author: Moore, J. Grant, C. J.

text:
    PEOPLE v. BENNETT.
    Homicide — Self-Defense—Instructions.
    An instruction, in a prosecution for murder, from which the jury might get the impression that respondent’s plea of self-defense was not sustained if they should believe that he was mistaken in his belief of danger, requires the reversal of a conviction, although the jury, in another portion of the charge, were correctly instructed that respondent might judge of the circumstances as they appeared to him, where the jury were evidently confused by the charge, and, upon returning into court for further instructions on the subject of justification, were instructed in the same language used in the original charge. Grant, C. J., and Hooker, J., dissenting.
    Error to Ionia; Davis, J.
    Submitted May 2, 1899.
    Decided September 19, 1899.
    Wesley Bennett was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.
    Reversed.

      George E. Nichols, for appellant.

      Horace M. Oren, Attorney General, and John B. Ohaddock, prosecuting attorney, for' the people.
   Moore, J.

The respondent killed Moses Walker on the evening of July 10, 189?. He was convicted of murder in the first degree. He admitted the killing, but claimed he was acting in self-defense. The record discloses Mr. Walker was about 54 years old, and weighed from 160 to 180 pounds. He was a farmer. His niece, Mrs. Vivian, a woman who had separated from her husband, was, with her son, a small boy, living with him. Mrs. Vivian was a woman about 28 years old, and kept the house for Mr. Walker. The respondent was a man about 30 years old, and weighed about 130 pounds. He lived on a small farm, and did his own housekeeping. In the spring of 1895 he made the acquaintance of Mrs. Vivian, and soon formed a warm attachment for her. He gave her a number of presents, and paid her marked attention. Mrs. Vivian testified he proposed marriage to her, but she gave him no satisfaction, and told him her uncle gave her a good home, and she did not care to leave him. Soon after the acquaintance of respondent and Mrs. Vivian began, it became evident Mr. Walker did not like it, and he forbade the respondent coming to his house. Mrs. Vivian, however, encouraged his attentions, and frequently met him at other places, and also met him at the highway in front of the house of Mr. Walker, and, with her boy, went driving with him. It was the theory of the people that respondent was madly in love with Mrs. Vivian, and that, when she assigned as a reason why she did not marry him that she had a good home with her uncle, he conceived the idea that, if he removed the uncle, the way would be made easier for his marriage with Mrs. Vivian, and, acting upon this thought, he procured a revolver, and without adequate provocation designedly killed Mr. Walker.

When the shooting occurred, the only persons present, besides Mr. Walker, were Mrs. Vivian and her little boy, who was too young to testify, and the respondent. It was the theory of the defense that the respondent and Mrs. Vivian were engaged to be married as soon as Mrs. Vivian procured a divorce for which she had applied, and for which Mr. Bennett was to pay; that Mr. Walker became very jealous of the respondent,[and repeatedly threatened to kill him, and made repeated attacks upon him, and that Bennett acted in self-defense. The threats were shown by a number of witnesses. The respondent claimed that upon one occasion, when he called for Mrs. Vivian, Mr. Walker brandished a large club over his head, and threatened to kill him. Two other witnesses swore to seeing this'done, though they were not near enough to hear what was said. The respondent testified that upon this occasion Mr. Walker took out a large knife, and threatened him. He also said that, when visiting Mrs. Vivian, she and the boy and himself went to the orchard. Mrs. Vivian and the boy were sitting down, and, while the respondent was standing up, he heard the report of a gun, •a bullet whistled near his head, and, looking in the direction of the report, he saw Mr. Walker. He testified that he believed that Mr. Walker then attempted to kill him, and that Mrs. Vivian expressed her belief that he intended to do so, and advised him that he had better prepare to defend himself; that, acting upon her suggestion, when he had occasion to be where Mr. Walker was likely to be, he put in his pocket, for the purpose'of defending himself should he be attacked by Walker, a revolver he had owned for a long time. He also testified that shortly before the occurrence which resulted in Mr. Walker’s death, while he was in the highway, with his buggy, waiting for Mrs. Vivian, without any provocation on the part of respondent, Mr. Walker threatened him, and ordered him to drive on, and, when he failed to do so, threw a brick at him. Upon the evening when Mr. Walker was killed, respondent called for Mrs. Vivian, in pursuance of an appointment made with her. He was driving a colt which he was breaking for his brother. Mrs. Vivian, her little boy, and Bennett went to Ionia, and spent some .time there. When they returned, Mr. Walker was apparently waiting for them, and the following is Bennett’s version of what occurred:

“It was about 10 o’clock when I arrived at Walker’s place with Mrs. Vivian. When she got out, I handed the boy to her. She took him, and stood him down on the ground. At that Walker hollered at me, and says, ‘ Drive on there! ’ I says, ‘ I will drive on as quick as I get ready.’ I reached under the buggy seat to get her berries that were under there, and handed them out to her, and spoke to my horse to go on. At that time Walker rushed out towards the big gate, and says, ‘Go on now, G— d— you! ’ and throwed a brick over in the road that struck in front of my horse’s feet. At that the colt began to back up. After he throwed the brick, he started for the little gate on the run. He stopped there by the little gate, and stooped over, and picked up something off from the ground, and throwed it at my head. * * * It was moonlight enough so I could see it was either a stone or a brick. I dodged it. He came on the run for the buggy, and says, ‘Go on, G— d— you, or I will kill you.’ At that I drew my revolver, and throwed it down on him. Says I, ‘Hold on there, you have gone far enough.’ At that he says, ‘ Will you draw a revolver on me, you G— d— son of a b — ?’’ and stooped over to pick something off from the ground, and I fired the first shot. He raised up, whirled around as though he was coming towards my buggy again, and I fired the second time. Then I fired right away. I didn’t want to kill him. I was scared. I was afraid of him. I knew if he got hold of me he would kill me.”

He testified in regard to the horse:

“He commenced to back up. I did not try to make the horse stand still. I spoke to the horse to go on. * * * Then he came out of the little gate, stopped at the little gate, and grabbed something up there, and threw it at me. It came near me. I ducked my head down, and it passed over me. The horse had come to a standstill by this time when he threw the second brick. Then he came on a run down the path to the buggy, coming down the plank.
Q. Still you had the lines in your hands ?
“A. No, sir; I dropped the lines when he ran for the little gate.
“Q. What for?
“A. Because I saw I was going to have trouble with him?
Q. What did you drop the lines for ?
“A. I could not get away. I saw he was going to get to the buggy before I could get my horse started. I could not start the horse because I did not have time. * * * I had no time to drive the horse on after he left the little gate and before he got to the buggy; no time to get out of his way at all.”

Mrs. Vivian gave a different version of the transaction, and claimed her uncle threw but one missile.

A great many errors are assigned in relation to the action of the trial judge in admitting testimony, in rela-

ais refusal to give the requests as prepared by respondent, and to the charge as given. The I’as a very long one. In the main it was a clear set statement of the law applicable to the case, j, however, the judge erred in some essential par-He was requested to charge the jury as follows:

: IifHis behalf I charge you that the respondent, when threatJHd by immediate attack by Walker, was authorized to act,Hid his actions are to be judged from the circumstanceHis they appeared to him at the time; and the knowleHe or belief of the respondent that the person threatej|ng him with an immediate personal attack was a man ofJÉigh temper was a most important circumstance from wlljch he was to estimate the probability and the character olithe attack, and what course of conduct he had reason tJ expect from his assailant, as well as the means by whicM at the moment, he might deem necessary to guard himself |om the threatened danger. You have heard all of the iJstimony, and it is for you to judge who was the aggressol; and if you believe that Moses Walker was a person or quarrelsome disposition, or that he had made threats against Bennett, or that he entertained any vindictive feelings against Bennett, or had any motive for assaulting the accused, these facts may be considered by you, in connection with other testimony in the case, in determining who was the aggressor.
“I charge you, therefore, if the accused did not begin or invite the affray, but stood in fear of the deceased, and upon the defensive, and the deceased, in an angry and violent manner, attacked the accused, at the same time using violent, profane, and threatening language, and the accused, fearing an attack, took out his revolver, at the same time telling his assailant to keep away from him, but Walker did not heed the warning, but continued to advance towards the accused with the purpose of continuing the affray, and Bennett, acting upon the belief arising from the circumstances as they appeared to him, the strength of his assailant, the violence of the attack, the threats which had been made by Walker, his information or knowledge as to the violence of Walker’s temper or his violence when in anger, or any-other circumstance calculated to produce fear and apprehension of danger, and that he was in danger of his life or of great bodily harm, used the revolver, and shot the deceased, then the respondent must be acquitted.”

He gave the request, but added:

“Provided he did what he could away from the danger threatened.
“Also I say to you, in this connection, gentlem before a person can avail himself of the defense of you must be satisfied that that defense was n: that he did all he could to avoid it; that it was to protect his own life, or protect himself from ous bodily harm as would give him the apprehei his life was in imminent danger. If he used th< having no other means of resistance, and no escape, if he retreated as far as he could, he justified.”

