text:
    ST. MARY’S POWER CO. v. CHANDLER-DUNBAR WATERPOWER CO.
    1. Tax Titles — Adverse Possession — Statute of Limitations— Due Process op Law.
    Section 115 of the tax law of 1885 (Act No. 158, Pub. Acts 1885) provides that, after a claimant under a tax deed issued by virtue of said act shall have been in actual possession of the premises for five years, he shall be conclusively deemed the owner in fee. Section 116 jjrovides that no action shall be brought against one claiming under a deed so issued after the expiration of five years from the time when the right of action accrued. Held, to constitute a statute of limitation, and hence not open to the objection of taking property without due process of law.
    2. Same — Title to Act — Sufficiency.
    The provisions of the tdx law of 1885 (sections 115, 116), fixing a five-year limitation on actions to recover land from claimants under tax deeds, were fairly within the object expressed in its title, viz., “An act to provide for the assessment of prop erty, and the levy and collection of taxes thereon.”
    3. Same — Repeal oe Statute.
    The provisions in question were not repealed by the amendment of 1889 (Act No. 8, Pub. Acts 1889) to the general statute of limitations (3 How. Stat. § 8698), the same having made no change in the subdivision relating to actions against claimants under tax deeds.

      i. Same.
    Nor were such provisions repealed by the tax law of 1889 (Act No. 195, Pub. Acts 1889), which, while in the nature of a general revision, and not expressly re-enacting such provisions, by its terms repealed only such acts and parts of acts as were inconsistent therewith.
    5; Same.
    Subsequent legislation examined, and found to contain nothing inconsistent with the provisions in question.
    6. Same — Construction oe Statute.
    The provision of section 66 of the tax law of 1889, that no sale should be set aside after the purchaser had been in actual possession for five years, did not operate as a limitation on rights of action.

      1. Same.
    The similar provision of section 73 of the tax law of 1893 (Act No. 206, Pub. Acts 1893) is in terms limited to sales under that act;
    8. Same — Tenancy in Common — Presumptions.
    There is no presumption that a purchase at a tax sale by a tenant in common was made for the benefit of his co-tenant, where their interests were acquired at different times, and the taxes were a lien on the lands when the purchasing tenant obtained his original title.
    9. Trial — Directing Verdict — Questions eor Jury — Waiver.
    Where, at the close of the testimony in a case, each party claimed that a verdict should be directed in his favor, and the coui't said to the jury that it seemed to be agreed that it was the court’s duty to direct a verdict one way or the other, to which statement no exception was taken, the defeated party could not urge on appeal that there were questions of fact on which he was entitled to go to the jury.

      Error to Marquette; Stone, J.
    Submitted February-18, 1903.
    (Docket No. 86.)
    Decided June 23, 1903.
    Ejectment by the St. Mary’s Power Company against the Chandler-D unbar Water-Power Company and the Edison-Sault Electric Company. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Shaw, Warren, Cady & Oakes (Dan H. Ball and E. S, B. Sutton, of counsel), fór appellant.

      Moore & Goff (A. B. Eldredge and Sharpe & Handy, of counsel), for appellees.
   Hooker, C. J.

In an action of ejectment, a verdict was directed in favor of the defendants. Judgment followed, and the plaintiff took a writ of error.

The premises consist of the undivided half of a small parcel of land bordering upon 'the shore of the St. Mary’s river, called “Private Land Claim No. 95,” at Sault Ste. Marie, Michigan. It adjoins private claim No. 96, which also borders upon the river. This parcel was patented by the federal government to Sheldon McKnight in 1874. Sheldon McKnight died prior to 1880, leaving two sons, who were his only heirs, named, respectively, Charles A. and Lucius L. McKnight.

Defendant’s Paper Title: Lucius L. conveyed by quitclaim deed all of claim 95 to Scranton on May 4, 1887. There is no proof as to the date of the delivery of this deed, but it was acknowledged January 22, 1889. On December 23, 1889, a tax deed was executed by the auditor general to Scranton for claim 95, for delinquent taxes, upon a sale held October 2, 1888. On March 23, 1893, Scranton gave a warranty deed of the premises to the' defendant the Chandler-Dunbar Water-Power Company. It is admitted that the tax deed was invalid.

Plaintiff’s Title: On June 11, 1900, Charles A. McKnight made a deed whereby he conveyed and quitclaimed .all his interest as heir at law of Sheldon McKnight in the premises to Cady. Cady conveyed the same to the plaintiff by deed dated August 19, 1901.

It thus appears that Cady and defendant held the original title in common, — each a moiety.

Adverse Possession: The defendant claims title to the entire premises, one-half by virtue of the deed from Lucius, and the other by virtue of alleged possession for the statutory period under the tax deed.

The two important questions in the case are: (1) Is there a valid five-year statute of limitations applicable to this case ? (2) Does the testimony upon the subject of possession raise an issue of fact that should have been submitted to the jury? Incidental to these questions is a third, viz.: Were the parties tenants in common, and, if so, does that fact affect defendant’s rights under the statute ?

It is essential to the affirmance of the judgment that we be able to sustain the defendant’s claim that there is a valid five-year limitation of action against one occupying under a tax deed. It is clear that defendant entered under the tax deed, as to the undivided half of the premises. This deed was issued under the law of 1885. At the time this act was passed, the general statute of limitations (2 How. Stat. § 8698) prescribed a period of ten years within which actions for the recovery of the possession of land should be brought against defendants claiming title under tax deeds. Section 115 of the tax law of 1885 (Act No. 153, Pub. Acts 1885) is as follows:

“ Sec. 115. The right to recover possession of any land by any person claiming through or under any deed executed by the auditor general by virtue of the provisions of this act shall be forever barred by the actual, open, and continuous possession of any person claiming such land adversely to such tax deed for the period of five years after the execution of such tax deed: Provided, that if the person claiming through or under such tax deed shall have once taken actual and peaceable possession of such land by virtue of his deed, and shall have continued in such actual possession for five years next thereafter, then the provisions of this section shall not apply, but in such case he shall be conclusively deemed the owner in fee simple of such land.”

Counsel contend that this provision is not a statute of limitation, but was an attempt to make the deed conclusive evidence of title, and that it is invalid under the decision in the case of Groesbeck v. Seeley, 13 Mich. 329. This statute differs from the one involved in that case, in the particular of possession. See Act No. 32, Laws 1858. It attempted to make the bid to the State effective to devest a title, while in the statute under discussion the title was made to depend upon the possession taken and held for the statutory period. In the former case the court said that the statute was not a statute of limitations. We have no hesitancy in saying that the later statute is a statute of limitations. The provision that, in case actual and continuous possession shall be taken and maintained for five years under such a deed, the person so occupying “shall be conclusively deemed the owner in fee simple of said land,” is equivalent to fixing a period at the expiration of which title should vest by adverse possession; and such statutes are treated as statutes of limitation, which they are in fact. Sparrow v. Hovey, 44 Mich. 63 (6 N. W. 93); McKenzie v. A. P. Cook Co., 113 Mich. 452 (71 N. W. 868); Spaulding v. O’Connor, 119 Mich. 45 (77 N. W. 323); Boynton v. Veldman, 131 Mich. 555 (91 N. W. 1022); Commissioner of State Land Office v. Auditor General, 131 Mich. 147 (91 N. W. 153).

But this is expressly made a statute of limitations by section 116.

‘ ‘ Sec. 116. No person shall bring or maintain any action for the recovery of any land or the possession thereof, or make any entry thereupon, unless such action is commenced or entry made within five years after the right to make such entry or to bring such action shall have first accrued to the plaintiff, or to some person through whom he claims, when the defendant claims title under a deed made by the auditor general in pursuance of the provisions, of this^act.” Act No. 153, Pub. Acts 1885.

It is also urged that the provision is void for the reason that it is not germane to the title. In our opinion, this provision is an assurance well calculated to induce confidence in tax sales, and therefore within the rule.

Counsel contend further that sections 115 and 116 of the law of 1885 have been repealed (l) by amendment of section 8698, 2 How. Stat., being 3 Comp. Laws, § 9714; (2) by revision of the tax law.

At the session of 1889, Act No. 8 was passed, and approved February 25th. It amended 2 How. Stat. § 8698, by adding a few words relating to sales on foreclosure to subdivision 1 of the section, but making no change in subdivision 2, which alone is applicable to this case. We think that it was not designed to repeal sections 115 and 116, and should not be given such effect.

An act approved June 27th, which was given immediate effect (being Act No. 195, Pub. Acts 1889), was entitled “An act to provide for the assessment of property and the levy of taxes thereon, and for the collection of taxes heretofore or hereafter levied.” This statute provided a new and different method for foreclosing the tax liens of the State than any theretofore in vogue. A judicial decree was provided for before sale. Sections 115 and 116 of the law of 1885 were not re-enacted, but section 66 contains the following provision:

“All sales shall stand confirmed, subject to the right of redemption provided for in section sixty-four, unless objections thereto are filed within eight days after the time limited for filing such report, without the entry of any order or further notice. The practice with reference to setting aside such sale shall be the same, so far as applicable, as in a sale in equity on the foreclosure of mortgages: Provided, no sale shall be set aside for inadequacy of price, except upon payment of amount bid upon such sale, with interest and costs: And provided further, that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation. In such eases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same aside, and the court may so order upon such terms as may be just: Provided, also, that no sale shall be set aside after the purchaser, his heirs or assigns, has been in actual possession of the lands for five years. If a sale is set aside, the county treasurer shall refund to the purchaser the amount of his bid, with interest at seven per cent., together with the taxes which have been paid by him. since said sale, and interest thereon at seven per cent, from date of payment.”

It did not in terms repeal the old law, but repealed all acts and parts of acts in any way contravening its provisions.

