author: Carpenter, J.

text:
    PRUSSIAN NATIONAL INSURANCE CO. v. EISENHARDT.
    1. Pleading — Declaration — Corporate Plaintiff — Description — Sufficiency.
    A declaration describing plaintiff as the “Prussian National Insurance Company” is not obnoxious to demurrer on the ground that there is no averment that plaintiff is a corporation.
    2. Insurance — Foreign Corporation — Action — Pleading — Averment of Authority to do Business.
    A declaration by a foreign insurance company on a bond is not demurrable under section 10467, 3 Comp. Laws, for failure to aver a compliance with the statute (sections 5123, 5133, 2 Comp. Laws) prescribing conditions under which foreign insurance companies may be permitted to do business in this State.
    3. Principal and Surety —Action on Bond — Declaration— Sufficiency — Joint Condition and Joint Breach.
    A declaration in an action on a bond against two persons jointly which avers that defendants acknowledged themselves bound to plaintiff by their writing obligatory shown to the court, the condition of which was that one of the defendants, named, as agent for plaintiff should promptly pay over all moneys received by him as such agent, etc., and that he thereafter became indebted to plaintiff as such agent and refused-to pay over the moneys, etc., sufficiently alleges a “joint condition in the bond and a joint breach of it.”
    4. Same — Liability of Defendants — Principal or Surety.
    The declaration showing a joint obligation, and that one of defendants was plaintiff’s agent, and that the bond was given to secure faithful performance of his duties as such, it sufficiently appears that the agent was the principal and the other defendant the surety in the bond.
    5. Judgment — Form—Judgment on Demurrer — Technical Objection.
    Under section 10272, subd. 12, 3 Comp. Laws, the use of the word “ order ” instead of “adjudged” in overruling a demurrer to a declaration is not reversible error.
    Certiorari to the superior court of Grand Rapids; Stuart, J.
    Submitted April 10, 1908.
    ( Docket No. 28.)
    Decided June 27, 1908.
    Debt by the Prussian National Insurance Company against Jacob Eisenhardt, impleaded with Frank L. Carpenter, on a bond. There was an order overruling a demurrer to the declaration, and defendant Eisenhardt brings certiorari.
    Affirmed.

      Allen G. Adsit (Frank L. Carpenter, of counsel), for appellant.

      Crane & Norris, for appellef»-
    The plaintiff filed the following declaration in this case:
    “Prussian National Insurance Company, of Stettin, Germany, plaintiff in this action, by Albert Crane, its attorney, complains of Jacob Eisenhardt and Frank L. Carpenter, defendants in this action by declaration filed and served in this cause, according to the statute in that case made and provided, of a plea that they render to the said plaintiff five hundred dollars, which they owe to and unjustly detain from it.
    “For that whereas, the said Jacob Eisenhardt and Frank L. Carpenter, heretofore, to wit, on, to wit, the first day of November, A. D. 1901, at, to wit, the city of Grand Rapids, county of Kent and State of Michigan, by their certain writing obligatory, sealed with their seals and now shown to the court here, the date whereof is the day and year aforesaid, acknowledged themselves to be held and firmly bound unto the said Prussian National Insurance Company of Stettin, Germany, in the sum of five hundred dollars above demanded, to be paid to the said Prussian National Insurance Company of Stettin, Germany, and the said Prussian National Insurance Company of Stettin, Germany, according to the form of the statute in such case made and provided, says that the said writing obligatory was and is subject to a certain condition thereunder written, whereby after reciting to the effect following, to wit: That the above named Jacob Eisenhardt has been appointed agent of the Prussian National Insurance Company of Stettin, Germany, for Grand Rapids, in the county of Kent and State of Michigan, and has accepted said trust and agreed to make true records and regular reports of all business done as such agent, to keep true and correct accounts of all moneys and other securities received by him as such agent and pay over the same to said company monthly, within thirty days; to comply promptly with all the instructions of said company and on demand, within thirty days, to pay all moneys due and to deliver all goods, chattels, papers, books and other properly of the company in his possession or under his control, to said company or its duly authorized agent, and to well and truly perform, all and singular, the duties of agent of said company, so long as he shall continue as such by the present appointment, and it being expressly understood and agreed that in case of default in payment of money due said company, any notes or other security therefor shall be considered additional security only, and that said writing obligatory should not be discharged thereby, nor by any act or thing other than the actual payment, in cash, of all moneys at any time due with interest thereon until paid. And it being further agreed that the said Prussian National Insurance Company of Stettin, Germany, might from time to time, without notice to the surety and without his.consent and without relieving him from liability thereunder, give time to said agent, Jacob Eisenhardt, for an accounting and paying and handing over moneys and security for money due said company from said agent, it is provided that if the said Jacob Eisenhardt should well and faithfully perform all the above agreements and all and singular, the duties of agent of said company, then said writing obligatory to be void; otherwise to be and remain in full force and effect, and that proof of plaintiff’s incorporation was waived. Nevertheless, the said Prussian National Insurance Company of Stettin, Germany, in fact, says:
    “ That after the making of the said writing obligatory, to wit, on the first day of February, A. D. 1906, the said Jacob Eisenhardt was indebted unto the said Prussian National Insurance Company of Stettin, Germany, in the sum of five hundred dollars of the moneys of the said Prussian National Insurance Company of Stettin, Germany, which the said Eisenhardt theretofore collected in his, the said Eisenhardt’s, capacity as agent for the said Prussian National Insurance Company of Stettin, Germany, for Grand Rapids, Kent county, Michigan, aforesaid, and being so indebted, did neglect and refuse for the space of, to wit, thirty days and upwards after demand to pay to the said Prussian National Insurance Company of Stettin, Germany, the said sum of money according to the tenor and effect of the said writing obligatory.”
    The declaration contained other formal and appropriate averments. To this declaration the defendant Carpenter pleaded the general issue with notice and also filed an affidavit denying the execution of the bond. Defendant Eisenhardt demurred to the declaration on the following grounds:
    “ 1. That though this suit is brought in the name of an association, and no natural person is named as a responsible plaintiff, there is no averment in said declaration that plaintiff is a corporation.
    “2. That it appears from said declaration, that the home, domicile and residence of said plaintiff is in Germany, and that it has attempted and seeks, herein and hereby, to do an insurance business in the State of Michigan; but said declaration contains no averment that said plaintiff has or ever had a license from the commissioner of insurance for said State to carry on such business, or that said plaintiff has or ever had any legal power or authority to carry on such business in said State.
    “3. This defendant and said Carpenter are sued jointly herein, and said Carpenter is not averred to be a surety for this defendant, nor an agent or receiver for said plaintiff, nor shown by said declaration to be in default as to any obligation to plaintiff, by condition of said writing obligatory, or at all, either separately or jointly with this defendant.
    “4. That though said defendants are sued jointly, it is not averred that said Carpenter is indebted to plaintiff by default in paying over its money, or that by the condition of the writing obligatory he bound himself to answer for the acts or defaults of this defendant in the premises.”
    This demurrer was overruled by the trial court and de fendant Eisenhardt given permission to plead issuably to the declaration. The order overruling the demurrer is before us for review under a writ of certiorari taken out by appellant.
   Carpenter, J.

(after stating the facts). The first question for our consideration arises from the contention of appellant that the declaration is defective because it contains no averment that plaintiff is a corporation. It is to be observed that the plaintiff is described as the ‘ Prussian National Insurance Company of Stettin, Germany.”

In Bennington Iron Co. v. Rutherford, 18 N. J. Law, 105, the plaintiffs, by the name of the Bennington Iron Company, declared against the defendant. The defendant demurred upon the ground “that it does not appear on the bill that the plaintiffs are a corporation, or have any right to maintain this suit against the defendant.” The court, through Nevius, J., said:

“ In the present case, the name of the plaintiffs is distinctly stated, and the law will presume it to be truly stated till the contrary appear, and cannot without a tax upon common sense, infer it to be the name of an individual or natural person. Nor will it presume it to be the name of an unincorporated company or partnership, who can sue only in their individual names; but of an incorporated company who have a right to sue in their incorporated name.”

See, also, Dutchess Cotton Manufactory v. Davis, 14 Johns. (N. Y.) 238; Henderson & Nashville B. Co. v. Leavell, 16 B. Mon. (Ky.) 358; Legnard v. Crane Co., 54 Ill. App. 149; Mississippi, etc., B. Co. v. Gaster, 20 Ark. 455; Farmers’ & Millers’ Bank v. Sawyer, 7 Wis. 379. We are of the opinion that the first ground of demurrer was properly overruled.

2. Should the declaration have contained an averment that said plaintiff had a license from the commissioner of insurance of Michigan to carry on its business in Michigan ? The defendant relies on section 10467, 3 Comp. Laws, and sections 5123, 5133, 2 Comp. Laws. Sections 5123 and 5133 prescribe conditions under which foreign insurance companies can do business in this State.

Section 10467 reads:

“ But when, by the laws of this State, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of such act.”