In another portion of the charge he said to the wiry:

“ If you believe, beyond a reasonable doubt, thajfeennett could have escaped Walker’s alleged vengeancft at the time of the attack without killing him, the defensabf justification has failed, and your duty would be to conrict him of one of the degrees of the crime alleged. On Sue other hand, if, from all the evidence in the case, you bllieve his only resort for safety was to take the life of Walker, then he must be acquitted.” :

It will be readily seen that the jury might get an impression, from this statement of the law, that the respondent could not act upon his own belief of danger, and that he could not escape it in .any other way than to do as he did do, if the jury believed, in the light of all the testimony, that he was mistaken, and could in fact have escaped. It is true that, in another portion of the charge, the jury were told the respondent might judge of the circumstances as they appeared to him; but the jury were evidently confused by the charge, for, after being out for a time, they announced they were not able to agree, and asked for further instruction in relation to the degrees of the crime, and as to what would be a justification for the shooting. The court proceeded to charge them, again using the same language he had used in the original charge. It has been repeatedly held in cases of murder that, where an erroneous instruction has been given, though in another portion of the charge the law has been correctly stated, it will not cure the error unless it clearly appears the erroneous instruction could not have prejudiced the respondent. People v. Holmes, 111 Mich. 364. It is quite likely the jury, after the fact, would be warranted in saying, in view of all the testimony, that a cool-headed and courageous man would not have believed it necessary to do what was done by the respondent, upon the night in question, to save himself from bodily harm; but the law exists not only for the clear thinkers and the brave men, but for the weak and the timid, and they have a right to act upon an honest belief, though it be a mistaken one, if they act in good faith. In People v. Lennon, 71 Mich. 298 (15 Am. St. Rep. 259), the rule is stated as follows:

“I do not think it proper that a jury should be authorized to determine the standard of courage in a case of self-defense, or whether the party attacked, in what he did in his defense, acted cowardly, and therefore without warrant. There is no question of courage or cowardice in the case. I am aware that the rule laid down by the trial court has been sustained in some cases, collected and reported in Horrigan & Thompson’s Cases of Self-Defense; but the doctrine, or the reason given for it, is not in accord with the principles of self-defense as now almost universally held and enunciated by the courts of this country. The question to be determined is, Did the accused, under all the circumstances of the assault as it appeared to him, honestly believe that he was in danger of his life, or great bodily harm, and that it was necessary to do what he did in order to save himself from such apparent threatened danger ? If so, the inquiry is ended. It can and ought to make no difference whether he was a bold, strong man, used to affrays and personal encounters, or a weak, timid man, unacquainted with broils or assaults, as to the sufficiency of his reason for his action, if the jury believe that he acted honestly in fear of his life or great bodily harm. The fact of his physical and mental make-up and his experience in danger are to be considered, it is true, as bearing upon the honesty of his alleged belief, upon which he bases his right to act; but in such consideration the fact that the accused is weak, timid, and cowardly by nature is to be weighed in his favor, and not against him. To hold otherwise would be to set at naught, and to rule at variance with, the well-known laws of human nature, and to place the weak and timid at the mercy of the strong. It is bad enough to be constitutionally a coward without having the law also declare that the coward has no right to act in self-defense until he reaches the point where a man of average courage would have defended himself in the same manner, and to have the quantum of courage necessary in such cases determined by a jury sitting in safety and cool blood, listening to what must always be a tame recital of the facts compared to their appearance at the time they occurred.”

See, also, Pond v. People, 8 Mich. 150; Hurd v. People, 25 Mich. 405; People v. Macard, 73 Mich. 15; Erwin v. State, 29 Ohio St. 186 (23 Am. Rep. 733). The requests quoted of respondent should have been given.

As to the other errors assigned, they are either not well taken or are not likely to occur upon the new trial, and for that reason will not be discussed.

The judgment is reversed, and a new trial ordered.

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

Grant, C. J.

I cannot concur in the conclusion reached by my Brother Moore in this case. I think the respondent had a fair and impartial trial, that there is no reason for believing that the jury were misled 'by the charge of the court, and that the verdict is fully justified by the record. I think the fair and only inference to be drawn from this record is that the jury must have understood that the respondent was entitled to act upon the situation as it appeared to him. After the instructions given in my brother’s opinion, and near the close of the charge, the court instructed the jury as follows:

“If you believe from the evidence that the respondent was assaulted by the deceased in such a manner as to induce in the respondent a reasonable and well-grounded belief that he was actually in danger of losing his life, or of suffering great bodily harm, and there was no way to escape except to shoot Walker, then he was justified in defending himself, whether the danger was real or apparent. Actual or positive danger is not indispensable to justify self-defense. The law considers that persons threatened with danger are obliged to judge from appearances, and determine therefrom as to the actual state of things surrounding them; and in such cases, if persons act from honest conviction, induced by reasonable evidence, they will not be held .responsible criminally for any mistake as to the extent of the real danger. * * * In order for you to convict the respondent of murder in the first degree, you must find from all the evidence, beyond a reasonable doubt, a deliberate intention on the part of the respondent to take the life of Moses Walker. An unlawful killing with malice aforethought, willfully, with premeditation and deliberation, constitutes the crime of murder in the first degree; and the term ‘deliberate’ is not applicable to any act done on a sudden impulse. You cannot find the respondent, guilty of murder in the first degree unless you find from all the evidence, beyond a reasonable doubt, that the respondent did, on the 10th day of July, 189?, kill Moses Walker, and such killing was with malice prepense or aforethought; and also find, beyond a reasonable doubt, that such killing was willful, deliberate, with a design to take the life of deceased. In order for you to convict the respondent of murder in the first degree, the specific intent, as well as all other elements of the offense, which I have mentioned, must be affirmatively proved by the people beyond a reasonable doubt; that said respondent did shoot and kill Moses Walker at the time and place specified, and that such killing was not excusable or justifiable, and that such killing was with malice prepense or aforethought. And if you fail to find, beyond a reasonable doubt, that such killing was perpetrated willfully, deliberately, and premeditately, you cannot find the respondent guilty of murder in the first degree. * * * If you should find that the assault by Walker upon the respondent was fierce, violent, and sudden, and apparently aimed to kill or do great bodily harm, and was not caused by anything that respondent had done at the time, the respondent was justified in repelling it, even to the taking of the life of Walker. It will be unnecessary to inquire what ill-feeling or malice was entertained by the respondent towards Walker, for, if a person is assaulted in a violent, fierce, and sudden manner, so that the only way left is for him to slay his aggressor, if it so appears to him, then it is wholly immaterial what ill-will or malice he may have entertained towards him, if he contributed nothing to the attack, or in any manner caused it, for the malice and ill-will, if any existed, are wholly swallowed up in the defense of life itself. ”

As is usual in such cases, the charge of the court was somewhat lengthy, and it is not surprising that the jury returned into 'court, and asked for further instructions in regard to the degrees of murder. After again instructing them upon this, in reply to a question by the court, the foreman said, “That covers the question;” whereupon another juror said, “We do not quite understand what the man’s duty was, under the circumstances, to allow him to shoot a man to be justifiable; in other words, what would excuse him.” Thereupon the court repeated, in substance, his previous instructions upon this point, closing as follows:

“If you believe from the evidence thát respondent was assaulted by the deceased in such a way as to induce in the respondent a reasonable and well-grounded belief that he was actually in danger of losing • his life or suffering great bodily harm, and there was no way to escape except to shoot Walker, then he was justified in defending himself, whether the danger was real or apparent. Actual or positive danger is not indispensable to justify self-defense. The law considers that men, when threatened with danger, are obliged to judge from appearances, and determine therefrom as to the actual state of things surrounding them; and in such cases, if persons act from honest convictions, induced by reasonable evidence, they will not be held responsible criminally for a mistake as to the extent of the danger.”

The verdict of the jury could only have been reached by adopting the theory of the prosecution that the respondent had a motive in killing the deceased, that he premeditated the crime, and that the killing was willful and deliberate. The yerdict precludes the conclusion on the part of the jury that the killing occurred upon a sudden affray and in fear of danger to himself. If the jury had found the respondent guilty of murder in the second degree, there might possibly be some foundation for saying that they misunderstood the instructions; but the verdict shows that the jury placed no faith in the defense that respondent acted on a sudden impulse or in view of threatened danger.

I thinh the conviction should be affirmed.

Hooker, J., concurred with Grant, O. J.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    HARDY v. TRICK.
    1. Conspiracy to Defraud — Attorney and Client — Evidence.
    Evidence that an attorney induced his client, a widow, wholly unacquainted with land transactions, to loan money to his office associate upon property which he knew to he mortgaged to his (the attorney’s) mother in a large amount, representing to the lender that he would obtain for her, as security, a deed of the property, which would be ‘ ‘ better than a first mortgage,” and that, after procuring the execution back of a land contract giving the borrower possession of the premises, he instituted proceedings for the foreclosure of the prior incumbrance, and bid in the property for his mother, thereby ■ depriving the client of her security, — is sufficient to sustain a finding that the attorney was associated with the borrower in a conspiracy to defraud.
    2. Same — Pleading and Proof — Variance.
    An allegation in the pleadings that an attorney conspired with a proposed borrower to induce a client do loan certain money by falsely representing that he would procure for her, as security, a deed of property “free from incumbrance,” is substantially supported by evidence that his representations to the client, who was entirely ignorant of legal transactions, were calculated and designed to persuade her that the deed as security would give a clear title, superior to any existing mortgages.
    Error to Wayne; Hosmer, J.
    Submitted May 10, 1899.
    Decided September 19, 1899.