The law of 1889 was repealed in 1891, but section 66 of the law of 1889 was re-enacted without substantial change. See Act No. 200, Pub. Acts 1891, § 67.

The law of 1891 was repealed in 1893 by Act No. 206. Section 70 provides:-

“All sales shall stand confirmed, subject to the right of redemption provided for in section seventy-four, unless objections thereto are filed within eight days after the time limited for filing such report, without the entry of an order or further notice. The practice with reference to setting aside such sale shall be the same, so far as applicable, as in a sale in equity on the foreclosure of mortgages: Provided, no sale shall be set aside for inadequacy of price, except upon payment of amount bid upon such sale, with interest and costs: And provided further, that no sale shall be set'aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation. In such cases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same aside, and the court may so order upon such terms as may be just.”

Section 73 provides:

“No sale of any lands or deed made by the auditor general under the provisions of this act shall be set aside or annulled by any court of this State after the purchaser, his heirs or assigns, have been in actual and undisputed possession of such lands so sold or conveyed for a period of five years from the date of such purchase or deed.”

It will be noticed that an important proviso of section ■66 was omitted in this act.

We had occasion to review these two sections (70 and 73) of the law of 1893 in the case of Spaulding v. O’Connor, 119 Mich. 48 (77 N. W. 323). That case arose upon a petition to review tax foreclosure proceedings, and to set aside the sale, under section 70. . The circuit court set aside the sale and deed. This court reversed the decree, and held that the petition was not seasonably filed under the statute (section 70). It was said that this section was designed to limit the power inherent in a court of chancery to set aside its sales when application is made in the same proceeding. That this section should be limited to such object, and not be given the effect of a statute of limitation generally, is manifest, especially in view of the fact that the legislature omitted from the section the following words of the corresponding section of the old law, viz.:

“Provided, also, that no sale shall be set aside after the purchaser, his heirs or assigns, has been in actual possession of the lands for five years.”

In the same connection, we may mention section 73,' which contains a clear limitation, as is said in Spaulding v. O’Connor.

If, as contended by counsel for the defendant, sections 115 and 116 of the law of 1885 were substantially re-enacted in section 66 of the law of 1889 and section 67 of the law of 1891, they fell with the rest of those acts by the explicit repeal in 1893. We are not cited to any case in which it has been intimated that section 66 was intended as a statute of limitation, except as to proceedings in the foreclosure case, and therefore, unless it can be said that sections 115 and 116 of the law of 1885 are still in force, or the case is within section 73 of the law of 1893, the defendant's claim that five years’ possession bars recovery in this case cannot prevail. Section 73 applies only to sales under the act of 1893. It is probably true that we might hold that such portions of the law of 1885 as had been re-enacted in 1889 were not repealed, where necessary to make the latter act effective, under the cases of Davenport v. Auditor General, 70 Mich. 192 (38 N. W. 211), and Humphrey v. Auditor General, 70 Mich. 292 (38 N. W. 214). That, however, is a radically different proposition from that of saying that there is still vitality in certain sections of that act for. the reason that they are not inconsistent with acts subsequently passed, although not reenacted. These various acts were evidently intended as revisions of the tax laws, and, under a well-known rule, such acts are usually held to supersede previously existing laws. Suth. Stat. Const. §§ 154-156; Bartlet v. King, 12 Mass. 545 (7 Am. Dec. 99). This cannot be said, however, if a contrary legislative intent is deducible; and this is deducible where, instead of repealing an act, the repeal is only of such acts and parts of acts as are inconsistent with the new legislation. See Endl. Interp. Stat. §.203, and notes; Suth. Stat. Const. § 155, and cases cited. See, also, Campau v. City of Detroit, 14 Mich. 276. We conclude, therefore, that, the law of 1889 not having repealed the provisions of sections 115 and 116, and none of the subsequent acts being inconsistent with them, they are applicable in this case.

The circumstances shown by the testimony are sufficient to establish a prima facie case of adverse possession, and we think defendant’s relations with the owner of the other moiety were not such as to impose a duty to pay taxes for his benefit, or to create the presumption that the purchase was upon his behalf or for his benefit. The question of possession was one which the plaintiff was entitled to go to the jury upon. Each party claimed that a verdict should be directed in its favor. The plaintiff requested the court to charge that, “as the defendant was a tenant in common with the pliantiff and its grantor during the time defendant claims to have had possession of the property, there was no evidence that the defendant held adversely to the plaintiff and its grantor, or, at least, no evidence that the plaintiff or its grantor had ever been notified that said defendant claimed to hold adversely.” Thereupon the court instructed the jury as follows:

“We have listened to a pretty lengthy argument in this tcase, upon the law, of both parties, and both parties seem to agree that it is the duty of the court to direct a verdict in this case; the plaintiff insisting that it is the duty of the court to direct a verdict in its favor, and the defendants claim that it is the duty of the court to direct a verdict in their favor. They do not agree, of course, upon the propositions of law at all.”

It does not appear that an exception was taken at the time, or that the court was informed that he was in error in understanding that plaintiff did not claim the right to go to the jury on the question of fact. The plaintiff owed it to the judge to set him right about this, if he was wrong, and, not having done so, cannot now ask a reversal upon that ground. Wolf v. Holton, 110 Mich. 168 (67 N. W. 1082); Ranson v. Weston, 110 Mich. 243 (68 N. W. 152); Farmers’ Mut. Fire-Ins. Co. v. Gargett, 42 Mich. 295 (3 N. W. 954).

Several other questions were raised in relation to the admission of testimony, but we find no error in them.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FURBUSH v. MARYLAND CASUALTY CO.
    1. Appeal — Remarks of Court — Exceptions.
    A party who took no exception to a remark made by the trial court on overruling an objection to testimony interposed by the opposite party could not complain of the remark on appeal.
    2. Accident Insurance — Suicide—Question for Jury.
    Evidence in an action on an accident policy examined, and held to raise a question for the jury as to whether insured came to his death through homicide or suicide.

      3. Same — Presumptions—Instructions,
    In an action on an accident policy, in which it was apparent that insured either committed suicide or was murdered,” defendant could not complain of an instruction that the presumption of the law was against suicide, where its own requests to charge were based upon that theory.
    Error to Alpena; Emerick, J.
    Submitted February 24, 1903.
    (Docket No. 152.)
    Decided June 23, 1903.

      Assumpsit by Louesa C. Furbush against the Maryland Casualty Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles R. Henry, for appellant.

      R. J. Kelley, for appellee.
   Moore, J.

February 3, 1900, George M. Furbush obtained from the defendant company an accident insurance policy, running for one year, for the sum of $5,000, in favor of his wife, the plaintiff. In the forenoon of the 1st of December following, Mr. Furbush was found by the side of the public highway, lying upon his back, dead. The defendant declined to pay the amount of the insurance, claiming Mr. Furbush had committed suicide. The case was tried before a jury, who returned a verdict for the full amount of the insurance. The case is brought here by writ of error.

This is the second time the case has been in this court. It is reported in 131 Mich. 234 (91 N. W. 135). A reference to the opinion in that case will aid in understanding the questions presented here. Upon the first trial the circuit judge allowed witnesses, sworn on the part of the plaintiff, to express opinions in relation to certain phases of the testimony. We thought the witnesses should state facts instead of conclusions, leaving to the jury the duty of drawing the conclusions from the facts. Upon the first trial the defendant sought to show the insured was in straitened pecuniary circumstances, and was of intemperate habits. This testimony was, we thought, improperly excluded, and for these reasons the judgment was set aside and a new trial ordered. Upon the second trial the objectionable testimony offered by the plaintiff on the first trial was not received, and the defendant was allowed to put in such proof as it offered bearing upon the habits and financial condition of Mr. Furbush.

The first question calling for discussion is, Did the trial judge err in some comments he made in passing upon an objection made by the attorney for the plaintiff to a question put to a witness by the attorney for the defendant ? The record shows the court overruled the objection, and the witness answered the question. The attorney for the plaintiff excepted to the ruling. The attorney for the defendant made no suggestion to the judge that he was dissatisfied with the ruling or the remarks of the judge, and took no exceptions to what he said. Under these circumstances, the question is not open for review in this court.

Error is assigned to the closing argument made by the attorney for the plaintiff. It would not be profitable to set out this argument here. We have examined it with care, in connection with the defense which was interposed and the testimony offered to support the defense. We are all agreed we are not able to say the argument, if objectionable, was sufficiently so to justify us in reversing the case for that reason.