Assuming these sections to be applicable, the question presented by the demurrer is this: Must the declaration aver a compliance with their provisions ? This question has not heretofore arisen in this court, but it has arisen in the highest courts of many of - our sister States, and it is held by the great weight of authority that no such averment need be contained in the declaration or complaint, and that compliance with the law will be presumed. See Sprague v. Lumber Co., 106 Ind. 242; Nickels v. Saving Ass’n, 93 Ya. 380; Langworthy v. Carding, 74 Minn. 325; Parlin & Orendorff Co. v. Boatman, 84 Mo.App. 67; Charles Boome Parmele Co. v. Haas, 171 N. Y. 579; Northern Assurance Co. v. Borgelt, 67 Neb. 282; American Ins. Co. v. Smith, 73 Mo. 368; Lehigh Valley Coal Co. v. Gilmore, 93 Minn. 432. We are therefore of the opinion that the second ground of demurrer was properly overruled.

The third and fourth causes of demurrer may be considered together. To better understand the point there made, we quote from appellant’s brief:

“Defendants are sued as joint obligors, and joint principals (though from the declaration ,it appears that one was a surety but not which one) without averring any joint condition to the obligation or any joint breach of it, though legally the judgment must go against both defendants or neither. Plaintiff having elected to bring an action against these defendants as joint obligors and principals in a bond, it devolves upon him to show a joint condition to the bond, and a joint breach of it.”

This argument proceeds upon a misconception of the cause of action stated in the declaration. According to that declaration, the failure of appellant Eisenhardt to pay the plaintiff the moneys collected by him constituted a j oint cause of action. In other words, plaintiff has averred a “joint condition in the bond and a joint breach of it.” Moreover, it does appear from the declaration that appellant Eisenhardt was the principal in said bond and defendant Carpenter the surety therein.

Appellant also seeks to make the point that, in overruling the demurrer, the trial court used the term “order ” whereas he should have used the term “adjudged.” Assuming, but not deciding, that this point is open for review, we dispose of it by saying that it is entirely lacking in merit. The order complained of has precisely the same effect as though it contained the word “adjudged.” Judgments may not be reversed for such technicalities, 3 Comp. Laws, § 10272, subd. 12.

The judgment is affirmed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    GOEBEL v. LOOK.

    1. Witnesses — Competency—Transactions with Persons Since Deceased.
    Upon summary proceedings by the trustee of an estate, against a tenant holding under a written lease made by plaintiff’s decedent, defendant cannot testify to a verbal modification of the lease made by decedent and himself.
    2. Evidence — Written Contract — Lease—Changing by Parol.
    Upon summary proceedings to obtain possession of leased premises for nonpayment of rent reserved by written lease, defendant cannot show a verbal modification of the lease postponing the time of payment.
    Error to Wayne; Donovan, J.
    Submitted April 13, 1908.
    (Docket No. 40.)
    Decided June 27, 1908.
    Summary proceedings by August Goebel, Jr., trustee of the estate of August Goebel, deceased, against William Look for the possession of certain leased premises. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Lewis A. Stoneman, for appellee.

       Rehearing denied September 15, 1908.

   McAlvay, J.

This action was brought by the trustee of the estate of August Goebel, deceased, against defendant before a circuit court commissioner for Wayne county, on April 36, 1907, to obtain restitution of certain premises leased by deceased during his lifetime under a written lease for a certain fixed term of five years, which provided that the rent should be ‘ payable in monthly installments of thirty dollars ($30) each and every month in advance.” The rent for January, February, March, and April, 1907, was claimed to be past due and unpaid. Judgment was rendered by the commissioner in favor of the plaintiff. Defendant appealed to the circuit court, where, upon proof made by plaintiff, and the defendant admitting that the rent was unpaid, the court directed a verdict in favor of the plaintiff. On the trial, defendant offered to show by his own testimony and that of his brother a verbal modification of the lease claimed to have been made by plaintiff’s decedent with the defendant whereby for about four years following the rent was made payable “during the month.” This was excluded by the court upon the ground that defendant could not testify at all as to matters equally within the knowledge of plaintiff’s decedent, and that the terms of a written agreement could not be varied or changed by parol.

Upon both propositions the trial court was correct. These propositions are so well established that citation of authorities is unnecessary.

The judgment of the circuit court is affirmed, with costs.

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


author: Carpenter, J. Blair, J.

text:
      In re COLBURN’S ESTATE. MORE v. LUTHER.
    1. Judgments — Res Judicata — Matters Concluded.
    On the trial of a claim in behalf of a son, against the estate of his father, for services rendered on the father’s farm, in reliance upon a promise that upon the death of the parents the farm should belong to the son, testimony tending to show that the father conveyed the farm to the son affords no basis for a verdict, where it has already been determined, in a suit between the heirs of the father and the heirs of the son, that no such conveyance was made.
    2. Work and Labor — Parent and Child — Services—Contracts —Compensation—Evidence.
    Statements by a father and mother, that their son, who was living with them and working on their farm, should have the farm at their death, constitute no evidence of an agreement that he should have the farm in payment for his services, neither do they afford evidence of a binding promise, being consistent with the thought that it was the purpose of the father and mother to give a gratuitous preference to their son at their decease.

      3. Same — Implied Contract.
    The relation of father and son prevents the implication of any agreement that the son should receive compensation for services rendered upon the father’s farm while a member of his household.
    4. Same — Express Contract —Nonperformance—Implied Contract.
    Where it was agreed between father and son that if the son would work on the father’s farm until the death of his parents he should have the farm, but the son died before his parents, it cannot be implied that the father agreed to pay what the son’s services were reasonably worth.
    5. Executors and Administrators — Ancillary Administration —Claims—Where Presented.
    Where ancillary administration proceedings are taken in this State, a claim arising here may be presented here, and the claimant is not obliged to present it in another State to the court having jurisdiction of the principal proceeding.
    ON MOTION TO RECALL EXECUTION FOR COSTS.
    Executors and Administrators — Actions —Costs—Allowance Against Administrator — Statutory Provisions.
    The legislature did not intend, by the provisions of section 9440, 3 Comp. Laws, to take from the courts the discretion as to costs conferred by section 681, 1 Comp. Laws, and sections 9391, 11275, 3 Comp. Laws; but in cases in which the court makes no special order for costs, in the exercise of its discretion, execution issues against the executor or administrator, in accordance with the provisions of section 9440.
    Error to Kent; Wolcott, J.
    Submitted April 14, 1908.
    (Docket No. 66.)
    Decided June 27, 1908.
    Motion to recall execution for costs submitted. September 10, 1908.
    (Calendar No. 22,707.)
    Denied October 5, 1908.
    John E. More, administrator of the estate of Andrew K. Colburn, deceased, presented a claim against the estate of Reuben H. Colburn, deceased, for services rendered and for property wrongfully converted. The claim was allowed by the commissioners, and George E. Luther, ancillary administrator of said estate, appealed to the circuit court. There was judgment for claimant, and defendant brings error.
    Reversed.

      Thomas P. Bradford (Chester W. Whitmore and Edmund H. Smalley, of counsel), for appellant.

      Elvin Swarthout (John E. More, of counsel), for appellee.
    Reuben H. Colburn, deceased, was the father of Andrew K. Colburn, deceased. Reuben had other children, viz., two daughters somewhat younger than Andrew. Andrew was born in 1839. In 1866 Reuben, accompanied by his wife, Caroline, and his son, Andrew, moved onto a farm near the outskirts of Casnovia, Michigan. They resided there, constituting one household, from that time until the death of Andrew, which occurred in 1897. Two years thereafter, Reuben’s wife, the mother of Andrew, died, and shortly thereafter Reuben went to live with one of his daughters in Illinois, where he resided until his death, which occurred February 8, 1903. Proceedings to administer his estate were instituted in Illinois. Ancillary administration was undertaken in the probate court of Kent county, Michigan. Andrew’s administrator presented a claim against the estate of Reuben for the services of Andrew from 1866 until his death in 1897 and for certain personal property left by Andrew on his death and converted by Reuben. That claim was presented before the commissioners appointed in the ancillary proceedings in Kent county. The commissioners allowed the claim, and from their allowance an appeal was taken to the Kent circuit court. There it was tried by a jury who rendered a verdict in claimant’s favor. The claim for services was based upon the ground that they were rendered in reliance upon the promise of Reuben that at the death of himself and wife the farm should belong to Andrew. Testimony was introduced tending to prove that Reuben actually did convey this farm to Andrew. This testimony afforded no basis for a verdict. For if this farm had been conveyed it belonged to the heirs of Andrew, and it had already been determined in a chancery proceeding instituted by those heirs against the heirs of Reuben that such conveyance was not made. We regard that determination as conclusive and binding upon the parties interested in this litigation. The testimony also showed that Reuben shortly after the death of his wife entered into an agreement with his two daughters whereby the farm in question was deeded to them in undivided shares in consideration of their agreement to support and maintain him during the remainder of his life. Defendants offered to prove that on Andrew’s death Reuben and his mother ‘ ‘ had no other property than this farm in question and the personal property ” connected therewith, ‘ ‘ and the proceeds of that farm and that personal property were reasonably requisite and necessary for the maintenance of them during the remaining years of their life.” This testimony was excluded. The issue was submitted to a jury, who were permitted to, and it is to be inferred did, give a verdict for the reasonable value of the services performed by Andrew and of certain personal property left by him at his death.
   Carpenter, J.

