text:
    HURD v. NORTHERN ACCIDENT CO.
    1. Trial — Directing Verdict — Questions of Law and Pact.
    In an action on an accident insurance policy, it was not error to submit to the jury the question of the cause of the death of the insured who was shown by plaintiff’s testimony to have been injured in the face by a canthook and to have died from an abscess resulting therefrom, although the testimony was contradicted by defendant’s witnesses; the weight and credibility of testimony being questions of fact.
    2. Same — Evidence—Incompetency.
    A statement by plaintiff that deceased was sick about ten days after an injury, which was shown by other testimony, was not objectionable on the ground that the plaintiff did not know when the accident occurred.
    3. Same — Curing Error.
    Striking out testimony on the withdrawal of the question cures any error committed in receiving the testimony.
    4. Same — Conduct of Counsel.
    Attorneys are ordinarily entitled to state the purpose of testimony offered.
    5. Same — Argument.
    While an attorney is not justified in strengthening testimony by a statement in the argument of his own belief of the facts, such conduct is not reversible error where the reason was not relied on in the trial court and no exception taken to the ruling of the court.
    Error to St. Clair; Tappan, J.
    Submitted March 1, 1910.
    (Docket No. 72.)
    Decided March 19, 1910.
    Assumpsit by Martha J. Hurd against the Northern Accident Company on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Henry C. Walters, for appellant.

      William T. Hosner (B. JR. Hr shine, of counsel), for appellee.
   Hooker, J.

The plaintiff, a widow, sued to recover the sum of $500, alleged to be due upon an accident policy upon the life of her husband, payable to her. Defendant has appealed from a judgment in favor of plaintiff. The only controverted question upon the trial was whether the husband’s death was due to an accident.

Refusal to Direct a Verdict. Defendant assigns error upon the refusal of the trial judge to direct a verdict in its favor (assignments Nos. 1, 16, and 17). The plaintiff offered testimony of one claiming to have been an eyewitness to a blow upon the face, received by the deceased from a canthook which he was using. Several witnesses gave testimony tending to show the presence of marks upon his face. Defendant’s counsel insists that this testimony is false, and has not hesitated to charge the plaintiff with perjury. No rule is better settled than that requiring such a question to be left to the jury. We infer that counsel also contends that such a blow as shown in this cause could not have caused an “ abscess of the brain,” resulting in death within 10 days, and that for this reason the verdict should have been directed in defendant’s favor. Upon this question the testimony of witnesses varied, and the judge did not err in submitting it to the jury.

Rulings upon Testimony. Error is assigned upon several rulings, which we will briefly state:

(1) Second assignment: Mrs. Hurd, the plaintiff, stated:

“ My husband was taken sick, feeling badly on Saturday, and complained Thursday night. That would be somewhere around the 27th of August, I think; he was sick about 10 days from the time he received the injury.”

Counsel moved to strike out the words “from the time he received the injury,” and the motion was denied, and an exception was taken.

(2) Third assignment: George Wilson, plaintiff’s son-in-law, had testified to the circumstances of the accident, claiming to have been an eyewitness. Upon cross-examination it was drawn out that he did not mention the accident to the plaintiff. On redirect he said:

“ I didn’t say anything to Mrs. Hurd before his death.
f‘Q. And why?
“Mr. Walters: I object to that as immaterial and incompetent.
“The Court: He may answer. Note an exception.
“A. Well, my mother-in-law’s health was not very good, that is she had been not feeling very good up north, where they had lived, and he was a man that thought an awful lot of his family, and anything that he could keep to himself he generally done so, and on the way home he said—
“Mr. Walters: Justamoment. It seems to me perfectly apparent that this is incompetent, immaterial, and irrelevant, and not a part of the res gestee.
“ The Court: You raised the question as to his not saying anything to the wife about it, and this is a continuance of the inquiry, I understand.
“ Mr. Hosner: If it is objected to, we will withdraw the question.
Mr. Walters: I wish an exception to the extent to which it has gone.
The Court: The jury will not pay any attention to it; it having been withdrawn, they will disregard it.”

(3) Assignments 4 and 5: Counsel for plaintiff offered in evidence a letter written by defendant’s secretary. The following occurred:

“Mr. Hosner: The purpose of offering this letter and the blank attached to it is this—
“Mr. Walters: I object to a statement of the purpose.
“Mr. Hosner: I have a right to state why the offer is made.
“The Court: Proceed with your statement. (Exception by defendant.)
“Mr. Hosner: It is to show that on January 12th the company sent to me this letter and this blank, and the blank was to be filled by Charles L. Hurd in his lifetime, as you will notice on the back of it, and the claim that he is to make there is to be made by him. The witness now states that he was there shortly after September 3d, and knew this man was dead, and January 12, 1905, they were sending out a blank for him to fill out; not for his widow to fill out, or for the physician to fill out, but for Charles L. Hurd to fill out. It seems to me that it is material to show that they were not acting in good faith, or trying to get at the facts and investigating the facts in the case.
“Mr. Walters: I wish an exception to the making of the statement in the presence of the jury.”

(4) Assignment 6: Error is assigned on the refusal of the court to strike out the following answer given by the witness Horace S. Curtis, on cross-examination by plaintiff’s counsel, viz.: She did not give me that as a reason, no,” which answer was given to the following question:

Q. And didn’t she state to you that she didn’t want anything to say to you for the reason that you had not answered her communications or the doctor’s communications, and that she thought that you weren’t acting in good faith with her; didn’t she make those statements ?”

Of these assignments we may say: We suppose that counsel’s claim under assignment 3 was intended to mean that, inasmuch as Mrs. Hurd did not witness the accident, she could not know when it happened, and that her statement that her husband died 10 days after the injury was in a way a statement that he was injured, and when the injury occurred. The testimony of George Wilson had shown the fact of the injury and the time it occurred. Doubtless she reckoned her 10 days from that time; it being also the time when she saw the mark on the face. We have no doubt that the jury so understood it. The assignment is without merit.

Assignment 3: Objection being made to the testimony covered by this assignment, the testimony was practically stricken out. There was no error from which defendant suffered.

Assignments 4 and 5: The letter was not admitted, and we have no means of ascertaining what it would have shown. Ordinarily it is competent for counsel to state the nature and purpose of testimony offered, and we find no error in this instance.

Assignment 6: The answer of the witness being favorable to defendant, we see no reason for discussing the subject further.

Improper Argument. Assignments 7,8, 9,10,11,12,13, 14, and 15: This relates to strictures upon the testimony of a witness, and the direction to counsel to “go ahead” after the ruling was made on one of the objections relating to this subject. The testimony of the witness was important, and it covered so much of the case, and was contradicted by so many persons, that the arguments made by counsel seem to us to have been proper. We cannot say that it is error for counsel to ask a jury to disbelieve the statements of a witness, if they are contradicted, or to ask them to draw inferences that he acted at the suggestion of interested parties in doing unnatural things, in which he has no personal interest. We disapprove of the statement :

“And, gentlemen, I believe, as much as I believe I am here, that Jesse Evans went to that home the day before this man died, at the request of somebody that was interested in the transaction.”

It is not the privilege of counsel to attempt to strengthen the evidence, or impress a jury by statements of his own beliefs and opinions of the facts. But this appears to have been unnoticed, as the following exceptions, which follow the last quotation, show :

“Mr. Walters (defendant’s attorney): I take an exception to the statement of counsel that Jesse Evans went to that home at the request of somebody who was interested.
“Mr. Eosner: I say that is my opinion; that is the inference I draw from this testimony, and from his testimony that he went there to be a witness in this case.
“Mr. Walters: I take a further exception to the counsel’s reiteration of the statement and especially to the statement that Mr. Evans went there to be a witness in this case.
“The Court: Go ahead.”

No exception appears to have been taken to the direction “Go ahead,” and error upon this is therefore not well assigned.

Refusals of Requests to Charge. The requests covered by assignments 17, 18, 19, 20, and 21 were sufficiently dealt with in the charge, being practically given. The motion for new trial was properly denied.

We find no error, and the judgment is affirmed.

Montgomery, C. J., and Ostrander, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    WOODS v. WHITE STAR LINE.
    Negligence — Pathways—Carriers.
    A person injured in making use of a short cut along a path to defendant’s steamboat dock, falling over an embankment near the path in the dark, cannot recover where the company provided a safe approach and did no act in recognition of or inviting the use made by the public of the shorter way, which also crossed the premises of another proprietor.
    Error to St. Clair; Law, J.
    Submitted February 28, 1910.
    (Docket No. 80.)
    Decided March 19, 1910.
    Case by Rosetta Woods against the White Star Line for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.
    jP. jET Phillips (Gray & Gray, of counsel), for appellant.

