author: Hooker, J.

text:
    JOHNSON v. FARMERS’ MUTUAL FIRE INSURANCE CO.
    1. Insurance — Assessments—Delegation of Powers.
    The charter of a mutual fire insurance company provided that all assessments should be made by the board of directors, who should ascertain the amount of loss, determine the sum to be raised as surplus fund, and make an assessment embracing the loss, the expenses incident thereto, and the sum to be raised as surplus, which assessment should be handed to the secretary, who should notify the members. Held, that an assessment made by the secretary pursuant to a resolution of the board of directors providing for an assessment, but failing to indicate the steps to be taken in making the same, was invalid,— at least in the absence of a formal adoption by the board.
    2. Same — Ratification—What Constitutes.
    The individual action of the directors in signing the warrant attached to the assessment roll, no meeting of the board being called for the purpose, was not such a ratification as would validate the assessment.
    3. Same — Forfeiture for Nonpayment.
    A forfeiture of insurance in a mutual insurance company for nonpayment of an assessment cannot be sustained where the assessment was not made by the officers designated by law.
    Error to Kent; Grove, J.
    Submitted April 29, 1896.
    Decided July 31, 1896.

      Assumpsit by Olaf Johnson against the Farmers’ Mutual Fire Insurance Company of Kent County on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Myron H. Walker, for appellant.

      Taggart, Knappen & Denison, for appellee.
   Hooker, J.

The plaintiff had insurance to the amount of $3,500 upon his buildings, in a mutual fire insurance company. Some of these buildings being destroyed by fire, he sued the company upon the policy; and the company defends upon the ground that the policy was not in force at the time of the fire, owing to the fact that an assessment was overdue and unpaid. The record shows that on July 30, 1894, the board of directors met, and passed a resolution to make an assessment of three mills on the dollar, on the capital of the cpmpany, to pay its indebtedness to that date, and for a surplus fund to pay future losses; to allow the president and treasurer 4 per cent, for the collection of assessments, and to the secretary, $140 for making the roll, paying postage and printing, and notifying the members of their assessments. The secretary thereupon proceeded to make an assessment of the date of October 1, 1894, dividing members into 15 classes, upon the basis of the dates of their membership. This took no notice of periods less than a month. Those who were members on the 9th of November, 1893, were assessed $3 upon $1,000; those who joined later, proportionately less, — so that the total amount assessed was less than the amount required by the resolution. Notice, of the assessment was served, but the plaintiff forgot to pay it until after the fire, and defendant’s counsel relies upon the provision of the by-law which suspends policies while assessments are due and unpaid. On the other hand, it is contended that the directors did not determine the date of the assessment, the amount of losses to be assessed for, the members liable to assessment for the respective losses (which were over 50 in number), the amount to be raised as a surplus fund, or the method to be followed in apportioning the amount to be raised.

The following provisions of the charter are pertinent at this juncture:

“5. The board of directors of said company shall * * * make all assessments in case of fire or other indebtedness. * * * ”
“17. In case of fire, the directors shall meet within 10 days after the secretary shall be informed in writing by the owner of the property burned, who shall inform each director forthwith, by writing, and stating the day and hour of such meeting; the place to be at or near the property burned.
“18. At this meeting of the directors they shall ascertain the amount of loss, and determine a sum proper to be raised as a surplus fund for the payment of losses and other necessary expenses (the assessment of which fund shall not exceed one dollar on each thousand dollars of capital of the company), and shall proceed to make an assessment roll, embracing the loss ascertained, the expenses incident thereto, and the sum to be raised as a surplus fund, which assessment shall be handed to the secretary, who shall inform each member by writing, stating capital of company, name of loser, amount of loss, sum raised as a surplus fund, the amount assessed on $1,000 of the capital of the company; also the amount of his or her assessment. The president shall also appoint a receiver in each township to receive the sums assessed in their respective townships.”
“20. All members are to be ratably assessed.”

In our opinion, these provisions require action by the board, in all essential particulars, to the extent of determining the necessary steps to be taken in making the assessment, or at least formally adopting the same, at a meeting of the board, after the performance of the necessary clerical work.

It is contended that the signatures of the five directors to the warrant attached to the assessment roll was a ratification of what had been done. The record shows that no meeting of the board was held after that of July 30th or 31st, and we think individual action of the directors should not be allowed to take its place. Farmers’ Mut. Fire Ins. Co. v. Chase, 56 N. H. 341.

