trustee in a mortgage executed by the defendant the Detroit, Flint & Saginaw Railway company, filed its bill in the circuit court for the county of Genesee, in chancery, on November 20, 1906, to foreclose the mortgage. On the same day, by an order of that court, the Detroit Trust Company was appointed receiver for the railway company, filed its bond, and assumed the duties of the position. The Prather Engineering Company was made a party defendant in the foreclosure suit, with the allegation that it had, or claimed to have, some interest in the property of the railway company by reason of the filing of a claim for lien. On the 8th day of the succeeding January, the Prather Engineering Company, with notice and knowledge of the beginning of the foreclosure proceedings, having been served with a copy of the bill of complaint, filed its bill in the circuit court for the county of Saginaw, in chancery, asking for the enforcement of a lien asserted under the statute (3 Comp. Laws, chap. 296), as amended. The trust company and the railway company, which were made parties defendant, pleaded to the jurisdiction of the Saginaw court, setting up the pendency of the proceedings in the Genesee circuit, the appointment of the receiver, its acceptance of the trust, and the necessity for making it a party defendant in the proceeding to foreclose the lien. The plea was allowed by the Saginaw court, and upon application later made, after a general appearance of this complainant, the Genesee court refused to allow its receiver to be made a party in the Saginaw county suit. With this action of the Genesee circuit court this court declined to interfere. Prather Engineering Co. v. Genesee Circuit Judge, 149 Mich. 53. Complainant moved for leave to file an amended bill of complaint or a supplemental bill of complaint in said cause. The amendment sought to be made was one setting up the application to the Genesee court for permission to make its receiver a party and the refusal of that court, with the claim that, not being able to secure the order of the Genesee court, it was excused. The railway company and the trust company objected to the granting of the motion, and a decree was made denying it and dismissing the bill of complaint, with costs. The decree contains the following:

“And it appearing that the Supreme Court of this State has denied the application of the complainants as relators for a writ of mandamus directed to Charles H. Wisner, circuit judge of the county of Genesee, commanding him to vacate his order denying the application of said complainants and relators for leave to make Detroit Trust Company, receiver.of the property of Detroit, Flint & Saginaw Railway, as such receiver, a party to this cause. * * * It is hereby ordered that said motion of complainants be and the same is hereby denied, and the complainants, by their solicitors, in open court, admitting the material facts set up in the plea of defendants, the Detroit, Flint & Saginaw Railway and the Detroit Trust Company, to be true, and electing not to take issue upon said plea, it is hereby ordered that the complainants’ bill of complaint be and the same hereby is dismissed,” etc.

This is an appeal by the Prather Engineering Company from that decree.

The ground of the contention made by appellant is that, having begun its suit to enforce its lien in conformity with the statute in the statutory forum, proceedings in its suit should have been stayed until the final determination of the foreclosure proceeding, and that it was error to dismiss the bill. The practical importance of the contention is said to be that, if the Genesee court should decide it had no jurisdiction of the matters in question, or if for any reason it should lose jurisdiction, complainant might lose its right to enforce its lien. The plant, out of the erection of which the asserted lien grew, is situated in Saginaw county, and the bill filed by complainant describes the real estate upon which it is erected. That was the proper county in which to assert the lien (3 Comp. Laws, §§ 10714, 10719), and, while the statute does not in terms require that the bill to enforce the lien shall be filed in the county in which the preliminary statement is filed, so much is plainly implied. The proceeding is, essentially, a proceeding in rem, and the subject-matter is local. 1 Comp. Laws, § 434. The statute (3 Comp. Laws, § 10718) provides that the lien shall continue for a year, and no longer, unless chancery proceedings are begun to enforce it. By section 10719 it is required that complainant shall “make all persons having rights in said property affected or to be affected by such liens so filed * * * parties to such action.”

If the bill is filed in season, an amendment bringing in a proper party may be made after the year has expired (Casserly v. Wayne Circuit Judge, 124 Mich. 157), and an objection that the bill is not verified may be met by amendment after the expiration of the year (Daschke v. Schellenberg, 125 Mich. 216). Complainant filed its bill, but did not make the receiver a party defendant. It has been held that objection to a petition for the enforcement of a mechanic’s lien, which does not implead necessary parties, may be taken in the answer thereto or at the hearing (Kerns v. Flynn, 51 Mich. 573); that the objection that a receiver is made a party without leave may be made by demurrer (Burk v. Foundry Co., 98 Mich. 614); and that a receiver cannot be sued without leave of the appointing court (Tremper v. Brooks, 40 Mich. 333; Citizens' Savings Bank v. Ingham Circuit Judge, 98 Mich. 173). Whether leave to make the receiver a party is jurisdictional has never been expressly determined in this State, although it was the opinion of the circuit judge that in Campau v. Detroit Driving Club, 130 Mich. 417, 422, this court, in affirming Wiswall v. Sampson, 14 How. (U. S.) 52, upon the point that interference with receivership property by sale of the same on execution was illegal, and the sale void, necessarily approved the general rule of the Federal courts. If it is jurisdictional, the decree of the court below dismissing the bill was undoubtedly right. If it is not jurisdictional, and if the fact that the property is in the control of a receiver appointed by another court operates merely to suspend proceedings until by decree of the other court or by dismissal by that court of the suit, or of the receiver, complainant’s rights are determined, or the necessity of making the receiver a party is eliminated, it would seem that the bill should not be dismissed on motion of the defendants. Whether, the action being statutory and local, there is jurisdiction to entertain it, although leave to make the receiver a party was not obtained, is a question not debated in the brief of counsel for appellant. We do not find it necessary to determine the question. We have held that the Genesee county court has exclusive jurisdiction in the particular case, and complainant has been remanded to that court for a hearing and determination of its rights. Prather Engineering Co. v. Genesee Circuit Judge, supra. It will not be assumed that that court will relinquish jurisdiction, leaving complainant without remedy.