(after stating the facts). The first and most important question raised in this case is whether there was any testimony which warranted the claim for services to be submitted to the jury. As we have already stated, the testimony indicating that the farm had been conveyed to Andrew must be disregarded. That issue was determined against the heirs of Andrew in another suit.

Statements made by Reuben and his wife that Andrew should have the farm at their death were testified to by many witnesses. Some of these statements were made in the presence of Andrew, some of them when he was not present. Under our decisions they constitute no evidence of an agreement. They afford no evidence of a binding promise. They are consistent with the thought that it was the purpose of the father and mother to give a gratuitous preference to their son on their decease. See Decker v. Kanous’ Estate, 129 Mich. 146: Rodgers v. Lamb’s Estate, 137 Mich. 241. The relation of father and son existing between Reuben and Andrew prevents the implication of any agreement that the latter should receive compensation for his services. As stated by Justice Cooley in Mason v. Dunbar, 43 Mich. 407:

“They were father and children * * * living together as a family, and receiving mutual benefit and comfort from their association, and from the property which they enjoyed in common. No presumption can arise under such circumstances that claims were to be made by either against another for ser vices, or for the ordinary conveniences of life which were furnished. On the contrary, we must presume that the parties were residing together on the usual terms of members of one family, and not under any contract relations.”

There can be no recovery in such a case unless the evidence proves that the services were rendered and received under an agreement assented to by both parties requiring compensation. Decker v. Kanous’ Estate, supra, and cases there cited.

Is there any testimony in the record warranting the inference that any such agreement was made ? If there is, it is the following testimony given by witness Jacob H. Shaw:

“ The old gentleman told me that Andrew was to have the farm when they were done with it. And the old lady told me the same thing. He said that Andrew was to work on the place the same as they did. • This conversation was before Andrew’s death. I had two or three such conversations. I could not tell exactly, a good many years ago. Andrew was present once. The first time we had a conversation, they were all three together. This talk with the old folks about the property was sometime along in the seventies.”

The foregoing statement of Reuben and his wife that Andrew was to have the farm when they were done with it obviously means — and this is conceded — that he was to have it on their death. If this statement stood alone it would, as already shown, furnish no evidence of an agreement. It furnishes such evidence only because by the testimony it is connected with the statement that “Andrew was to work on the place the same as they did. ” If these two statements are related — and upon no other theory can an agreement be predicated upon them — the latter statement means that Andrew was to work upon the farm until the death of his father and mother. It follows that, if the foregoing testimony warrants the inference of any agreement, that agreement is this, viz., that in consideration of Andrew’s work on the farm until the death of Reuben and his wife, he shall receive the farm as compensation for his services. This agreement was clearly made upon the assumption that Andrew should outlive Reuben and his wife. That assumption proved unfounded. Andrew died before either of his parents. Can it be inferred from the testimony above quoted that there was any agreement to compensate Andrew for his services rendered under these cii’cumstances ? It was held in the trial court that it could, and that the estate of Reuben was bound to pay Andrew what his services were reasonably worth. It is insisted that this conclusion was warranted by In re Williams’ Estate, 106 Mich. 490, and Sammon v. Wood, 107 Mich. 506. In each of these cases an agreement was proved substantially like that in the case at bar, but it was also proved that the claimant rendering services fully performed his agreement and that the father for whom those services were performed refused to make the conveyance as agreed, and it was held that this refusal made his estate liable to pay the reasonable worth of the services rendered. The difference between those cases and the case at bar is manifest. There the estate was compelled to pay the reasonable worth of the services rendered as a penalty for the refusal of the decedent to perform his contract. This was a just and equitable decision. ■ Any other conclusion would have enabled the estate of decedent to evade the obligations imposed upon it by the contract he had entered into. The principle of those cases has no application here. Claimant never performed the contract between him and his father, and his father never failed to perform it. Upon what principle then can he recover the reasonable worth of his services ? He cannot recover upon the contract he made with his father, because he did not perform that contract. Neither can he recover upon the basis of • an implied contract deducible from the rendition and acceptance of his services under the authority of Allen v. McKibbin, 5 Mich. 449. There we held that though a party cannot recover upon a non-apportionable contract which he has not performed, he may “where anything has been done from which the' other party has received substantial benefit, and which he has appropriated, recover upon the quantum meruit based on that benefit, and the basis of this recovery is not the original contract, but a new implied agreement deducible from the delivery and acceptance of some valuable service or thing.” That principle can have no application in this case because, as we have already shown, the law will permit no agreement to be implied from the rendition and acceptance of claimant’s services.

No obligation rests upon the estate of Reuben to pay the reasonable worth of the services of Andrew unless that obligation arises from their agreement. For outside of that agreement there is no such obligation. From that agreement may it be inferred that Reuben was under obligation to pay the reasonable worth of Andrew’s services in the event of his surviving Andrew ? The agreement, as already stated, is that Reuben will give Andrew his farm at the death of himself and wife if Andrew will work for him until that event occurs. According to this agreement, the compensation of Andrew is not based upon the reasonable worth of his services. Reuben and his wife might die in a few days. In that event Andrew would receive much more than the value of his services. They might live for many years, and in that event Andrew would receive less than the value of his services. For the contingency which actually occurred, viz., Andrew’s death before Reuben’s, no provision whatever was made. May it be inferred that it was the intention of the parties that in such a contingency Reuben should pay Andrew’s estate what his services were reasonably worth ? In that event, though payment might be postponed until his death, Reuben would hold his property burdened with the obligation to pay this claim. To the extent of this claim he would be prevented from using that property for the maintenance of himself and wife during their remaining years. This would prevent his making the agreement he did make, viz., to convey the farm to his other children in consideration of their supporting and maintaining himself the remainder of his life. This would lead to very serious consequences, as shown by this case. For, as heretofore indicated, the testimony offered by contestants and excluded by the trial court would have shown that all this property was necessary for the maintenance of Reuben and his wife during their remaining years. It is scarcely necessary to say that neither Reuben nor Andrew intended that their agreement should apply in such a contingency. For the terms of that agreement clearly indicate that the right of Andrew in the farm should be subordinate to its use for the maintenance of his father and mother. I tbink it may also be stated that, from their agreement, it may not be inferred that either Reuben or Andrew intended, in the contingency of the former outliving the latter, the estate of the former should be fettered or burdened in any way by the claim of the latter. If they had had any such intention it is to be presumed that they would have expressed it in some way and made some equitable provision for a mutual protection of their rights. In the absence of an agreement, Andrew was entitled to no compensation for his services. The agreement provided for compensation in a certain contingency and in that contingency only. That contingency did not occur, but another and an altogether different one occurred. No principle of law or equity will permit the agreement to be applied to such a contingency, and it may not be presumed that the parties intended it to apply. It follows from this reasoning that there was no testimony in the case tending to show an obligation on the part of the estate to compensate Andrew for his services.

Personal property. The claim for personal property, as I understand it, is this: That at the death of Andrew there was personal property upon the farm of two classes; (a) certain property owned by Andrew which, after his death, was sold and the proceeds used by Reuben; and (b) certain property belonging to Reuben which, on the death of himself and wife, was to become Andrew’s if he worked for them until that event occurred. For this latter property there can be no recovery under the principles of this opinion. The property of Andrew is obviously subject to a different rule. For that there can be a recovery.

In behalf of the estate of Reuben, the point is made that the claim in question should have been presented before the court in Illinois where the principal proceedings to administer the estate were taken, and that it could not be presented in Michigan where the ancillary proceedings were taken. This point is not well taken. The claim in question arose in Michigan and was in every respect a Michigan claim. The assets of the estate in Michigan were justly subject to that claim, and it is as objectionable from a legal standpoint (see 18 Cyc. p. 1233) as from the standpoint of good sense to compel the claimant to resort to the courts of Illinois to litigate his claim which if paid must be paid from the property situated in this State.

Rulings relative to the admission and exclusion of testimony. Under thishead appellants present many objections. Nearly all of those ob jections relate to rulings which arose from the claim that Andrew was entitled compensation for his services. As we have already determined that that claim must be disallowed, we see no reason for considering these objections. We think that this opinion sufficiently indicates the course to be taken upon a new trial.

Judgment reversed, and a new trial ordered.

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

ON MOTION TO RECALL EXECUTION EOR COSTS.

Motion to recall execution for costs of this court against John E. More personally and to amend the judgment entry by adding thereto the following clause, namely:

“And that such costs be a charge against the estate of said Andrew K. Colburn and payable out of the said estate in due course of administration and not against the individual goods and estate of said John E. More.”

Blair, J.