The authorities appear to be substantially unanimous in support of the proposition that forfeitures for nonpayment of assessments cannot be sustained where the assessment is not made by the officers designated by law. Members have a right to the judgment, care, and skill (or at least supervision) of those lawfully charged with the performance of this duty. Counsel cite many authorities in support of this rule,- — -among them: 2 May, Ins. § 5606; American Mut. Aid Society v. Helburn, 85 Ky. 1 (7 Am. St. Rep. 571); Agnew v. A. O. U. W., 17 Mo. App. 254; Farmers’ Mut. Fire Ins. Co. v. Chase, 56 N. H. 341; Underwood v. Legion of Honor, 66 Iowa, 134; 2 Bac. Ben. Soc. § 377; Baker v. Insurance Co., 51 Mich. 243; Bates v. Benefit Association, Id. 587; Warner v. Life Association, 100 Mich. 157; Miner v. Benefit Association, 63 Mich. 338. Our understanding is that this assessment does not conform to this requirement, and the judgment is therefore affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    PEOPLE v. TAYLOR.
    1. Intoxicating Liquors —Keeping Saloon Open on Sunday— Sufficiency of Information.
    An information for keeping a saloon open on Sunday, in violation of 3 How. Stat. § 2283e, providing that “all saloons, restaurants, bars, in taverns or elsewhere, and all other places, except drug stores, where any of the liquors mentioned” in the act are sold, shall be closed on that day, is not required to state that the saloon was not a drug store.
    2. Same — Defenses—Overruling Necessity.
    - A saloonkeeper charged with opening his saloon on Sunday cannot justify on the ground of overruling necessity, in that his father was taken suddenly ill in the vicinity of the saloon, and had to be immediately cared for, where it -appears that there were drug stores equally convenient of access, and that a number of customers were admitted to the saloon while so open.

      Error to recorder’s court of Detroit; Chapin, J.
    Submitted April 30, 1896.
    Decided July 31, 1896.
    Thomas Taylor was convicted of keeping his saloon open on Sunday.
    Affirmed.

      Samuel W. Burroughs, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of keeping a saloon open on Sunday. But two questions need be considered. The first relates to the sufficiency of the information, and the second as to whether the defense offered any testimony which fairly tends to sustain the claim which is made that the saloon was opened under the stress of overruling necessity.

The information failed to state that the saloon was not a drug store. Section 2283 e, 3 How. Stat., provides that—

‘ ‘ All saloons, restaurants, bars, in taverns or elsewhere, and all other places, except .drug stores, where any of the liquors mentioned in this act are sold or kept for sale, either at wholesale or retail, shall be closed on the first day of the week, commonly called ‘ Sunday.’ ”

We think the words “except drug stores” are used to apply to “other places,” immediately preceding, and that an information alleging that a saloon where liquors mentioned in the act are sold is kept open on Sunday is good. People v. Robbins, 70 Mich. 131; People v. Sullivan, 83 Mich. 355.

The respondent offered testimony that on the Sunday in question he and his father-in-law were walking along the street, and came to nearly in front of his saloon, when they met four men; that respondent’s .father-in-law was taken suddenly ill, and it was suggested that he be taken home in a carriage, but he replied that lie must have a doctor right away; that respondent then opened his saloon, admitted his father-in-law and the four other men, and telephoned for a doctor. The respondent’s own testimony shows that he was unable to state whether there were other persons admitted into the saloon. In answer to the question, “You don’t remember whether there were two others or not ? ” he replied:

“My father-in-law and the four persons that came in with me would be five. I don’t remember the sixth person at all.
Q. They [referring to the officers] testified that there were seven persons there besides yourself,- — one in front of your bar; you were behind it; and that there were six in this room. Are they correct or not in that ?
“A. No, sir. There was about five there. There may have been six. I don’t think there was seven people there, though.”

It also appeared that, when the officers came to the front door, they were admitted, or at least one of them, without the respondent knowing that he was an officer.

We think this testimony fails to show any overruling necessity for opening up the saloon and admitting people indiscriminately. If it was necessary to take his father to a place for treatment, there was a drug store within a few feet of the place, lawfully open. Or, even if it might be said that it was proper to open the saloon for this purpose, it was not necessary to let in a battalion of customers at the same time. The facts were not disputed except as to the number of people admitted.

No error was committed to the prejudice of respondent, and the conviction will be affirmed.