      G. L. Benedict (Walsh & Walsh, of counsel), for appellee.
   Hooker, J.

The defendant purchased certain premises bordering on the St. Clair river at Port Huron for the purpose of providing a dock for its steamer. This dock was not the place of its general wharf business at Port Huron, and it is understood that boats stopped there only when signaled, or when they had passengers or freight to be delivered there; it being located in the outskirts of the city. An approach was constructed for teams and pedestrians across defendant’s premises, starting at Military street and at the northwest corner of defendant’s land, and extending a little east of south to the entrance to the dock. There was a bank along the river, several feet high, and this had to be cut and sloped to make the approach passable, and below the bank a fill was necessary to bring the roadway on a level with the dock; the material for said fill being drawn by teams through the cut. To enable the teams to get out, both when making the fill and when they should be driven to the dock, another cut in the bank was made just south of the cut made for the approach, and teams went down the north cut and up the south cut, or by being headed up the south cut could be backed down toward the river, thereby getting in position to go out through the north cut. Before the purchase of the land by the defendant, the land east of Military street — of which this was a portion — had been a common, and it had been driven over in various directions by teamsters drawing and dumping rubbish over the river bank, entering from the foot of Connor street, at which point the banks of the highway ditch were more or less broken down by the crossing of wagons. There is testimony in the record that there was a wagon track extending in a circuitous course from the foot of Connor street to the place where the cuts were made, and, among others, that defendant’s employé who had charge of the dock sometimes came and went that way from and to the dock, and “had been used by wagons and rigs, which in the course of usage had naturally made a path.”

On a night which the plaintiff described as very dark she went with her husband by this route on their way to the dock, attempting to follow the wagon tracks or path, as some witnesses call it, from Connor street to the dock. We quote:

“ This path started in, I should think, about the north side of Connor street, and it went crooked; it turned and twisted; it was a crooked path down to the dock. Mr. Woods and I crossed over and got on the path. As we took it we were on the path and went down. It was very, very dark, and we couldn’t see just where we were going, but we took it for granted we were on the path. We went down a piece, and Mr. Woods stopped, and he says, ‘I don’t see the boat.’ At that time I couldn’t say how far we had gone; quite a little ways down. As he stopped, I didn’t; I kept on. I thought: ‘ Now it is awful dark, I will walk on a little,’ and I was walking, and I thought: ‘ Now I guess I am off the path; there is the path over there.’ I saw a light streak on the side, and I thought the path was clay, and I must be off it, because it was so dark. I couldn’t see where I was, and I thought: ' I will go over to the path,’ and I said: ‘ This road turns along here somewheres; that must be the path ’ — and I walked right along and walked right over the bank. I mean by that an embankment, and I fell; it was right along the side of the road.”

She had been over this route in daylight once before, but had not noticed the condition of the road particularly. The plaintiff’s ankle was injured, and she sued for and recovered a judgment against the defendant, from which it has appealed.

The most important question in the case rests in the refusal of the trial judge to direct a verdict for the defendant. The judgment can be sustained only upon the theory that the acts of the defendant justified the inference that it intended the public to understand that it recognized this as an approach to the dock, provided or maintained by itself. The testimony is not in dispute. Two questions are presented:

(1) Did the defendant provide or recognize this as one of the regular approaches to its dock ?

(2) Was its conduct such as to justify the plaintiff in so understanding it, and did she so understand it ?

There is no testimony in the record that tends to show that the defendant did any act in making or providing a roadway to Connor street. The bare fact that a wagon or wagons had been driven from Connor street to the bank opposite the location of the dock was no such evidence, for it is plainly proven that this was nothing more than the acts of private persons in drawing refuse. The south cut was made for the purpose already stated; to be used in connection with the only approach that the defendant made. Not only did the defendant abstain from attempting to provide a second way, but to have made the approach contended for would have required it to trespass upon the private premises of an adjoining proprietor, over whose land this alleged path crosses, and which is cogent evidence that it did not intend this as an approach.

Counsel for the plaintiff cite three cases which are said to support her claim. Cross v. Railway Co., 69 Mich. 367 (37 N. W. 361, 13 Am. St. Rep. 399); Collins v. Railway Co., 80 Mich. 390 (45 N. W. 178); Lemon v. Railway Co., 136 Mich. 647 (100 N. W. 22).

In the Cross Case defendant’s station grounds were, crossed by a footpath running from the depot to the highway. Most of the foot travel for many years had been over this path, and we said:

“ The defendant cannot complain, because, under all the evidence, this hole was upon the station grounds of the company, and near enough to be dangerous to persons traveling the diagonal way at night. The court could have safely told the jury that, if they found this way recognized and permitted by the railroad company, it was negligence in the defendant leaving it in the condition it was.”

In Collins v. Railway Co., supra, the road was held responsible for the safety of a plank, leading from the end of a beaten path to the platform alongside the track. This was the usual means of access to the depot, and had been for a long time, and we held that the defendant was in duty bound to maintain it in a safe condition.

The case of Lemon v. Railway Co., supra, was similar to the Cross Case.

Cotant v. Railway Co., 125 Iowa, 46 (99 N. W. 115, 69 L. R. A. 982), was a case where a resort was adjacent to defendant’s station grounds, except as it was separated therefrom by the right of way of another railway, and the proprietor of the resort erected a stile over the wire fence, which separated the two railroads, after which the patrons of the resort by their walking made a path to the depot via the stile, and it was used for a long time. The supreme court of Iowa held that a jury might find that this was a recognized way from the station which defendant should maintain, although the stile where plaintiff was hurt was partly upon the land of another company, where the defendant had no right to go to repair the stile. These cases sustain the very just rule that one inviting another upon his premises must use care to prevent injuries, by keeping the premises in a reasonably safe condition, and to keep in repair all ways for ingress and egress which it holds out or recognizes as such upon its own grounds to one who uses it in reliance upon a belief that the company has provided or so holds it out. We are of the opinion, however, that it is not the duty of a railroad corporation to improve and maintain as a safe way every cross or short cut which individuals may adopt to reach its depot.

The testimony shows that this alleged wagon track or path left Military avenue at the foot of Connor street; it being necessary to cross an open ditch to take it. At that point the entry was upon the premises of another proprietor, where, as on defendant’s land, persons frequently went to view the river and the vessels passing to and fro. This had long been practiced. It was also used later as a short cut to the dock. Just how much of a footpath had been worn in the short interval that the dock was used before plaintiff was hurt is problematical. The testimony clearly indicates that whatever path there may have been was made by persons choosing to take a direct route across the common rather than to travel the slightly greater distance via the approach provided. We feel justified in saying that the testimony clearly shows that the path was obviously a crosscut, and that nobody could have considered it anything else, and there was no proof justifying any one in thinking that the defendant was inviting persons to travel that path. This plaintiff testified that she went that way because it was shorter. She preferred it rather than to walk down a highway to a point opposite the dock, where there was a safe approach. She started in without being able to see the path, and on finding that she was out of the path pushed blindly on, and fell down the bank, about four feet from the path. We need not say that this was necessarily negligent, for the reason that the case is already disposed of on the other point. Neither do we say that it was not. Michigan Cent. R. Co. v. Coleman, 28 Mich. 457.

The judgment is reversed, and a new trial ordered.

Montgomery, C. J., and Ostrander, Blair, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    BEDARD v. SIMONS.
    Dedication — Highways and Streets — Implication.
    By the express dedication of a strip of land of designated width to the public as a highway, any implication of the dedication of a wider strip is precluded.
    Appeal from Wayne; Donovan, J.
    Submitted March 1, 1910.
    (Docket No. 97.)
    Decided March 19, 1910.

      Bill by Fiavia Bedard and another against David W. Simons and the township of Hamtramck to quiet title to certain land. From a decree for defendants, complainants appeal.
    Reversed, and decree entered for complainants.

      Albert McClatchey (Henry Ohms, of counsel), for complainants.
    C. C. Simons and Navin, Sheahan & Bourke, for defendants.
   Ostrander, J.

Complainants filed their bill to quiet the title to certain land, claiming to be the owners thereof in fee. It appears to be conceded that they were once the owners of the land and have never conveyed it. The court below found that the land in question and another lot adjoining it is the property of the defendant township and is part of a public highway known as “Mitchell Avenue.” Decree to this effect was entered. The land is known as lot 5, and came to complainants in partition proceedings in 1891. David W. Simons acquired other parcels of the estate partitioned by warranty deed, and on the same day — June 1,1891 — received a quitclaim deed of lots 4 and 5 from the same grantor, who had no apparent title to said lots. Simons conveyed to Roehm by warranty deed the land which he had acquired by such a deed, and gave Roehm a quitclaim of lots 4 and 5. This under date July 15, 1891. Roehm gave to Simons a mortgage upon all of the land so purchased. Roehm gave the defendant township a quitclaim deed of lot 4 and of the east 1 foot and 6 inches of lot 5, the deed reciting:

“ Said strip of land, 25 feet in width, is conveyed for the use of a public street, and if discontinued by law shall revert to the parties of the first part, their heirs and assigns.”

Roehm had platted his property as Roehm & Roth well’s subdivision; the plat is recorded, and the way so described was a part of the plat. The mortgage aboye referred to was foreclosed in chancery. Said lots 4 and 5 were sold to David W. Simons, and he received the deed of the circuit court commissioner for the same, the deed being dated February 2,1899. In his answer defendant Simons claims to own all of lot 5 except the east 1 foot and 6 inches thereof; alleging that he did not make the defendant township a party defendant in the foreclosure proceeding.