The decree is affirmed, with costs.

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


text:
    HAMILTON v. PARENT.
    Husband and Wife — Wife’s Contract — Validity—Agreement to Pay Husband’s Debt.
    An agreement by a married woman to repay money borrowed by her husband, in consideration of the creditor conveying property to the promisor’s mother, in order that the promisor might share in its distribution, is valid and enforceable.
    Error to Wayne; Brooke, J.
    Submitted April 10,1908.
    (Docket No. 16.)
    Decided May 1, 1908.
    Assumpsit by Delia Hamilton against Dollie Parent on a promissory note. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Charles Flowers, for appellant.

      Herman W. Bailey, for appellee.
    Plaintiff declared upon the common counts in assumpsit and set out a copy of the note sued upon. It is dated October 10, 1898, due five years after date, is for $385, and is signed by the defendant. Defendant pleaded the general issue, with notice that when the note was executed she was a married woman; that she received no consideration for giving the note, which was security for a previous indebtedness of her husband. The testimony on the part of the plaintiff tended to prove that in August, 1892, the husband of defendant filed a bill against her for divorce; that the suit was pending ábout one month and was discontinued; that during this time. her sister was running a little store in Detroit, told her that her husband had applied for a divorce, that the stock in the store was run down, that she wanted to replenish it, and that the firm from which she had bought' her furniture had sent notice to her that they proposed to take it away from her, that if plaintiff would help her she would pay the money back to her; that she lent her $250 at that time and, later, enough to make the face of the note; that on or about the time of the date of the note in suit plaintiff, who had received certain property from her mother, which the other heirs of her mother thought was too large a portion, to recover which a bill in equity had been filed, voluntarily reconveyed the property to her mother with the understanding that the mother was to again convey it in parcels to her children, of whom the defendant was one, and defendant was to give plaintiff her note — the note in question; that when asked to give the note defendant did not claim that she did not borrow the money but did claim that her husband had the benefit of it. Defendant offered testimony tending to prove that she did not borrow any money of plaintiff, but that in 1891 her husband borrowed $300 of the plaintiff with which to purchase the stock in trade and the building in which a little business was carried on, and that under date of September 10, 1891, she and her husband joined in a note to plaintiff for $300, due one year after date, and such a note was produced in evidence; that this note was returned to the defendant upon the occasion of her executing the note in suit; .that at the time of the settlement between plaintiff and her mother of the property matters, plaintiff told defendant that she wanted her to give a new note to secure the old note of her husband; that defendant said she had nothing to secure it with and asked her why she did not take her husband’s note, and plaintiff replied that she did not want him on the note; that there was no talk between defendant’s mother and herself nor by defendant with any one else to the effect that plaintiff’s deed to her mother and the mother’s deed to defendant was dependent upon or was consideration for the giving of the note in suit. Plaintiff offered in evidence, over objection, the deeds of real estate executed by her mother October 12, 1898, and her own deed to her mother executed October 10, 1898. The objection made was that they, were immaterial and did not tend to show any consideration passing from plaintiff to defendant for the execution of the note. Plaintiff denied having ever held or seen the $300 note. The errors relied upon relate to the ruling admitting the deeds in evidence and to the charge of the court. There was a verdict and judgment for plaintiff.
   Ostrander, J.

(after stating the facts). The case was submitted to the jury upon the theory that if they found that plaintiff actually lent the money to the defendant, under .the circumstances which plaintiff claimed existed, upon her promise to repay it, their verdict should be returned for the plaintiff; that if the money was lent to the husband in 1891, as claimed by the defendant, then, even if the defendant signed a note for that money with her husband, she did not, by the execution of that note, become liable to pay the debt; that if the money was lent to defendant’s husband in 1891, as claimed, and the defendant in 1898 gave the note in suit representing that money, in the absence of any understanding between plaintiff and her sister that plaintiff should reconvey property to her mother in order that defendant might get a quarter interest in her mother’s estate, then defendant would not be liable; that plaintiff was bound to satisfy the jury of one of two propositions: first, if the money was loaned directly to the defendant, upon an agreement made by her to repay it, she was bound"by the contract; second, if the money was lent to defendant’s husband as claimed, and a controversy existed between plaintiff and her mother as to property, the legal title to which was held by plaintiff, and plaintiff refused to deed to the mother unless defendant agreed to give her a note for the money so lent to her husband, and defendant did execute the note in consequence of that agreement, it would be a sufficient consideration for the note, even though the original loan was to the husband. The second proposition, as the facts were put, represents the theory of neither of the parties to the suit. No one claimed that the arrangement concerning the property was a consideration for the agreement of the wife to pay the debt of her husband, and, in the statement of the claims of the parties made by the court in beginning his charge to the jury, no such contention is outlined. It does not follow that error was committed. That a married woman is liable upon her contract to repay money which she borrows is clear. The plaintiff’s testimony, as it appears in the record, is that she agreed to deed this property back to her mother if her mother would convey certain parcels of land, “giving each of us a quarter, and Mrs. Parent [defendant] would give me a note for the money I had loaned her.”

Defendant claimed that the debt evidenced by the note was her husband’s debt, and denied that she executed the note in consideration of securing to herself the property which was in fact deeded to her. The instruction given to the jury required them to find, if the debt was her husband’s debt, that “the defendant did execute this note in consequence of that agreement. ” It is apparent that the jury might have found that the money was lent to the husband and that the defendant gave the note for the purpose of carrying out the agreement and to obtain a conveyance of property to herself. A married woman is under no disability to acquire property for herself by paying or agreeing to pay the debt of another person. It was held in Whelpley v. Stoughton, 112 Mich. 594, that a married woman may be personally liable, upon her note given for her husband’s debt, the consideration being the waiver by the creditor of an asserted right to attack an alleged voluntary transfer of property by her husband to herself. In this view of the case, it was not error to admit the deeds in evidence.