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


author: Hooker, J. Montgomery, J.

text:
    ETSON v. FORT WAYNE & BELLE ISLE RAILWAY CO.
    1. Street Railways — In jury to Passenger — Negligence — Evidence.
    Evidence that a passenger upon an electric car was thrown from the platform, where he was standing preparatory to alighting at the cross-walk a few feet ahead, by a sudden jerk of the car, for which the company is not shown to have been in any way responsible, is insufficient to warrant a recovery against the company for the injuries sustained.
    2. Same.
    Nor would the company be responsible in such case even if it were established that the accident was caused by a sudden acceleration of the speed of the car, due to the application of power, or the removal of the brake, to enable the car to reach the usual stopping place.
    Error to Wayne; Hosmer, J.
    Submitted June 4, 1896.
    Decided July 31, 1896.
    Case by Frank D. Etson against the Fort Wayne & Belle Isle Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Gonely & Taylor, for appellant.

      William Stacey, for appellee.
   Hooker, J.

The only question raised by this record is whether the court erred in refusing to direct a verdict for the defendant. The plaintiff testified that the person in charge of the defendant’s street car informed him that he had reached his destination, Fourteenth street, shortly before the car reached the first crossing. He thereupon went upon the rear platform of the car, and took hold of the brass handle on the side of the car, to be in readiness to alight when the car should come to a full stop. The car had nearly stopped, at a point midway between the two crossings, when, without warning, ‘ ‘ it gave a sudden jerk, and went ahead again,” and he was thrown from the platform, and run over by the trailer attached to his car.

The defendant claims that there was nothing to show that the jerk of the car was not occasioned by some cause for which the defendant was not to blame, as in the case of Bradley v. Railway Co., 94 Mich. 35. That case held that one thrown from a car by a sudden jerk must ■produce evidence tending to show that such sudden jerk or motion was due to the negligence of the defendant. The court said:

“ The difficulty is that there is nothing in the case showing, or tending to show, to the jury, just what caused him to fall off. It may have been a sudden jolting of the cars, for which the conductor or driver was in no manner responsible. At least, it is not made to appear by any affirmative testimony that the defendant company neglected any duty, except to stop, when first signaled; and it does not appear that that caused the injury, but, upon the plaintiff’s own theory, it was a sudden jerk, from what cause no one pretends to know. We think there was no evidence to go to the jury on this point.”

The same might be said here with equal propriety. The only testimony supporting plaintiff’s theory of the case is his own, and is that—

“He checked the motor,- — checked down. The car wqs almost at a standstill. I got up and went onto the step between the trailer and motor, and with my right hand I took hold of this brass rod that is there, and was hanging there for a minute, thinking it would stop altogether; and it gave a sudden jerk, and went ahead again, and throwed me under. I did not know a thing after that. I knew the car went over me. I felt the pain, and I hollered, and then I lost consciousness.”

On cross-examination he said:

“At the time of this sudden jerk I was standing on the top step. The car was about midway between the first and second crossing. I do not know where I was picked up. I am sure that that is where that jerk occurred.”

The plaintiff had hold of the brass handle when the jerk came.

Unless we are to say that the fact that the motive power was electricity, instead of horses, warrants the application of a different rule, the cases are identical. We are at a loss for a good reason for so holding. The jerk might as easily be caused by a jolt, or taking off brakes, in the one case as the other; and there is as much room for the presumption that it was not, in this case, as in that. Again, if we could assume that the car was started suddenly by the application of power, or the removal of the brake, there is nothing to indicate an improper use of either. The car was not at a proper place to stop, but had nearly stopped. To propel it to the usual stopping place beyond the second walk (if such was the regulation), the application of ppwer, or the removal of the brake, was necessary, — possibly both. It is a natural law that inertia is not instantly overcome, and that a start, or accelerated motion, tends to throw down one riding on a car. We cannot say that it was negligent for the plaintiff to step upon the platform at the time he did, because it is a daily occurrence and the usual practice for people to do so; but, on the other hand, if it were not negligence for him to be there when the car was in motion, it is-difficult to see how it could be negligence on the part of the company to run its car to the usual stopping place, although he was upon the platform. The car had a guard in the rear, and a handle on the edge, and ordinarily a person is reasonably safe when upon the platform. At all events, it would be unjust to hold that, by venturing upon the platform when the car is in motion, the passenger can impose upon the company the obligation of instantly stopping, or not accelerating the motion of, the car.

We think the judgment erroneous, and it is therefore reversed.

A new trial is ordered.