The defendant township by its answer claims to own lot 4 and the east 1£ feet of lot 5, and alleges that since said lands were deeded to the township they have been used as a public street or highway known as “Mitchell Avenue,” and that the township has for more than 15 years assumed charge of, ditched, and graded said avenue. It denies that complainants are entitled to any relief as to lot 4 (they claim none) and the east 1% feet of lot 5. This answer is signed by the township by its supervisor. The record does not show the date of filing the various pleadings as it is required to do. Supreme Court Rule 35 (136 Mich, xxxvii, 104 N. W. v). But at some time after filing this answer the said township filed another and amended answer, in which it is alleged that lots 4, 5, and 6 have been for 15 years used as a highway or street known as “Mitchell Avenue.” This answer was not signed by the supervisor, but by the solicitors for the township. Concerning this added claim of the township, the record contains the following:

“ This cause was set for hearing in February, 1908, and on the day set the complainant, with her witnesses and solicitor, came from Bay City and were ready for the hearing. The case was not reached for several days, during which time the complainant, her witnesses and solicitor remained in Detroit, and during which time an agreement was made and entered into between the complainant and the defendant township, by which the township was to have the east one and one-half feet of the land here involved (which was all that was claimed by said defendant township) and there was to be no contest between complainant and the said township.
“ When the case was finally called for hearing, the solicitor for the defendant township appeared and stated to the court that the defendant Simons had informed him that the defendant township had been using more than the east one and one-half feet of the said land, and that it should claim more, and, without any other notice or form, then and there asked to be permitted to amend the township’s answer.
The court then and there, without allowing the complainant any costs for the expense and delay caused thereby, permitted said defendant to amend its answer, and adjourned the case. No such expenses were, however, requested by complainant’s solicitor.
“ The case finally came on for hearing in November, 1908. Plaintiff filed objections to the township’s amended answer.”

It is unnecessary to consider the question of the regularity of the practice pursued and the force and effect to be given to the amended answer of the defendant township. If the question is before us — if the amended answer is to be considered as an abandonment of claim to a highway by dedication and to assert instead a highway by user — we should have difficulty in finding that the public had, by user, acquired title to any of the land. But we are not concerned about the title to lot 4. Complainants have conceded to the township, as part of Mitchell avenue, the east 1-J- feet of lot 5. There is testimony tending to prove an acceptance by the public authorities of the subdivision, including Mitchell avenue. Without discussing its authority to do so in any case by a mere pleading signed by the supervisor or by the solicitors for the township, we shall assume that the public rights flowing from the dedication of the land are not intended to be waived. The great weight of the evidence requires the finding that the public has acquired by user no right to the remainder of lot 5, and that complainants own and should have their title quieted as to all of lot 5 except the east 1 foot and 6 inches. It is said in the brief for the defendant township:

“ There was considerable testimony in reference to the wrought or graded part of the highway. The consensus of opinion from all the testimony seems to be that this was 25 feet in width. And that is undoubtedly the case. Complainants seem to deduce from that that such must therefore be the full width of the street. But the traveled part of a roadway does not necessarily define the limits of the highway, particularly where no fences or other structures are erected by the owner to mark the terminus of the same. An owner does not express the intention of confining the street to a width of 25 feet, where by deed he dedicates that width and then fails to fence or guard against use of a wider strip for a period of ten years by the public. This has been held in at least two cases in this State, one of them dealing expressly with the question of a variance in width of the highway, at either end thereof, a question raised by the testimony in the case at bar. Bumpus v. Miller, 4 Mich. 163; Kruger v. Le Blanc, 70 Mich. 79 (37 N. W. 880).”

An examination of these cases will discover that they do not support the proposition to which they are. cited. An owner of unoccupied land, especially in a subdivision of land by platting, cannot well express an intention to restrict a street to a particular width in a better way than to indicate, specifically, the width of the street. Both of the cases cited are authority for the proposition that where there has been an express and accepted dedication of land to the public use for a highway, there is no room for the presumption, or the implication, of a dedication or donation of a wider strip of land. This is agreeable with the general rule.

The decree will be reversed, with costs of both courts. A decree will be entered here quieting the title to lot 5, except the east 1£ feet thereof, in the complainants.

Montgomery, C. J., and Hooker, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    COMMON COUNCIL OF CITY OF JACKSON v. HARRINGTON.
    1. Constitutional Law — Municipal Corporations — Revision and Amendment of Charters.
    The provisions of article 8 of the Constitution of 1909, providing for the passage of a law for incorporation of cities and for the adoption and amendment of charters by the electors, are mandatory.
    2. Same — Interpretation.
    The legislative intent, in enacting Acts Nos. 278 and 279, Pub. Acts 1909, in compliance with the new Constitution, was to provide for the incorporation of all cities, not omitting those which have charters, and to give to the eleotors power to frame, adopt and amend charters.
    3. Same — Title—Revision.
    The title of the act is sufficiently broad to include revision of existing charters, since the act of incorporation includes the adoption of a charter.
    4. Same — Municipal Corporations — Revision of Charters — Statutes.
    Interpreted in accordance with the provisions of the Constitution, giving the electors power to frame, adopt and amend municipal charters, Act No. 279, Pub. Acts 1909, is intended to permit the revision of charters on the initiative of two-thirds of the members of the common council or by a petition of the electors.
    5. Municipal Corporations — Revision of Charters — Statutes.
    The resolution of two-thirds of a municipal common council for general revision of the charter is not governed by § 21, Act No. 279, Pub. Acts 1909, requiring that amendments to the charter shall be published and remain on the table thirty days before action is taken thereon.
    Mandamus by the common council of the city of Jackson to compel Jode Harrington, city recorder, to give official notice of a resolution declaring for a general revision of relator’s charter.
    Submitted March 19, 1910.
    (Calendar No. 23,933.)
    Writ granted March 21, 1910.

      John F. Henigan, for relator.

      James J. Noon (A. G. Kingman, of counsel), for respondent.

      John E. Bird, Attorney General, and Thomas A. Lawler, Assistant Attorney General, amici curice.

   Brooke, J.

On February 21, 1910, relator, by a vote of three-fourths of its members, passed a resolution declaring for a general charter revision of the charter of the city of Jackson, directing that the question be submitted to the electors at the next municipal election, to be held April 4, 1910, and further directing the recorder of the city (respondent herein) to give notice of the submission of said question by posting and publication. This action of relator was taken under . section 18, Act No. 279, Pub. Acts 1909. The title of the act is as follows:

“An act to provide for the incorporation of cities and for changing their boundaries.”

Section 18 reads:

“ Any city desiring to revise its charter shall do so in the following manner, unless otherwise provided by charter: When its legislative body shall by a two-thirds vote of its members-elect declare for a general revision of the charter, when an initiatory petition shall be presented therefor as provided in section 25 of this act, the question of having a general charter revision shall be submitted to the electors at the next municipal election,” etc.

Respondent refused to give notice, as required, of the passage of said resolution, and further refused to submit the question to the people by placing it on the voting machines, to be voted upon by the electors on April 4, 1910.

Three reasons were assigned by him for his action, each of which will be considered in its order:

(1) The act in question is unconstitutional because the title thereof is not broad enough to cover revision of existing charters in cities.

(2) Section 18 of said act requires both an initiatory petition and a resolution by the legislative body.

(3) If a resolution by the council alone is sufficient, it must lie on the table 30 days under section 21 of said act.

First. We find that the new Constitution, article 8, § 20, provides that the legislature ‘ ‘ shall provide by a general law for the incorporation of cities,” etc. Section 21 provides:

“Under such.general laws, the electors of each city and village, shall have power and authority to frame, adopt and amend its charter,” etc.

It is to be noticed that the foregoing provisions of the Constitution are mandatory, and it is obvious that Acts Nos. 278 and 279, the first relating to villages, and the second to cities, were passed by the legislature of 1909 for the express purpose of carrying out the constitutional mandate. We are left in no doubt, therefore, as to the legislative intent. It intended to, and did, pass a general law, giving to the electors of cities power to frame, adopt, and amend charters. To that act it gave the title under consideration. It provides for the “incorporation of cities.” What cities? Obviously all cities — as well those already incorporated as those not yet incorporated, since there are no words of qualification or limitation. Every incorporated city must have a charter. Its charter is the definition of its rights and obligations as a municipal entity, so far as they are not otherwise legally granted or imposed. The very act of incorporation, therefore, necessarily includes the idea of a charter and the power to frame and adopt one. If the framing and adoption of a charter in toto is fairly within the meaning of the word “incorporation,” and we believe it necessarily is so, it seems clear that the revision of a charter already adopted is likewise within that meaning upon the principle that the greater includes the less.

In the case of People v. Mahaney, 13 Mich. 481, Mr. Justice Cooley, referring to this constitutional provision, the same then as now, said:

“But this purpose is fully accomplished when the law has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be provided for by a separate act relating to that alone would not only be senseless, but would actually render legislation impossible.”

In People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103), Mr. Justice Christiancy said:

“But it is quite clear and well settled that nothing more than the general object need be stated in the title, and that every provision which is fairly calculated to carry that object into effect must be held to come within it.”

See, also, Connecticut Mut. Life Ins. Co. v. State Treasurer, 31 Mich. 6; Pratt Food Co. v. Bird, 148 Mich. 631 (112 N. W. 701, 118 Am. St. Rep. 601).

Second. Should that part of section 18 above quoted, be construed as though the word “or” had been inserted between the words “charter” and “when?” To so construe this section would make the submission of the question of revision dependent upon either of two facts:

First, the passage of a resolution declaring for a general revision by a two-thirds vote of the members-elect; or,

Second, the presentation of an initiatory petition therefor as provided in section 25.