It is insisted upon the part of the defendant a verdict should have been directed in its favor. It is claimed the insured was a hard drinker, that he was financially embarrassed, that he was despondent, and that all the evidence pointed to suicide as the only explanation of his death. •

On the part of the plaintiff it is claimed the evidence shows the following. We quote from the brief of counsel:

“The plaintiff had shown that the insured, her husband, was in the prime of life, 40 years of age, in good health, and always had been; that he was active, energetic, and attentive to his business; that at no time prior to his death had he manifested by act or word any unusual condition of mind or body; that, on the day prior to his death, he was engaged in his usual business, dictating and writing many letters to his customers; that he informed his brother-in-law, on the evening before his death, of his intended trip to Washburn for the purpose of transacting business with the Bigelow Lumber Company; that ¡he returned home that evening about 7 o’clock, told his wife of his intended trip the next morning, and that he would return before noon; that he partook of an early breakfast and left his home on the morning of his death, bidding his wife good-by in his usual and accustomed manner; that he went to a livery stable, secured a horse and cutter, and started for Washburn between 6 and 7 o’clock; that on his way out of the city of Ashland he met a friend, and invited him to take a ride with him to Wash-burn, saying that he would return before noon. He is next found at Washburn, some 12 or 14 miles from Ash-land, transacting business with the Bigelow Lumber Company, and, as testified by Mr. Hartshorn, he was in his usual good spirits, and nothing unusual was observed in his actions or conversation. After concluding his business with the Bigelow Lumber Company, he leaves their office between 9 and 10 o’clock in the morning on his return, and a few hours later his body is found about six miles from Washburn, at the roadside, on a bridge over a depression or gully, with a gunshot wound in his head which caused his death. The bullet entered above and behind the right ear;, the body lay flat on its back, with his buffalo overcoat, coat, vest, shirts, and underclothes all unbuttoned and thrown open; his right hand was stretched out on the snow; several witnesses who first saw the body did not discover any revolver, but subsequently a revolver was found in the snow near his left elbow; there had been one shot fired out of it; there were two footprints near the head, and no other tracks or impressions in the snow about the body; the body lay straight out, and the coats were drawn down smoothly under-it; there was a glove on the right hand, and the one on the left hand partly pulled off; a watch, a five-dollar bill, and some change was found on the body. The horse and cutter which deceased had been driving was caught at Nash, about two miles fi’om where the body was found; a large pocketbook which deceased usually carried in his inside breast pocket, and used for bills and money when he had a considerable amount, was found in the cutter, between the dash-board and foot-rest, open, and contents gone. There were no indications in the snow where the body lay of any struggle, as it had hardly made an impression, although the snow was quite soft; the revolver found near the body had never been seen in the possession of the deceased; the place where the body was found was several miles from any habitation; there was no eyewitness or direct evidence as to how the fatal shot was fired.”

And counsel claims the death is not accounted for upon the theory of suicide.

The same question was presented to us by the former record. See 131 Mich. 234 (91 N. W. 135). We were of the opinion then, and are now, that the case was one for the jury.

The remaining question calling for discussion relates to the charge of the court. We quote enough from it to present the question:

“The plaintiff has the burden of proving, in order to entitle her to a verdict at your hands, that this death was occasioned through injuries which were external, violent, and from accidental means. And when I say that the plaintiff has the burden of proving that fact, she has that burden under the rule established in all civil actions, which is simply that she maintain that issue by a fair preponderance or weight of the evidence. In a civil case —and this is a civil case — the plaintiff is obliged to sustain the contention upon her part, and the issues upon the facts which she is required to prove, hy the fair weight or preponderance of the evidence, which means such weight of the proof as overbalances and prevails against everything that is brought against it; such a fair weight and preponderance of the evidence as overbears everything that may be opposed to it, and which satisfies your minds fairly of the truth of the proposed issue.”
“ I charge you that if the death of George M. Furbush upon the 1st day of December, 1900, was caused by a bullet fired from a revolver in the hands of a third person, and fired intentionally by that third person, and that this shooting was not brought about by any act or doing of the deceased, and for which he was in no way responsible, it would be caused by means which are violent, external, and accidental, and within the meaning of this policy, and, I will add, within the meaning of this question No. 1.”
“Now, I stated a few moments ago that the plaintiff had the burden of proving before you that this was an accidental death within the meaning of this policy, and I say here to you that she still has the burden under this, policy of proving that this was not a suicide; but I charge-you, gentlemen of the jury, in that connection, that the law presumes that this was not suicide, from the mere fact alone of the death or finding of this body in the road. From that fact alone, with the bullet wound in the head, the law presumes that it was not a case of suicide. That presumption supplies the burden of proof which the plaintiff is -required to make upon that point; and if that is all there was of the case — if that is all there was of the case, the mere fact of the dead body and the bullet wound and death — the presumption of law would be that it was something else than suicide.
“Now, this is a presumption, however, that may be overcome by evidence; it may be rebutted. It stands as a controlling factor of the case upon that point, however, until it is overcome. But if you should believe from the evidence in the case that Mr. Furbush came, to his death by his own hand, — if you should be satisfied, by the fair weight and preponderance of the evidence in this case, that George M. Furbush took his own life, — then this presumption which the law makes against suicide would be overcome, and the plaintiff would not be entitled to recover.”
“Now, gentlemen, in considering the issue upon that point, you have recourse, and you are remitted to, and you are to consider, all the evidence in the case, and such circumstances as counsel upon each side have been able to present to you, and which have been put here in evidence. Consider the position of the body and the clothing, and the condition of the body and the clothing, and the wound itelf, and all the facts and circumstances which are known and which have been proven here, and the surroundings; his mission and business upon the day in question; his business affairs; his social and domestic affairs, and his habits, and health or want of health; everything which has been allowed in the evidence here in this case you are to consider as bearing upon that issue, — that is to say, upon the issue as to whether he killed himself; and the presumption of law is that it was not a case of suicide,— that he died from some other reason; and, unless you are •able to say that, from the fair weight and preponderance ■of the evidence in the case, you believe he took his own life, then the plaintiff would be entitled to recover.”

Counsel says that:

‘ ‘ The only reason why the courts have said that, if a man is found dead, the presumption is that he did not kill himself, is because ordinarily men do not kill themselves. The same law that created the presumption against suicide for the very same reason makes the presumption to exist .against homicide, and very rightfully, too. It is no more contrary to the laws of humanity and of the common experience of men for one to kill himself, than it is for ■another to take his life. Suicide is quite as common as murder. At least, suicide is not presumed for the very same reason that murder is not presumed.”

It is argued that as the defendant claims it is a case of suicide, while plaintiff claims it is a case of murder, it cannot be said the presumption of murder arises in this case from the fact that Mr. Furbush was found dead from •a bullet wound. This is a view of the law not presented in the court below. The defendant preferred the following requests:

“ In this case the burden is on the plaintiff, Louesa C. Furbush, of proving that George M. Furbush came to his death by reason of external, violent, and accidental means, and ’ this must be established, to entitle the plaintiff to recover, by a fair preponderance of all of the evidence.”
“That, while the presumption is that the deceased did not commit suicide, yet this is a presumption only, which can be overcome by evidence.”
“If you find that the preponderance of evidence is that the deceased, George M. Furbush, came to his death by his own act, then you must find in favor of the defendant.”

We have already quoted sufficiently from the charge of the court to show that the substance of each of these requests was given. It was the claim of plaintiff that the death of Mr. Furbush was accidental, within the meaning of the terms of the policy. It was claimed by way of defense that Mr. Furbush committed suicide. The trial court gave the substance of the requests of the defendant as to the burden of proof, which presented its theory of that branch of the case. The defendant has no occasion to complain of that portion of the charge. See Travelers’’ Ins. Co. v. Nicklas, 88 Md. 470 (41 Atl. 906), and the cases therein cited; Burnham v. Casualty Co., 117 Mich. 142 (75 N. W. 445).

The other assignments of error have been examined.. We do not deem it necessary to discuss them. The case was tried with care, and we do not discover in it any reversible error.

Judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    BOUTELL v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Accident at Crossing — Contributory Negligence.
    One who was struck by the engine of a passenger train as lie-stepped upon the track at a crossing was guilty of contributory negligence, precluding a recovery for the injury, where, though the gates were not lowered nor the engine bell rung,, he knew that the train had stopped at the depot near by, and was likely to start at any moment, and in fact heard the noise of the engine, but, supposing it to come from another engine some distance away, hurried on to meet a friend, without looking to see whether the train was approaching.
    Error to Wáshtenaw; Kinne, J.
    Submitted April 9,. 1903.
    (Docket No. 26.)
    Decided June 23, 1903.
    Case by Hiram Boutell against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      In the city of Ypsilanti, River street runs north and south, and Cross street east and west, the two intersecting where the tracks of the defendant cross them. Its roadbed runs northwesterly and southeasterly. The passenger depot is located westerly of Cross street, but at what distance does not appear. A power house is located on the south side of Cross street and east of River street. On the west side of River street and north of Cross street was located the gatekeeper’s house. Defendant had three gates, one on Cross street west of its tracks, and two on River street, located respectively north and south of its tracks. At the place where plaintiff was injured, there were four tracks, — two main tracks and two side tracks. The situation can be better understood from the accompanying diagram, prepared by counsel for defendant as a part of their argument. While plaintiff’s counsel insists that it is not strictly accurate, it is sufficiently so for the purpose intended.
    Plaintiff was employed as fireman at the power house, coming off duty about 6 o’clock in the evening. He was required to lock the door of the powerhouse when leaving, walk to the gatekeeper’s house, and hang the key up inside. He did this on the occasion in question. One of defendant’s heavy and regular fast passenger trains had come in from the west, on the south main track, and stopped with its engine standing west of and near to Cross street. The engine was a very large, 10-wheel engine, and the engineer could not see a man upon the track unless he was 100 feet ahead of the engine, and he did not see the plaintiff, who was evidently within less than 100 feet when the train started. The train was moving on an up grade of about 25 feet to the mile, and the fireman was engaged in shoveling coal into the firebox. The train stopped just long enough to permit passengers to get off and on, and to take off and put on baggage. It was the duty of the gatekeeper to lower these gates in time to warn travelers upon the highway of the approach of this train.
    On leaving his work on the 1st day of March, 1901,

      plaintiff locked the door of the power house, carrying two bundles, walked out onto Cross street, and diagonally across River street to the gatekeeper’s house, which was located about 15 feet from the sidewalk, hung the key up inside, and started for home. The night was cold. He turned up his overcoat collar, pulled his cap over his ears, and started down and diagonally across the intersection of River and Cross streets to River street, his home being in that direction. He desired to reách the east side of River street. When at about the center of River street, he stepped over the north rail of the south track, was struck by the cowcatcher of the engine of the approaching passenger train, and was injured. The negligence charged is failure to ring the bell and lower the gates. Plaintiff recovered verdict and judgment.
    The two defenses insisted upon by the defendant are that the gatekeeper was a fellow-servant with the plaintiff, and that the plaintiff was guilty of contributory negligence.
    Plaintiff, on direct examination, testified as follows:
    ' “I live on the south side of the railroad track. I had to cross the railroad track to go home from where I had been employed all day. This gate is on the north side of the track, and I started across the track, the gate being back from River street about 15 feet. I struck a little crosswise course across the street. I calculated to take the east side of River street down to the foundry. There is a little alley there, which I generally cut through, to get home quicker. It cuts off a little. This train was No. 10, going east. It usually stops about five minutes. It pulled in just as I was going across the street to leave the key, and as I went right on, minding my own business, going a little diagonally across the track there, about the center of River street, as near as I can remember, the cowcatcher struck me on the ankles and threw me up.”
    His testimony as to the gates was as follows:

      “ Q. At the time you were struck with the cars, state where the gates were.
    “A. They were— I think they were up. They were up, I know, because, when I came across from the electric-light house, if the gate had been down, I would have to go around or crawl under it, and I did not do either.