The principal case, in which the motion is made,- is reported ante, 206. The subject-matter of the litigation between the parties is fully set forth in the principal case. Prior to the decision of the case, mandamus proceedings were instituted by appellant, administrator of the estate of Reuben H. Colburn, to require the Kent circuit judge to amend the judgment rendered upon the trial of the probate appeal in the Kent circuit “ so as to make the costs payable out of the estate and not payable by said relator personally.” He also asked the respondent to stay execution against the relator individually and personally, pending the final decision in this court, upon relator giving bond to the claimants in double the amount of the costs taxed; each of which motions was denied by the circuit judge. It was held by this court that the claim that respondent erred in rendering judgment for costs against relator personally could not be reviewed by mandamus but could only be reviewed on error. Luther v. Kent Circuit Judge, 151 Mich. 71.

In their brief in the principal case, counsel argue at length the point whether the circuit judge erred in entering judgment against the administrator personally, the only difference between the arguments then presented and the arguments now presented being that each counsel now strenuously insists that the position taken by his adversary was correct and adopts the adversary’s brief as his brief upon this motion. The question was not passed upon in the principal case, for the reason that the judgment was reversed and a new trial granted.

We are of the opinion that the legislature did not intend, by the provisions of section 9440, 3 Comp. Laws, to take from the courts the discretion as to costs conferred by section 681, 1 Comp. Laws, and sections 9391, 11275, 3 Comp. Laws. Van Wert v. Chidester, 31 Mich. 207; Cheever v. North, 106 Mich. 390; Brilliant v. Wayne Circuit Judges, 110 Mich. 68; Dodge v. Stanton, 12 Mich. 408.

In cases, however, where the court makes no special order as to costs, in the exercise of its discretion, execution issues against the executor or administrator, in accordance with the provisions of section 9440.

We, therefore, hold that the execution for costs of this court was properly issued against relator, and we see no sufficient reason for amending the judgment entry and recalling the execution.

Application denied.

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


author: Montgomery, J. Carpenter, J.

text:
    VELTHOUSE v. ALDERINK.
    Seduction — Civil Action — Declaration—Variance—Rape.
    In an action for seduction brought under section 10418, 3 Comp. Laws, by the injured female, by her next friend, the declaration and proofs making a case of rape, a judgment for plaintiff is affirmed; Mr. Justice Montgomery, with whom concur the Chief Justice and Mr. Justice Blair, writing for affirmance on the ground that though the reference to the statute cannot be treated as surplusage, the action may be maintained notwithstanding the intercourse was had by force and against the will of the plaintiff; and Mr. Justice Carpenter, with whom concurs Mr. Justice McAlvay, writing for affirmance on the ground that, though plaintiff had no right to bring suit for rape under the statute, the reference to the statute may be treated as surplusage, and the declaration sustained as a common-law declaration for assault.
    Error to Ottawa; Padgham, J.
    Submitted April 15, 1908.
    (Docket No. 76.)
    Decided June 27, 1908.
    Case by Fanny Velthouse, by next friend, against Henry Alderink for seduction. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Walter I. Lillie, for appellant.

      Farr & Farr, for appellee.
   Montgomery, J.

The plaintiff, in an action in which she counted on section 10418, 3 Comp. Laws, recovered a judgment of $1,350 against the defendant, and the case has been brought here for review on error. But a single question was raised. The point was made at the close of the testimony of the plaintiff and again in the request to charge, and, in the language of the bill of exceptions, is stated as follows:

“The defendant, by his attorney, requested the court to instruct the jury in substance that the action was one on the case for seduction, and brought under section 10418 of the Compiled Laws of 1897; that to constitute seduction there must be a consent to the sexual intercourse by the woman; that the declaration alleged the intercourse to have been without the consent of the plaintiff and against her will; that the proof failed to show that plaintiff consented to the intercourse, but, on the contrary, that she refused to yield to the claimed persuasions and entreaties of the defendant, and that the sexual intercourse between her and the defendant, if any was had, was effected without her consent and against her will; and that therefore the plaintiff could not recover in this case and the verdict of the jury should be no cause of action.”

It will be noted that no other question relating to the pleadings in the case is raised than that an action for seduction cannot be predicated upon intercourse brought about by force and against the will of the plaintiff. We shall deal only with the precise question raised. Other questions that might present themselves upon the record are not discussed.

At the argument, it was suggested to counsel that in any event the declaration averred facts sufficient to make a case, and that any irregularity in the appointment of a next friend would be obviated by a plea of the general issue. This would undoubtedly be true in any ordinary action, and it has been so held in the two cases of Sick v. Michigan Aid Ass’n, 49 Mich. 50, and McDonald v. Weir, 76 Mich. 243.

The present case, however, presents a somewhat different question. The declaration counts on the statute, section 10418, 3 Comp. Laws, and this would seem to fix the character of the action, and Ryan v. Fralick, 50 Mich. 483, seems inconsistent with the suggestion that this reference to the statute may be treated as surplusage.

This brings us to a consideration of the question whether, in an action for seduction brought on behalf of the seduced party, where the other elements are present — and it is not claimed in this case that they are not present — the action may be maintained notwithstanding the intercourse was had by force and ¿gainst the will of the plaintiff.

The question has been before this court in a number of cases where the action was brought by the father, and where the action was predicated upon the statute for seduction. The court has held in these cases that the fact that force is employed is no bar to recovery. See Dalman v. Koning, 54 Mich. 320; Johnston v. Dishrow, 47 Mich. 59; Watson v. Watson, 53 Mich. 168; Stoudt v. Shepherd, 73 Mich. 588. A summary of the preceding cases is found in Stoudt v. Shepherd, at page 597, as follows:

“ The case of Dalman v. Koning, 54 Mich. 320 (in this respect following Johnston v. Dishrow) held that, as the unlawful intercourse was the ground of action, the use of force did not negative the legal idea of seduction, and a recovery could be had for all the wrong and its consequences. It had already been held in Watson v. Watson, 49 Mich. 540, that two counts, one involving an assault and the other enticement, were not inconsistent with the same statutory theory, and did not make a double charge.” .

It would seem from this that the gravamen of the charge is debauching the plaintiff, and that it is not open to the defendant to assert that the means by which this was accomplished was force rather than the usual arts and persuasions of the seducer. So in Watson v. Watson, 53 Mich. 168, in referring to this subject, it is said:

“The plaintiff’s evidence did not make out a rape; it made out only that her will was overcome by the defendant’s superior will, which had controlling influence because of the parental relation which he had assumed towards her. If the case were in fact one of rape, there would be very good authority for holding that the action might be sustained notwithstanding the fact that the intercourse was accomplished byforce.” Citing Kennedy v.Shea, 110 Mass. 147, and Lavery v. Crooke, 52 Wis. 612.

The only case to which our attention has been directed in which the precise point has been considered is the case of Marshall v. Taylor, 98 Cal. 55, in which the evidence, from one viewpoint, indicated that the plaintiff lost consciousness from the effect of wine at the time the act was committed, and it was said:

“ If this be so, the defendant was guilty of rape, and while it is held in those States where seduction is a criminal offense that proof of a rape will defeat a prosecution for seduction,” citing authorities, “yet no case is found in the books where a party has failed to recover in damages for seduction when the evidence at the trial disclosed the defendant, guilty of the more heinous offense of rape. Such a showing but aggravates the injury, and furnishes ample ground for exemplary damages. * * * It does not lie in the mouth of the defendant to say: ' I am not liable to pay any damages in this action, because the evidence discloses I did not seduce the plaintiff, but committed the atrocious crime of rape.’ * * *
“Where a parent sues for seduction of his daughter, and consequent loss of service, and it appears that the intercourse was accomplished by force, such a showing will not defeat the action, but will aggravate the injury. (Furman v. Applegate, 23 N. J. Law, 28; Kennedy v. Shea, 110 Mass. 147; White v. Murtland, 71 Ill. 250). While the recovery of the parent is based upon a different principle from that involved where the female is the complainant, yet we see no bad effect to follow an application of the same rule in her case. Certainly a court will not be astute in drawing fine distinctions from the evidence in order to discover a case of rape, if such fact would defeat a recovery. For the foregoing reasons we conclude that, if plaintiff was unconscious from the effects of the wine at the time defendant had intercourse with her, her cause of action was not defeated by reason of such fact.”

As was stated in Stoudt v. Shepherd, 73 Mich. 588, our statutes have removed from such actions all the rubbish that disfigured them, from attempting to keep up an idea that their idea was to collect damages for loss of service, when in fact that was never more than a legal fiction. We are satisfied with the reasoning of the supreme court of California and are disposed to follow it.

The judgment will be affirmed.

Grant, C. J., and Blair, J., concurred.

Carpenter, J.