Several considerations indicate that the section quoted should receive this construction. In the first place, section 14, Act No. 278, Pub. Acts 1909, which relates to the incorporation of villages and corresponds as to its matter with section 18 of the city act, contains the disjunctive “ or.” Again, section 21 of Act No. 279, which provides for amendments to a charter, instead of revisions thereof, designates the alternative method of procedure. It reads:

“An amendment to a charter may be proposed by the legislative body on a two-thirds vote of the members-elect or by an initiatory petition as herein provided.”

But a more persuasive reason than either of those given exists. The Constitution provides that—

"Under such general laws the electors of each city and village shall have power and authority to frame, adopt and amend its charter.”

We have already seen that Act No. 279 was passed for the purpose of giving effect to this constitutional guaranty. To give this section the construction contended for by respondent would be to deny to the electors the power to compel the submission of the question without a two-thirds vote of the legislative body, and thus, it may be, rob them of the right so clearly expressed in the Constitution. It must be presumed that the legislature intended to act in accordance with the plain mandate of the Constitution, and we have no doubt it did so, and that the omission of the word " or ” is a mere clerical or typographical error, which should of right be corrected by interpretation. Board of Control of the Michigan State Prison v. Auditor General, 149 Mich. 386 (112 N. W. 1017).

Third. There is no force in the third contention. Section 21 relates solely to charter amendments, and provides that, where such amendment originates in the legislative body, it shall be published and remain on the table for 30 days before action is taken thereon. No such requirement is necessary, or proper, in case of revision, because the act provides for the election of a charter commission, and, after the charter is prepared by them, it is published for 30 days, thus securing the same publicity as is secured to the amendment by section 21.

The mandamus will issue as prayed.

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


author: Moore, J.

text:
    WILSON v. WILSON.
    1. Fraud — Deeds—Consideration—Support.
    The conveyance by an aged lady to her grandson of a farm, in consideration of her support for life, is held, under the testimony, not to be invalid for fraud.
    S. Deeds — Conditions—Support.
    A deed of land on condition that the grantee shall support the grantor, his grandmother, where the acts of both parties have rendered the contract impossible of performance, warrants a decree for the value of her support, and the amount should not be limited merely to the rental value of the farm, less taxes.
    Appeal from Gratiot; Searl, J.
    Submitted December 13, 1909.
    (Docket No. 120.)
    Decided March 22, 1910.
    Bill by Weltha Wilson against Fred Wilson and Laura Wilson to set aside a deed. From the decree rendered, complainant appeals.
    Modified.

      P. H. Dolan and Scully & Davis (A. B. Locke, of counsel), for complainant.

      Stone & Watson and L. A. Lyon, for defendants.
   Moore, J.

On the 17th day of October, 1905, the complainant deeded to her grandson, Fred Wilson, 92 aeres of land. The deed contained the following:

“Whereas, the consideration for the deed being an agreement by the second party to support, maintain, clothe and take care of the said first party in such manner as she has been accustomed to live, and pay all doctors’ bills and medical care during her life, the said first party hereby reserves to herself, the said first party, the use, occupation and possession of said premises during her lifetime, if the said second party shall make default in the conditions of the said agreement.”

Soon thereafter the parties moved upon the farm. The defendant made valuable and permanent improvements. All went well for a time. Later trouble arose and the complainant went to live with her daughter in Lansing. In August, 1907, the bill of complaint in this case was filed for the purpose of setting aside said deed. A hearing was had in open court except as to some witnesses whose depositions were taken because of their inability to attend court. The trial judge was of the opinion complainant failed to make a case.

In his written opinion he states:

“While the complainant is an old lady, yet she is in the possession of all her faculties, and appears as sharp and shrewd in court as an average business man; that she is much more capable of taking care of herself in a business deal than the average woman of her age must be plainly apparent to any one hearing her testimony in open court. She says that she expected Fred would have the farm at her death if he carried out his part of the agreement, but she understood that a contract or lease was to be drawn and not a deed.
‘ ‘ Complainant selected W. A. Sweet to draw the papers, having looked after such matters before for herself and husband. He testified that she told him she wanted to make a deed to Fred, and that he suggested that the condition for her support should be inserted for her protection, she saying that she didn’t think it necessary. The deed was read over and explained to complainant before she signed it. Mr. Sweet is a careful, upright man whom the court has known for many years, and I give great credit to his testimony. But his testimony does not stand alone as opposed to that of complainant. John W. Hallett and Dr. Taylor, both men of high standing in Carson City, were there as witnesses, and both testify that so far as they could see the transaction was open and fair, and that the deed was read over and explained to Weltha Wilson, and nothing appeared to show that she did not fully understand its import and meaning.
“Further corroborating evidence is given by Fred Wilson, T. Wilson and Etta Sweet, and I conclude therefore that complainant has failed to show by a preponderance of the evidence that there was any fraud or mistake at the time the deed was made. The evidence preponderates the other way.
“Complainant does not seriously claim that she was not properly supported by defendants, but claims they were unkind to her in many ways. The alleged instances concern matters of small importance, and of such character that I shall take no time discussing them. These little differences are liable to come up in any family, especially where elderly people live with younger ones, and if the title to property should be upset every time something of the kind happens, the courts would be busy all the time. I conclude, therefore, that complainant’s bill ought to be dismissed, or at least that she should not receive the relief prayed for by her.
“However, it does appear that it would be unwise for these people to live together on this farm, and I think the decree should provide that Fred Wilson should pay complainant what the fair rental value of the property would be (less the taxes), from the time when she left until her death, payable yearly, and if the solicitors cannot agree on the amount, or if same is not enough for her support, it will be decided when decree is settled, and at the same time counsel may suggest any further matters which should be settled in the decree if there are any.”

A decree was made accordingly, providing that defendant Fred Wilson should pay $175 a year from the time complainant left him, and should pay to the complainant—

“ During the natural life of said complainant or so long as said complainant shall choose to remain away from the home of said defendant Fred Wilson, but should the complainant at any time hereafter choose to return and have her home with the defendants, then said payments shall cease and be no longer required, and this decree shall, in that regard, become inoperative, said payments to constitute a lien on the premises described in said deed.
“ It is further ordered, adjudged, and decreed that the costs to be taxed herein in favor of the defendants and against the complainant shall and may be deducted by defendant Fred Wilson out of any moneys now, or which may hereafter become, due to the said complainant from the said defendant under this decree.”

From this decree complainant appealed.

There is no dispute as to the law which should govern the case. The questions are all questions of fact. The complainant at the time the conveyance was made had considerable other property. During his lifetime, her husband had deeded this farm to Fred Wilson, which deed complainant later burned, she says, by the direction . of her husband. The record satisfies us that no fraud or deceit was practiced upon her, and that she knew she was deeding the farm to defendant, and desired to do so. Trouble arose between her and her grandson and his wife, Laura Wilson, which perhaps might have been anticipated, and which could have surely been avoided by the exercise of more patience on the part of all three of them. It is very likely if some of the relatives had been as anxious for the comfort of the complainant as they profess, and had indicated it in more fortunate ways, there would have been no litigation. The trouble which arose is unfortunate and cannot now be cured. The litigation has doubtless intensified the feeling between them, so that it is doubtful if the undertaking contemplated by the parties could now be so executed that the complainant would be contented and comfortable in her old home.

It is conclusively shown by the paragraph we have quoted from the deed that it was expected the conveyance of the property to defendant Fred Wilson would result in complainant having such support, maintenance, clothing, and care as she had been accustomed to, and the payment of her doctors’ bills and for medical care. It is very clear the sum decreed to her will not do this. In requiring defendant Fred Wilson to pay a fair rental value of the property less the taxes, he was required to do no more than a stranger, who would have obtained no interest in the title, would have been required to do. When the costs are deducted from this sum, a mere pittance would be left for the complainant, while the title to the farm remains in the defendant. We do not think this equitable. The decree should be modified so as to require the payment of $250 a year from the time the complainant left the house of defendant, and neither party will recover costs against the other in' either this or the lower court.

A decree may be entered here in accordance with this opinion.

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


text:
    RYAN v. BAY CITY.
    1. Contracts — Municipal Corporations — Breach — Recoupment.
    A municipal corporation may recoup the cost of relaying unsuitable foundation for a pavement, in an action on a paving contract, which provided that on failure to execute the contract properly the board of public works might complete the work, where it appeared that the cement was laid in freezing weather, without directions of the municipality, after the date fixed in the contract for the completion of the work, although its inspectors were present and permitted the work to proceed.
    2. Same — Construction—Improvements—Estoppel by Acceptance.
    The inclusion of a portion of the imperfuct work in estimates upon which payments were made by the municipality, does not constitute an estoppel to reject defective work after-wards discovered.
    3. Same — Fraudulent Inspection — Paving.
    It was not erroneous to leave to the jury the questions of fraud of the plaintiff and fraudulent collusion of the inspector who claimed to have been present and watched the progress of the work continually and who permitted the use of faulty materials.

      Error to Bay; Dodds, J., presiding.
    Submitted January 11, 1910.
    (Docket No. 28.)
    Decided March 22, 1910.
    Assumpsit by Patrick Ryan against the city of Bay City for a balance due upon a paving contract. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      L. P. Goumans (Lee JEJ. Joslyn, of counsel), for appellant.