      “ Q. When you came back from the gatehouse, going towards River street, crossing the railroad, where were the gates then ?

      “A. They were up then.
    “ Q. So, when the train struck you, the gates were where ?

      “A. They were up.”
    On cross-examination he testified:
    “ Q. At the time you left the power house, you saw the train there ?

      “A. Yes, sir.
    “ Q. The locomotive of the train?

      “A. Yes, sir. * * *
    “ Q. Would there have been any difficulty in your seeing this engine where you were ?

      “A. I don’t think there would.
    “ Q. What was it ? One of the big engines ?

      “A. I think it was.
    “ Q. What did you have on that day, — a cap or a hat?
    “ A. I had a cap.
    “ Q. Did you have it pulled down over your ears ?

      “A. Yes, sir.

      “ Q. Do you think that interfered with your sense of hearing any ?

      “A. It might, a little.

      “ Q. Was it storming, or what was the weather ?

      “A. No; it was not storming.

      “ Q. It was simply cold ?

      “A. It was not so very cold; but I had been working inside long enough so I felt the changes of the weather when I went out.
    “ Q. Are you a little hard of hearing ?

      “A. I didn’t know that I was.
    “ Q. There was a sidewalk, was there, on the south side of the railroad tracks, that you could have taken to go-home ?
    “ A. Yes, sir.
    “ Q. Why did you take the railroad track?

      “A. I am telling you that I had to cross the railroad track to get on my side to get home, and I was crossing the track. Just down by Ferrier’s foundry there is an alley. I used to go in across there to save a few rods.
    “ Q. Is it a shorter distance?

      “A. Yes; a shorter distance.

      “Q. Instead of going on the sidewalk, you went this way to shorten the distance ?

      “A. Yes; to shorten the distance. * * *
    ‘ ‘ Q. During this time, did you turn around any to see if the engine was coming ?
    “A. I remember, when I started across, seeing a friend of mine standing in front of the cigar store, and I started to walk fast, and I don’t think I turned around after that.
    “ Q. Then you did not look around ?

      “ A. I don’t think I did. * * *

      “ Q. If you had turned around at any time you were walking down this track, you could have stepped one side and got out of the way ?

      “A. Yes, sir. * * *

      “ Q. Did you hear any exhaust of steam when the locomotive started ?

      “A. There was a freight engine up in the yard that was making a terrible racket, and I did not pay— I supposed it was the freight that I heard, if I remember right. No, sir; I did not hear it.
    “ Q. You did not hear any exhaust from the engine ?

      “A. No; I did not.
    “ Q. What you did hear, you supposed was the freight engine, farther up in the yard ?

      “A. Yes; farther up in the yard.”
    Shortly after the accident, plaintiff made a written statement, which he testified was correct, and which is as follows:
    “On the afternoon of March 1st, about 5:10, I left the power house of the Washtenaw Electric-Light Company, southeast corner of River and Cross streets, where I was employed as fireman by the Michigan Central Railroad Company. Saw train No. 10 standing at depot when I stepped out of the door. Thought I had plenty of time to cross railroad tracks before train would pull out. Pulled my cap down over my ears, and turned up collar of my overcoat, and started over walk, and down River street. Crossed over side track and north main track, and was just about stepping over north rail of south main track when I was struck by engine of train No. 10, and thrown down, rolling me over several times. I heard no bell or warning whatever. I did not think I was badly hurt at the time. Left foot felt numb, as though asleep. Got up and walked down the street as far as Congress street without help, where I found a man who took me home.”
    Plaintiff called one Grimson as a witness, who saw the accident. This witness testified that, when the accident actually occurred, the gates were down, but they were not down when plaintiff started across the track; that the train was nearly in the middle of Cross street when the gates came down. This witness was going across Cross street, west of the railroad crossing. He saw the plaintiff and the train. Witness wras watching to see whether plaintiff was going to turn around and look. He undertook to “holler” to him, but the train was making so much noise that he could not hear, and he then started to run to him. It took about four seconds to lower the gates to a position where they were level with the ground.

      Laivrence & Butterfield (Ashley Pond and Henry Bussel, of counsel), for appellant.
    . Lee N. Brown, for appellee.
   Grant, J.

(after stating the facts). We think the plaintiff was clearly guilty of contributory negligence. He heard the noise made by the engine and the train. He must have heard the exhaust of the steam. He testified he supposed that these noises were caused by another engine, farther away in the defendant’s yard. He had no right to rely upon this supposition. He knew that the train was standing there when he left the power house, that it stopped only long enough to accommodate travelers in getting off and on, and that it was liable to start up any moment. The noise alone, even though the bell was not rung, was a sufficient warning to him. It was his duty to both listen and look. A turn of the head, which would require but a fraction of a second, would have shown him the train coming in close proximity to him. Instead of doing this, he stepped across the rail onto the track directly in front of the engine, which was approaching only a few feet from him.

In Brinker v. Railroad Co., 121 Mich. 283 (80 N. W. 28), where there were two roads running parallel and near each other, the plaintiff believed that the approaching train, the smoke of which he saw, was on the track farthest from him, and not upon the one which he was approaching. He was held guilty of contributory negligence. W e said:

“ It was his duty to stop and ascertain the road the train was on. * * * He was the master of his own movements, and slight precaution would have averted the accident.”

It was equally the duty of the plaintiff in this case to stop, if necessary, and determine which train made the noise he heard. He was not. safe if the noise came from the passenger train. He was safe if it came from the engine in the yard. A glance would have given him the necessary information. It was not dark. He testified that it was getting dusk, but admitted that there was no difficulty in seeing the engine and the train, and other objects around. A railroad track itself is notice of danger. This being so, it is the duty of every one attempting to cross to use ordinary precautions for his own safety. This plaintiff seeks to excuse the ordinary precaution to look by saying that he saw a friend, and he started to walk faster, and did not turn around to look, and that, if the gate towards which he was going had been lowered, he would have seen it. This case, in principle, is indentical with Spaven v. Railway Co., 130 Mich. 579 (90 N. W. 325), and the language there used is equally applicable to the conduct of the plaintiff in this case.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    ZIMMERMAN v. BOARD OF SUPERVISORS OF CHEBOYGAN CO.
    1. Public Health — Contagious Diseases — Indigent Patients— Services of Physician — Liability of County.
    A board of supervisors which has contracted with a physician, for a gross sum duly paid, to attend all indigent persons in a certain district who may, within a given time, be afflicted with diseases dangerous to the public health, cannot be compelled to pay again for the services of such physician, though claimed to have been rendered at the direction of a local board of health under 2 Comp. Laws, § 4424, which has allowed the bill therefor as a claim against the county.
    2. Same — Defenses.
    Where accounts for supplies furnished and services rendered to indigent persons afflicted with contagious diseases have been allowed by a local board of health, under 2 Comp. Laws, § 4424, as claims against the county, the board of supervisors of such county cannot refuse to pay the same on the ground that such persons were residents o£ another county.

      Certiorari to Cheboygan; Shepherd, J.
    Submitted April 3, 1903.
    (Calendar No. 19,848.)
    Decided June 23, 1903.

      Mandamus by Charles H. Zimmerman to compel the board of supervisors of Cheboygan county to audit and pay a claim. From an order denying the writ, relator brings certiorari.

    Reversed.

      Beilley & Chambers, for relator.

      Homer H. Quay, for respondent.
   Per Curiam.

Two persons in the village of Mackinaw City were taken ill with smallpox. The health board of the village took care of them, employed nurses, furnished provisions, etc., and employed one Dr. George E. Brown to take medical care of them. The parties furnishing such materials and rendering the services assigned their claims to the relator. Their bills amounted to $206.67, and were made out to the county. They were allowed by the board of health of the village as claims against the county. It is admitted that the bills were reasonable. The account was presented to the board of supervisors, and rejected by them for two reasons: (1) That neither of the parties afflicted with the disease, and in whose behalf the bills were contracted, belonged to the county of Cheboygan; (2) that Dr. Brown had a contract with the board of supervisors, covering all the items of the bill, and that the services rendered by him were rendered under section 4460, 2 Comp. Laws, and that for these services the village or township, and not the county, is responsible, under section 4462, 2 Comp. Laws.

The respondent determined that one of the afflicted persons was a resident of Kent county, and the other of Emmet county. The board of supervisors made a contract with Dr. Brown, in which he agreed, for a sum named, to furnish all necessary medical treatment, drugs, and medicines, for the period of one year, for the proper care and treatment of any and all indigent persons unable to pay for medical care and treatment, and who had no person or persons legally bound to support them within the county of Cheboygan, and who might be afflicted or infected with any contagious, infectious, or communicable disease dangerous to the public health; such persons, at the time when so requiring medical aid, being residents of or being in ‘ ‘ the following named townships or territory, which shall be known as District No. 2, viz.: The township of Mackinaw, and Hebron township, except south tier of sections.” This contract was carried out, and Dr. Brown received his pay in accordance therewith.