      Case by Mary B. Hardy against William Trick and John H. Powell for conspiracy to defraud. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      John H. Powell and Thomas Hislop, for appellants.

      Finn & Hockaday, for appellee.
   Long, J.

The defendants were charged with fraud and conspiracy in obtaining certain moneys from the plaintiff. Defendants were arrested and held to bail on a capias. On the trial of the case it appeared that William Trick was a contractor and builder. The defendant Powell is an attorney-at-law. All the parties reside in the city of Detroit. Prior to the time the transactions occurred which led to the present controversy, Powell had done more or .less legal business for the plaintiff. Her husband had died, and she had received $1,800 for a dower interest in some lands. She also had a homestead in Detroit, upon which there was a mortgage of $1,400. The mortgage would become due in about six months from June 1, 1893, and part of the $1,800 had been put, under defendant Powell’s suggestion, into McLellan & Anderson’s Savings Bank, at 4 per cent, interest, to await the time when it could be used in the payment of the mortgage on the homestead. Plaintiff claims that on May 26, 1893, defendant Powell sent for her to come to his office in the Moffat Block, the same office being, and for some time had been, occupied by defendant Trick, who frequently consulted Powell about his business affairs. Apparently Powell was familiar with Trick’s affairs, and to some extent with the incumbrances on his property. Plaintiff testified that, when she went to Powell’s office on that occasion, he told her that Trick wanted to borrow $600, and that he would pay it back in six months, in time to pay the mortgage on her homestead, and said, “You are just as sure of it as the wheat.” She was asked by her counsel about the security that was then talked of, and testified:

“Mr. Powell said there was an incumbrance on it. Well, I said I disliked to make a loan, not knowing anything about business matters, except it be a first mortgage. I said I had often heard my husband say that you can make a loan on a first mortgage all right. And he says, ‘There is no first mortgage about it.’ He says, ‘You shall have a clear deed and title of the property, and I will look up the records, and see that you get it;’ knowing that I had confidence in him to transact the business. And he says, ‘It is better than a first mortgage.’ I says, ‘Is it as good as a first mortgage?’ ‘Why,’he says, ‘there is no mortgage about it. * * * You get a clear deed and title to the property, and you are very foolish not to make the loan.’ * * * There was an unfinished house on the property, and he was to go on and finish the house with a part of this money, so that it would be rentable.”

The arrangement was finally made, and the $600 paid over, with the agreement that plaintiff should have 7 per cent, interest, and a bonus of $30. The plaintiff testified, as to the security, that all that was given her was a land contract, which she and Trick each signed, but that she never knew of any deed being made; that, at the time the loan was made, Powell told her to come in a few days, and get the papers and the deed, as she says she supposed; that, when she called in, Powell said he could not find it, and told her to call again; that, when she went the second time, she asked if the deed was ready for her, and Powell told her that Annie Corbett (his mother-in-law) held the deed. Plaintiff then testified:

“ ‘Why,’ I says, ‘ that is strange. You told me that I was to have a clear deed and title.’ ‘Well,’ he says, ‘she comes first.’ And then it began to dawn on me that there was something wrong. ‘Well,’ I said, ‘I don’t see, — I can’t understand it, — when I was to be the first, and you told me that I was to have this clear deed and title, and that I was sure of the money.’ ”

Plaintiff testified, further, that she had been told by Powell that there was a $1,200 mortgage on the property, but that she was to have a clear deed and title, and that would be better than a first mortgage. It appears, however, that at that time, and as a part of the same transaction, the defendants drew up a deed, which was signed by Trick and his wife, and acknowledged before Powell as notary public, and witnessed by him, conveying lot 22, block 14, of Campau’s subdivision, etc., in the city of Detroit, to the plaintiff, the consideration being stated in the deed as $3,000, subject to a mortgage of $1,250, given by first parties to one Annie Corbett. On the same day a land contract was drawn up by the parties, which was signed by plaintiff and Trick, by which the plaintiff, as party of the first part, agreed to convey the premises mentioned in the deed as above to Trick—

“For the sum of $3,000, which the said party of the second part hereby agrees to pay to the said party of the first part as follows: $1,120 on the delivery of this agreement, and $630 on or before six months from date hereof, with interest at the rate of seven per cent, per annum, payable semi-annually. Said second party also agrees to assume and pay a mortgage of $1,250, held by Annie Corbett, with interest on all sums at any time unpaid hereon at the rate of seven per cent, per annum, payable semi-annually.”

The contract gave Trick the possession of the premises, but provided, as is usual in such contracts, for repossession by the first party. This was the security which Powell obtained for the plaintiff for the $600 loaned by her. Some time after this contract was made, Powell commenced foreclosure proceedings for the foreclosure of the Annie Corbett mortgage, and in August, 1894, he bid in the property for her at $1,414.24, that being the highest bid. The deed was made to Mrs. Corbett, and she now owns the property.

About four days after the above transaction, and on June 1, 1893, Powell induced the plaintiff to loan Trick another $600, and it is claimed that about the same representations were made to her to obtain it on another lot, Trick making to her the same form of deed as the former one. This property was incumbered with a mortgage to the People’s Savings Bank of $1,200. The deed was made subject to this mortgage. The land contract which was executed by the plaintiff back to Trick recited that he was to pay for it $3,000, as follows: $1,170 at the execution of the contract, to assume the mortgage of $1,200 against the property, and pay $630 on or before six months, with interest at 7 per cent. There was another mortgage, also, on this property at that time, which the plaintiff claims she was not informed of. It was given by Trick to Rollin Amsden for $293. The Amsden mortgage was thereafter foreclosed, and the property bid in by Amsden for $1,619.65, which about equaled the two mortgages, with interest thereon. Amsden has since acquired title to this property.

Defendant Powell was called as a witness in his own beialf, and on examination was asked:

“Whose idea was this in making this deed out and the contract back, instead of a mortgage, to secure the loan ?
“A. That was my suggestion, I suppose. * * * ”

On cross-examination he was asked:

“Now, in case Mr. Trick failed to pay this [the money to plaintiff], how was she to take care of the $1,250 that was due your mother-in-law ?
“A. I don’t know anything about that.
Q. Didn’t you think about the question, How will this woman take care of these things if Mr. Trick fails ?
“A. I don’t know that her relationship to me was so very close as that.
Q. You had been her lawyer ever since her husband died, hadn’t you ?
“A. I don’t know as I would put it in that way. We had not had such close relations.
Q. You had closed up the estate ?
“A. I had_done what was necessary here in this court.
Q. Didn’t you actually have some of this very money that you let Mr. Trick have — that Trick borrowed — in your hands at the time the negotiations were going on ?
“A. I may have had; I don’t think I had.”

Powell admitted that he had in his hands $600 of the $1,200 loaned to Trick; that he had it out of the estate of Mr. Hardy. He also testified that plaintiff might have relied upon him to see that she got the proper title or security on the lots; that he considered the piece of property upon which the first loan was made to be worth from $1,850 to $1,900; and that it had a mortgage on it, running to his mother-in-law, of $1,250.

Mr. Trick was called as a witness, and testified, in relation to the last deal, that he had lost the title to the property when he gave plaintiff the deed; that he had no property, at the time he received the money from her, that was unincumbered. He was asked:

“Who represented to you it was better to give a deed, or, if you were borrowing money on a second mortgage, why did you give a deed ?
“A. That is the way Mr. Powell chose to do it.
Q. The arrangement between you and him was made that you should take the money before he—
“A. No, sir; he offered me— He telephoned me, and asked me if I could take it. I didn’t know anything at all; neither had I instructed him to get the money for me at that time. * * *
‘ ‘ Q. According to this contract that you signed and had the woman take, it is put there that you had paid her $1,120 on the delivery of this .agreement. Now, did you pay her a cent?
“A. No, sir.
Q. Why was it put in that contract that you had paid her $1,120 on this contract?
“A. I cannot explain it.
Q. Do you know how you got at that $1,120 ?
“A. No, sir, I do not.
“ Q. That was all left to Mr. Powell, was it?
“A. Yes, sir.
Q. This whole planning of making the paper with that kind of thing was left to Mr. Powell ?
“A. Exactly.
Q. The fact is, you did not pay the woman any money ?
“A. I paid her $7 on lot 5.
Q. Now, the other contract that she recites, — that you were buying the property for $3,000, — there was no such agreement, was there ?
“A. No, sir.
Q. And it recites that you have paid on that $1,1?0?
‘‘A. Yes, sir.
“Q. You hadn’t done that, had you? You didn’t pay anything on that to her, either ?
“A. No, sir.
Q. Then that contract is not right ?
“A. That is so.
Q. There was an unfinished house, wasn’t there, in one of the transactions in connection with Mrs. Hardy ?
“A. Yes, sir.
Q. Did you finish that house ?
“A. No, sir.
“Q. Wasn’t this money given to finish that house with ?
“A. No, sir.
Q. Was there an understanding with Mrs. Hardy that she should let her money go, and that the house on the property should remain unfinished ?
“A. I don’t think so.
“ Q. You think she understood that it was to be finished, didn’t she ?
“A. Well, I had no conversation with her on that. I simply infer she. would think that.
Q. Didn’t you tell Mr. Powell that you were going to finish it ?
“A. Yes, sir.-
Q. Did you use the money that you got from Mrs. Hardy to finish the house on the corner of Twenty-Seventh and Hudson ?
“A. No, sir.
Q. Then you didn’t use any of the money to complete the building that was on the lot that you were turning out to her as security ?
“A. No, sir.
Q. Did you ever complete it?
“A. No, sir.
Q. Let it go without any more attempt at completion ?
“A. That is so.”