We have examined all of the points urged in the brief of appellant, find that no error was committed, and affirm the judgment.

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


text:
    MURPHY v. McINTYRE.

    1. Vendor and Purchaser — Default of Purchaser — Effect-Termination of Contract.
    Where a land contract provides that upon default by the purchaser the vendor shall have the right to declare the contract void, etc., the default does not, of itself, work a forfeiture, but notice of the election of the vendor to forfeit is required in order to determine the contract relation.
    2. Same — Possession After Default — Nature of Holding.
    After default and notice of forfeiture, independent of contract stipulations,'the vendee in a land contract is, strictly, a ten. ant at will-
    3. Same — Notice to Quit.
    Where a land contract provides that the purchaser shall have possession of the land ‘ ‘ under this contract ” on a day named, and that on default the vendor shall have the right to treat the purchaser as her tenant holding over, and to take immediate possession of the land and remove the purchaser therefrom, the purchaser, after default and notice of forfeiture, is without right of possession, and is not entitled to 90 days’ notice to quit.
    Error to Berrien; Coolidge, J.
    Submitted April 10, 1908.
    (Docket No. 26.)
    Decided May 1, 1908.
    Summary proceedings by Mary L. Murphy against Sarah E. McIntyre for the possession of certain real estate. There was judgment for defendant on a verdict directed by the court, and complainant brings error.
    Reversed, and remanded.

      James O’Hara, for appellant.

      Cady & Andrews, for appellee.

       Rehearing denied July 1, 1908.

   Ostrander, J.

On default being made in payments due upon an executory contract for the sale and purchase of land, the vendor served upon the vendee in possession a notice containing the following clause:

“I hereby notify you that I have elected to declare and have declared said contract void under the terms thereof, and demand immediate possession of said premises according to the terms of said contract and hereby give you notice to quit and vacate said premises.”

The notice was served September 20,1907, and on October 7, 1907, the vendor made and filed with a circuit court commissioner a complaint in statute proceedings to recover possession of the premises. A judgment was rendered for defendant, and on appeal to the circuit court it was affirmed; verdict being directed by the court upon the ground that defendant was entitled to a 90-days notice to quit. The land contract contained the condition:

“If the said party of the second part shall fail to perform this contract, or any part of the same, the said party of the first part shall, immediately after such failure, have the right to declare this contract void, and to retain whatever may have been paid hereon, and all improvements that may have been made on said land, as stipulated damages for non-performance of this contract, and may consider and treat said party of the second part as her tenant holding over without permission, and may take immediate possession of said land, and remove said party of the second part therefrom.”

Default of the vendee did not by the terms of the contract work a forfeiture. Notice of the election of the vendor to forfeit was required in order to determine the contract relation. Miner v. Dickey, 140 Mich. 518. That election having been made and notice thereof having been given to the vendee, with a demand for possession of the premises, what relation then existed between the parties ? Defendant says her position was one familiarly known to the law as a tenant at will. See Allen v. Carpenter, 15 Mich. 25, 42. Independent of contract stipulations, the vendee in a land contract, after default and after notice of forfeiture, is, strictly, a tenant at will. Crane v. O’Reiley, 8 Mich. 312. In that case the stipulation made the vendee, after his default, a tenant at will, and was held merely declaratory of the law. By the terms of the contract in question here, the vendee was to have possession of the land “under this contract” on a day named. By mutual agreement, the vendor, upon default, had the right to treat the vendee as her tenant holding over, and to take immediate possession of the land and remove the vendee therefrom. Assuming that after the forfeiture and demand of possession the status of the vendee was, as it was agreed it should be, that of a tenant holding over, it was clearly a holding without right. A tenant holding over may be proceeded against at once. Teft v. Hinchman, 76 Mich. 672; Ryan v. Mills, 129 Mich. 170. He has no right to the possession, and can gain none except by agreement or by acquiescence. Benfey v. Congdon, 40 Mich. 283. The case is unlike the one of Rawson v. Babcock, 40 Mich. 330. The vendor might have at once peaceably dispossessed her.

The judgment of the court below was wrong and is reversed, with costs of all courts. The installment due upon the land contract was payable at any time in the month of August, 1907, and was the sum of $2,000. The record will be remanded to the circuit court for the county of Berrien, with directions to enter a judgment for complainant in conformity with the statute. Lambton Loan & Investment Co. v. Adams, 132 Mich. 350. The amount found due to the complainant should include interest at the contract rate as and from the date of the judgment rendered by the circuit court commissioner.

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


text:
    GARVIN v. STONE.
    1. Judgment — Res Adjudioata — Probate Court — Effect of Decree.
    An agreement entered into in the probate court between the widow and heirs of a decedent, expressed to be for the purpose of avoiding controversy as to the rights of the parties in the property of decedent, by which it is agreed that each shall have certain parts of the property, was not a mere stipulation or step in the proceedings in the probate court to authorize further proceedings by such court, but was a complete agreement between the parties determining their rights in the property; whence the subsequent order of the probate court allowing the administrator’s final account and assigning the personal property “according to the terms of an agreement on file in said court ” did not have the effect of an adjudication upon the rights of the parties under, nor bar a subsequent action upon, the agreement.
    2. Parties — -Nonjoinder of Defendants — Necessity of Plea.
    Where, in an action by a widow against one of the children of her deceased husband on an agreement by the children that she should have a certain sum of money in settlement of her claims against the estate of decedent, it appears that plaintiff is entitled to recover upon the agreement, a.verdict is properly directed against defendant for the whole amount due plaintiff, in the absence of a plea of the nonjoinder of defendant’s joint contractor, irrespective of the question whether, if plaintiff’s suit could only be maintained upon the common count for money had and received, she would only be entitled to judgment for that portion of the fund received by defendant.
    Error to Macomb; Erskine, J.
    Submitted April 13, 1908.
    (Docket No. 42.)
    Decided May 1, 1908.
    Assumpsit by Kate Garvin against Kittie G. Stone on an agreement for the payment of certain moneys. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Harry A. Lockwood, for appellant.