Upon the refusal of the board of supervisors to allow the bill, the relator petitioned the circuit court for the county of Cheboygan for -the writ of mandamus to compel its allowance and payment. The court below refused the writ. It is now before us by writ of certiorari.

1. Dr. Brown’s bill is covered completely by his contract with the respondent. His agreement was to perform all services for which the county would be liable. Such contract is valid.

2. The claim was allowed by the local board of health, and presented to respondent, under section 4424, 2 Comp. Laws, which reads as follows:

‘ ‘ When any person coming from abroad, or residing in any township within this State, shall be infected, or shall lately before have been infected, with the smallpox, or other sickness dangerous to the public health, the board of health of the township where such person may be shall make effectual provision in the manner in which they shall judge best for the safety of the inhabitants by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself, his parents, or other persons who may be liable for his support, if able; otherwise, as a charge of the county to which he belongs. * * *”

A majority of the court are of the opinion that, under the previous decisions of this court (McKillop v. Board of Sup’rs of Cheboygan Co., 116 Mich. 614 [74 N. W. 1050]; Village of St. Johns v. Board of Sup’rs of Clinton Co., 111 Mich. 609 [70 N. W. 131]; Elliott v. Board of Sup’rs of Kalkaska Co., 58 Mich. 452 [25 N. W. 461, 55 Am. Rep. 706]; and Browne v. Board of Sup’rs of Livingston Co., 126 Mich. 278 [85 N. W. 745]), this claim was properly presented to the respondent board of supervisors, and that, under those decisions, it is the purpose of the law to make these claims an original claim against the county. It was therefore the duty of the respondent to pay these bills, it being conceded that they are reasonable and contracted in good faith. If the respondent thinks another county is liable, it may pursue the claim against such county.

It follows that the judgment must be reversed as to this part of the claim. No costs will be allowed.


author: Hooker, C. J.

text:
    MOSAIC TILE CO. v. CHIERA.
    1. Trial — Requests to Charge — Propositions of Law.
    It is not error for the trial court to refuse requests to charge consisting of abstract propositions of law, the application of which to the case in hand would not be readily apparent to the jury.
    2. Contracts — Breach—Recoupment—Instructions.
    Defendant, in an action for the balance of the contract price for certain work on a building, was not harmed by an instruction to the effect that there could be no recoupment unless the recovery should be on the quantum meruit alone, where the court further charged that plaintiff could not recover on the contract unless he had fully performed it and defendant had accepted the work, and also fairly submitted to the jury defendant’s claim for damages for breach of an express warranty.
    3. Same — Quantum Meruit.
    One who has failed fully to perform his contract for certain work on a building may nevertheless recover under the quantum meruit, where the owner has appropriated so much as was done, subject to the latter’s right of recoupment.
    4. Same — Harmless Error.
    Where the verdict shows that it was not rendered on the quantum meruit, it is immaterial that there was no proof of the value of the work.
    Error to Wayne; Frazer, J.
    Submitted April 10, 1903.
    (Docket No. 28.)
    Decided June 23, 1903.

      Assumpsit by the Mosaic Tile Company against Gabriel Chiera to recover a balance due under a contract for certain work on a building. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee;
   Hooker, C. J.

The defendant contracted in writing for the tilework in an elaborate Turkish bath.. By this contract the plaintiff promised to furnish and put in place, including the concrete foundation, “all the tilework for floors, walls, ceilings, and plunge pools required for a Turkish bath house,” etc. It Was further agreed that plaintiff would “ do the work and furnish the materials to the full and entire satisfaction of the superintendent of said building, J. W. Cotteral, Jr., and to the satisfaction of ” the defendant. Plaintiff further agreed:

“That it will warrant and guarantee the work put in the said building by them, and embraced in this contract, for the period of five years from the date of completion; and that they will, within ten days after receiving notice, replace and make good any damage to tilework caused by imperfect workmanship or materials, or which may be caused by the settling of floors or foundations due to any cause whatever; it being understood that this guaranty does not cover damage caused by accident, nor willful or malicious destruction by employés or the public. The said party of the second part further agrees to furnish bond for two thousand dollars ($3,000), signed by two responsible sureties, for the faithful performance of this contract. ”

The bond was given. Payment to the extent of 85 per cent, was to be, and was, made as the work progressed, and 15 per cent, was to be paid within 60 days after completion and acceptance. This 15 per cent, has not been paid, and this action was brought to recover it.

The declaration contained a special count upon the writing, and the common counts. With a plea of the general issue, the defendant filed a notice of recoupment, which alleged that the tiling had faded and lost its original color, and had never been replaced by the plaintiff, although requested, etc., and that the tiling and floor had settled out of shape, 'and had bulged so as to be uneven, and that it did not drain, and in consequence the water would stand in pools upon it, and that the material and labor were of inferior quality.

The controversies of fact appear to have been, in the main, first, whether the plaintiff furnished the materials and did the work as required by the contract; second, whether the same was to the satisfaction of the defendant, and was accepted by him; third, whether the tile faded or lost their original color from any fault in the tile; fourth, whether the water stood upon the floor, and would not drain, through plaintiff’s fault, — all of which questions were submitted to the jury. A verdict and judgment for the plaintiff resulted, and the defendant has taken a writ of error. Upwards of 120 errors are assigned. We cannot consistently discuss each separately, and by far the greater number would furnish little excuse for so doing.

In his instructions to the jury, the learned circuit judge said that the plaintiff had undertaken that its work should be satisfactory to the defendant, and that, before it could be entitled to a verdict, it must show not only that it had done the work according to its contract, but that it had been accepted by the defendant. In that case it would be entitled to recover upon the contract the remaining 15 per cent, of the contract price; otherwise it could not recover upon the contract. He said, further, that if the work had not been accepted, or if the contract had not been fully performed, the plaintiff might recover, under the common counts, the value of the material furnished and labor performed, less such damages as the defendant had sustained through the failure of the plaintiff to carry out the contract. He instructed the jury that the contract bound the plaintiff to furnish good, substantial tiling, but not better than such tiling usually is; that much testimony had been introduced in regard to the cleaning of the tile, and the methods used by the defendant in that respect; and that this testimony had a bearing upon the questions whether this was good or poor tiling, and whether it had received proper treatment by the defendant. He said to the jury that if the water failed to drain off, and this was due to the 'furnishing of improper levels or slope by the defendant’s superintendent, the plaintiff was not liable for the defect, and that, if the bulge and cracks in the bottom of the pool were due to a defective foundation furnished by the plaintiff, it was liable, while, if occasioned by work done by another contractor, it was not.

This was a clear and succinct charge of the main features in the case, and was easily comprehensible by the average juror. Defendant’s counsel has excepted to, and assigned error upon, each of his 28 requests to charge. Many of these requests are abstract propositions of law, without anything to indicate to the jury their application to the case; e. g.:

“Parties who are of full age and competent may make contracts, which it is the duty of courts to énforce as made.”
“The purpose of construction of a contract is to give effect to an instrument, not to defeat it.”
“An equity against the words of an express contract, where there is no want of capacity or legality, fraud or. mistake, shown in the making of the contract, cannot be recognized.”
“The intention of the parties, as expressed in their contracts, is to govern in the construction of them.”
“All the words in a contract are to be taken as inserted for some purpose.”
“An agreement was made with an artist, for a portrait, that it need not be taken or paid for if unsatisfactory. Held, that, however good the picture was, the customer is the only judge whether it suits him or not, and, if not, he cannot be compelled to pay for it.”
“In the absence of any ambiguity in a written instrument, it must be interpreted according to its plain terms, no fraud or mistake being claimed.”

Most of the others relate to questions of fact, which the court properly left to the jury; and, in our opinion, there is nothing in these requests, which the defendant was entitled to have the jurors’ attention called to, that was not covered by the charge.

Counsel’s eighty-seventh assignment is as follows:

“In charging the jury, if there had been an acceptance of the work, then there could be no recoupment, in effect, which could only be applied if the recovery was based upon the quantum meruit alone.”

The court charged the jury that the plaintiff could not recover unless (1) it had faithfully performed the contract; (2) the defendant had accepted the work. He afterwards said that, if it sought to recover on the quantum meruit, there might be a recoupment. As it is patent that there could be no recoupment if the contract was fully performed and accepted, and the plaintiff could not recover on the contract unless there was such performance and acceptance, the defendant was not injured by the instruction, unless, by reason of a subsequent breach of the warranty, he was entitled to damages. Plaintiff had given a bond to cover such damages, and its counsel contended that an action on the bond was the only remedy, and that recoupment was not permissible in such case; but the court held otherwise, and included such damages, apparently taking the view that a breach of the warranty was a breach of the contract, and said to the jury:

“I am asked to charge you, and it has been stated in this case several times, that, under the terms of this contract, a bond has been given, and that bond, in substance, guarantees — which the contract itself does — guarantees the character of this work for the term of five years, and that, if there is anything that has occurred after the acceptance that shows the work didn’t hold out under this guaranty, that suit should be brought upon this bond; and a great deal of evidence has been objected to as not properly bearing on this issue as framed under the pleadings of this case, but that I should not have permitted this question of recoupment to be interposed here at all, but that they should be relegated to their remedy on the bond. I do not think that is the law. I think that whatever damages, if there are any damages, that, under the evidence, this defendant can recoup here. Why, gentlemen, it would apply, — -it would be deducted and determined in any suit that subsequently might be brought upon the bond; and I think that the defendant in this case is at liberty to plead that recoupment here, and waive his remedy upon the bond, if he sees fit; and, if he does recoup any damages here, he waives any remedy that he may have upon the bond up to the time at which that plea in recoupment Was interposed, and that, if it can be recovered upon the bond, if any breach of the bond occurred, it would have been subsequent to the time when any issue was made in this case under that plea of recoupment. So, under this issue, if you shall find that there has been a breach of this contract on the part of the plaintiff, and the defendant has suffered damage from it, you may award that damage to the defendant, as against the claim of the plaintiff, even if it overcomes the amount of the plaintiff’s claim, and render judgment for the balance to the defendant, if you shall find anything of that kind.”