Plaintiff’s declaration is as follows:

“ Lida Velthouse, mother of Fanny Velthouse, a minor of the age of twenty years, plaintiff in this suit, for and in behalf of her said minor daughter, Fanny Velthouse, the father of the said Fanny being dead, by Farr and Son, her attorneys, comes into this court in and for the said Fanny Velthouse, and as her mother in and by virtue of the provisions of section 10418 of the Compiled Laws of this State of 1897, and complains of Henry Alderink, defendant herein, of a plea of trespass on the case:
“ For that whereas, the said defendant, contriving, and wrongfully, wickedly and unjustly intending to injure the said Fanny Velthouse, and to deprive her of the comfort, fellowship, society and respect of her friends and relatives and of the community in which she lived, and to bring her into great discredit, dishonor and disgrace, and to ruin her good name and fame in the community where she resided, heretofore, to wit, on the sixth day of October, 1906, at the township of Allendale, in said county, violently and without the consent of the said Fanny Velthouse, seized her and threw her upon the ground, and then and there debauched and carnally knew her, the said Fanny Velthouse, and against her will, whereby the said Fanny Velthouse became pregnant and sick with child, and so remained and continued for a long space of time, to wit, for the space of nine months then next following, at the expiration whereof, on, to wit, the 20th day of June, 1907, was delivered of the child with which she was so pregnant, as aforesaid, to wit, at the township of Allen-dale, at the time aforesaid, by means of which said several premises the aforesaid Fanny Velthouse suffered great and extreme pain, and experienced great suffering, and was greatly humiliated and disgraced, and was deprived of the comfort, fellowship, society and respect of all her friends and relatives, and of the community in which she lived, and was ruined and brought into great infamy and reproach, and has been greatly injured and damnified by the premises, to the damage of the said Fanny Velthouse of ten thousand dollars, and therefore this suit is brought in her behalf as aforesaid.”

To this defendant pleaded the general issue, entitling his plea, “Fanny Velthouse v. Henry Alderink.” The issue was tried by a jury and the testimony of the plaintiff introduced without objection. She testified in accordance with the averments of the declaration that the intercourse was brought about by force and without her consent. At the conclusion of the case defendant requested the court to direct a verdict in. his favor upon the ground:

“That the action was one on the case for seduction and brought under section 10418 of the Compiled Laws of 1897; that to constitute seduction there must be a consent to the sexual intercourse by the woman; that the declaration alleged the intercourse to have been without the consent of the plaintiff and against her will; that the proof failed to show that plaintiff consented to the intercourse, but on the contrary * * * that the sexual intercourse between her and the defendant * * * was effected without her consent and against her will.”

The court refused to give this request and submitted the issue to the jury who rendered a verdict in plaintiff’s favor. The refusal to give the foregoing request is the only ground relied upon for reversal of the judgment.

Can this suit be maintained under section 10418, 3 Comp. Laws ? This suit is not the suit of Lida Velthouse, the mother. It is the suit of Fanny herself to recover her damages, and Fanny is the real plaintiff, and it is so understood by defendant’s counsel. In his brief it is stated, “ it is just the same as if the plaintiff [Fanny] had brought the action herself.”

Section 10418, 3 Comp. Laws, provides:

“ It shall not be necessary in any action on the case for seduction hereafter to be brought, to allege in the declaration, or to prove on the trial, any loss of service in consequence of such seduction; but if the female seduced be a minor at the time of the seduction, the action may be brought by her father, mother, or guardian; and if such female be of full age, the action may be brought by her father, or any other relative who shall be authorized by her to bring the same. ”

Before this statute was passed the seduced woman had no right of action. But now she has. This statute gives her a right of action which she may enforce in her own name. Watson v. Watson, 49 Mich. 540. But does it give her a right of action if the intercourse is entirely accomplished by force and against her will ? If the intercourse is accomplished in part by force and in part by seductive arts, the case is one of seduction and within the statute. Watson v. Watson, 53 Mich. 168. But that is not this case. If the case of the plaintiff, as averred in the declaration and established by the testimony, is one of seduction, it would be a most equitable doctrine — though its legality may be open to question — to say that the defendant should not be permitted to avoid responsibility by proving that he committed the more heinous offense of rape. But that is not this case. Here the case made by plaintiff’s declaration and by her testimony is one of rape. I cannot assent to the proposition that rape is seduction, or that the statute intended to cover the case of rape. There was no need for a statute in such a case, because the principles of the common law afforded ample remedy. And it may also be added that to cover the contingency of the testimony proving a case of rape the pleader may have two counts; one charging rape, one seduction. Watson v. Watson, 49 Mich. 540. See, also, Bellant v. Brown, 78 Mich. 294. We are referred to many cases holding that the action may be maintained, though the intercourse relied upon was accomplished by force and violence. Kennedy v. Shea, 110 Mass. 147; Lavery v. Crooke, 52 Wis. 612; Damon v. Moore, 5 Lans. (N. Y.) 454. Each of these cases was brought by a father to recover compensation for damages resulting from his child being debauched. In those cases, as stated in Kennedy v. Shea, supra, “ the gist of the action is the debauching of the daughter and the consequent supposed or actual loss of her services.” In other words, in those cases, it was not necessary to prove seduction. It is otherwise however in this case where the seduced female herself brings the suit. In such cases, as we have held in Greenman v. O'Riley, 144 Mich. 534, a case of actual seduction must be established, and by that is meant,

“ The act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles, which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused.”

Marshall v. Taylor, 98 Cal. 55, is more nearly in point. There the seduced female herself brought the action. The testimony showed that the illicit intercourse took place immediately after the plaintiff had drunk a glass of wine handed her by defendant. Her testimony was open to two constructions; one that the intercourse occurred while she was unconscious from the effect of the wine; and the other that she was conscious and was induced to yield her consent by reason of defendant’s seductive promises. Plaintiff recovered a verdict and judgment in the trial court. Defendant asked the trial court to reverse that judgment upon the ground that plaintiff’s evidence did not establish a case of seduction. The supreme court decided otherwise, saying, “assuming her to have been conscious at the time the act of intercourse took place, and assented thereto,” she was seduced. And it was also held that defendant could not escape responsibility because the evidence disclosed him guilty of the more heinous crime of rape. In that case, assuming plaintiff to have been unconscious at the time the illicit intercourse occurred, she had, under a declaration alleging seduction, recovered damages for a rape. Inasmuch as she had a right to recover such damages on common-law principles, the only possible valid objection that could have been made was one of variance, viz., that she had been permitted to recover on a cause of action different from that stated in her declaration. No such objection was made, and that point was not considered by the supreme court. The objection was that plaintiff could not recover, not because of variance, but because there was no proof of seduction. It was a complete answer to that contention to say, as the court did say, that though the testimony established a case of rape, it would not defeat recovery. In that case plaintiff recovers, not because she proved seduction — the cause of action averred in her declaration —but because she proved another and a very different cause of action, viz., rape. And the court was quite correct, under a record which disclosed no objection upon the ground of variance, in saying that this was no defense. In other words, Marshall v. Taylor does not decide that rape is seduction. Nor that rape can be proved under a declaration averring seduction. It merely holds that on that record — a record disclosing no objection on the ground of variance — it was of no avail for defendant to say that the testimony proved rape instead of seduction. Had such an objection been made, a different question would have been presented, and we are not informed how that question would have been determined. I am therefore of the opinion that Marshall v. Taylor is not an authority for the proposition that the plaintiff in this case had a right to bring suit for rape under section 10418, 3 Comp. Laws, and, as already stated, I think she had no such right.

It does not follow, however, that plaintiff should be defeated in this action. Upon common-law principles she had a right to maintain an action and recover damages for the assault committed upon her. The declaration in this case states every essential element to entitle her to recover under common-law principles. It is true that it states something more, viz., it says that she brings this action by virtue of the provisions of section 10418, 3 Comp. Laws. If I am right in my reasoning, she could not bring it by virtue of that section. Defendant contends and has always contended that she could not bring it by virtue of that section. In my view of the case and in his view of the case this reference to the statute was a surplusage. Why should it defeat recovery ? It was an averment of a proposition of law which was unsound. It did not deceive the defendant. It had no effect upon the trial; it was a mere surplusage and should be disregarded.

In 21 Enc. PI. & Prac. p. 293, it is said:

“ Averments of legal conclusions and inferences which do not correctly state the law applicable to the facts, but are repugnant to it, are not material, and will neither vitiate a good pleading nor cure one that is defective.”

In support of this statement a number of cases are cited, one of which, Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223, is very similar to the case at bar.

“ This [as stated in the opinion of the lower court] was an action on the case for negligence in leaving a sunken barge in the defendant’s canal which the plaintiff’s vessel ran against and was thereby sunk.”

In the declaration it was averred that the duty of defendant to remove the sunken vessel arose from a certain act of parliament therein set forth. After verdict and judgment in favor of plaintiff, the case was reviewed by a writ of error. The proposition there raised and decided is shown by the following quotation from the opinion of Tindal, C. J.