      William, T. Hosner, for appellee.
   Blair, J.

This suit was instituted in justice’s court by the widow of Jay Garvin, who died intestate March 16, 1905, against Kittie G. Stone, his daughter, who, with her brother, Leon E. Garvin, comprised his surviving heirs at law. The declaration was on the common counts in assumpsit with notice “ that this action is based on a certain written instrument, a copy of which is hereto attached.” A bill of particulars was filed, as follows:

“$110.00. due and owing the plaintiff under and by virtue of a certain agreement made and executed by the defendant and her brother, Leon E. Garvin, on or about December 1st, 1905.”

The defendant pleaded the general issue, with notice denying the jurisdiction of the justice’s court over the subject-matter of the suit because said subject-matter had been involved in a certain suit in the circuit court, in chancery, in Macomb county, and in the probate court for Oakland county, in which courts final decrees had been rendered, adjudicating said subject-matter, which constituted a bar to the present suit.

The case was appealed from the justice’s court to the circuit court for Macomb county, where it was tried before a jury upon the same pleadings.

The agreement of December 1, 1905, contained, among other clauses, the following:

“State of Michigan. — The Probate Court for the

County of Oakland.

“In the matter of the estate of Jay Garvin, deceased.

_ “For the purpose of avoiding controversies as to the rights of Kate Garvin, widow, and Leon Garvin and Kit-tie Stone, children and heirs at law of said Jay Garvin, deceased, and for the further purpose of settling and adjusting all rights and controversies relative to the respective rights and claims of said Kate Garvin, on the one hand, and of Leon Garvin and Kittie Stone, on the other hand, in and to the certificates issued to said Jay Garvin in his lifetime by the Knights of the Modern Maccabees, said certificates numbered respectively No. 1313 and No. 6380 for the sum of $1,000 each and relative to which a bill of interpleader has been filed by the said Knights of the Modern Maccabees, making said Kate Garvin and Leon Garvin and Kittie Stone defendants and , which said cause is now pending in the circuit court for : the county of Macomb in chancery.

“ It is hereby agreed by and between the said Kate Garvin, widow, and said Leon Garvin and Kittie Stone, as follows:

“1. That the said Kate Garvin shall receive as her share and portion of the said estate of Jay Garvin, both real and personal, a deed from the said Leon Garvin and Kittie Stone conveying to her in fee the home on Burdick street in the village of Oxford, that she shall further receive her selections of $200 and household goods as already selected by her amounting to $400 as appears by the order of said court directing the same to be turned over to her; that she shall further receive the full allowance of $6 per week for 52 weeks, to wit: $312; that she.shall further receive and have paid over to her attorney out of the proceeds of said certificates the sum of $1,065 net; and that she shall also receive and have $110 deposited by Leon Garvin in the Oxford Bank in her name and also have and receive the certificates of oil stock issued to said Jay Garvin and Kate H. Garvin.

“In consideration of the conveyance of said home and of receiving said selections and allowances and the said sum of $1,065, said $110, and other sums before mentioned, together with said deed of said house and lot, the said Kate Garvin agrees to execute a proper quitclaim deed releasing all her interests in all of the lands of said Jay Garvin to said Leon Garvin and Kittie Stone, and to release all other or further claim to the rest of the estate of said Jay Garvin, hereby assigning all right and claim of, in and to the rest of said estate, other than as herein specified to be conveyed to her, to the said Leon Garvin and Kittie Stone, and authorizing and directing such residue of said estate to be turned over to said Leon Garvin and Kittie Stone.

“It is further understood and agreed that at the time of executing said conveyances the said Kate Garvin shall execute a release of all rights or claims to the rest of the estate of Jay Garvin to Leon Garvin and Kittie Stone and on the making and allowance of the final account shall receive the balance of the said weekly allowance, which, if not sufficient estate to pay, the said Leon Garvin and Kittie Stone agree to brake good to her in cash.

“ It is further understood and agreed that the proceeds of said certificates of insurance after deducting $35, cost of filing bill of interpleader, shall be paid over to William T. Hosner, attorney for said Kate Garvin, $1,065, and to Dwight N. Lowell, attorney for Leon Garvin and Kittie Stone, $900, and that receipts therefor respectively shall be executed by said Kate H._ Garvin,' Leon Garvin and Kittie Stone, with orders to said Knights of the Modern Maccabees to pay said amounts over respectively to said William T. Hosner and Dwight N. Lowell for their respective clients.”

The administrator’s inventory with the appraisal, filed April 26, 1905, shows, among other items: 1 bay mare appraised at $150; household goods, furniture, bedding, etc., appraised at $200; cash on hand, $120.

The plaintiff made her selection in writing on April 29, 1905, of household furniture, etc., and “the following articles from the said inventory at their appraised value, to the amount of two hundred dollars, to wit: 1 bay mare, $150, cash, $50.”

On May 2, 1905, plaintiff receipted to the administrator for “household goods, two hundred dollars.” On May 29, 1'905, she gave to the administrator the following receipt:

“Received of H. S. Elliott, Jay Garvin estate, two hundred dollars, the same being on account of widow’s allowance. $200.”

January 23, 1906, the administrator filed his final account, in which he credited himself with the following items, viz.:

“Widow’s allowance, Kate Garvin, $200; household goods, Kate Garvin, $200.”

On March 3,1906, the administrator’s final account was allowed, and it was further ordered:

“ That the real estate of which said deceased died seised be and the same is hereby assigned to Kittie G. Stone, Leon E. Garvin, subject to the dower interest of Kate H. Garvin, widow of said deceased, and it is further ordered that the personal property on hand, together with the legacy from the estate of John Garvin above referred to, be and the same is hereby distributed, as follows: To Kittie G. Stone, one-half and Leon E. Garvin, one-half, according to the terms of an agreement on file in said court.”