The cause was tried before a jury, who returned a verlict in favor of the plaintiff for the full amount of her claim. Defendants bring error.

It is contended in the brief of counsel for defendants that the testimony of the plaintiff herself disposes of the question of conspiracy to defraud her of her money. We cannot agree with this contention. Under her testimony it became a question of fact for the jury to determine, and the question was fully and fairly submitted to them.

It is also contended that there was a variance between the pleadings and the proof; that, while the affidavit for the capias and the declaration charged that the property she received as security was to be free from all incumbrances, the testimony of the plaintiff shows that she knew of the incumbrances, and took the property as security with full knowledge of the incumbrances. This cannot be said of the plaintiff’s testimony. Her testimony is that the deed was to be given to her as security, and it was to be a clear deed and title to the property, and that Powell assured her the deed was better than a first mortgage; that, if she took the deed, there was no mortgage about it, and she got a clear deed and title to the property, and that she was foolish if she did not make the loan. It is evident that the plaintiff was wholly unacquainted with land transactions, and believed that she was getting a title that was better than a first mortgage. There was no such variance as claimed between the pleadings and the proof.

It is also claimed that the court was in error in excluding a list of Trick’s property. The defendants could not have been prejudiced by this, as Trick, in his examination as a witness upon the stand, testified that he had no property but what was mortgaged.

Many other errors are claimed, all of which have been examined with care, and we find no error.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    BALDWIN v. BAKER.
    •Payment — Legal Tender — Silver Dollars — Stare Decisis.
    The questions affecting the constitutionality of the provision of the act of Congress of February 28,1878, known as the ‘ ‘ BlaudAllison Act,” making the silver dollar of 412.5 grains full legal tender, were conclusively determined by the United States Supreme Court in the “ Legal Tender Cases,” and are not open for review in the State courts.
    Appeal from Oakland; Smith, J.
    Submitted May 9, 1899.
    Decided September 19, 1899.
    Bill by Stephen Baldwin against Fred A. Baker to compel the discharge of a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.
    The following are the allegations of the bill of complaint : Complainant purchased the land described in the bill of complaint, subject to a mortgage owned by defendant. December 13, 1897, there was due upon said mortgage $364. Complainant tendered this amount to said defendant in 364 silver coins of the United States of the denomina,tion of one dollar, all bearing date after the year 1878. Baker refused the tender, basing his refusal upon the unconstitutionality of Act Cong. Feb. 28, 1878, commonly known as the “ Bland-Allison Act.” Complainant at the same time requested defendant to execute a discharge of the mortgage, which defendant refused. The bill prays that such tender may be declared good and sufficient in law, and that defendant be required to execute and deliver a discharge of the mortgage. The answer admits all the facts set up in the bill, but assails the act of Congress in question as unconstitutional.

      T. E. Tarsney and W. G. Fitzpatrick, for complainant. ,.

      Albert B. Hall (Fred A. Baker, of counsel), for defendant.
   Grant, C. J.

(after stating the facts). The sole question presented is whether the act in question, making the silver dollar of 412.5 grains troy of standard silver a full legal tender for all debts and dues, public and private, is constitutional. The learned counsel for the defendant have filed an elaborate brief upon the question, discussing the history of coinage in this country, and the various acts of Congress upon the subject. Did we not regard the question as foreclosed by the decisions of the Supreme Court of the United States, we should be compelled to enter upon a studious and laborious examination of the subject. We are., however, of the opinion that that court, in the so-called “Legal Tender Cases,” has placed the question beyond discussion in other courts. Knox v. Lee, 12 Wall. 457; Juilliard v. Greenman, 110 U. S. 444. Counsel argue that what was said in those cases affecting the questions they now raise was obiter dicta, and therefore not binding. We are of the opinion that the court in those cases fully covered the question. The language is clear and unmistakable. It appears conceded that it covers the question unless it is dictum. We must regard such holding as the deliberate and authoritative enunciation by the court of the law. We therefore decline to enter upon a discussion of the question, because, in our opinion, it is stare decisis. See Knox v. Lee, 12 Wall. 551-553. This case was subsequently approved by the nearly unanimous opinion of the same court in Juilliard v. Greenman, 110 U. S. 438, only one justice dissenting.

Decree affirmed, with costs.

The other Justices concurred.


text:
    DAVIS v. DETROIT BOAT WORKS.
    Master and Servant — Weekly Settlements — Receipts—Claim for Overtime.
    Where an employé kept no account of overtime, which he claimed he was entitled to for five years, but settled with his employer weekly, and gave receipts in full, and, at the time of his final settlement, presented a statement of the overtime of the employés under him, but rendered no account for his own overtime, and for the first time mentioned his claim to an agent of his employer nearly four months after he had left the employment, his settlements and receipts are binding upon him, and bar a recovery of compensation for overtime.
    Error to Wayne; Frazer, J.
    Submitted June 7, 1899.
    Decided September 19, 1899.

      Assumpsit by Mark George Davis against the Detroit Boat Works for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff continued in the employ of the defendant for the years 1893 to 1897, inclusive. He was employed at the rate of $2.50 a day, or $15 a week, except once, in the winter of 1896-97, he testified that he was to receive $7.50 a week, but this was to be made up to him in the summer. During all these years he was páid every week by Mr. McMillan, the treasurer of the company, and gave his receipt therefor for $15 per week, except during the time he agreed to work for $7.50 a week, when he gave a receipt in full for $7.50 for the week’s work. He left the employ of the company in September, 1897, and between three and four months thereafter, for the first time, presented a bill for overtime covering all these years; claiming from $29 to $74 each year, and also claiming the $7.50 per week during the winter of 1896-97. After his return from Ithaca, N. Y., he made out his statement to Mr. McMillan of the overtime of the employes under him, and of his own expenses upon that trip, but neither made any account of his own overtime nor said anything about it. He tries to excuse his conduct by saying that his arrangement was with Mr. Ballin. He admits that he never mentioned the question of overtime to Mr. Ballin. He simply told Mr. Ballin that he had some accounts, and wanted to put them all in together and settle them up some time, but did not tell him what they were about or what they were; simply said he “had some accounts he wanted to settle with him.”

      James Cosslett Smith, Jr. (Otto Kirchner, of counsel), for appellant. . >

      Barbour & Rexford, for appellee.
   Grant, C. J.

(after stating the facts). I think the instruction was correct. He is bound by his settlements. He knew that Ballin did not settle with or pay him. The settlements and receipts were binding upon him, and bar recovery. He kept silent when he should have spoken. The law estops him to speak afterwards. No better illustration of the wisdom of this rule can be found. For five years plaintiff claimed he was entitled to overtime, but kept no accounts. He settled with his employer weekly, and meanwhile to no agent of his employer did he mention this claim until nearly four months after he had left its employ. I think the case is clearly within the principles enunciated in Bartlett v. Railway Co., 82 Mich. 658, and Brighton v. Railway Co., 103 Mich. 420.

The judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    WALLACE v. FRATERNAL MYSTIC CIRCLE.

    1. Mutual Benefit Societies — Suit on Certificate — Evidence-Matters Within Decedent’s Knowledge — Agency.
    An agent of a benefit society who is not charged with any duty with respect to giving notices of assessments is not precluded from testifying, in an action for death benefits, to an admission by deceased of the receipt of notice of an assessment ; the statute (3 How. Stat. § 7545) prohibiting an agent of a corporation from testifying as to matters equally within the knowledge of deceased operating to exclude the testimony of such agents only as were authorized to act in the matter to which the testimony relates.
    2. Same — By-Laws —Local Lodges —Nonpayment of Assessments — Waiver.
    A mutual benefit society which lays upon the local lodges the duty of collecting assessments, giving them full power in respect thereto, including the right to reinstate members suspended for nonpayment, without notice to the supreme lodge. of such reinstatement if made within 90 days after suspension, cannot defeat an action for death benefits by showing that a by-law of the society provided that assessments should be paid within 20 days after notice, or the member stand suspended from beneficial membership, and that the deceased had. been in arrears in his last assessment for 40 days prior to his death, where it appears that the lodge of which deceased was a member had induced its members to believe, through a long-continued practice of receiving assessments after due without declaring a forfeiture, that a delay of less than 90 days would not imperil their rights.
    Error to St. Clair; Yance, J.
    Submitted June 7, 1899.
    Decided September 19, 1899.

      Assumpsit by Christine Wallace against the Fraternal Mystic Circle on a certificate of insurance. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Frank Whipple, for appellant.

      Avery Bros. & Walsh, for appellee.

       Rehearing denied October 7, 1899.

   Moore, J.