The warranty is hereinbefore set forth. Under it, the plaintiff undertook to replace defective tile, and remedy defects in workmanship, on notice; and the jury must have found that it has not refused or neglected, after notice, to perform its obligation under the guaranty. The defendant suffered no injury by the charge as given.

It is urged that there is no proof of the value of this work, and that, there being an express contract, there can be no recovery upon the quantum meruit. The cases cited by counsel show plaintiff’s right to recover, although the contract should be found not to have been performed,, in view of defendant’s appropriation of the work, but subject to the usual rule relating to recoupment. Allen v. McKibbin, 5 Mich. 449; Wildey v. School District, 25 Mich. 419; Sheldon v. Leahy, 111 Mich. 29 (69 N. W. 76); Martus v. Houck, 39 Mich. 434 (33 Am. Rep. 409); Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207); Guthat v. Gow, 95 Mich. 527 (55 N. W. 442); Boots v. Steinberg, 100 Mich. 139 (58 N. W. 657); Crawford v. Schneider, 106 Mich. 199 (64 N. W. 39); Eaton v. Gladwell, 108 Mich. 678, 121 Mich. 451 (66 N. W. 598, 80 N. W. 292); Moran v. Schmitt, 109 Mich. 282 (67 N. W. 323).

It is said that there was no evidence of the value of this work, and therefore that there could be no recovery on the quantum meruit. We do not find that this was called to the court’s attention; but, if there would otherwise be anything in the point, it is rendered unimportant by the verdict, which shows that it was not rendered upon, the quantum meruit.

■ This disposes of all questions except those upon the introduction of evidence and the alleged misconduct of court and counsel. We have endeavored to examine them all, and find nothing that warrants a reversal of the cause; nor do we discover any a discussion of which would benefit the profession.

The judgment is affirmed.

The other Justices concurred.


author: •Hooker, C. J.

text:
    POLLARD v. CITY OF CADILLAC.
    Municipal Corporations — Actions Against — Presentation ob Claim to Council.
    A provision of a city charter making it a sufficient defense to an action for the collection of any demand or claim against the city, that it has never been presented to the council for allowance, does not apply to actions ex delicto, — e. g., an action, for flooding premises through the clogging of a sewer.
    Error to' Wexford; Chittenden, J.
    Submitted April 10, 1903.
    (Docket No. 34).
    Decided June 23, 1903.
    Case by James C. Pollard against the city of Cadillac for flooding plaintiff’s premises. From a judgment for defendant on verdict directed by the court, plaintiff .brings error.
    Reversed.

      U. S. Albertson, for appellant.

      Fred 8. Lamb, for appellee.
   •Hooker, C. J.

The defendant, a city, was sued for damages occasioned by flooding plaintiff’s premises with filth from the clogging of its sewer. The court directed a verdict for the defendant upon the ground that the claim had not been presented to the council before the action was begun, under the following provisions of the charter of the city, viz.:

“ The council shall audit and allow all accounts chargeable against the city; but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with an affidavit of the person rendering it to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim. And every such account shall exhibit in detail all the items -making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city, that it has never been presented, verified as aforesaid, to the council for allowance; or that the claim was presented without the affidavit aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”

The case is ruled by Lay v. City of Adrian, 75 Mich. 438 (42 N. W. 959), and Mackie v. City of West Bay City, 106 Mich. 242 (64 N. W. 25). It is urged that injuries to land are expressly excepted from the rule by the opinion in the former case, which says:

“None of them were claims made for personal injury. They were actions in assumpsit. The first was brought to recover for a quantity of sand it was alleged the city of Detroit had received and not paid for; and the last two, to recover for alleged illegal taxes paid under protest.
“ I do not think the statute was ever intended to apply to claims of the character of that in the present suit, but to those arising out of contract, express or implied, or for injury to property, real or personal, where the amount claimed may be computed, after the facts are established, by some fixed rules or mode of computation.”

This language was used, but- doubtless it was from an indisposition to pass upon a case not then before the court. Such cases are clearly within the principle of the cases cited. The case of Snyder v. City of Albion, 113 Mich. 275 (71 N. W. 475), draws no such distinction, but apparently excepts all actions ex delicto from the effect of a similar statute. We think this the correct interpretatipn of the charter before us.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.

       1 How. Stat. § 2528; Act No. 429, tit. 10, § 2, Local Acts 1895.


text:
    HOSKINS v. ROCHESTER SAVINGS & LOAN ASSOCIATION.
    1. Building and Loan Associations — Evidence—Matters Within Knowledge op Deceased Agent.
    A borrowing member of a building and loan association cannot testify, in a suit to cancel the mortgage, to matters which were equally within the knowledge of a deceased agent of the association.
    2. Same — Foreign Corporations — Place op Contract — Usury.
    Where a loan made by a foreign building and loan association is secured by mortgage on property in Michigan, and payments are made to a local agent therein, in accordance with the original understanding of the parties, the contract is a Michigan contract, an d within our usury laws. National Mut. Bldg. & Loan Ass’n v. Burch, 124 Mich. 57, approved.
    3. Same — Void Contract — Action.
    By the express terms of 2 Comp. Laws, § 7594, a contract made by a foreign building and loan association, which has not complied with the statutory prerequisites to its right to do business in this State, is void, and no action can be maintained thereon.
    4. Same — Payments—Agency.
    A payment to a local agent of a foreign building and loan association is a payment to the association, notwithstanding a provision of its by-laws that he shall be deemed the agent of the member. Wagner v. Supreme Lodge K. of H., 128 Mich. 660, followed.
    Appeal from Cheboygan; Shepherd, J.
    Submitted April 23, 1903.
    (Docket No. 43.)
    Decided June 23, 1903.
    Bill by Alexander Hoskins and Alice Hoskins against the Rochester Savings & Loan Association to obtain the cancellation of certain mortgages. From a decree for complainants, defendant appeals.
    Affirmed.

      Frost & Sprague, for complainants.

      Thomas & Neary and Ralph L. Aldrich, for defendant.
   Grant, J.

The defendant is a corporation organized under the laws of the State of New York, and having its home office at Rochester, in that State. While doing business in this State, and on January 31, 1895, complainant Alexander Hoskins made application to it for a loan of $300, to be secured by bond and mortgage on the real estate therein described. The application was passed upon and approved by the local board, the land and title thereto examined by one Dozer, defendant’s local agent at Cheboygan, the papers forwarded to the home office, and subsequently, on February 18, 1895, a bond and mortgage collateral thereto were executed by the complainant and his wife, Alice. A certificate for three shares of stock of the company was also issued to. Mr. Hoskins, and immediately assigned to the defendant as additional security for the loan. On November 12, 1895, complainant Alice Hoskins made a like application for a loan of $500, and papers exactly similar, except in the names and amounts, were executed. The mortgages and bonds provided for monthly payments, known as “interest,” “premiums,” and “principal,” for 72 months, which 72 payments were supposed to pay the mortgage and mature the stock. Complainants made these 72 payments, and asked releases of their mortgages. The defendant refused, claiming between two and three hundred dollars to be still due upon the mortgages, and that the stock had not matured. Complainants then filed their bill in equity to declare the mortgages paid and to have them canceled. Defendant answered, denying full payment, and asking foreclosure for the balance due. Proofs were taken in open court. Decree was entered for complainants. ' The court found that the mortgages had been paid; that the contracts were usurious; that they were Michigan, and not New York, contracts; and that Mr. Dozer, its agent, and others to whom payments were made after his death, were the agents of the defendant.

Complainants claim that representations were made to them by defendant’s agent Dozer similar to those made in Sawyer v. Building Ass’n, 103 Mich. 228 (61 N. W. 521). The agent Dozer had died before’ the hearing. The court held that Mr. Hoskins could not testify to matters equally within the knowledge of the deceased agent. In this we concur.

The court held that the contracts were usurious, and that they had been fully paid. If they were regarded as loans, it seems to be conceded the complainants have fully paid both principal and interest. This case is ruled by National Mut. Bldg. & Loan Ass’n v. Burch, 124 Mich. 57 (82 N. W. 837, 83 Am. St. Rep. 311). The learned circuit judge, in his opinion, said: “The statement of facts in that case and this are so nearly alike that they might almost be used interchangeably.” In this we concur. It is therefore unnecessary to make a full statement of the facts, as all the questions but one are fully covered by that decision. The learned counsel for defendant have furnished an able brief on the questions involved, and have made a thorough examination of the authorities. We, however, held in National Mut. Bldg. & Loan Ass’n v. Burch, supra, that such contracts are Michigan, and not foreign, contracts, and the brief has failed to convince us that we should overrule that case.

The legislature of 1895 passed an act which was approved June 4, 1895, and took effect the following September. Act No. 269, Pub. Acts 1895. The defendant did not comply with the provisions of that act, and thereupon substantially ceased to do business in this State. The contract of complainant Alice Hoskins was made after that act took effect. It was therefore void. 2 Comp. Laws, § 7591. And no action can be maintained upon such a contract. 3 Comp. Laws, § 10167; Seamans v. Temple Co., 105 Mich. 400 (63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457).

That payments to Mr. Dozer and defendant’s other agents at Cheboygan were payments to the defendant, is established by Wagner v. Supreme Lodge K. of H., 128 Mich. 660 (87 N. W. 903).