The undisputed testimony shows that the sum of $110 referred to in the agreement was money which plaintiff’s husband had on hand at the time of his death, which the said Leon Garvin took to the bank and deposited in plaintiff’s name and it was used by her; that the administrator sold the horse selected by.plaintiff for $150 and put the money ‘ ‘ in the Oxford Savings Bank to the credit of the Jay Garvin estate” and, so far as he knew, “that money remained in the estate;” that the $200 for the widow’s statutory selection of personal property was paid by the administrator by giving Mrs. Garvin credit for the $110 used by her and $90 in cash. It was conceded that plaintiff had fully complied with the agreement.

The circuit court directed a verdict for plaintiff, and defendant has brought the record to this court for review upon writ of error.

Counsel for appellant group their assignments of error under five heads, the first three of which relate to the construction of the agreement and the effect of the jurisdiction over and proceedings and orders of the probate court in the matter of the estate of Jay Garvin. The fourth head concerns alleged errors in admitting testimony, and the fifth, that, in any event, the case should have been submitted to the jury.

The writing in question was not a mere stipulation or step in the proceedings in the probate court to authorize further proceedings by such court, but was a complete agreement between the parties, determining their rights not only in the property of the estate then in process of administration but in the subject-matter of the chancery suit and in the certificates of oil stock.

The rights of the parties were determined by the agreement and not by an order or decree to be made by the probate court. By the agreement, the defendant and her brother contracted that plaintiff should receive a deed of certain real estate, a certain amount of insurance money, and certain sums of money, and, in consideration thereof, plaintiff agreed that her stepchildren should have the balance of the insurance money and the residue of the estate. The plaintiff, by the agreement, was required to execute a conveyance of real estate and at the same time to “ execute a release of all rights or claims to the rest of the estate of Jay Garvin to Leon Garvin and Eittie Stone,” etc. In effect, the plaintiff sold her interest in the estate to defendant and her brother upon their agreement that she should receive certain property. The agreement on the part of defendant and her brother was an original undertaking on their part that plaintiff should have the specified property, and she had a right to look to them for its performance and to pay no further attention to the proceedings in the probate court.

The agreement was one which the parties had a right to make, the probate court neither had nor claimed jurisdiction over it, either to enforce it or annul it, and its orders allowing the administrator’s final account and assigning the personal property “according to the terms of an agreement on file in said court” did not have the effect of an adjudication upon plaintiff’s rights under it. Shurte v. Fletcher, 111 Mich. 84; Bean v. Bean, 144 Mich. 599; Hull v. Hull, 149 Mich. 500.

We are of the opinion, therefore, that the circuit judge did riot err in his holding that the court had jurisdiction of the subject-matter of the suit, and that the suit was not barred by the decree of the probate court, and was maintainable upon the agreement, which had been fully performed by plaintiff.

We do not think any prejudicial errors were committed by the court in his rulings as to the admissibility of testimony nor in directing a verdict upon the theory that the facts were undisputed, and the only other question which, in our opinion, requires consideration is, whether the court erred in directing a verdict for $110 against one of the two joint promissors.

It may be that if the plaintiff’s suit could only be sustained as an action on the common count for money had and received, she would only be entitled to recover judg- . ment for the one-half of the $110 actually received by defendant; but, under the views above expressed as to plaintiff’s cause of action, and the non-joinder of the joint contractor not having been pleaded, the judgment was properly directed against defendant for the full amount. Mitchell v. Chambers, 43 Mich. 150; Porter v. Leache, 56 Mich. 40.

The judgment is affirmed.

Grant, O. J., and Montgomery, Carpenter, and McAlyay, JJ., concurred.


author: Grant, C. J.

text:
    DICE v. SHERBERNEAU.
    1. Intoxicating Liquors —Civil-Damage Law — Suicide of Intoxicated Person — Cause of Suicide — Necessity of Proof.
    In an action by a widow under the civil-damage law (section 5398, 2 Comp. Laws), for damages arising from tbe suicide of her husband while intoxicated, it is not essential to plaintiff’s right of action that she shall show that the intoxication was the cause of her husband’s suicide.
    2. Same — Defenses—Unauthorized Acts of Agent.
    That defendant had instructed his regular bartender not to sell to plaintiff’s husband, and the liquor was furnished by a man employed only to fill the ice box and clean up the saloon, at a time when neither defendant nor his bartender were present, is no defense, since it cannot be presumed defendant would leave his place of business unattended.
    3. Saving Questions for Review — Excessiveness of Verdict-Necessity of Motion for New Trial.
    The question of excessiveness of verdict cannot be considered where there has been no motion for a new trial raising the point.
    Error to Osceola; Rose, J.
    Submitted April 13, 1908.
    (Docket No. 52.)
    Decided May 1, 1908.
    Case by Lavina Dice against Thomas B. Sherberneau, principal, and Egbert F. Chapin and Mike Walsh, sureties, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Carroll & Nichols (Charles A. Withey, of counsel), for appellants.