      S. G. Houghton, for appellee.
   Hooker, J.

The plaintiff made a contract to do paving, according to specifications made a part of said contract, with Bay City. He was to furnish all material and labor and have the pavement completed on or before September 22d. In his contract it was provided that:

“ The board of public works of said Bay City shall have the right and power to determine finally all questions as to the proper performance of the contract, and as to the completion of the work of this contract specified, and in case of dilatory, improper or imperfect performance thereof to suspend the work covered by this contract or any unfinished portion thereof, whether from unreasonable delay in performing the work, or other just cause, said board shall deem this contract forfeited. * * *
“ Failure or neglect on the part of the city engineer or his inspector to condemn inferior work or material at any time of its being supplied or done shall not be construed to imply an acceptance of any work. If it becomes evident to the engineer or board, at any time prior to the final acceptance of the work by the city, that improper material had been furnished, or inferior work done upon said improvements, he or the board shall have the right to order the removal of such material and work, and to require that suitable material be supplied and proper work •done in lieu thereof by said contractor, without expense to the city. * * *
“All material and workmanship shall be strictly first class, whether specially set forth herein or not, and shall be subject to the inspection and rejection of the city engineer, and all materials condemned by him shall be removed from the work at once. * * *
“ If at any time it should appear to the board of public works that the pavement or any portion thereof is not being executed in a sound and workmanlike manner or with due diligence, or if the contractor shall from bankruptcy, insolvency, or any cause whatever be prevented or delayed in proceeding with the pavement in accordance with his contract and these specifications, it shall be lawful for the said board, after three (3) days’ notice of their intention to do so, to employ any other contractor, workman or other person by contract, day work and otherwise, to proceed with such pavement and complete the same.”

The pavement was not completed until the following spring, when on examination the board of public works claims to have found that the concrete laid the fall before as a foundation for a portion of the pavement was unsuitable to lay brick upon, and was not such a foundation as was contemplated and provided for in the contract, and plaintiff was required to remove it and complete the job according to the contract, and upon his refusal the work was done by another, and the city paid for it. This action was brought by Ryan to recover the balance unpaid him, and defendant made a counterclaim by way of recoupment. The trial resulted in a verdict for the defendant, and plaintiff has appealed.

The first contention is that it was error for the court to permit the defendant to show that the concrete became defective through freezing. This claim is based on the alleged facts:

(а) That the defendant’s inspectors were present and permitted it to be laid.

(б) That it must be assumed that it was approved, because of payments upon estimates which must have included it.

In other words, the contention seems to be that the city took the chances of injury through freezing because it did not prevent the laying, and must be presumed to have accepted poor work, or the consequences of unforeseen freezing because it did not withhold more of the plaintiff’s pay. We are of the opinion that the plaintiff took the risk of freezing, unless he was ordered to lay the concrete at that time, of which we find no proof, although the court left the question to the jury. We are also of the opinion that including this concrete in estimates, if this was done, did not estop the city from denying its acceptance of the risk of freezing, or the consequences of concealed defects arising from the nonconformity to specifications. This is not like those cases in which the employer knew of violations of his contract, permitted them to go on without protest, and included them in estimates which were paid by him, as in the case of Schliess v. City of Grand Rapids, 131 Mich. 59 (90 N. W. 700), where it was said:

“ The law would not permit defendant to see this work go on, to ratify it day after day and week after week, to see plaintiff putting in stone not in exact accord with the contract, and then say, when the work is done, ‘ You have not complied with the contract.’ Its time to accept or reject was when the work was being done. It could not lull the plaintiff into the belief that this work was satisfactory, and, when completed, reject it.”

The case is radically different from Schliess v. City of Grand Rapids, supra, where the contract contemplated construction in cold weather and where the work was done in wintry weather under directions of the proper authority.

In the case of Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78), the majority opinion turned upon the fact that the plaintiffs acted under explicit orders made by the authorized representative of the city, which they were bound to obey. It was said:

“It is insisted, however, that the provision, ‘Although the engineer may assent to special means of prosecuting work in difficult cases, this will not relieve the contractor of the responsibility of the result,’ imposes upon the plaintiffs in this case the responsibility for the result of the improper method of laying this sewer. In my judgment, this provision is not applicable to this case. If the plaintiffs are right in their claim (and whether they are right or not is a question for the jury), the engineer did more than assent to the means adopted in this case. He positively directed their adoption. * * *
“ The contractors are bound to obey the orders made in good faith by the engineer, whether those orders are advantageous or detrimental to their interests; nor are they exempt from obedience because they believe those orders to be unwise.”

See, also, Barber Asphalt Paving Co. v. Village of Highland Park, 156 Mich. 178, 182 (120 N. W. 621). There is no testimony in the case that has been called to our attention that the representatives of the city knew of any violation of the contract, and stood by and permitted it. On the contrary, counsel are claiming that there was no noncompliance, and that there was no evidence from which it could be inferred.

The following excerpt from the charge is made the basis of alleged error:

“If you find from the testimony that the concrete was in such condition in the spring of 1904, that it could have been covered with brick, and that when so covered it would have made a good substantial pavement, such a pavement as is provided for in the contract and specifications, then the defendant was not justified in causing the concrete to be torn up and preventing the plaintiff from completing his contract, and the plaintiff ought to recover for whatever is due him by reason thereof. That is, he ought not to be charged up with the losses in that regard in case he did it — in case that in the spring after it was taken, as the plaintiff makes claim, that it was in a good condition then to lay the brick upon, and, if it was, the city ought to have allowed him to lay the brick upon it and complete his job.
“If you find that the city’s engineer and inspectors charged with the duty of seeing that the pavement was properly built were present during the entire progress of the work and saw the manner in which the contractor was performing it, and knew the quality of the material, had personal knowledge of the quality of the material, without objecting thereto, and if the board of public works acting weekly or at various times upon the reports made by such representatives of estimates reported by the city engineer, then the city is estopped to set up an improper performance of the contract so far as the contract was performed by the plaintiff in that way.
“ Now, in explanation of that, gentlemen, you must remember that during all the time it implies that the inspectors were there and saw how it was being done themselves and knew the material. If they thought that the material was good, and the plaintiff knew it was not, then the plaintiff must suffer the loss, but if they knew about it as well as he did what the material was, and both of them thought that it was in accordance with the contract, then after it was completed the city cannot complain that t.bia man did not do right if he did what he thought was right and what the inspectors thought was right at the time, but if 'he fraudulently concealed anything from the inspectors, or the inspectors themselves fraudulently allowed anything to pass, he also knowing of the defect, then the city can recover back at any time within the proper statute of limitations from them, and can make the defense in this case. I think you understand me, gentlemen.
“ If both the inspectors and Mr. Ryan were wrong on anything that passed the city is not responsible for that, but the plaintiff is. If Mr. Ryan was wrong, and did not tell the inspector so that the inspector knew as much about it as he did, and the inspector acted ignorantly, and the plaintiff knew he was acting ignorantly, in allowing it to pass, then Mr. Ryan would be responsible, but if he acted in good faith, and told the inspector all that he knew about it, or did not try to conceal anything from the inspector, and supposed the inspector knew the whole thing, and it passed over and was received by the city and passed on as being completed, then Mr. Ryan would not be liable for the defects in it.”

Counsel admit that the charge stated the law, but complain that there was no testimony tending to show that either the plaintiff or inspectors acted fraudulently, which the charge gives the jury the opportunity of finding. We are of the opinion that this is hypercritical. We have already said that there was evidence from which the jury might find that the material used was not according to the specifications, and that the workmanship was faulty. It may he that the jury so found notwithstanding plaintiff’s insistence that he conformed to the contract in every respect, and the attempt by Hess to carry the impression that he watched the work every minute. The jury may have thought that this condition of things implied concealment by the plaintiff or collusion between inspectors. At all events, we think that the court did not err in so limiting the right of plaintiff’s assertion of estoppel.

There are some other questions raised to which we have endeavored to give critical attention and which we think it unnecessary to discuss further than to say that we find nothing erroneous in them. The case appears to have been fairly tried and presented to the jury, and the judgment is affirmed.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


author: McAlvay, J.

text:
    GODFREY LUMBER CO. v. KLINE.

    1. Mechanics’ Liens — Parties—Inconsistent Defenses — Estoppel.
    The defense to the enforcement of a mechanics’ lien that the contract for construction was not defendant’s contract but her husband’s, would not preclude urging the defense that a necessary party to the proceeding was omitted.
    2. Same — Parties—Equity.
    In such case the failure to include the principal contractor as a party defendant is an objection available against a subcontractor at the hearing, and is ground for a reversal with leave to amend.

      Appeal from Kalamazoo; Smith (Clement), J., presiding.
    Submitted April 7, 1909.
    (Docket No. 14.)
    Decided April 1, 1910.
    Bill by the Godfrey Lumber Company against Belle E. Kline to enforce a mechanic’s lien. . From a decree for complainant, defendant appeals.
    Reversed, with leave to amend.

      Frost & Farrell, for complainant.

      D. 0. French, for defendant.

       Rehearing denied May 7, 1910.

   McAlvay, J.

Complainant filed its bill in chancery to enforce a mechanics’ lien claimed by it upon the premises of defendant for lumber and materials furnished by it “in pursuance of a certain contract with G. W. McConn, the contractor,” which lumber and material it is claimed entered into and was used in building a certain house on the premises of defendant situated on West Lovell street in the city of Kalamazoo. The original contractor, McConn, was not made a party defendant to the bill of complaint and was not before the court. The record shows that he entered into a contract in writing on October 14, 1905, with Lawrence A. Kline, the husband of defendant, to furnish everything and complete this house upon these premises according to certain plans and specifications, and for a certain price. • McConn then entered into the contract with complainant relied upon in this suit to furnish the material for which a lien is claimed, to enforce which this bill was filed.