The plaintiff is the beneficiary named in an insurance certificate issued to her husband by the defendant. After the death of the husband, the defendant denied any liability because the husband had failed to pay the last assessment made before his death, and the plaintiff brought this suit. The case was tried by a jury, who returned a verdict in favor of defendant. The plaintiff brings the case here by writ of error.

The errors which it is necessary to discuss in this opinion relate to the admission of testimony and the charge of the court. The insurance certificate was issued in January, 1886. It provided, among other things, that it was issued—

“Upon condition that said member complies, in the future, with the laws, rules, and regulations now governing the said Ruling and fund, or that may hereafter be enacted by the Supreme Ruling to govern said Ruling and fund. These conditions being complied with, the Supreme Ruling of the Fraternal Mystic Circle hereby promises and binds itself to pay out of its benefit fund to Christine Wallace, his wife, a sum not exceeding three thous- and dollars, in accordance with and under the provisions of the laws governing said fund, upon satisfactory evidence of the death of said member; or a sum not exceeding fifteen hundred dollars, in accordance with and under the provisions of the laws governing such fund, upon satisfactory evidence of the total disability of said member, and upon the surrender of this certificate: Provided, that said member is in good standing in this order at the time of said death or total disability.”

Section 1, art. 1, of the constitution, conferred upon the Supreme Ruling power to make its own constitution, laws, and rules for the government of the whole order. Section 5, art. 3, provided:

“Local bodies, to be denominated ‘Subordinate Rulings,’ shall be formed for the convenience of members, and to aid in carrying out the beneficial and social objects of the order, in any city or town in any of the States or Territories of the United States or Canada, subject to such restrictions by the Supreme Ruling as may be deemed necessary by reason of malarious, epidemic, or other unhealthy influences.”

Another article provided for a table of assessment rates. It was then provided:

“Law 4. Sec. 3. A Subordinate Ruling having been notified by the supreme recorder that an assessment h?s been laid, it shall be the duty of the worthy collector, thereof to at once notify each member thereof liable to an assessment. This notice shall bear the official seal of the Ruling, and its date shall be same as that of the notice received from the supreme recorder. * * * Each member shall pay the amount due as per the notice so given within twenty days from the date thereof, and any member failing to pay such assessment within twenty days shall stand suspended from beneficial membership, and shall not be entitled to any benefits thereunder; in which case the worthy collector shall immediately notify the worthy ruler of the date of such suspension, and the worthy ruler may announce the suspension at the next meeting of the Subordinate Ruling: Provided, that the Subordinate Ruling may authorize the payment of the member’s assessment as a loan or gift from its general fund, but payment thereof must be made to the worthy collector within the twenty days prescribed in the call.
“Law5. Suspended Members. Section 1. Whenever a member is suspended for nonpayment of assessments, he may be reinstated at any time within three months from the date of suspension, by signing a ‘certificate of health,’ on a blank furnished by the Supreme Ruling, and by the payment of all arrearages to the Subordinate Ruling and benefit fund assessments which would have been due from him had his membership not been suspended. If he applies for reinstatement after more than three months of suspension, he shall also furnish a new medical examination of the form prescribed for persons applying for new membership, which must be approved by the supreme medical director before he can be reinstated. ”
“Law 13. Section 1. The Subordinate Rulings shall remit their per capita tax and semi-annual reports to the supreme recorder, in accordance with blanks furnished, on or before the first meeting of the Subordinate Ruling in July and January of each year, but not later than the twenty days aftef the 1st day of July and January.”

Under the laws of the order, it was the duty of Mr. Wallace to pay dues at the time of his death at the rate of 75 cents a quarter, and~$3.63 on each assessment. The first assessment after he joined the order was the fourth one. He paid it, and all others made up to and including-the twentieth. Of the 17 payments made by Mr. Wallace, but 5 of them were made on or before the day mentioned in the notice of assessment. The other 13 were made and received after the time mentioned in the notice of assessment had expired, and some of them after a considerable period of time had elapsed. What was true of Mr. Wallace in this respect was true of a good many of the other members. Assessment No. 31 was laid June 11th. It is claimed by defendant that proper notice was given to Mr. Wallace, and that he failed to pay the same, and was suspended July 18th. His suspension does not appear of record in such a way as not to need parol evidence to make proof of it. August 9th Mr. Wallace paid his quarterly dues, amounting to $1.50. He died August 11th. It is the claim of the plaintiff that it is not shown by competent evidence that he ever received notice of assessment No. 31, and for that reason it was not paid. This brings us to the first question necessary to be discussed.

The deposition of Dr. Whitney, who had been an officer of the Subordinate Ruling, was taken, and he testified, in substance, that Mr. Wallace admitted to him he had received the notice, but did not intend to pay the assessment then, because it was not necessary; that the insurance was good if the assessment was not paid then; that Dr. Whitney assured him, if the assessment was not paid, he would be suspended, but Mr. Wallace thought not, and said he would wait until he got ready. It is insisted that this testimony was incompetent, as coming within the provisions of 3 How. Stat. § 7545, which prohibits an officer or agent of a corporation from testifying in relation to a matter equally within the knowledge of the deceased; counsel citing Krause v. Assurance Society, 99 Mich. 461. We do not think it can be said that Dr. Whitney was an officer of the Supreme Ruling. Was he its agent? The record does not disclose that it was his duty to give or serve the notice. It does not show he had any duty in that respect. If it had, we think his testimony would not have been competent. It was said in Brennan v. Railroad Co., 93 Mich. 156: “ We think this section must be held to include only those who are authorized in the matter with reference to which testimony is given to act for the company.” We do not think the admission of this testimony was error.

The court was asked to charge the jury as follows:

“It is claimed by plaintiff that several assessments, duly made, and of which Mr. Wallace was duly notified, were not paid at the date mentioned as the last day of payment, but the money was afterwards — and in one case, at least, more than two months after it had become due — received by the Local Ruling without declaring a suspension, or taking action thereon. If you find that the officers of the Local Ruling here, by a long-continued course of conduct, misled Mr. Wallace respecting the payment of his dues and assessments, and have caused him to believe that a strict performance on his part would not be exacted, that a delay in payment would not affect his standing or interest in the fund, the order cannot now insist on a forfeiture, but has waived a strict compliance with the rules and regulations.”

Several requests of a like character were preferred, all of which were refused. The court charged the jury as follows:

“That brings us to this proposition: That if Mr. Wallace received a notice of assessment No. 21, and failed to make a payment, which he did fail to make within the time specified in the notice, which was July 1, 1889, then he stood, under the laws of the order, suspended; and that payment not being made, and he not being reinstated, so as to become in good standing in the order, his beneficiary would not be entitled to recover under this certificate. By the terms of the certificate, and the application, which is made part of it, he agrees to be bound by the laws of the order as they then stood, or might thereafter be enacted. He was bound to know the law; he was bound to know, when he entered into that contract with this association, that failure to pay within the time specified in that notice would work a suspension of his certificate, and that, if he died while he stood suspended in that manner, his beneficiary would not be entitled to recover under this benefit certificate.”

It is insisted the charge of the judge is fully warranted by the following authorities: Borgraefe v. Knights of Honor, 22 Mo. App. 127; Covenant Mutual Benefit Ass’n v. Spies, 114 Ill. 463; Greeley v. Insurance Co., 50 Iowa, 86; Lothrop v. Insurance Co., 2 Allen, 82; Pitts v. Insurance Co., 66 Conn. 376; 2 Bac. Ben. Soc. & Life Ins. (2d Ed.) § 385; Nibl. Acc. Ins. & Ben. Soc. (2d Ed.) § 289; Supreme Lodge Knights of Honor v. Keener, 6 Tex. Civ. App. 267; Freckmann v. Supreme Council Royal Arcanum, 96 Wis. 133; Hansen v. Knights of Honor, 140 Ill. 301, 306, 307; Bosworth v. Aid Society, 75 Iowa, 582; Grand Lodge A. O. U. W. v. Jesse, 50 Ill. App. 106, 108; Yoe v. Benevolent Ass’n, 63 Md. 86, 90, 92. If the element of waiver is left out of consideration, nearly all of these authorities sustain the proposition laid down by the learned judge; but we regard the matter of waiver as a very important element in the disposition of this case. It will be observed that the Supreme Ruling kept no account with the individual members. When it laid the assessment, the assessment itself was collected by the Subordinate Ruling. The collection of the assessments was left wholly to it. The Local Ruling had full power to reinstate members, and, if the reinstatement was made within three months, it was not necessary to consult the Supreme Ruling in any way. It is competent to provide when a forfeiture shall occur, but forfeitures may be waived. They are not favored by the law, and, if the facts are as claimed by the plaintiff, it would be inequitable and unjust to insist upon a forfeiture in this case. 2 Bac. Ben. Soc. & Life Ins. (2d Ed.), 'at section 433, states the rule as follows:

“Ifthe company has, by its course of conduct, acts, or declarations, or by any language in the policy, misled the insured in any way in regard to the payment of premiums, or created a belief on the part of the insured that strict compliance with the letter of the contract as to payment of the premium on the day stipulated would not be exacted, and the insured in consequence fails to pay on the day appointed, the company will be held to have waived the requirement, and will be estopped from setting up the condition as cause for forfeiture. In determining whether there has been a modification of the terms of the policy by subsequent agreement, or a waiver of the forfeiture incurred by the nonpayment of the premium on the day specified, the test is whether the insurer, by his course of dealing with the insured, or by the acts and declarations of his authorized, agents, has induced in the mind of the insured an honest belief that the ter ins and conditions of the policy, declairing a forfeiture in event of nonpayment on the day and in the manner prescribed, will not be enforced, but that payment will be accepted on a subsequent day or in a different manner; and when such belief has been induced, and the insured has acted on it, the insurer will be estopped from insisting on the forfeiture.”