Decree is affirmed, with costs.

The other Justices concurred.


author: Carpenter, J.

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    TOWNSHIP OF FLYNN v. WOOLMAN.
    1. Drains —Establishment —Order of Determination — Time Limit.
    Under 2 Oomp. Laws, § 4320, providing that, on the filing of an application for a drain, the commissioner shall examine the route of the proposed drain, and if, on survey, he shall find the drain to be practicable, he shall within 90 days make his first order of determination, the 90 days date from the survey, and not from the filing of the application.
    2. Same — Record of Commissioner — Jurisdiction.
    The fact that the record of the commissioner does not show when the minutes of the survey were delivered to him is not fatal to the jurisdiction, though more than 90 days elapsed between the filing of the application and the first order of determination, in view of the provision of 2 Comp. Laws, § 4364, that no drain tax shall be declared void by reason of any error or informality in the record of the proceedings.
    3. Same — Vacation of Existing, Drain.
    Where neither a township nor any of its taxpayers was assessed for the construction of a drain, it cannot complain of a failure to vacate such drain before constructing a second one over its route.
    4. Same — Notice.

      2 Comp. Laws, § 4383, requiring notice to be given in case a drain is vacated, has no application where a proposed drain merely taps an existing drain, leaving it to perform its office.
    5. Same — Condemnation Proceedings — Parties.
    ' Under 2 Comp. Laws, § 4323, providing that notice of an appli-, cation to the probate court for the appointment of commissioners in a drain proceeding shall be given to all persons whose lands are traversed by the drain who have not released the right of way, a township which is liable to assessment for the drain cannot complain because notice was not served on its supervisor.
    Appeal from Sanilac; Beach, J.
    Submitted April 23, 1903.
    (Docket No. 48.)
    Decided June 23, 1903.
    Bill by the township of Flynn against Hugh Woolman, county drain commissioner, and others, to enjoin the construction of a drain. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      C. F. Gates, for complainant.

      Fred A. Farr, Prosecuting Attorney, and W. H. Burgess, for defendants.
   Carpenter, J.

Defendant Woolman is drain commissioner for the county of Sanilac. He is proceeding to construct a drain called the “Carter Drain,” in the township of Elmer, in said county. The other defendants are contractors for the construction of said drain. Five per cent, of the total cost of said drain, amounting to $390, is to be assessed upon complainant township, and 11.45 per cent., amounting to $893.10, is to be assessed against individual landowners, taxpayers in said complainant township. Complainant instituted this suit to enjoin the construction of said drain. The hearing in the lower court resulted in a decree dismissing complainant’s bill. From this decree, complainant has appealed. It claims that it is entitled to relief upon these grounds:

(1) The drain commissioner had no right to proceed, because the first order of determination was not made within 90 days after the application was delivered to him.
(2) The drain commissioner had no right to proceed, because the record fails to show that any steps or proceedings were taken by the commissioner for more than 90 days before making his first order of determination.
(3) It is proposed to construct said Carter drain for over \\ miles on the route of another established drain, called the “Hale Extension Drain,” without vacating the latter drain as required by law.
(4) In the construction of a branch of said Carter drain, it is sought to vacate miles of a drain known as the “Flynn & Elmer Drain,” without giving complainant a hearing as required by law.
(5) No notice was served upon complainant’s supervisor of the proceedings to lay out the drain.

1. Must the first order of determination be made within 90 days after the application is delivered to the commissioner? The application was dated November 19, 1900, and was delivered to the drain commissioner November 20, 1900. The first order of determination was made March 4, 1901. Section 4320, 2 Comp. Laws, reads:

“Upon the filing of such application, the county drain commissioner authorized to act thereon shall, as soon as practicable thereafter, proceed to personally examine the route of the proposed drain, and if, in his opinion, it is necessary and conducive to the public health, convenience, or welfare that the application should be granted, he shall, as a means of determining the practicability thereof, make a survey and measurement of the line of the proposed drain, or cause the same to be made by a competent surveyor. If upon such survey he shall find such drain to be practicable, he shall within ninety days make his first order of determination in writing in accordance therewith.”

We think it clear that this language does not require the first order of determination to be made within 90 days after the application is filed. It gives the commissioner 90 days after the survey to make said order.

2. It is claimed that the commissioner, under the fore-' going construction, had no right to proceed, because the record failed to show any step or proceeding taken by him between the receipt of the application, November 20,1900, and the making of the first order of determination, March 4, 1901. This raises the question of whether the proceedings of the commissioner were defective because the record did not show when the minutes of the survey were delivered to the commissioner. No claim is made that, as a matter of fact, the first order of determination was not made within three months after the minutes of the survey were delivered. Indeed, defendants introduced testimony, against the objection of complainant, proving that said minutes were delivered about the last of January, 1901. In determining whether or not the record must affirmatively show when the minutes of the survey reached the commissioner, it should be borne in mind that- there is no express provision of the statute requiring it. If the statute imposes upon the drain commissioner any obligation to make such record, it must be found by implication in the sentence, “If upon such survey he shall find such drain to be practicable, he shall within ninety days make his first order of determination in writing.” Assuming that the legislature intended by this language to impose that obligation upon the drain commissioner, they did not intend that his failure to observe it should invalidate the tax, since they provided- (see section 4364, 2 Comp. Laws):

“The collection of no tax levied or ordered to be levied for the payment of the location or construction of any drain laid out under this act shall be perpetually enjoined or declared absolutely void in consequence of any error or informality of any officer in the location and establishment thereof, nor by reason of any error or informality appearing in the record of the-proceedings by which any drain shall have' been located and established.”

From this we infer that the legislature did not intend to make the. jurisdiction of the commissioner depend on his recording the date of the receipt of the minutes of the surVey. The decision of this court in Moser v. White, 29 Mich., at page 60, relied upon by complainant, that “every essential proceeding in the course of a levy of taxes must appear in some written and permanent form in the records of the bodies authorized to act upon them,” has, in our judgment, no application. The date of the receipt of the minutes of the survey was not, within the meaning of the decision in that case, an “essential proceeding.”

3. Did the failure to take steps to vacate the Hale extension drain, so called, before constructing over its route the proposed drain, invalidate the proceedings? Said Hale extension drain nowhere touches the territory of complainant. Neither complainant nor any of its taxpayers were assessed for its construction. For this reason, complainant has no right "to complain that proceedings were not taken to vacate it.

4. Is complainant entitled to relief on the ground that it is sought to vacate 1£ miles of the Flynn & Elmer drain, so called, without any notice to complainant ? It is a sufficient answer to this contention of complainant to say that the proposed action of defendants does not, in our judgment, vacate said Flynn & Elmer drain. A portion of the proposed drain taps said Flynn & Elmer drain, and thereby affords a much-needed outlet to the waters therein. This does not, strictly speaking, vacate said Flynn & Elmer drain. The said drain is left to perform the office for which it was built, though the evidence in this case proves that, owing to a cut below the intersection with the proposed drain, it either partially or entirely fails to perform that purpose. It follows that the provision in section 4383, 2 Comp. Laws, prescribing the notice tobe given in case a drain is vacated, relied upon by complainant, has no application.

5. Is complainant entitled to relief because no notice was served upon its supervisor of the proceedings to lay out the drain ? As we understand the record, the complaint is that no notice was served upon the complainant’s supervisor of the proceedings in the probate court before the commissioners were appointed. We do not think this objection well grounded. The only persons entitled to notice at that stage (see 2 Comp. Laws, § 4323) are those “whose lands are traversed by such drain, who have not released the right of way.”

In our judgment, the decree of the court below should be affirmed, with costs.

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


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    MICHIGAN TRUST CO. v. HERTZIG.
    Wills — Construction—Life Estate — Right of Possession.
    Where testator appointed a' trust company his “executor,” and gave to his wife “all the use and income” of his entire estate, during her life or widowhood, with remainder over to designated beneficiaries, the widow was entitled to the possession and control of all the property, personal as well as real, as soon as the estate should be administered.
    Appeal from Kent; Perkins, J.
    Submitted April 24, 1903.
    (Docket No. 31.)
    Decided June 23, 1903.
    Bill by the Michigan Trust Company against Theresa Hertzig and others for the construction of a will. From a decree for defendants, complainant appeals.
    Affirmed.
    Peter Hertzig, the husband of Theresa Hertzig, died testate April 19,1901. His estate consisted of real estate, two farms and a house and lot, valued at $12,500. His personal estate consisted of notes, mortgages, and money in bank, of the value of $9,000. He left surviving him his widow and a son, F. Peter Hertzig, aged 5 years. He also had a stepson 15 years of age, Joseph Kirchner. His will, omitting the formal parts, is as follows:

      ‘ ‘ First. I do hereby constitute and appoint the Michigan Trust Company of Grand Rapids, Michigan, to be the executor of this, my last will and testament, directing them to pay my just debts and funeral expenses out of my estate.
    “ Second. I give and devise to the priest of St. Mary’s Church of the city of Grand Rapids, Michigan, the sum •of one hundred dollars, to be used for reading masses for the benefit of myself, my deceased parents, and my deceased wife, Emilie Hertzig.
    “ Third. I give to my wife, Theresa Hertzig, in lieu of the dower and all her other rights in my property, all the use and income of my entire estate, both real, personal, and mixed, of which I die seised and possessed or to which 1 may be entitled at the time of my death, for and during the term of her natural life, and as long as she remains unmarried and my widow.