      B. N. Savidge, for appellee. ' '
    Defendant Sherberneau was a saloon keeper. Defendants Chapin'and Walsh were his sureties.. Plaintiff’s husband was an habitual drunkard, or so in the habit of intoxication that plaintiff had notified Sherberneau and other saloon keepers not to furnish him any liquor.
    On November 1,1905, Mr. Dice twice obtained whiskey in defendant’s saloon. The first time he obtained a drink from one Houk who was in attendance upon the. bar. The second time he obtained a bottle or flask from one Curtis, the only person in the saloon when Dice and his companion entered. Curtis went behind the bar, filled the bottle, took Mr. Dice’s money and placed it on the back bar. Dice returned home that evening in a state of intoxication, took down his gun, placed the muzzle against his stomach, pulled the trigger with his toe, shot himself, and died a few hours after.
    Plaintiff instituted this suit against the defendant under that provision of section 5398, 2 Comp. Laws, reading as follows:
    “ Every wife, child, parent, guardian, husband or other person, who shall be injured in person or property, or means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors, to any person, shall have a right of action in his or her own name, against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury, and the principal and sureties to the bond hereinbefore mentioned, shall be liable severally and jointly with the person or persons so selling, giving or furnishing any spirituous, intoxicating, or malt liquors, as aforesaid, and in an action provided for in this section, the plaintiff shall have a right to recover actual and exemplary damages'.”
    The declaration alleges:
    “ By reason of the said several unlawful sales of intoxicating liquors to the said George Dice, he, the said George Dice, drank of the liquor so sold, furnished, delivered or given him as aforesaid, and by reason thereof became and was intoxicated on the day and evening of the said 1st day of November, A. D. 1905, at the said village of Marion, county-and State aforesaid, and while so intoxicated he, the said George Dice, on the evening of the said 1st day of November, A. D. 1905, at the said village of Marion, did shoot himself and from the wound so inflicted did die, and that he, the said George Dice, while intoxicated as aforesaid, on the day and at the place last aforesaid, did commit suicide.”
    She obtained a verdict and judgment.
    . So far as essential the further statement of facts will be made in connection with the points raised.
   Grant, C. J.

( after stating the facts). Five errors are alleged:

(1) The court misinterpreted the statute above quoted.-

(2) In submitting to the jury the question whether the defendant Sherberneau is liable for the sale of the liquor by Curtis to Dice.

(3) The verdict is excessive.

(4) It is against the weight of the evidence.

(5) The court erred in refusing to grant a new trial.

The court instructed the jury that if Dice shot and killed himself while in an intoxicated condition, and that defendant Sherberneau was responsible for selling intoxicating liquor to him, which contributed to his intoxication, the defendant was liable. ■

Counsel for the defendants contend that it was incumbent upon the plaintiff to prove that the intoxication was the cause of her husband’s suicide, and that the mere fact of committing the deed while in a state of intoxication is not sufficient to sustain a verdict. Counsel seek to make a distinction between an act committed by an intoxicated person towards others in consequence of which injury results to his family or the death from exposure or drowning, or being killed in a drunken brawl while intoxicated, and the act of suicide while the person is intoxicated. No case involving suicide by an intoxicated person has before been presented to this court. In an early case under this statute, this court said:

“The statute provides as plain as the English language can state it, that this action shall lie for any injury occasioned by an intoxicated person. It is not for the injured party to produce proof, or for the jury to speculate, upon the probabilities whether the intoxication was the natural cause of the act which caused the death. The act itself by a person intoxicated fixes the liability for the damage upon the person selling or furnishing the liquor which caused the intoxication.” Brockway v. Patterson, 72 Mich. 122, 128 (1 L. R. A. 708).

In that case plaintiff’s husband and his companion left the saloon late at night in a state of intoxication. On their way home a quarrel ensued in which his companion struck Brockway and inflicted a wound in consequence of which he died.

What difference in principle is there between a case where the intoxicated person assaults and injures his wife and that in which he with suicidal intent inflicts an injury upon himself ? Or, while in a state of intoxication, he is accidentally drowned, or commits suicide by drowning F The injury to the plaintiff on account of her husband’s death, or injury so that he cannot work is the same in each case. The presumption is as great that he would not kill his wife as it is that he would not kill himself. Both acts are equally inconsistent with the conduct of a sober man. It is well in such case that the disordered mind of the drunkard be directed to his own destruction rather than to the destruction of his family.

The difficulty in proving that the deceased would not have committed suicide without the intoxication is apparent. It would substantially result in denying to a wife or children the benefit of this statute in cases of suicide. Even where a wife sought damages because her husband had committed the crime of burglary, while in a state of intoxication, the court instructed the jury that the defendant was liable if the husband formed the intent to commit the burglary by reason of the intoxication, or was so intoxicated that he was incapable of forming the intent. Dennison v. Van Wormer, 107 Mich. 461. In that case stress was laid upon the felonious intent essential to establish the crime. In such cases it is incumbent upon the wife or child to show facts and circumstances from which a jury may legitimately infer that the crime was the result of the intoxication, and not of a previously formed intent. Intoxication seldom leads to burglary and other crimes where the act implies a previously formed and intelligent criminal intent. In such cases mere proof of intoxication is not sufficient to sustain a right of action by the wife or child for damages resulting from loss of support. It is, however, a matter of common knowledge that persons long addicted to the excessive use of intoxicants — that was the. case here — do, when under the influence of liquor, attack their families and often attempt their own destruction. In such cases the fact that the act was committed while in a state of intoxication is all that the statute requires.

Where an intoxicated man killed his wife and then committed suicide and his child brought suit against the saloon keeper for damages, the court, after citing several authorities, said:

“ In those cases, as well as in others arising under the act, liability was established from the sale of liquors producing intoxication, and the act of the intoxicated person causing injury to,the plaintiff in his person, property or means of support. Those elements exist here. The cause of action is neither taken away nor mitigated because the cause of injury also constitutes a crime. The jury were not to inquire whether either ‘ the homicide or suicide were the natural, reasonable, or probable consequences of the defendant’s act.’ It is enough if while intoxicated in whole or in part by liquors sold by the defendants, those acts were committed, if by reason of them, or either of them, the plaintiff’s means of support were affected to his injury.” Neu v. McKechnie, 95 N. Y. 632.

The statute in that ca'se is the same as the statute of Michigan.