Complainant claims this material was furnished from time to time from October 26, 1905, to March 3, 1906. Within a week after he secured this original contract McConn began the work under it and continued until March 1, 1906, when he abandoned the contract. He had been paid money from time to time during the progress of the work. When he quit work the house was inclosed, and the interior finishing was being done. He had never been settled with by defendant or her husband, and defendant was not a party to the contract of McConn with complainant. When the case came on to be heard, and before the taking of any testimony, defendant objected to the introduction of any proof for several reasons, based upon the insufficiency of the claim of lien filed and irregularities in the proceedings, and also because of want of proper parties ; the contractor, George W. McConn, not having been made a party defendant. This objection was overruled by the court. It is claimed and not disputed that this objection was also urged in the argument after the testimony was closed. The court, notwithstanding this objection of defendant, proceeded to hear the proofs in the case, and after such hearing granted the complainant the relief prayed and decreed a lien upon the property and ordered a sale thereof.

Complainant contends that on account of the attitude of defendant in her answer and upon the trial she cannot urge this objection. The answer shows that she denied the contract executed by the husband and denied any liability under said contract. Proof was also offered to that effect. In defendant’s brief in this court it is admitted that such contention cannot be maintained in this ease under the authorities, and complainant was notified of this concession before the briefs were made. There is nothing in the record to indicate that this objection was abandoned. The court did not so consider it in the opinion filed, in which the following appears:

‘ ‘ The legal questions raised by defendant have all been carefully considered. * * * I am of the opinion that the objections raised are not well grounded, and that in my judgment the complainant has brought itself within the lien law of the State, and that the action is properly brought against Mrs. Kline.”

The fact that defendant contended in the court below that this was not her contract was not a waiver of the objection that the proper parties were not before the court. In these cases the contractor is a material party defendant

in the bill. This court so held in Kerns v. Flynn, 51 Mich. 573 (17 N. W. 62). The court there said:

“The case of subcontractors involves inquiry into the contract relations and state of accounts existing between the defendant and the original contractor, and into the contract relations and state of accounts existing between the original contractors and the subcontractors. Both kinds of inquiry are indispensable. It is a fundamental implication of the remedy that an indebtedness from the defendant and in favor of the original contractors must be found and adjudicated. Without it there can be no basis for relief to the subcontractors. * * * The fact of a lien, and the fact of a liability or indebtedness, may actually exist; but they must be adjudged toexist as a preliminary to their enforcement. They can never be taken for granted. So long as a claim is unadjudged, it cannot be enforced, and there is no law for making investigations and decisions in the absence of the parties. They must have an opportunity to be heard, and, if they do not have it, they will not be bound. The doctrine is elementary, and citations are unnecessary.”

The court also held that the objection might be taken at the hearing. This has been the law of this State since that decision. It was cited and approved in Prather Engineering Co. v. Railway, 152 Mich. 585 (116 N. W. 376).

The objection of defendant was well taken. The necessary parties were not before the court. Other questions need not be discussed.

The decree of the circuit court is reversed, with costs of both courts in favor of defendant, and the cause will be remanded to the circuit court, with permission to amend the bill of complaint by making the principal contractor a party defendant. Casserly v. Wayne Circuit Judge, 124 Mich. 157 (82 N. W. 841, 83 Am. St. Rep. 320); Prather Engineering Co. v. Railway, supra. If the parties so elect, the case may proceed to a hearing on the record already made.

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


author: Montgomery, C. J.

text:
    ORD v. WAYNE CIRCUIT JUDGE.
    Arrest — Capias—Affidavit—Sufficiency.
    In an action for the conversion of funds received by plaintiff’s agent and converted to his own use, an affidavit setting forth the facts is held sufficient as against the objection that it states conclusions.
    Mandamus by William Ord to compel George S. Hosmer, circuit judge of Wayne county, to enter an order quashing a writ of capias ad respondendum.

    Submitted July 6, 1909.
    (Calendar No. 23,452.)
    Writ denied April 1, 1910.

      Herbert A. Andresen, for relator.

      Bethune D. Blain and William J: Hawley, for respondent. .
   Montgomery, C. J.

This is mandamus to require the circuit judge to enter an order quashing a writ of capias. The writ was accompanied by an affidavit, as follows :

“Charles A. Baker, of the city of Milwaukee, in the county aforesaid, being duly sworn, deposes and says that he is the secretary of the Sterling Wheelbarrow Company, a corporation duly organized under the laws of the State of Wisconsin, with its principal office for business in said city of Milwaukee; that the said company is a corporation duly organized as aforesaid; and that the said Sterling Wheelbarrow Company is the plaintiff in the annexed writ, and that the said company has a claim for damages against William Ord, of the city of Detroit, county of Wayne, and State of Michigan, the defendant therein named, for the cause of action stated in said writ, upon which he believes the said Sterling Wheelbarrow Company is entitled to recover the sum of six hundred and thirty-eight dollars and twenty cents ($638.20).
“Deponent further says that the facts and circumstances upon which the said Sterling Wheelbarrow Company’s claim for damages is founded, and which constitute its cause of action herein, are as follows, to wit: The said William Ord, on or about the 20th day of July, A. D. 1907, in pursuance with a contract with the said company, entered into the relation of agent or factor for said company in the said city of Detroit, and continued to act in the capacity of such agent or factor till on or about, to wit, the 10th day of August, A. D. 1908.
“Deponent further avers that, in pursuance with the said contract with the said Ord, the Sterling Wheelbarrow Company placed in the possession and control of the said Ord various consignments of wheelbarrows and other goods, to hold the same as the property of the said company till sold by the said Ord under the terms of his contract in the course of trade; that by the terms of the said contract it was the duty of the said Ord to collect the various sums due the company from the sales so made by Ord; that he was to deduct from the sums of money so collected a commission of twenty-five (25) per centum and remit the balance due the company to the said Sterling Wheelbarrow Company in monthly installments, said installments to include all money due the company collected during the preceding month.
“ Deponent further avers that from the stock of goods aforesaid in his possession the said Ord made various sales; that the said Ord has accounted for the proceeds of part of the same, but has failed to account for the proceeds of sales amounting to eight hundred and fifty dollars and ninety-three cents ($850.93); that the commission of twenty-five per cent, on said money due from same amounts to two hundred and twelve dollars and seventy-three cents ($212.73), and that the balance due the said company from the said sales amounts to six hundred and thirty-eight dollars and twenty cents ($638.20); .that the said Ord has failed to account for the said sum of six hundred and thirty-eight dollars and twenty cents ($638.20), but in breach of his trust did collect the said moneys, and did fraudulently neglect and refuse to turn the said sum over to the Sterling Wheelbarrow Company, although repeatedly demanded by the said company, but did convert the same to his own use.
“Deponent further avers that on or about the 10th day of August, A. D. 1908, the Sterling Wheelbarrow Company terminated its relation with the said Ord; that this deponent demanded from the said Ord the goods then remaining in said Ord’s possession; that the said goods were received by deponent and shipped .to Chicago, Illinois; that the said Ord admitted to this deponent on said date that there were accounts due and outstanding from the sales aforesaid the sum of two hundred and twelve dollars; that the said Ord agreed to furnish a list of vendees from whom the said outstanding accounts were due, and agreed to notify each of said vendees to pay the said accounts directly to the Sterling Wheelbarrow Company.
“Deponent further avers that, notwithstanding the agreement to have said accounts paid to said company, and notwithstanding that the relation with the said company and the said Ord was terminated, the said Ord did subsequently collect the said outstanding accounts and convert the same to his own use.
“ Deponent further avers that the sales so made as alleged above were admitted by the said Ord to this deponent; that the said Ord admitted to this deponent that he, the said Ord, did collect the sums of moneys as alleged above; and that he collected the said outstanding accounts after his promise to direct same paid direct to the said company.” .

The criticism made upon this affidavit is that the affidavit states merely a conclusion, and does not appear to be made upon the information of the affiant. We agree with the circuit judge that the affidavit is not open to this criticism, and there is enough of substance contained in the affidavit to warrant the order holding to bail.

The application will be denied.

Ostrander, Hooker, Moore, and Mo Alva y, JJ., concurred.


text:
    WARREN v. LENAWEE CIRCUIT JUDGE. DETROIT, TOLEDO & IRONTON RAILWAY v. SAME.
    Mandamus — Equity—Scope of Writ — Statutes.
    Act No. 310, Pub. Acts 1905, relating to the review by certiorari of judgments in actions at law does not modify the method of reviewing the denial of motions to dismiss bills of complaint in equity, which may not be reversed by mandamus.
    Mandamus by Benjamin S. Warren and by the Detroit, Toledo & Ironton Railway Company, severally, to compel John L. O’Mealey, circuit judge of Lenawee county, to vacate orders denying motions to dismiss bills in equity.
    Submitted October 5, 1909.
    (Calendar Nos. 23,351, 23,352.)
    Writs denied April 1, 1910.

      Benjamin S. Warren (Stevenson, Carpenter & Butzel, of counsel), for relators.

      Marshall & Fraser and Smith, Baldwin & Alexander, for respondent.
   Montgomery, C. J.