See Jones v. Assurance Co., 130 Mich. 311.

Another authority states the rule as follows:

“If the practice of a society and its course of dealing with its members, known to the insured, have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted on, the society will not be permitted to set up such forfeiture as against one in whom their conduct has induced such belief.” Nibl. Acc. Ins. & Ben. Soc. (3d Ed.) § 399, p. 560.

See Mueller v. Grand Grove U. A. O. D., 69 Minn. 236; Mee v. Bankers’ Life Ass’n, Id. 310; Moore v. Order of Railway Conductors, 90 Iowa, 731; Railway Conductors’ Benefit Ass’n v. Tucker, 157 Ill. 194.

We think the court erred in his charge to the jury, and should have instructed them as requested by counsel for plaintiff.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


text:
    JOSSMAN v. RICE.
    1. Mechanics’ Liens — Description of Premises — Sufficiency.
    A mechanic’s lien may attach to a building erected -under a ■ contract describing the premises merely as “ ground situated” in a given village, where the building was constructed upon the only land owned, by the parties in the village named.
    2. Same — Homestead—Contract Signed by Husband Alone.
    Under article 16, § 2, of the State Constitution, making-the wife’s signature requisite to a valid alienation of the homestead interest, a wife’s homestead rights in land owned by herself and husband jointly cannot be cut off by a mechanic’s lien acquired under a contract signed by the husband alone, notwithstanding the contract was entered into with her knowledge and consent, and the lien law (Act No. 179, Pub. Acts 1891, § 3) provides that, where improvements are made under such circumstances on land so held, the lien shall attach the same as if the contract were signed by the wife.
    3. Same — Priorities—Sale and Removal of Building.
    Section 9, subd. 4, of the mechanic’s lien law (Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893), which provides that a lien shall attach to a building for which material or labor is furnished in preference to any prior title to the land on which the building is erected, and that when the building is an original and independent one, commenced since the attaching of the prior title, its separate sale and removal may be ordered by the court, — confers upon the court authority to permit a contractor or material man to sell in satisfaction of his lien, and remove, an original building, where no lien could attach to the land because of a homestead interest in the wife of the person who alone signed the contract for the erection of the building.
    Appeal from Oakland; Smith, J.
    Submitted June 7, 1899.
    Decided September 19, 1899.
    Bill by Joseph A. Jossman against Cassius E. Rice, Wilhelmina Rice, Olney A. Slater, and others, to enforce a mechanic’s lien. From a decree for complainant and defendant Slater, defendants Rice appeal.
    Modified.

      Frank E. Jenkins and John H. Patterson, for complainant.

      George O. Kinsman and Dwight N. Lowell (Baldwin, Jaeokes & Moore, of counsel), for defendants Rice.

      Michael F. Lillis and Everett W. Scott, for defendant Slater.
   Long, J.

This cause was commenced by bill in equity to enforce a mechanic’s lien under Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893. The complainant resides in Oxford, Oakland county, this State, and claims for materials furnished to the contractors in the erection of a building for the defendants Rice. The materials claimed for were furnished by Jossman & Allen and by "William J. Tunstead, but those parties assigned their claims to the complainant. It appears that Slater & French were the original contractors. French assigned his interest in the claim to Slater, who filed a statement of lien for that claim. The defendants appeared in the case. Defendants Rice, who are husband and wife, answered the bill. Defendant Slater filed an answer in the nature of a cross-bill, asking affirmative relief against the defendants Rice. At the time the contract was entered into for the erection of the building, the defendants Rice resided in Lenox, Macomb county. There is no question'raised over the proceedings to bring the case to an issue.

It appears that in the spring of 1896 Cassius E. Rice purchased for $300 a lot in the village of Oxford, taking the title in himself and wife jointly. They then lived at Lenox, Macomb county. At that time the lot purchased was vacant, and was situated on the principal business street of the village, surrounded by stores. Architects prepared plans, specifications, and drawings, and a contract, ready for signing, for the erection of a building on said lot. The contract, plans, and specifications provided for a two-story building, with a solid brick wall and basement under the entire building, with solid stone walls extending to the bottom of the basement, and an ornamental front; the building to be 21 feet and six inches in width; first floor finished for store purposes, and second floor for offices and living rooms. The architects also furnished another plan, to be used if something cheaper was wanted. Defendant Slater negotiated with Cassius E. Rice relative to the erection of the proposed buildiDg. It was found by Rice that to erect the building under the original plans and specifications, as drawn by the architects, would cost too much, and therefore he and Slater agreed upon new plans and. specifications. Changes were made from a solid brick wall to a veneered brick wall. The height of the building was made less, the ornamental work on the front was done away with, the excavation for cellar lessened, and many other changes were made. A new contract was drawn, which shows the contract price to be $2,128, but the parties agreed that the price should be fixed at $1,928. This contract was signed July •14, 1896, by Slater and defendant Cassius E. Rice. Slater was paid on the contract by Rice the sum of $278. The balance remains unpaid, which, with some extras and interest added, made the amount still unpaid on July 25, 1898, the sum of $1,851.30. Defendants Rice deny owing anything on the contract, claiming that the contract has not been complied with. The complainant’s claim is made up of his own and Allen’s account of $272.50, and William J. Tunstead’s account of $132.88, which amounted, with interest added, on July 25, 1898, to $450.27.

The defendants Rice, in their answer, allege that the building was not constructed in conformity to the terms and conditions of the contract, plans, and specifications; that, on account of defective construction, the contract price for the payment thereof never became due; that, because of the defects in the construction by the contractors, the architect refused to give his certificate that the building was constructed substantially in accordance with the contract, plans, and specifications, and that the payment therefor was due to the contractors. It is also objected by defendants Rice that the contract contains no description of the land on which the building was to be erected; that, by reason of this omission, no lien could be created under the lien law; that it is as essential that a description of the land be given in the contract as it is that a mortgage on land should contain the description; that all the description contained in the contract is that:

“The said parties of the second part do hereby * * * promise and agree * * * well and sufficiently to erect, finish, and deliver, in a true, perfect, and thoroughly workmanlike manner, the brick store and flat building for the party of the first part, on ground situated in the village of Oxford, county of Oakland, and State of Michigan.”

The defendants Rice, in their answer, deny that the contract was signed by Wilhelmina Rice, or with her knowledge and consent. They claim that the lot was purchased by them jointly in the spring of 1896, and the deed taken as joint tenants; that the land was purchased for the purpose of erecting this building, with a dwelling over the store for their permanent home; that they had no other home, and never had had a home before this since they were married.

There was evidence given by the complainant and defendant Slater that the completed building was in substantial compliance with the contract; that, as completed, it was worth at least $2,000. The contract, plans, and specifications adopted varied greatly from the originals drawn by the architects in the first instance. The last plans and specifications were drawn by Slater and defendant Rice, and it was from these that the contractors worked. These were apparently faulty, and changes were made in them, but with the consent of Mr. Rice. 'We are satisfied from the evidence that the court below was not in error in finding that the contract as last drawn was substantially complied with.

We think there is no force in the claim that no lien could attach by reason of the insufficiency of description of the premises in the contract. The land upon which the building was constructed was the only land owned by Mr. and Mrs. Rice in Oxford, Oakland county. The building, it is conceded, was constructed upon the identical land contemplated by the contract, and the claims of liens filed described those lands. It was not necesshry, in the bill, to ask a reformation of the contract by inserting the proper description of the land therein. All parties acquiesced in the construction of the building there, and there is no claim of mistake of the place where it was to be constructed. It is not the case cited by counsel for defendants, of Burkhart v. Reisig, 24 Ill. 529. There an engine was to be built and set up in the city of Chicago. It was not contemplated by the parties that the engine should be attached to any particular piece of land, and no arrangement of that kind was made, while in the present case this building was to attach to and become a part of this particular land, as a part and parcel of the real estate of defendants Rice.

The principal question argued and insisted upon here to defeat the liens is in reference to the homestead interest of Mrs. Rice. She did not sign the contract, but it appears from the testimony of Mr. Slater that she knew of the making of a contract for the erection of the building, and she herself testified:

“ My husband and I talked over the building we would build, and he drew some plans on paper and showed me. * * * Whatever he did in the matter had my sanction.”

She was present when Slater was there and the contract was talked over. She knew the building was to be placed on this lot, and her husband testified that he told her he had signed the contract with Mr. Slater. Section 2 of the lien law of 1891 provides that:

“If any such services are performed or materials are furnished upon lands belonging to any married woman, with her knowledge and consent, in pursuance of a contract with the husband of such married woman, the person furnishing such labor or materials shall have a lien upon such property the same as if such contract had been made with such married woman. And in case the title to such lands upon which improvements are made is held by husband and wife jointly, the lien given by this act shall, attach to such lands and improvements, if the improvements be made in pursuance of a contract with both of them, or in pursuance of a contract with one of them by and with the knowledge and consent of the other.”