So, where the husband had formerly attempted suicide, but finally did commit it, leaving a paper saying: “ Give z»y watch to my boy,” and that his brother-in-law owed him $57, a verdict for the plaintiff based solely upon proof of intoxication and suicide was sustained. Blatz v. Rohrbach, 42 Hun (N. Y.), 402. The court there said that the question is not ordinarily susceptible of any direct proof.

We think the construction placed upon this statute by the circuit judge is correct.

The defendant Sherberneau gave evidence tending to show that he had instructed his regular bartender not to sell liquor to. Dice. Curtis, who sold Dice the liquor, was employed by Sherberneau in his saloon to fill the ice box, clean spittoons, etc. Sherberneau testified that he compensated him only by giving him drinks. Whether he compensated him at all or not is immaterial. The statute makes the saloonkeeper liable for the acts of his employés. Curtis was not produced as a witness. There is testimony that Curtis was generally in the saloon in the morning cleaning up, and that on one occasion, shortly before the sale to Dice, Curtis was tending bar. Neither Sherberneau nor his bartender were in the saloon at the time. The jury áre justified in inferring that a saloon keeper would not leave his place of business unattended. The saloon was open for business, and we agree with the circuit judge in saying:

“It does not stand to reason that the bartender intended to leave the saloon open' to the public with no one in charge of it.”

If a stranger had stepped into the saloon and found only Curtis there, apparently in charge of the saloon, and Curtis had waited upon him, clearly the defendant would have been liable. There was evidence to sustain the verdict upon this point.

The question of an excessive verdict cannot now be considered, there having been no motion for a new trial made in the court below raising this point. Brockmiller v. Industrial Works, 148 Mich. 642, and authorities there cited.

The 4th and 5th points may be considered together. The questions of law raised upon the motion are above decided. We cannot say that the verdict is so clearly against the weight of the evidence as to justify us in granting a new trial.

The evidence as to the degree of intoxication was in sharp conflict. The judge in his opinion on the motion for a new trial, after carefully reviewing the evidence, said:

“ It became a question of fact for the jury, and I think • they were properly justified, from all the testimony, in reaching the conclusion that he was intoxicated at the time he shot himself.”

We concur in this view.

The judgment is affirmed.

Montgomery, Carpenter, and McAlvay, JJ., concurred. Blair, J., concurred in the result.


text:
    WHEALKATE MINING CO. v. MULARI.

    1. Contracts — Validity — Agreement to Abstain from Performance of Legal Acts.
    It is lawful for parties to contract to abstain from the performance of act’s proper and legal in themselves, when those with whom they contract have an interest in their doing so, and such agreement may assume the form of a condition.
    3. Deeds — Restrictions—Sale of Liquors — Validity.
    Where the owners of a townsite placed in all deeds of lots a condition restricting the sale of intoxicating liquors, not for the purpose of prohibiting such sales, but for the purpose of keeping the traffic under control, which purpose was known to purchasers of lots, and in pursuance of its policy granted temporary leases or permissions by virtue of which liquor might be sold on certain lots, the restriction was valid and enforceable, and did not constitute an unlawful restraint of tr'ade.

      Appeal from Chippewa; Steere, J.
    Submitted April 13, 1908.
    (Docket No. 55.)
    Decided May 1, 1908.
    Bill by the Whealkate Mining Company against Ollie Mulari and Mattie Dahlman to enjoin the violation of a condition in a deed. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Chadbourne & Bees, for complainant.

      Burritt & Burritt, for defendants.

       Rehearing denied September 10, 1908.

   Montgomery, J.

The complainant is a mining corporation organized under the laws of the State of Michigan, and is owner of a piece of land which was platted as a townsite prior to 1903. The land was wholly unoccupied, and the company drained the land, built roads and streets, and laid out what is known as the town of South Range, and from time to time sold a large number of lots in the town. It adopted a form of deed which contained a condition and agreement as follows:

The estate hereby conveyed to the party of the second part is expressly made subject to the following conditions, hereby agreed to by the said party of the second part, for their heirs, executors, administrators and assigns, which conditions and which covenant on the part of party of the second part, shall run with the land and be binding upon any person or persons succeeding to the title of the party of the second part, and for any breach of which conditions, the estate hereby granted and the whoie thereof shall be forfeited and absolutely terminated, and the same shall revert to and become the property of the party of the first part, its successors and assigns, to the same extent as if this instrument had not been made, which conditions are as follows, viz.: That the said party of the second part shall not, nor shall their heirs, executors, administrators or assigns, nor any of them, use the said premises or any part thereof, nor suffer the. same to be used for any immoral purposes, nor keep for sale nor suffer to be kept for sale, nor sell or suffer to be sold upon said premises or any part thereof, any spirituous, malt or intoxicating liquors, on pain of defeating the whole estate hereby conveyed and of forfeiture of the same as aforesaid, together with all improvements and structures made or erected or to be made or erected thereon, to the said party of the first part herein, its successors or assigns.

“And the said party of the second part agrees to observe the said conditions and each and every of them, and agrees that said estate may be forfeited as aforesaid for any breach thereof, and further agrees, that in addition to the penalty of forfeiture as above mentioned, the said conditions may be enforced by any appropriate action or by writ of injunction from any court of competent jurisdiction.”

On the 15th of December, 1902, complainant conveyed to Nichols and Getphell lot twenty-two (22) of block eleven (11) by a deed containing the above conditions.

On March 11, 1905, Nichols and Getchell conveyed to John Jyhla, Jyhla conveyed to defendant Mullari, on March 14, 1905, by quitclaim deed, and he also gave a subsequent deed in the form of a warranty deed, subject to the rights of the Whealkate Mining Company under the original deed.