Two cases were instituted by bill in chancery in the circuit court against the present relators, and it is moved to dismiss the proceedings for the want of jurisdiction. The circuit judge overruled the motion, and the defendants now apply for mandamus to compel the vacation of the order refusing to dismiss the cases.

The remedy by mandamus is not the proper remedy. Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582), and Hitchcock v. Wayne Circuit Judge, 144 Mich. 362 (107 N. W. 1123).

The statute (Act No. 310, Pub. Acts 1905) has not modified the rule of these cases, as that statute relates to actions at law.

The application in each case is denied, with costs.

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


author: Ostrander, J. Blair, J.

text:
    HOGLE v. WAYNE CIRCUIT JUDGE.
    Appeal and Error — Stay op Proceedings — Bond—Statutes.
    A bond to stay proceedings at law pending the settlement of case made and review in the Supreme Court must be for double the amount of the judgment (3 Comp. Laws, § 10,355), and no discretion is vested in the circuit court to permit the filing of a bond with a smaller penalty because of the prior filing of bonds in attachment and garnishment proceedings which would amply secure the plaintiff.
    Mandamus by George Hogle to compel Alfred J. Murphy, circuit judge of Wayne' county, to set aside an order staying proceedings in an action at law.
    Submitted November 16, 1909.
    (Calendar No. 23,638.)
    Writ granted April 1, 1910.

      E. E. Hymers (George A. Safford, of counsel), for relator.

      H. E. Spalding, for respondent.
   Ostrander, J.

While 3 Comp. Laws, § 10355, provides for a bond to stay proceedings, in such sum as the circuit judge before whom the cause was tried shall designate, it also provides that the bond shall be conditioned to pay the judgment. Section 10358, 3 Comp. Laws, further provides that no other or further bond shall be required to stay and supersede execution upon any writ of error sued out in behalf of the party filing the bond. Comparing these provisions with 3 Comp. Laws, §§ 10485, 10486, it will be discovered that the bonds may perform the same office, are required to have the same conditions, and in both cases the sufficiency of the sureties “and the sum for which said bond shall be given” are to be determined by the circuit judge. But the purpose of the bond is to secure payment of the judgment. The penalty fixed in 3 Comp. Laws, § 10486, is “notless than double the amount of the judgment upon which the writ of error is brought.”

Reading these statutes together, it must be held that the penalty, in either case, may not be less than double the amount of the judgment, and that the circuit judge has no discretion to accept and approve a bond with a smaller penalty.

The writ is granted.

Hooker, Moore, McAlvay, and Stone, JJ., concurred with Ostrander, J.

Blair, J.

(dissenting). The relator recovered before the respondent a judgment for $1,206 damages and costs, afterwards taxed at $57.10. The suit was commenced by the relator by attachment of real estate, for the release of which a bond was given the sheriff in the sum of $1,200. There was also a garnishment discontinuance, which was effected by giving the statutory bond in the sum of $1,100 under section 10646, 3 Comp. Laws. Both of these bonds were conditioned for the payment of any judgment plaintiff might recover. After judgment, and before issue of the writ of error, the defendants applied for a stay of proceedings pending the settlement of the case made to review the judgment in the Supreme Court and the decision of the Supreme Court thereon, tendering a bond in the sum of $100, conditioned as required by section 10355 of the Compiled Laws. The respondent granted the stay of proceedings asked, but required that the bond should he in the sum of $500, instead of $100, and this condition Was complied with.

The sole question in the case is whether the circuit judge has, under section 10355, any discretion to accept a stay bond in less than double the amount of the judgment in a case where that judgment is already so secured that a smaller bond is ample to insure its payment. Section 10355 et seq., 3 Comp. Laws, was intended to invest the circuit judge with discretion as to the penalty of the bond. These sections were adopted at a later date than section 10484 et seq., relating to writs of error. The fact that the legislature did not insert the provision of section 10486 relative to the amount of the penalty of the bond, but did incorporate into section 10358 the provisions of section 10485 as to the amount of the penalty of the bond in proceedings under chapter 1&3, Rev. Stat. 1846, is significant of the legislative intent to leave the amount of the penalty of the bond in other cases to the discretion of the circuit judge.

The writ should be denied, with costs.

Brooke, J., concurred with Blair, J.


text:
    MERRILL v. TINKLER.
    1. Intoxicating Liquors — Civil-Damage Action — Habit of Intoxication — Evidence.
    Evidence concerning the details of occasions on which witnesses saw the plaintiff’s deceased husband intoxicated was competent in a civil-damage action for his death against a saloon keeper and surety, for the purpose of showing that the deceased was in the habit of becoming intoxicated.

      2. Evidence — Cross-Examination.
    Prejudicial error cannot be said to have been committed by the trial court in refusing to require a witness for plaintiff to answer the question whether a bill for separate maintenance had been prepared for plaintiff prior to her husband’s death, defendant omitting to lay a foundation as to the time when or person to whom the question referred.
    3. Same — Financial Condition.
    A question concerning incumbrances on the farm of deceased, which was answered in so far as it was material by other testimony of the witness, was not improperly excluded.
    4. Intoxicating Liquors — Trial—Presence of Minor Child.
    Bringing a minor child of plaintiff into the courtroom cannot be held to have prejudiced the defendant, where it was removed after objection made and the jury did not appear to have known that the child belonged to plaintiff.
    5. Same — Trial—Argument of Counsel.
    Argument of counsel which called attention to the fact that the defendant surety was organized with a capital of $500,000, and asked the jury to deal with plaintiff as they would like to have their wives and daughters dealt with, although improper, is held to have been corrected by the intervention of the court and the charge to the jury, which admonished them to leave such matters out of consideration.
    6. Same — Trial—Requests to Charge.
    A requested instruction to the jury that if deceased did not receive any intoxicating liquors from defendant after eleven or twelve o’clock on the day alleged, and did not become intoxicated until four o’clock in the afternoon, and then from liquor furnished by other persons, and if the intoxication of deceased was not contributed to by defendant, plaintiff could not recover, was sufficiently covered by the court in its charge which informed the jury that if the liquor sold by defendant did not contribute to his intoxication, the plaintiff could not recover.
    Error to Livingston; Miner, J.
    Submitted November 19, 1909.
    (Docket No. 61.)
    Decided April 1, 1910.
    Case by Anna Merrill against Martin Tinkler, principal, and the Michigan Bonding & Surety Company, surety, under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Eugene A. Stowe, A. F. Bunting, and Bowen, Douglas, Whiting & Eaman, for appellants.

      Louis E. Howlett and Edmund O. Shields, for appellee.
   Moore, J.

The plaintiff, widow of Philemon Merrill, deceased, obtained a verdict for $2,500 damages against defendants Martin Tinkler, a retail liquor dealer, and the Michigan Bonding & Surety Company, his bondsman, under section 5398, 2 Comp. Laws. Mr. Merrill, while intoxicated, was killed by a Pere Marquette train near the village of Howell on the evening of June 30, 1908. The case is brought here by writ of error.

The errors relied upon by defendants are grouped as follows (we quote from the brief):

“ (1) Errors in the admission or exclusion of testimony.
“ (2) Refusal of the court to exclude the minor child of the plaintiff from the courtroom, and the prejudicial error on the part of plaintiff in bringing the minor child into the courtroom and into the presence of and proximity to the jury.
“(3) Errors assigned in plaintiff s counsel’s arguments to the jury.
“ (4) Errors assigned upon refusal of the court to grant various of defendants’ requests to charge, and upon various portions of the judge’s charge, and the refusal of the court to grant a new trial upon the grounds raised.”

We will discuss these assignments in the order presented by counsel:

1. It is claimed the court erred in allowing witnesses to give details of the times when they saw deceased intoxicated. It was important to know whether Mr. Merrill was in the habit of getting intoxicated. The testimony all bore upon that proposition.

The defendants claim the court erred in his refusal to allow the witness Ella Hill, who was a daughter of the plaintiff by a former husband, to answer the following question on cross-examination:

“Q. Do you know, witness, whether a bill for separate maintenance was drawn for your mother prior to Mr. Merrill’s death ?”

If the testimony under any circumstances could be said to be competent, no proper foundation had been laid as to time when or the person to whom it is claimed reference was made in the question.

Defendants claim it was error for the court to refuse to allow Mrs. Merrill, the plaintiff, to answer the following question on cross-examination:

“Q. Was there at that time a mortgage on it (the farm) ' at the time you married him ?”

This question related to a time long prior to the death of Mr. Merrill. Mrs. Merrill testified, in part, as follows:

“ At the time of Mr. Merrill’s death his farm was worth about $3,500. There was a mortgage on it at the time of his death between $600 and $800. * * * He had no other income except that from the farm. The interest on this mortgage, or anything else, would have to be paid out of the income of the farm.”

This brought out all that was material as to the mortgage.

%. We again quote from brief of counsel:

“ Defendants contend that it was manifest error for the plaintiff to produce her minor child in the courtroom; for the child to sit by her side for some time in the presence of and in close proximity to the jurors, when that child had an independent right of action against the defendants.”