"We think the testimony fairly shows that the contract was made with the knowledge and consent of Mrs. Rice, within the meaning of this statute.

But counsel for defendants Rice contend that this was a homestead, and therefore protected from levy and sale by section 2, art. 16, of the Constitution of this State, and that the lien statute above referred to can have no effect to deprive the wife of her homestead interest, as she did not sign the contract; that, the parties having purchased this land with the intention of making it their homestead, their homestead rights attached. Counsel cite the following cases in which it is claimed that such a rule is laid down: In Reske v. Reske, 51 Mich. 541 (47 Am. Rep. 594), it appeared that a bill was filed to protect a homestead right, and to enjoin a threatened sale on esecution. The complainant, a single man at the time, purchased the lot, intending to make it a homestead. He was anticipating marriage, and shortly after the purchase was married. The parties commenced improving the property. They built a barn and shed, dug a well, and kept stock on the place. In the spring of 1881 they talked with a builder about building a house. The cost of the house was such that they delayed for a time about building, but all the money they earned was put into improvements on the lot. It was towards the end of 1882 before they were able to put up a house. In November, 1882, an execution was levied. It was said by the court:

“ The lot, as has been said, was procured for the purposes of a home; and complainant, aided by the industry and frugality of his wife, was proceeding to make it such as rapidly as their limited means would permit. They inclosed it, they had their domestic animals upon it, they came to live in the immediate vicinity, they made a well, and they put up outbuildings. Everything but the dwelling proper had been erected before the levy was made, and complainant was bargaining with a builder for a house. * * * They did not as yet sleep upon it or take their meals upon it, and, probably, if they had done this in some of the buildings already constructed, their right to claim a homestead would not have been disputed.”

This was held to be a homestead in fact.

In Deville v. Widoe, 64 Mich. 593 (8 Am. St. Rep. 852), it was said:

“A city lot purchased with the intention of making it a homestead for the purchaser and his family will be exempt from levy and sale on execution from the time of purchase, even though unimproved and without a dwelling thereon, if the purchaser incloses it and uses and occupies it with the constant purpose of making it his home, and uses the proceeds thereof, and such means as he can procure, within a reasonable time, to erect a house thereon for his family, provided it does not exceed in quantity and value the constitutional limit.”

The case of Mills v. Hobbs, 76 Mich. 122, is very similar to the present case. The premises were purchased by one Nettie Hobbs, with the intention of occupying them as a homestead with her husband. The lot was unimproved and vacant. In the spring of 1888 Mrs. Hobbs caused some shade trees to be planted in front along the street line. In August she contracted with one McCartney for the erection of a dwelling house on the lot. McCartney sublet part of the contract verbally to the plaintiffs, who were masons by trade. The contract with McCartney was entered into by Mrs. Hobbs through her husband. The plaintiffs completed the work as subcontractors, and subsequently filed their claim of lien within the time provided by the lien law. The premises were held to be the homestead of Mrs. Hobbs, and the lienors,it was said, had no claim under the statute. The court said:

“It is the fact of it being a homestead or not that determines the right of lien. If the plaintiffs in this suit entered into the contract with McCartney, relying upon their right of lien instead of the personal responsibility of McCartney, it was open to them to require a contract in writing before performing any labor or furnishing any material; and, neglecting that, they have no lien under the statute.”

Under these cases, it is apparent that the defendants 'Rice were entitled to claim a homestead in these premises. The very contract entered into with Slater shows that a part of the building was to be occupied as a dwelling by Rice and his wife. It was their intention to make it a homestead, and Slater must have so understood at the time, if he read the contract. He did not obtain the wife’s signature to the contract. The statute cited cannot be held valid to cut off the homestead rights of the wife in the land. In order to cut off her rights, she must have signed the contract. While, perhaps, the statute is broad enough to cut off such rights if the contract was entered into with her knowledge and consent, yet the homestead exemption is provided for by the Constitution, and it is only by some promise in writing signed by her that her homestead right can be interfered with.

But subdivision 4 of section 9 of the lien law of 1891, as amended, provides, however, that:

“The liens for such labor or materials furnished, including those for additions, repairs, and betterments, shall attach to the building * * * for which they are furnished or done, in preference to any prior title, claim, lien, incumbrance, or mortgage to or upon the land upon which such building * * * belongs or is put. If such materials were furnished or labor performed in the erection or construction of an original or independent building, * * * commenced since the attaching or execution of such prior title, * * * the court may, in its discretion, order and direct such building * * * to be separately sold under its decree, and the purchaser may remove the same within such reasonable time as the court may fix; but if, in the discretion of the court, it should not be separately sold, the court shall take an account and ascertain the separate values of the land and the building, * * * and distribute the proceeds of the sale so as to secure to the prior title * * * priority upon the land, and to the mechanic’s lien priority upon the building. * * * If the material furnished or labor performed be for * * * betterments, * * * the court shall take an account of the value before such materials were furnished or labor performed, and the enhanced value caused by such * * * betterments, and, upon the sale of the premises, distribute the proceeds of sale so as. to secure to the prior title * * * priority upon the land and improvements to the amount" as they existed prior to the commencement of the improvements, and to the lien priority upon the enhanced value caused by such * * * betterments.”

These provisions of the statute apply with great force to such a case as the present. Mrs. Rice has a title which is not affected by the contract made with the husband. The building is an original one erected by the contractor. Under this subdivision, his lien attaches to the building, though it cannot affect the title of Mrs. Rice to the land itself. The case will be remanded to the court below to take an account of the value of the land without the building, and also the enhanced value with the building thereon. While no sale can be made of Mrs. Rice’s homestead, yet the court has power to permit the contractor and material men to remove the building therefrom, and thus dispose of it.

The complainant will recover costs of the court below against defendants Rice. Neither party will recover costs of this court.

The other Justices concurred.


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    JACKSON v. CITY OF LANSING.
    Municipal Corporations — Depression in Sidewalk — Liability.
    A cement sidewalk on a principal street of a city does not become in a condition not reasonably safe for public travel through the formation therein of an irregular depression from l£ to 2 feet in area and from 1-J- to 3 inches deep, caused by the breaking out of the cement at the top and the wearing of the grouting beneath.
    Error to Ingham; Person, J.
    Submitted June 8, 1899.
    Decided September 19, 1899.
    Case by Harriet Jackson against the city of Lansing for personal injuries. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      B. A. Montgomery and Dean & Hooker, for appellant.

      Charles B. Collingwood, for appellee.
   Long, J.

This action was brought to recover for injuries sustained by plaintiff, occasioned by stepping into a depression or hole in a cement sidewalk on the main street in said city. The facts stipulated on the trial were that plaintiff was 69 years of age, and that while walking upon the sidewalk on Washington avenue, the principal business street of said city, where the travel was greatest, and while she was in the exercise of due care and caution, she fell and was injured by stepping into a hole in the artificial stone walk, the hole being caused by the breaking out of the top cement and the wear of the grouting beneath, whereby an irregular hole or depression was formed, not, however, going through the grouting; that this hole or depression was 1-J- to 2 feet in area; that the sides, except on the south, were not abrupt, but sloped towards a center, which was from 1-|- to 3 inches deep or below the level of the walk; that on the south side the hole'was abrupt, with a depth of about l£ inches, the edge of the block or square of artificial stone walk forming the edge of the hole or depression; that through such fall plaintiff suffered severe bodily injury, to her damage, etc.; that said defect in the walk was of many months’ standing, and one which had been noticed by several parties long previous to the accident. The court below directed the verdict in favor of defendant. Plaintiff brings error. This instruction is assigned as error.

It has many times been held that municipalities are not required to keep such walks in perfectly safe condition. They are liable only when the walks are not reasonably safe. This entire defect was caused by the breaking out of the top hard crust and the wear of the grouting beneath. The defect was not one which rendered the walk not reasonably safe, within the meaning of the statute. In Weisse v. City of Detroit, 105 Mich. 484, it appeared that there was a rise in the walk from to- 2 inches in height, against which plaintiff stumbled, and it was held that the walk was reasonably safe, within the meaning of the act. So, in Yotter v. City of Detroit, 107 Mich. 4, there was an abrupt rise of two inches, occasioned by planks being laid lengthwise, and the same rule was applied. In Shietart v. City of Detroit, 108 Mich. 309, the defect complained of was leaving an abrupt end of a sidewalk without the continuance of the walk beyond that point, and it was this end of' walk that occasioned the injury. It was a few inches above the level of the ground. Mr. Justice Hooker,' in a concurring opinion in that case, said:

“It was perfectly safe to all except the heedless, and the public should not be required to make walks so smooth that people cannot stub their toes upon them. Sidewalks in many places require steps, single or in flights, and cross-walks are often upon a different level from the sidewalks which they join. Manholes for sewers must have covers which are above the level of the pavement. "Wooden sidewalks become uneven by wear, and must be repaired by planks thicker than the half-worn planks which they adjoin; and flagstones are thrown out of level by the freezing of the ground. In all such cases, where the defect is obvious, the circumstances must be exceptional to authorize a recovery.”