“The principal objection in this case was, that the clause recited in the declaration, and which is therein stated to have cast a duty on the company to remove the obstruction caused by the sunken boat, was not obligatory, but was an enabling or permissive clause only. And we are all of that opinion. Neither the clause recited, nor anything in the act of parliament contained, imposes such a duty on the defendants below; and the allegation in the declaration, as to the duty of the company, seems to have been founded on a mistake as to the true meaning and effect of that clause.
“But, admitting this to be so, the question then arises, whether, upon the facts stated in the declaration, another duty of a different kind was not imposed by the common law upon this company; and whether a sufficient breach of that duty is not alleged. It is clear that the statement of the duty in the declaration is an inference of law from the facts, and need not be stated at all, or, if improperly stated, may be altogether rejected. Omitting, therefore, as it appears to us, the improper and unfounded statement of duty in the declaration, the facts stated in the inducement show that the company made the canal for their profit, and opened it to the public upon the payment of tolls to the company; and the common law, in such a case, imposes a duty upon the proprietors, not perhaps to repair the canal, or absolutely to free it from obstructions, but to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate without danger to their lives or property. We concur with the Court of Queen’s Bench in thinking that a duty of this nature is imposed upon the company, and that they are responsible for the breach of it upon a similar ' principle to that which makes a shopkeeper, who invites the public to his shop, liable for neglect on leaving a trap door open without any protection, by which his customers suffer injury,” and the judgment was affirmed.

I think it may also be said that the Parnaby Case is in harmony with our own decisions. Smith v. Holmes, 54 Mich. 104. See, also, Attorney General v. Michigan State Bank, 2 Doug. (Mich.) 359; Holdridge v. Farmers’ & Mechanics’ Bank, 16 Mich. 72.

It is said that, considered as a common-law declaration, there was an irregularity in the appointment of a next friend. It is to be observed that defendant as well as plaintiff has treated the mother of plaintiff as her next friend. The objection to the regularity of her appointment is one which cannot now be made. Sick v. Michigan Aid Ass’n, 49 Mich. 50; McDonald v. Weir, 76 Mich. 243.

It is said that Byan v. Fralick, 50 Mich. 483, is inconsistent with the thought that the reference to the statute may be treated as surplusage. To this I cannot agree. It is true in that case it was held that the declaration was based on the statute, section 10418, and could not be regarded as a common-law declaration. But it could not be said there as here that the declaration on its face showed that the reference to the statute was erroneous. That declaration could not be treated as a common-law declaration, because, unlike the one in this case, it did not contain the essential elements of a common-law declaration.

Holding, as I do, that under defendant’s contention the declaration is a common-law declaration, the judgment must be affirmed.

McAlvay, J., concurred.


text:
    TURNBULL v. JOHNSON.
    Wills — Construction — Interests Created — Personal PropERTY.
    Where testator devised all his real and personal property to his wife “to be hers absolutely during her lifetime, and at her death what of the same might be left to ” his two sons and their heirs, and his widow became sole executrix, she had absolute and unlimited power to dispose of shares of stock belonging to the estate and pledged to secure an indebtedness ; and the sons, though they executed a bill of sale purporting to transfer their interest, had no interest in the stock upon which to found a bill to cancel the sale on the ground of fraud practiced upon them by the purchaser.
    Appeal from Alpena; Emerick, J.
    Submitted April 16, 1908.
    (Docket No. 104.)
    Decided June 27, 1908.
    Bill by Burt L. Turnbull and another against William H. Johnson and others to set aside the sale of certain stock on the ground of fraud. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Reilley & McPhee (Henry K. Gustin, of counsel), for complainants.

      Joseph H. Cobb, for defendant Johnson.
    Complainants are the sons of James D. Turnbull, deceased. Said James D. Turnbull died September 19, 1900. His will, which was duly admitted to probate, devised all his real and personal estate to his “wife, Franc A. Turnbull, to be hers absolutely during her lifetime, and at her death what of the same might be left to my two sons, Burt L. Turnbull and Jay D. Turnbull, share and share alike, and their heirs forever.”
    The widow, Franc A. Turnbull, became sole executor of the will. Among the assets of the estate of James D. Turnbull were 210 shares of the capital stock of the Alpena City Water Company and 480 shares of the Alpena Electric Light Company. These shares were pledged to the Alpena National Bank as security for an indebtedness exceeding the value of the stock. Early in 1902 defendant Johnson purchased said stock.' He procured the title of the bank to which they were pledged. He also acquired the interest of the estate of James D. Turnbull, deceased, and the interest of Eranc A. Turnbull. The complainants themselves executed a bill of sale purporting to transfer their interest. On the 29th of April, 1905, complainants filed this bill averring that defendant Johnson, in purchasing said stock, practiced a fraud upon them, and praying relief therefor. Defendants answered. The case was heard on testimony taken in open court and a decree entered dismissing complainants’ bill. From that decree an appeal is taken to this court.
   Carpenter, J.

(after stating the facts). The only ground upon which complainants seek relief is that they were defrauded by the purchase of this stock. It is a complete answer to this claim to say that complainants had no interest whatever in said stock. The will of their father made that stock the absolute property of their mother. See Jones v. Jones, 25 Mich. 401; Dills v. La Tour, 136 Mich. 243; Killefer v. Bassett, 146 Mich. 1; Moran v. Moran, 143 Mich. 322.

Their mother had the absolute and unlimited power of disposing of this stock as she chose. Complainants’ assent to its transfer was entirely unnecessary and added nothing whatever to the title acquired by defendant Johnson. It is scarcely necessary to say that they are in no position to complain that fraud was practiced upon them. They cannot predicate relief upon that ground. If any fraud was practiced, the only ones affected thereby "would be the bank or Franc A. Turnbull, personally, or as the executor of her husband’s estate. Neither the bank nor Franc A. Turnbull complain. Nor do complainants seek relief upon the ground that the bank was defrauded, that their mother was defrauded, or that, their father’s estate was defrauded. Nor is there evidence upon which relief could be granted on any such ground.

From our disposition of the case it is not to be inferred that defendant Johnson was guilty of unconscionable conduct. Our view of the case does not require us to enter into an examination of the testimony upon that subject.

The decree is affirmed.

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


author: Blair, J.

text:
    G. S. BLAKESLEE & CO. v. REINHOLD MANUFACTURING CO.
    1. Sales — Contract—Construction.
    A contract to furnish certain ice chopping machines on consignment, and an addition thereto providing for the sale of certain other machines of similar use, examined, and held, that the addition to the contract stated its own terms of payment and did not adopt the provisions of the original contract.
    2. Trial — Instructions—Misstatement of Testimony.
    An instruction stating that plaintiffs had testified to a certain matter is properly refused where the most that could be said is that plaintiffs had testified to certain admissions on the part of defendants from which such an inference could be drawn.
    3. Saving Questions for Review — Reasons for Ruling — Exceptions — Necessity.
    Error in overruling a motion for a new trial cannot be considered where no reasons were given for the ruling and no exceptions were taken.

      Error to Wayne; Mandell, J.
    Submitted April 15, 1908.
    (Docket No. 89.)
    Decided June 27, 1908.
    Assumpsit by G. S. Blakeslee & Company against the Reinhold Manufacturing Company for the breach of a contract for the sale of certain machines. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      E. T. Berger, for appellant.

      Thomas Mulvihill and Thomas W. Fitzsimmons, for appellee.
   Blair, J.

On the 3d day of November, 1902, the parties to this suit entered into an agreement whereby the defendant, Reinhold Manufacturing Company, agreed to furnish and sell exclusively for one year to plaintiff, G. S. Blakeslee & Company, “ their machine, known as the ‘ Reinhold Ice Chopper,’ upon which patents are pending in the United States, on consignment, to the party of the second part at the following price, to wit: Twenty-one ($21) dollars for each and every machine delivered to the party of the second part.” The agreement contained further provisions, as follows:

“Said parties further agree that at the end of one (1) year from date hereof they expressly give the said party of the second part the privilege and option of renewing this contract for the further period of two (2) years on the same terms. * * *
“ In and for the consideration of the above promises and covenants, the party of the second part agrees that as soon as it has sold or disposed of any machine, delivered to it by the parties of the first part, it will within thirty (30) days from the date of such sale, pay the parties of the first part the sum of twenty-one ($21) dollars for each and every machine together with the amount of freight advanced by the parties of the first part in delivering said machines f. o. b. to either of the above destinations by the party of the second part. * * *
“The party of the second part further agrees that it will devote its best efforts to promote the sale of said machines and will do everything in its power to increase the sale thereof and to aid the parties of the first part in disposing of their product. ”

In February, 1903, the following writing was executed by the parties:

“ This is an addition to the original contract made by Frank J. Reinhold and Alexander H. Reinhold and the G. S. Blakeslee Co., February, 1903.
“ The first party hereby agrees to furnish the said second party their Gem ice choppers on the following terms, for one year from date. Price is to be twelve ($12) dollars less five (5%) per cent, in thirty (30) days and half freight allowed in Chicago.
“Said first party also agrees to furnish to said second party their cube machines on the following terms for one year. Price to be forty-five ($45) dollars f. o. b. Detroit for the term of six (6) months. After that date the said first party is to receive an additional twenty-five ($25) dollars, if the machine is then found satisfactory.”

September 1st, 1903, the plaintiff company gave notice of the exercise of their option to renew the contract for the further period of two years, as follows:

“ The contract which we have with you under date of November 3d, 1902, for the exclusive sale of your ice machine, will soon have run its first year and we therefore desire to exercise the option given us in said contract for a renewal of a further period of two years, by advising you that we wish to so renew it on the same terms and conditions.”