Counsel devote considerable space in their brief to this point, and make an argument which is quite remarkable, in view of what is shown by the record. Counsel for appellant stated to the court they desired to make a motion and asked that the jury be taken to the jury room. This was done. It was then stated to the court that a child sitting back in the room was the child of Mrs. Merrill and the deceased, and a motion was made that it be excluded from the courtroom. While Mr. Greene was arguing this motion, the following occurred:

“Mr. Howlett: I will say we don’t want to do anything that is improper or unfair. I understand some of the neighbors have been taking care of the child. If that can be managed, and if they will give Mrs. Merrill time— we don’t care to do anything that is improper, but, as I stated, some of the neighbors have been taking care of the child for her, and she brought the child with her this afternoon. If she can manage that—
“Mr. Maman: The child is sitting by the side of the mother, and the jury paying attention to it. It must influence the minds of the jury.
The Court: I will not make any order excluding the child. If the parties wish to exclude it— (Exception for defendants.)
Mr. Shields: If you can give us time enough—
The Court: If you have other witnesses—
Mr. Shields: We will call other witnesses while she is absent.
“Mr. Greene: Have the records show that the child is inside of the railing.
“Mr. Howlett: I object to that statement.
The Court: The record don’t show that.
“Mr. Shields (to witness): You may take the child home or somewhere and then come back as soon as you can. (Jury returned into court.)”

The child was taken from the courtroom before the jury came back. It does not appear that any juror knew the child belonged to the plaintiff, and no reference was made to the child in the presence of the jury.

3. Error is assigned to the argument of counsel:

“(a) The defendants contend that it was prejudicial and reversible error for Mr. Shields, who made the closing argument for the plaintiff, to appeal to the jury’s prejudice with this statement: ‘With a bond of a $500,000 corporation.’”

All the record shows as to this argument is what is quoted above. The context is not given. The bond was read into the record and showed the capitalization of the company to be $500,000. The court in his charge told the jury:

“Now, gentlemen, there has been something said here about a bond and the amount of the bond, or about the wealth of one of the defendants. You are not to consider that in the least. It makes no difference whether one of these persons is worth one.'cent or $50,000,000. In this court everybody stands on the same level, whether he is a poor man or whether he is a rich man.”

We again quote from the brief:

“(b) It was prejudicial argument, also, for plaintiff’s counsel, Mr. Howlett, to say to the jury: ‘ Deal with this widow as you would like to have your daughters or wives dealt with.’”

The court at once said to Mr. Howlett and to the jury, upon his making the above statement:

“The Court: Under the decision of our Supreme Court, at this time, I shall have to correct Mr. Howlett. In deciding this case you must not take into consideration your own family whatever; that must be entirely left out.”

We do not think what occurred as to this phase of the case constituted reversible error.

4. Did the court err in his failure to give requests and in his charge as given ? The defendants contend that the court should have given their sixth request to charge, which was as follows:

“ I further charge you that if you find from the evidence in.this case that Philemon Merrill did not receive any intoxicating liquors from the defendant Tinkler, or his agents or servants, after about the hour of 11 or 12 o’clock on the 80th day of June, 1908, and that Merrill did not become intoxicated on that day until after the hour of 4 o’clock in the afternoon, and then became intoxicated from the effects of liquor furnished to him by some other person other than defendant Tinkler, his agents or servants, and that drink that Tinkler sold him earlier in the day did not directly contribute to the intoxication of Merrill which occurred after about 4 o’clock on that day, then your verdict should be no cause of action.”

There was testimony that Mr. Tinkler sold liquor to the deceased in the afternoon as well as in the forenoon, though he claimed he made but one sale to him, and that in the forenoon. The court did not give the sixth request, but charged the jury upon that phase of the case:

“There has been something said in this case about the amount of liquor sold by the defendant. Now, the question is not so much' as to the amount, but Did what he did sell him contribute to the drunkenness of the deceased ? Or, in other words, Did the liquor which the defendant Tinkler sold him contribute to the intoxication of Mr. Merrill on the 30th of June ? If it did hot, if he sold him a drink in the forepart of the day, and that did not in any way contribute to the intoxication of Mr. Merrill, then, of course, the defendants would not be liable; but, if the liquor Mr. Tinkler sold him upon that day in any way contributed to the intoxication of Mr. Merrill, it makes no difference how many others sold.”

The same idea was stated in various forms, and, we think, was a correct statement of the law.

The other assignments of error have been examined, but do not call for discussion.

Judgment is affirmed.

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


text:
    NICHOL v. NEWMAN.
    1. Statutes — Validity —Constitutional Law —Jury Trial — Venue.
    2 Comp. Laws, § 7282, authorizing the receiver of an insolvent mutual insurance company to sue its members in the circuit court appointing him is valid and unobjectionable for depriving a defendant in a civil cause of jury trial in the county of his residence.
    2. Insurance — Mutual Companies — Liability op Members.
    A member of a mutual fire insurance company is liable to the receiver after its insolvency for an assessment of his proportion of the losses and expenses sustained by the company up to the time that he terminated his relation with it, and is not relieved by having paid the amount claimed by the company to be due from him at the cancellation of the policy.
    3. Same — Statute op Limitations — Receivers.
    The statute of limitations begins to run in such case froni the date of assessment by the receiver, not from the date of the receiver’s appointment.
    Case made from Ionia; Davis, J.
    Submitted November 18, 1909.
    (Docket No. 94.)
    Decided April 1, 1910.
    Assumpsit by John Nichol, receiver of the Citizens’ Mutual Fire Insurance Company of Jackson, against William G. Newman for the amount of an assessment. A judgment for plaintiff is reviewed by defendant on a case made.
    Affirmed.

      Merton Fitzpatrick (Wilbur D. Grommon, of counsel), for appellant.

      George E. Nichols (John Nichol, of counsel), for appellee.
   Moore, J.

This is another phase of the litigation which was before us in Nichol v. Murphy, 145 Mich. 424 (108 N. W. 704); Daniel v. Insurance Co., 149 Mich. 626 (113 N. W. 17); Nichol v. Ward, 156 Mich. 136 (120 N. W. 569). A reading of the opinions in those cases will aid in understanding the questions presented here. After the opinion was handed down in Nichol v. Murphy, supra, all the members liable under the assessment mentioned in the opinion in that case were notified, and payment was requested. This notice was received by defendant. After the company was notified to discontinue business, its board of directors passed a resolution ordering an assessment. Later it rescinded this action, and it does not appear that the directors ever levied the assessment in fact. On the 11th of December, 1899, following the action before mentioned, the company sent out to the defendant a notice that the assessment due upon policy 6271 amounted to #6.19, and between that time and the 27th of December, 1899, defendant returned his policy for cancellation. The company thereupon wrote defendant they could not cancel the policy until he had complied with the by-laws, and that there was due from him $3.09, which defendant sent to the company, together with his policy, and obtained a receipt therefor. Later this suit was brought and heard before the circuit judge, who made a very elaborate finding of facts. Among other things, he found that the defendant had not been a member of the company since the cancellation of his policy January 10, 1900, and therefore was not a member when the receiver was appointed; that he had paid all demanded of him at the time of the cancellation of his policy; that there never was sufficient assessed to pay the losses and expenses of the company while the defendant was a member; that the sum paid by him at the time of the cancellation of his policy was not sufficient to pay his share of the losses and expenses during the life of his policies; and that there was due the receiver the sum of $29.68, and judgment was rendered for that amount. From this judgment the defendant appeals.

The defendant claims (we quote from the brief):

“(1) That that part of Act No. 82, Laws 1873, as amended [see 2 Comp. Laws, § 7282], which authorizes a receiver to sue members of such company in the circuit court where he was appointed, and authorizing the service of process in that and any other county of the State, is oppressive, unwarranted, and utterly void.
“(2) That at the time this action was commenced there were no valid claims against such insurance company; the statute of limitations having long since run against same.
“(3) That the defendant was deprived of a trial by jury in Hillsdale county, his home.
“(4) That defendant paid his assessments and other charges in full, and was discharged and relieved of all claims of any kind to said company or its receiver.
“(5) That the letter of December 11, 1899, was a valid call upon defendant for any and all amounts due or to become due from him to said company.
“(6) That the notification of Receiver Badgley of May 4, 1901, was a valid call in full for any and all amounts due or to become due to the receiver or receivers of said company, and in full for all liability of said defendant as a member of said company.
“ (7) That the statute of limitations is an absolute bar to the collection of this assessment.”

Groups 1 and 3 may be considered together. The defendant made no request for a jury trial. See In re Cox, 129 Mich. 635 (89 N. W. 440). The provisions of the statute thus attacked have been in force since 1873, and, so far as we know, no doubt has been cast upon the right of the legislature to enact such provisions in civil cases. If counsel so diligent as the one presenting these objections is unable to find an authority in point in a civil case, it is fair to assume no such authority exists. The cases to which he calls attention are all criminal cases.

Groups 2, 4, 5, and 6 are decided against the contention of appellant in the cases cited early in this opinion in which the receiver in this case was a party.

Is the claim that the statute of limitations is an absolute bar to the collection of this assessment well taken ? It- is the claim of counsel that the statute of limitations runs from the date of the appointment of the receiver. Counsel cite, in support of this contention, Webber v. Hovey, 108 Mich. 49 (65 N. W. 619). A reference to the case will show that so far as it is applicable it is against the contention of appellant, as will appear by the reference to, and the quotation from, Scovill v. Thayer, 105 U. S. 155. A case directly in point is the case of Wardle v. Hudson, 96 Mich. 482 (55 N. W. 992), where it is held the statute of limitations does not commence to run until the date of the assessment.

Judgment is affirmed.

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