So, it may also be said that cement sidewalks may, by freezing and thawing, become broken, or, by constant travel, may wear through the outer crust and into the grouting. It would then be no greater obstacle to reasonably safe travel than the rise in the walks in the cases cited.

We think, under the stipulated facts, the court was not in error in directing the verdict for defendant. The judgment will be affirmed.

Grant, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.


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    STOEPEL v. UNION TRUST CO.
    Receivers — Liability for Rent.
    A receiver continuing in possession of leased premises without assuming the lease is liable for rent only during the time of actual occupancy.
    Appeal from Wayne; Carpenter, J.
    Submitted June 8, 1899.
    Decided September 19, 1899.
    Petition by William C. and Herman R. Stoepel for an order requiring the Union Trust Company, as receiver of Samuel G. M. Gates, to pay rent for the full term of a lease executed by insolvent. From an order dismissing the petition, petitioners appeal.
    Affirmed.
    In 1896, S. G. M. Gates became insolvent, and the Union Trust Company was appointed receiver, with power to carry on the business. A part of this business was located upon certain premises leased by Gates from W. C. and H. R. Stoepel, October 15, 1894, for five years, at a. yearly rental of $600, payable quarterly, and taxes. At. the time of the appointment of the receiver, there were-then due the taxes of 1896 and one quarter’s rent, which the receiver, by order of the court, paid. The receiver surrendered the premises July 1, 1898, and at this time it had paid the rent up to June 15th, and had tendered payment to July 1st, which was refused. The appellants then filed their petition for the purpose of holding the receiver for the balance of the term of the lease. The court, áfter hearing the testimony in open court, dismissed the petition.

      Charles K. Latham and Everett B. Latham, for petitioners.

      Russel & Campbell, for respondent.
   Grant, C. J.

(after stating the facts). It appears from the petitioners’ own testimony that they applied to the receiver soon after its appointment, and demanded that it pay the rent or get oft the land, and that it repudiated promptly all liability under the lease, except for the time that the premises were occupied by it. There was no assumption of this lease, either express or implied, under these circumstances. While it occupied the premises it did so, in the absence of agreement to the contrary, under the terms of the lease under which the insolvent held, and was liable only for the reasonable rent during the time of actual occupancy. Bell v. American Protective League, 163 Mass. 558 (28 L. R. A. 452, 47 Am. St. Rep. 481); Smith, Rec. §§ 121-123; High, Rec. § 273.

The order is affirmed, with costs.

The other Justices concurred.


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    BRINKER v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Accident at Crossing — Contributory Negligence.
    Where parallel railroad tracks crossed a country highway at points 364 feet apart, one who, while driving slowly along the highway, saw, as he neared a crossing, the smoke of an approaching train, but, supposing it to be on the other railroad, without taking advantage of a practically unobstructed view to look and ascertain the fact, went upon the crossing, and was struck by the train and injured, was guilty of contributory negligence, precluding a recovery against the company, although an automatic signal on which he was relying was out of order and failed to work.
    Error to Saginaw; Snow, J.
    Submitted June 8, 1899.
    Decided September 19, 1899.
    Case by John Brinker against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff was injured by a collision with a regular passenger train on the defendant’s railroad at the highway crossing where defendant’s track crosses Carrollton avenue, near the northern limits of the village of Carrollton. The highway on which plaintiff was traveling runs nearly north and south between the villages of Zilwaukee and Carrollton. For a distance of about one mile north of the crossing where the accident occurred, the highway, the track of the Interurban Electric Railway, the track of the defendant, and the track of the Cincinnati, Saginaw & Mackinaw Railroad] run parallel with each other, in the following positions: The highway is farthest west; the Interurban track is 12 feet east of the center of the highway ; the defendant’s track is 24 feet east of the Interurban track; and the Cincinnati, Saginaw & Mackinaw track is 73 feet east of the defendant’s track, and is 2& feet higher than defendant’s track. Four hundred and fifteen feet north of the point of the accident, the defendant’s track begins to curve to the west, and that curve continues until it crosses both the Interurban track and the highway at an acute angle. The Cincinnati, Saginaw & Mackinaw track also curves to the west, and crosses both the Interurban track and the highway at a distance of 264 feet south of where defendant’s track crosses. Both the highway and the Interurban track continue in a straight line to the south, but the wagon track, or traveled portion of the highway, where it crosses defendant’s track, makes a sharp bend in an easterly or southeasterly direction, so as to cross the track squarely. The highway is sandy and level, and, at a point opposite the commencement of the curve in defendant’s track, it is 2-J- feet lower than defendant’s track. It gradually rises, and crosses at grade. On the west side of the highway, 110 feet south of where it crosses defendant’s track, is an automatic electric alarm bell. This bell was erected several years ago, upon the order of the commissioner of railroads. This bell is arranged to begin ringing when a train comes within 60 rods of the crossing, and to continue until the train has passed. North of the highway crossing, and between the Interurban track and defendant’s track, is a row of large poles, supporting the trolley wire of the Interurban road. These poles are 25 feet high, about one foot in diameter, and are placed 80 feet apart. The land surrounding this crossing and the tracks all the way between Carrollton and Zilwaukee is flat and level, with no cuts or embankments to interfere with the view1 of defendant’s road from the highway; and there are no obstructions north of the crossing, except the poles of the Interurban Railway.
    Plaintiff had lived in the vicinity 30 years, and was thoroughly familiar with the situation. He had a horse and wagon, loaded with grain. He testified that he was going “about half as fast as a man can walk, — about two hours for a mile.” He saw the smoke of the approaching train, but testified:

      “I thought it was a train on the C., S. & M. track. I saw the smoke when I looked behind me. The last time I looked, I was about two or three rods from the crossing. I kept looking all the time for the crossing bell [ meaning the electric bell]. I am certain it did not ring.”
    In directing the verdict for the defendant, the court used the following language:
    “The undisputed evidence in this case shows that the injury for which plaintiff has sued occurred about 25 minutes past 7 on the morning of May 3d last, in broad daylight, at a crossing where the ground is level, with no holes, cuts, or embankments to interfere with the plaintiff’s view of defendant’s road; that the only obstruction to a perfect view of the defendant’s track for at least three-quarters of a mile above this crossing were poles of the Interurban road between the Interurban road and the Michigan Central track. I charge- you that, as appears from the photograph introduced in evidence, which is introduced in evidence by the plaintiff, was taken with the camera standing upon the crossing where the plaintiff was injured, it conclusively appears that a person at the north of the crossing could see between the electric poles, and see a train approaching this crossing at a distance at least of 700 feet or more, and that, just prior to the accident, the plaintiff had seen the smoke of the train approaching, but supposed that it was on the C., S. & M. track, and continued right on across this crossing, without stop-' ping his horse to look or listen for the approaching train; and I charge you that, under this undisputed evidence and the law in the case, this amounted to contributory negligence upon the part of the plaintiff, which would prevent his recovery.
    “I charge you that the fact that the defendant had put up an electric bell at this crossing does not relieve the' plaintiff from the duty of looking and listening for approaching trains; and the evidence is conclusive in this case that, if the plaintiff had looked and listened attentively when within from two to ten rods of this crossing, he would have both seen and heard the approaching train in time to have avoided the accident, and that his not looking and listening attentively after having seen the smoke of this train, and knowing that the train was approaching, was contributory negligence on his part, which will prevent his recovery. The evidence is undisputed in this case that the whistle upon the train causing the injury was blown for this crossing, and that the crossing whistle of this train for this crossing was heard by others in practically the same situation that the plaintiff was in, and no nearer to the whistle than the plaintiff was at the time of the blowing of the whistle. It is also undisputed that the bell upon the engine was ringing at the time of the accident, when the train was approaching the crossing; that if the plaintiff had, within a reasonable distance before going upon this crossing, looked and listened attentively, he would have heard these statutory signals given by the defendant for this crossing, and the accident would have been avoided. I charge you that this failure to listen and to look attentively for the approaching train was negligence upon his part, which contributed to the injury which he received, and, for these reasons that I have given you, the plaintiff is prevented from recovering in this action, and your verdict must be in favor of the defendant, of no cause of action. This is the law governing the case, and it is my duty, as a court, to give you the law, without favor or partiality to either party.”

      Grane & Crane, for appellant.

      Watts S. Humphrey, for appellee.
   Grant, C. J.

(after stating the facts). The charge of the court was correct, both as to the facts and the law. Plaintiff was not hampered by the care of his horse. He was in no more dangerous position than he would have been on foot. He testified that in the sand his horse and wagon made no noise. He could have stopped as quickly as if he had been walking. He alone was responsible for supposing that the train was on the other road. He knew that a train was approaching, and it was his duty to stop and ascertain which road it was on. There was no occasion for hurry. He was the master of his own movements, and slight precaution would have averted the accident. Mahlen v. Railway Co., 49 Mich. 585. He had knowledge that a train was approaching, and needed no other warning. Haas v. Railroad Co., 47 Mich. 401; White v. Railway Co., 102 Wis. 489.

In this view of the case, it is unnecessary to discuss the questions arising from the use of the electric bell.

Judgment affirmed.

The other Justices concurred.