The parties having got into difficulty with reference to the performance of the contract, in November, 1905, the Reinhold Manufacturing Company began suit in the justice’s court for the city of Detroit against G. S. Blakeslee & Company to recover from it a balance claimed due, filing a bill of particulars of its claim amounting to $589.04, upon which amount there was credited to the Blakeslee Company $154, as follows: “Allowance for selling machines: 16 No. 1 choppers at $7 each, $112; 12 Gems at $3.50 each, $42; ” leaving a balance due October 17, 1903, of $435.04, for which amount the Reinhold Company recovered judgment against the Blakeslee Company. From this judgment, the Blakeslee Company appealed to the circuit ■ court, and thereafter brought suit in the circuit court for the county of Wayne .against the Reinhold Company to recover damages for alleged breaches of the agreement by the said Reinhold Manufacturing Company. Upon motion of counsel for the Blakeslee Company, both cases were consolidated and tried together before a jury, resulting in a verdict in favor of the Reinhold Manufacturing Company, defendant and appellee herein, for $448.

On the trial in the circuit court, G. S. Blakeslee, president of plaintiff company, testified, among other things, as follows:

“ Reinhold kept me supplied with ice-choppers up to September, 1903. I think we ordered two or three cube cutters after March 24, 1903. I think we got three. The last order we gave Reinhold for ice machines was September 15, 1903. * * *
“ I remember coming to Detroit on October 16, 1903, to look over their business with' a view to buying it. There was considerable talk and Mr. Reinhold, Jr., figured up what he thought could be done.
“Q. We just want the conversation, if you can remember; and if you can’t, just say so.
“A. I can’t remember to give very much of the details, but I remember that, and I remember another thing that struck me very forcibly. They said that they had already themselves sold direct about 100 choppers outside of our contract. I was astonished. I remember that distinctly.
“Q. Who was that ?
“A. Why, the senior made the remark first. * * *
“Q- Did the young man say anything in relation to it ?
“A. He did, he admitted it. * * *
“We renewed the contract two years from November, 1903, but did not push the business as hard as we had "been doing because we did not know where we could get the stock. Mr. Reinhold having refused other orders binder the contract. We did not pay for the ones we had on hand because I considered he owed us instead of us. owing him anything.
“Q. He owed you for what ?
“JL Machines that he admitted that he had sold during the first year.
“Q. He admitted that he sold those when ?
“A. When Mr. Trelevan and I were here.
“Q. That was on October 16th?
“A. Yes.
"Q. And he told you at that time that he had sold one hundred ?
“A. Yes. * * *
“Q. He told you, did he, that he sold them during the life of your contract ?
“A. Yes. * * *
“I don’t remember ordering any ice choppers that we contracted to buy and sell, after September 5, 1903, that were not filled. I sold a few Davenport ice choppers after November, 1903. They were different from the Rein-holds. I don’t think we sold any other ice chopper after we had disposed of the machines we had on hand belonging to Reinhold, November, 1903. We have since sold a Reinhold chopper, but not the Reinhold in this case. We have an ice shaver similar to Reinhold’s. I don’t swear I am not using part of Mr. Reinhold’s machine on the machine I am using. I won’t swear that I didn’t sell my machine in 1904. I would not swear that I didn’t have one of my machines in Tom Schmolly’s on Wabash avenue, in Chicago, in April, 1904. I might have such a. man’s name on our books. I don’t remember. * * *
“I don’t remember of advertising the Reinhold ice machine in 1904. I may have advertised for my ice shaving machine in 1904. I wanted to keep my name before the public as making ice machines; I must have had a machine, or thought I had, when I advertised. * * *
“We sold 115 ice choppers the first year. Then after we found we could not get any more goods, we sold slowly. I did not take any further orders for these. We took the same steps in regard to pushing the cube cutters as we did with the choppers. We had orders for approximately twenty-eight cube cutters. We kept them in stock in Chicago and filled the orders from there, but we only received about three from the Reinholds. * * * On the cube cutters the difference between the price paid and the price that we would have received for them if we had been able to fill the orders would have been $675.”

Mr. Reinhold testified on the trial in the circuit court, in his own behalf:

“Blakeslee told me October 16, 1903, that he was not in shape to take cafe of the territory east of Buffalo and was willing to release that territory and take everything west of Buffalo. * * * There were no goods ordered after September 18, 1903. If they would have paid us what we had coming, we were ready to fill orders. They never disputed the bill for $550.84. I don’t think there was any payment after November 13, 1903. The last order we got from Blakeslee was September 17,1903. * * * I did not get any orders after September, 1903, and if Mr. Blakeslee wished any machines he would have got them if he paid for them. I saw a machine, on May 5, 1904, in Tom Schmolly’s place on Wabash avenue, Chicago. It was a No. 1 ice chopper. It was Blakeslee’s, and was an imitation of our machine.
Q. Then you did sell 38 that year, that you are willing to admit that you sold ?
“A. Yes, in fact we allowed you that in justice’s court in that case. If you look up your statement, you will find it.
Q. You are willing to allow for these choppers?
“A. Yes, for commission on them.
Q. And you are willing to allow the Gem choppers?
“A. Yes, I am willing to allow commissions on one-half of them under our arrangement.
Q. The contract doesn’t say anything about half of it.
“A. There is a letter there that shows that they are entitled to one-half and we could have the other half.
Q. That you sold?
“A. Yes.
Q. Where?
A. Around the city here.
Q. Did you sell any of these machines outside ?
“A. No, I didn’t have money enough to go out of town to sell any at that time.”

On November 35, 1903, the Blakeslee Company wrote to the Reinhold Company a letter, from which we quote the following:

“We understand, however, that in express opposition to the terms of the contract you have been selling these goods to parties other than us, and while we are willing to share profits with you on goods sold by you in your own city we must most emphatically object to any sale made by you out of Detroit of which we do not get the full profit. We only recently learned of this and in our last letter asked you for an accounting which we did not get. Unless we get a full statement from you by return mail showing what you have sold we shall consider the contract broken by you from the date of your first sale of a machine after you signed the contract with us and shall take vigorous steps to enforce our right in this regard. We never supposed that there would be any difficulty regarding the settlement of this part of the account or we would have spoken about it before, as to the machines which we knew you had sold at the time. As to any money which you claim we owe you, we desire to say that same is not due you until the machines are sold, and even if it were due, we would be compelled to await your action regarding our claim before sending you a check.”

The assignments of error raise the following questions:

(1) That the court erred in not submitting defendant’s 7th request to charge to the jury, as follows:

“ I charge you that the fact that the Blakeslees had a number of orders for certain machines, known as cube cutters, on hand, namely, 28, which the Reinholds refused to fill, is proof of the establishment of the market to the extent of such machines, and the Blakeslees are entitled to recover their loss upon the number of cube cutters that the Reinholds refused to furnish to fill these orders.”

(2) That the court erred in not submitting the appellant’s 9th request to charge to the jury, as follows:

‘ ‘ I charge you that you may positively allow the Blakeslee Company their profits on the machines admitted on the stand to have been sold during the contract period. [This was admitted by the Reinholds to' have been 28.] The Blakeslees have testified that these machines numbered 100. This number is not admitted by the Reinholds and you are therefore at liberty to draw your own estimate as to the amount actually sold by them, and when you have fixed this estimate, you are then to allow the Blakeslees their profit on the machines sold.”

(3) That the court erred in charging the jury that the Blakeslees were bound to make payment for machines as delivered, when the contract expressly states that payment was to be made within 30 days after machines had actually been sold.

(4) That the court erred in refusing to give appellant’s 2d, 3d, and 5th requests to charge.

(5) That the court erred in overruling the appellant’s motion to vacate and set aside the verdict rendered by the jury in favor of the Reinholds for reasons set up in the said motion and supplemental motion of appellant, etc.

The principal question, in view of the trial court, for determination, and which we think was properly submitted to the jury, was as to who really broke the contract. It seems apparent from the contract, as well as from the record, that the parties were dealing with reference to three different forms of ice machines. The original contract related to the “Reinhold Ice Chopper,” which was to be furnished at the price of $21, and to be paid for within 30 days from date of sale by the consignee.

The addition to the contract referred to, 1st, “Gem Ice Choppers” at a price of “Twelve ($12) dollars, less five (5%) per cent, in thirty (30) days and half freight allowed in Chicago;” 2d, “Cube machines on the following terms for one year. Price to be forty-five ($45) dollars f. o. b. Detroit for the term of six (6) months. After that date the said first party is to receive an additional twenty-five ($25) dollars, if the machine is then found satisfactory.”

We are of the opinion that the court correctly construed this addition to the contract as stating its own terms of payment and not adopting with reference thereto the provision of the original contract, which related solely to the “Reinhold Ice Chopper.”

The plaintiff company not only failed to show compliance on its part with the terms of the contract as to payment for the “ Cube cutters,” but, on the contrary, proved its refusal to comply with such terms. It follows that the request was properly refused.