The complainants, at the time they platted the town, had no purpose of making it a prohibition town, that is, of excluding absolutely the sale of liquor. But it was thought that if conveyances without restriction were made, they would simply sell a few lots for saloon purposes, and that would end the growth of the town. They therefore determined to keep the control of the liquor traffic within their own hands and adopted the plan of selling no lot except under the conditions and restrictions of the deeds, and to carry this into effect, the directors granted temporary leases or permissions by virtue of which liquor might be sold on certain lots in the townsite. The purpose of the company to grant permission to a limited number of saloons within the district of the town-site was known to Nichols and Getchell at the time the deed in question was made. The defendant, after purchasing the lot in question, proceeded to open a saloon thereon in violation of the conditions and agreements contained in'the deed. A bill was filed for an injunction restraining him from carrying on this business. A forfeiture of the title is not prayed. At the hearing, the bill was dismissed and complainant has appealed.

There is no doubt that it is lawful for parties to contract to abstain from the performance of acts proper and legal in themselves when others with whom they contract may have an interest in their doing so, and as was said in Smith v. Barrie, 56 Mich. 314, such agreement may assume the form of a condition. See, also, Watrous v. Allen, 57 Mich. 362, and Reilly v. Otto, 108 Mich. 330.

It appears to have been the view of the circuit judge that it was incompetent for the parties in this case to make a contract to limit the sale of liquor within the limits of the townsite to those to whom they should grant special permission, as this would be an unlawful restraint of trade, and in the brief of defendant’s counsel, language employed by Judge Morse in Chippewa Lumber Co. v. Tremper, 75 Mich. 40, is quoted which tends to support the view that it would be incompetent for the owner of a plat to provide for a sale and to convey lots so as to grant or effect a monopoly of the sale of liquor in themselves or other persons, as this would be contrary to public policy. This language must be construed in connection with the facts in the case. In that case, it would appear that the scheme of the, owners of the property was to exclude the sale of liquor wholly, and as was said in Jenks v. Pawlowski, 98 Mich. 110:

It certainly cannot be said that a grantor has the right afterwards to sell an adjoining lot without restrictions, and thereby diminish the value of his former grantee’s property, and impair its eligibility for other uses, converting the locality into a saloon locality, and still be allowed to insist upon the restriction.”

That case proceeded upon the view that there was mutuality in such agreements, and that there was, in the absence of any proof to the contrary, an implied undertaking on the part of the grantor that similar provisions would be inserted in other conveyances to carry out the general scheme of prohibiting the sale of liquor on the premises.

But this is not that case. In this case, the effort was to restrict and not prohibit the sale of liquor, and the question presented is whether it is lawful for the owner of a plat to prohibit, within certain territory, the sale of liquor by others, and in effect, by a condition annexed to the sale of property by himself, provide that others than himself shall not engage in a particular business on the property. We see no reason for holding that such an engagement is unlawful. In Watrous v. Allen, 57 Mich. 362, it was said of the contention that such a provision is in restraint of trade, that such provision in its application to a parallel case was considered in Beal v. Chase, 31 Mich. 490, where “it was held that a covenant in restraint of trade, so far as the covenantee had in his own business an interest in enforcing it, might be valid.” It was further said:

“ There is nothing in the position taken by the defense that the condition tends to the establishment of a monopoly in the business of selling intoxicating drinks, and is thus opposed to public policy. It is not the policy, of this State that every one should sell intoxicating drinks who pleases. On the contrary, heavy taxes are levied and onerous conditions imposed by the State for the express purpose of limiting the number of those who shall sell; and the condition in question is directly in the line of that policy, instead of being opposed to it.”

In the present case, there was no deceit practiced. The condition was lawful in itself, and the complainant is entitled to the relief prayed.

The decree is reversed and a decree will be entered in this court granting the prayer of the' bill, with costs of both courts.

Grant, C. J., and Blair, Carpenter, and McAlyay, JJ., concurred.


author: Carpenter, J.

text:
    ROBERTSON v. DETROIT PATTERN WORKS.
    Garnishment — Receivers—Leave of Court — Necessity.
    The rule that property in the hands of a receiver is not subject to garnishment except by leave of the court appointing the receiver has no application to a case where nothing remains to be done by the receiver except to pay to plaintiff’s debtor a sum of money due him under the final decree in the suit in which the receiver was appointed.

    Error to Wayne; Donovan, J.
    »Submitted April 13, 1908.
    (Docket No. 45.)
    Decided May 1, 1908.
    Garnishment proceedings by Charles R. Robertson against Charles W. Wipfler and others; garnishees of the Detroit Pattern'Works, and others. There was an order dismissing the writ, and plaintiff brings error.
    Reversed.

      Charles B. Bobertson, in pro. per.

      William C. Qottman, for appellees.

       As to garnishment of money due from receiver, see note to Irwin v. McKechnie (Minn.), 26 L. R. A. 218.

   Carpenter, J.

The garnishee defendant was appointed by the circuit court for the county of Wayne receiver in a certain suit wherein he and the principal defendants were parties. That suit was tried. It resulted in a final decree requiring the garnishee defendant to pay to the principal defendants in this suit a certain sum of money. It appears that nothing remains to be done except the performance of this decree, viz., the payment of said money. The' question presented by this case is whether plaintiff, a creditor of the principal defendants, has a right without leave of the court to commence garnishment proceedings to secure this fund. The trial court held that he had not and dismissed his proceedings.

There is no doubt of the general rule that property in the hands of a receiver is not subject to garnishment except by leave of the court appointing the receiver, which leave was not obtained in this case. But the weight of authority holds that that rule has no application in a case like this where nothing remains to be done except to pay money upon a final decree. Willard v. Decatur, 59 N. H. 137; Smith v. People, 93 Ill. App. 135; Rood on Garnishment, § 32; Dunsmoor v. Furstenfeldt, 88 Cal. 522 (12 L. R. A. 508); Weaver v. Davis, 47 Ill. 235; 20 Cyc. p. 1026. We believe the law to be as stated in these cases. The order dismissing the proceedings was therefore erroneous.

Judgment reversed and a new trial granted.

Grant, O. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.