      “Fourth. In case my wife should marry after my decease, she shall only be allowed so much of my estate as the laws of the State of Michigan allow her if I had died intestate.
    “ Fifth. After my wife’s death, or in case of her marriage, my estate shall be disposed of as follows: To my stepson, Joseph Kirchner, I give the sum of one thousand dollars, to be paid to him when he becomes of age. All the rest, residue, and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath to my child or children then living, to have and to hold the same or their heirs forever.”
    Defendant Theresa had possession of some of the personal property belonging to the estate, and insisted that, by t'he terms of the will, she was entitled to the possession of both the real and personal' property during her widowhood, and life, if she did not remarry. The complainant insists that it is a trustee, rather than the mere executor of. the will, and that it is entitled to the management, control, and possession of both the real and personal estate, obligated only to pay to Theresa the income of the property during her life or widowhood. Complainant filed this bill to obtain a construction of the will, and to restrain the defendants from interfering with its control and possession of the property. The case was heard upon pleadings and proofs, and the court rendered a ■decree that the complainant was a mere executor, and not trustee; that it was entitled to the possession of the personal property for the purposes of administration; that the defendant-Theresa was entitled to the possession of the real estate; and that she is entitled to the possession of the personal property as soon as the estate shall be fully administered, and all its debts and legacies paid, except the legacy payable to Joseph Kirchner.

      Stace & Albers (Grove & McDonald, of counsel), for complainant.

      McKnight & McAllister, for defendant Theresa Hertzig.

      J. Byron Judkins, for defendant minor heirs.
   Grant, J.

(after stating the facts). We think the court reached the correct conclusion. It is conceded that the cardinal rule in interpreting wills is to ascertain the intention of the testator, and that this intention must be found, if possible, within the four corners of the instrument. This court has in many cases applied this rule. No two wills in all the cases are exactly alike. The result in every instance has depended upon the application of the rule to the language of the instrument to be interpreted. A discussion of the case is not necessary; neither would it be profitable. We think, under the authorities, that the provision giving to his widow “all the use and income of my entire estate, both real, personal,' and mixed, * * * for and during the term of her natural life, and as long as she remains unmarried and my widow,” means that she has the entire use and income therefrom. She cannot have this if it must remain in the hands of a trustee, whose charges and expenses must first be paid. She can have it only by the possession and control of the property. We find nothing within the four -corners of this instrument to indicate that the testator intended to confer upon the complainant any other duty than that of the ordinary executor, whose duty it is to take the usual steps for closing up the estate. The provisions of this will are very similar to those in Patterson v. Stewart, 38 Mich. 402, and Gee v. Hasbrouck, 128 Mich. 509 (87 N. W. 621). Many of the cases decided are cited in the opinion of my Brother Hooker in Gee v. Hasbrouck, in which the cases from this court mainly relied upon to sustain the complainant’s contention are referred to.

The decree is affirmed, with costs of this court to defendant Theresa Hertzig, to be paid out of the estate.

The other Justices concurred.


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    PEOPLE v RANDALL.
    Rape — Evidence—Sufficiency.
    In a prosecution for rape, where the testimony of the prosecutrix was contradicted by that of respondent, but the latter’s conduct, immediately after the arrest of his brother on a similar charge, was indicative of a fear of prosecution, and tended to corroborate the charge, the case was peculiarly one for the jury, and a conviction was not disturbed.
    Error to Gratiot; Stone, J.
    Submitted April 24, 1903.
    (Docket No. 177.)
    Decided June 23, 1903.
    Caleb Randall was convicted of statutory rape, and sentenced to imprisonment for 15 years in the State prison at Jackson.
    Affirmed.

      W. A. Leet, for appellant.

      Charles A. Blair, Attorney General, and Julius B. Kirby, Prosecuting Attorney, for the people.
   Hooker, C. J.

The defendant was convicted of statutory rape upon a child under the age of 16 years. Error is ¡alleged upon the ground that the evidence is insufficient to ¡sustain a conviction: (1) Because she was prompted to make the complaint by the prosecuting attorney; (2) because her testimony is contradicted by the defendant, thus making the evidence balance.

It is unnecessary to discuss the testimony at length. The conduct of the defendant, immediately after the arrest ■of his brother upon a similar charge, is indicative of a fear ■of prosecution, and tends to corroborate the charge. The case was peculiarly one fora jury. Evidently they believed the child and disbelieved her uncle. Her surroundings, and the habits of life, and want of care over her, of her mother, subjected her to unusual dangers. The responsibility for this conviction rests upon the jury, where it properly belongs, and we cannot say that the verdict was not just. It evidently met the approval of the learned circuit judge who heard the cause, and who would doubtless refuse to permit a grossly improper verdict to stand.

The judgment is affirmed.

'The other Justices concurred.


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    PEOPLE v. WILSON.

    1. Burglary — Evidence—Objections—Appeal.
    On an appeal from a conviction for burglary, the testimony of a witness who aided in apprehending respondents, that he did not “size them up” as railroad men, was not available error, because of his not having been shown to know how railroadmen look or dress, where no such objection was made in the trial court.
    2. Same.
    Where three men were arrested for the same burglary, it was competent, on the trial of one of them, to show what property was found on the persons of all three.

      3. Criminal Law — Evidence—Harmless Error.
    The voluntary statement of a witness on a criminal trial, that he had learned that the name under which respondent was being prosecuted was not his true name, is not ground for reversal, where, on further inquiry by the court, witness testified that he did not know respondent’s true name.
    Error to Wayne; Donovan, J.
    Submitted April 24, 1903.
    (Docket No. 172.)
    Decided June 23, 1903.
    Frank Wilson was convicted of burglary, and sentenced to imprisonment for 14 years in the State prison at Jack- - son.
    Affirmed.

      Charles T. Wilkins, for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Ward 1ST. Choate, Assistant Prosecuting Attorney, for-the people.

       Rehearing denied September 22, 1903.

   Hooker, C. J.

This defendant was charged, with two others, with the offense of burglary, in breaking and entering an office, and blowing open a safe, and stealing money therefrom. Separate trials were had, and this defendant has appealed.

The noise of the explosion was heard, and a man living in the vicinity saw three men who were apparently engaged in the burglary, and was shot at by them, or one of them. He was able to give some description of them. Two or three hours later, the defendant and two others boarded an electric car in the outskirts of Detroit, some 10 miles-from the place of the burglary, and were spotted by the conductor, who had been requested to look out for three-men. He informed an officer, and they were arrested, and, on being searched, were found to have $18.20 each,, consisting of bills and coin. The officers also found a counterfeit coin, which was identified as one taken on the occasion of the burglary, and also a pair of spectacles,, which one of these men had tried to sell the witness the day before the burglary. Wilson was shown to have misrepresented his whereabouts.

Complaint is made that the conductor of the street car was permitted to say that he did not “size them up” as railroad men, and that the circuit judge stated that railroad men did not wear standing collars.. It is now urged that the conductor was not shown to know how railroad men looked or dressed'. No objection appears to have been made upon any such ground. Upon the other point, it appears that the court made no such statement. He asked the witness “if railroad men often wore standing-collars,” and he answered, “No.”

It was competent to show what property was found upon the persons of all three of the men arrested for the same transaction.

There is no error in the testimony of Wolf, in regard to his learning that Wilson was not defendant’s true name. The witness was not asked to state this, and the question asked was proper. The court then asked him whether he knew what his true name was, and he answered that he did not.

The principal question relates to the failure of the court to direct a verdict for the defendant; it being urged that the testimony was insufficient to identify this defendant, and connect him with the transaction. In our opinion, the circumstances justified the submission of the case to the jury, and we find nothing in the charge which was likely to mislead the jury.

We think it unnecessary to discuss other assignments, and that the judgment should be affirmed.

The other Justices concurred.


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    PEOPLE v. TOUTANT.
    1. Assault With Intent to Ravish — Evidence—Sufficiency.
    In a prosecution for assault with, intent to commit the crime of rape, evidence considered, and held to support a finding that the assault was with the intent charged.
    2. Same — Appeal—Weight of Evidence.
    On an appeal from a conviction for assault with intent to ravish, in which the record contains only the testimony of the. prosecutrix, an objection that the verdict is against the weight of the evidence cannot be considered.
    Exceptions before judgment from Houghton; Streeter, J.
    Submitted April 24, 1903.
    (Docket No. 176.)
    Decided June 23, 1903.
    Victor Toutant was convicted of assault with intent to commit the crime of rape.
    Affirmed.

      W. A. Burritt, for appellant.

      Oscar J. Larson, Prosecuting Attorney, for the people.
   Carpenter, J.

Defendant, aged 17 years, was convicted in the lower court of assault with intent to commit the crime of rape. He asks that this conviction be set aside on the ground that the evidence did not warrant the jury in finding that he intended to commit said crime. To determine -this question, we must examine the testimony of the prosecutrix.

She testifies that on the 18th of May, 1902, she was living on Quincy Hill, near- the village of Hancock. While walking in the alley which leads to where she was living, about 11 p. m., defendant stopped her and asked her where she was going. She replied she was going home. He said he was going, too. She said, “No.” “He ask me how much I want, — a dollar?” She, believing this to be an insulting proposal, declined, in very emphatic language. He caught hold of her arm, threw her down, and put both hands on her mouth, so that she could not cry out. She got up on her knees immediately. He stood behind her, holding her head to the ground. Then, while in this position, leaving one hand on her mouth, with the other he tried to pull up her skirts. This he could not do, because she held them between her legs. When defendant removed one hand from her mouth, she succeeded in making an outcry. He then put sand in her mouth, and struck her on the head with such force as to make her sick for a week. Her cries brought help, and defendant ran away. We agree with the trial judge that this evidence warranted the jury in finding that defendant assaulted the prosecutrix with intent to commit the crime of rape.

The suggestion is made by defendant’s counsel that the verdict should be set aside because it is against the weight of the evidence. As the record contains only the testimony of the prosecutrix, we are unable to review that question.

The conviction must be affirmed.

The other Justices concurred.