It appears from the letter of the Blakeslee Company that they were willing to share profits with the defendant “on goods sold by you in your own city,” and it further appears from the bill of particulars that they were given credit for one-half the commissions on the machines admitted to have been sold, and the only machines admitted to have been sold, by the defendant. Mr. Reinhold testified that these 28 machines were sold in the city of Detroit. The Blakeslee Company received the benefit of the commission, in accordance with the terms of their letter, in the judgment in justice’s court, and apparently received the benefit thereof in the verdict of the jury in the circuit court. The trial judge covered this request in his charge, as follows:

“ If you find that the plaintiff, regardless of the terms of the contract, sold either one hundred machines or any number less than one hundred, or whatever number you determine the evidence shows, then you should deduct the amount of the profits that the defendant would have made if it had sold these machines from the claim of the plaintiff, which is $500.”

The request as presented required the court to charge the jury, as to the number of machines sold, that “ The Blakeslees have testified that these machines numbered 100.” The Blakeslees had not so testified, but only to alleged admissions by the Reinholds, and the circuit judge was, therefore, justified in refusing the request as presented.

What we have said on the first point renders it unnecessary to discuss this point.

The second and third requests to charge required the court to determine as a matter of law that the contract had been broken by the Reinhold Company, which the court very properly refused to do. The fifth request was given in terms.

No reasons were filed by the court for overruling the motion to set aside the verdict, nor exceptions taken, and the matter is not before us for consideration upon this record.

The judgment is affirmed.

Grant, C. J., and Montgomery, Carpenter, and Mc-Alvay, JJ., concurred.


text:
    CUDNEY v. SHERRARD.
    1. Appeal and Error — Review — Findings of Fact — Conolu-SIVBNESS.
    ■Where, in a case tried to the court, no amendments to the findings appear to have been proposed, the court will presume the findings were warranted by the evidence.
    3. Adverse Possession — Ejectment—Findings—Sufficiency to Support Judgment.
    In ejectment to recover a strip of land along a boundary, a finding that plaintiff had occupied the land for a sufficient period to acquire title by adverse possession was sufficient to support a judgment in his favor.
    3. Appeal and Error — Questions Considered — Record.
    The court does not consider questions not raised by the record.
    4. Ejectment — Adverse Possession — Evidence—Materiality.
    Where, in an action of ejectment to recover a strip of land ■ along the boundary between plaintiff and defendant, the undisputed evidence showed an original location of a boundary line fence by adjoining owners and an adverse occupation of the land on each side of the line down to the removal of the fence by defendants, with all the elements of adverse possession, and the only disputed question is how far defendants moved the fence, questions asked of plaintiff’s predecessors in title whether they ever had any idea of claiming title to any land beyond the true boundary line were purely academic and properly refused.

      Error to Shiawassee; Miner, J.
    Submitted April 16, 1908.
    (Docket No. 96.)
    Decided June 27, 1908.
    Ejectment by L. G. Cudney against William Sherrard and another. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Walsh & Pardee (Bollin H. Person, of counsel), for appellants.

      W. J. Parker (Watson & Chapman, of counsel), for appellee.
   Blair, J.

This is an action in ejectment, brought to determine the ownership as between adjoining proprietors of a strip of land described in the declaration as follows, viz.:

“A strip of land commencing at a point 40 rods east of the quarter post on the west side of section 2, in town 7 north, range 3 east, running from thence east on the quarter line 40 rods, thence 25 feet south, thence westerly to a point 42 feet south of the point of beginning, thence north to the place of beginning, and being a part of the northwest quarter of the southwest quarter of said section,” etc.

The case was tried by the court without a jury, and, among others, the court made the following findings:

“So in this case back in 1880, the plaintiff owned an eighty acres of land on section 2; immediately west of him Mr. Hoenshell and his son owned an eighty, and at that time the plaintiff was living upon his, but I do not know whether the evidence shows that Mr. Hoenshell was living upon his at that time or not; if he was not living upon this eighty he was living upon a forty which was across the road.
“At that time they desired to build a fence, such a fence as a great many of the early settlers used to, and they started in to build a fence along the north end of those two eighties, and the two men united their forces together, that is, in lieu of each building a fence along his own eighty they united together and built the fence along the northern boundary, and it seems they took some pains to ascertain where the correct location was at that time.
“ Now whether they got that line correct or did not get it correct I do not think it is necessary to determine in this case. Whether the line they decided upon at that time was correct, or whether the line that Mr. Lyman Mason afterwards decided upon was correct, as I look at this case, it is not necessary to determine that fact. If those people at that time built what they believed to be the boundary line between them, and others from thát time entered into possession of the same and occupied it to the exclusion of all others, and cultivated it as such land is usually cultivated, and that their possession was of such a nature and anyone could determine it, or, in other words, that the possession was open, notorious and hostile, that is, they occupied it to the exclusion of others for a sufficient length of time which the statute of our State has fixed at 15 years, as I look at it, that is sufficient to entitle the plaintiff to the title to that land by reason of adverse possession. I don’t think there is any dispute upon that question in the case here, that at least a part of this land was occupied by the plaintiff for at least the statutory period of time, 15 years.
“ Therefore, I find as a matter of fact that the plaintiff occupied the land for the statutory period, in such a manner and in such a way that it would give him title by adverse possession. Now, the question comes up, how much of it did he occupy; whether it was the amount described in the declaration or was it the amount claimed by the defendant, and that is a much more difficult question to decide, in my opinion, than the first. * * *
“So my opinion is and I so find that the northern boundary of the brush fence as originally built was a continuation of the fence that went north and along the line of Mr. Cudney’s eighty. And that the eastern boundary of the line north of this forty was the same as the eastern bóundary along north of Mr. Cudney’s. And the same would be true as to the western boundary, being the boundary that continued along north of Mr. Hoenshell’s west forty. Therefore, I find in this case that the plaintiff is entitled to the land described in his declaration.”

No requests for findings of fact or law nor proposals of amendments appear in the original or printed record. Defendants filed the following exceptions, viz. :

‘ ‘ First. Defendants except to the refusal of the circuit judge to find as in their requests for findings respectively and filed herein before judgment.
“Second. To the findings of fact adduced from the testimony admitted against defendants’ objections, and being immaterial, irrelevant and incompetent.
‘ Third. To the judgment entered as not being supported by the findings of fact.”

Defendants have removed the record to this court for review upon writ of error, assigning the following errors, viz.:

“First. The said court erred in refusing to find, as requested by defendants in their first request, that the plaintiff nor his predecessors in title never had any idea or intention of holding any of defendants’ land in question beyond the true boundary line, but that they all believed the old fence in question was on the true boundary line, and, therefore, plaintiff having no intention of claiming beyond the true boundary line, cannot recover.
“Second. The said court erred in refusing to find, as requested by defendants in their second request, that the court should find generally in favor of the defendants and for no cause of action.
Third. The said court erred in sustaining the objection entered by plaintiff’s counsel to the following question asked by défendants’ counsel of the plaintiff on cross-examination : Did you have any purpose or idea after you took possession of this forty acres in question, of claiming title to any land beyond the true boundary line between you and Mr. Sherrard ? ’ * * *
‘' Seventh. The court erred in arriving at the judgment entered for the plaintiff in this cause for the reason that it is not supported by the findings of fact.”

The 4th, 5th, and 6th assignments are the same in substance as the 3d.

Counsel for appellants in their brief argue in support of three propositions, as follows:

(1) That the judgment was not authorized by the findings of facts, for the reason that by his declaration plaintiff—

* ‘ Made the recovery of the disputed strip to depend up-
243 on its being south of the quarter line; and made the judicial establishment of the quarter line a condition precedent to any recovery.
“The court however expressly declined to determine whether the quarter line was where plaintiff claimed, namely, on the line of the old brush fence, or whether it was in accordance with the new survey as claimed by defendants. Hence there was no basis for any recovery in this case.”

(2) The court found plaintiff’s title to the disputed strip to rest entirely upon adverse possession.

“But the record does not show any privity between the title of plaintiff and the title of the Hoenshells. When plaintiff’s grantor Bruff got it, and of whom he got it, we do not know.
‘ ‘And there is no authority for tacking the title of the Hoenshells to the possession of plaintiff or of Bruff; if the latter ever-had possession. And without such tacking there is no continuous possession for the period of fifteen years.”

(3) The court erred in excluding the questions asked by defendants’ counsel of the several occupants of the land, as to the intention with which they held possession up to the brush fence.

1. As no amendments appear to have been proposed to the findings, we must assume that they were warranted by the evidence. Becker v. Headsten, 137 Mich. 478.

The court’s finding amounted, in substance, to a determination that the plaintiff had occupied the land described in his declaration for a sufficient period to acquire title thereto by adverse possession. Such finding was sufficient to support the judgment.

2. This question is not raised by the record, and we, therefore, do not consider it.

3. The undisputed evidence showed, as found by the court, an original location of this boundary line fence by adjoining owners and an adverse occupation of the land on each side of the line down to the removal of the fence by defendants, with all of the elements of adverse possession, the only disputed question being how far south defendants moved the fence. Under such circumstances, the questions propounded were purely academic and were properly refused.

The judgment is affirmed.

Grant, C. J., and Montgomery, Carpenter, and "•McAlvay, JJ., concurred.