Long, C. J., and Grant, J., concurred with Hooker, J.

Montgomery, J.

I concur in the result reached by Mr. Justice Hooker in this case, upon the ground that the starting of the car, which it is claimed caused the plaintiff to fall from the platform, was not improper, and was not negligent, under the circumstances. The car had not yet reached its stopping place at the time the plaintiff took his position on the platform, and the mere acceleration of the speed of the car, by applying electricity, when it was discovered to be necessary in order to reach the usual stopping place before the car should come tc a full stop, was not, in my judgment, negligence.

Moore, J., concurred with Montgomery, J.


author: Moore, J. Montgomery, J.

text:
    DETROIT CHAMBER OF COMMERCE v. GOODMAN.
    Married Women — Validity of Contracts — Subscription for Improvements.
    The subscription of a married woman to a fund for the purpose of securing the location of a business block in the vicinity of property owned by her is not within the power to contract conferred by the married woman’s act (2 How. Stat. § 6295), although her property is incidentally benefited by the improvement. Moore and Grant, JJ., dissenting.
    Error to Wayne; Aldrich, J., presiding.
    Submitted June 4, 1896.
    Decided July 31, 1896.

      Assumpsit by the Detroit Chamber of Commerce against Ulenna H. Goodman for money subscribed to secure the location of the Chamber of Commerce Building near defendant’s property. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Albert J. Ohapman, for appellant.

      Griffin & Warner, for appellee.
   Moore, J.

The plaintiff sued the defendant to recover for an amount due on a subscription reading as follows:

“Detroit, Mich., 189A
“We, the undersigned, being desirous of. locating the new Chamber of Commerce Building on the northeast corner of State and Griswold streets, where the directors of said association have agreed to purchase a site 88x100, if it can be had for $60,000, to provide for the difference between that amount and the cost of the property, viz., $118,000, hereby agree to pay to the treasurer of the Chamber of Commerce Association the sum set opposite our names upon the following conditions and in the following manner.”

Then follow the conditions arid list of subscribers. The subscription was not paid. The- plaintiff sued the defendant, and obtained judgment. The defendant appeals.

There were two counts in the plaintiff’s declaration. A copy of the subscription sued upon was set up in the declaration. The defendant pleaded the general issue, but did not by affidavit deny the execution of the subscription. All those assignments of error relating to the signature of the defendant, the refusal of the judge to allow the comparison of handwriting as to the signatures, the cross-examination of Mr. Cozzens growing out of his testimony as to the defendant’s signature, and the charge of the judge in which he charged that the defendant must be deemed to admit the execution of the instrument, under the pleadings, are none of them well taken. By failing to file an affidavit denying the subscription, the defendant admitted its execution. Cir. Ct. Rule No. 79.

The only important question upon the record is, was it competent for Mrs. Goodman to make this subscription ? When it was made she was a married woman, who owned the Griswold House, worth, with the real estate, about $100,000. This property was about a block away from the proposed Chamber of Commerce site. The plaintiff claims that defendant’s subscription, with others, was the moving cause of its purchasing the site; that it was believed by the defendant that, if the old livery stable occupying the site was torn away, and a fine building erected thereon, it would increase the value of defendant’s property many times more than the amount of her subscription, and for that reason the subscription was made by her. It is also ai’gued that the erection of the Chamber of Commerce Building did increase the value of her property, that her separate estate was benefited, and that she is not under disability under the statute. On the part of the defendant it is claimed that under the common law she could not make this contract, and that the married woman’s act (2 How. Stat. § 6295) does not allow her to make such a contract. It is claimed that she may contract, sell, transfer, convey, devise, or bequeath her real and personal estate, and cannot do more; that her power is not general, but statutory; that possible incidental benefits .cannot support a contract made by her, — citing Russel v. Bank, 39 Mich. 671 (33 Am. Rep. 444); Powers v. Russell, 26 Mich. 179; Emery v. Lord, Id. 431; West v. Laraway, 28 Mich. 464; Johnson v. Sutherland, 39 Mich. 579.

The relations of husband and wife towards each other and their property rights under the common law are very exhaustively discussed in the case of Tong v. Marvin, 15 Mich. 60. Justice Cooley also gives an interesting history in this case of the early legislation in- this State in relation to the rights of married women, by which it is made to appear that the purpose of this legislation was to preserve to the wife all her rights in her own property, with as full power of control and disposition as if she had remained unmarried. It has been uniformly held by this court that our statutes do not authorize' a married woman to become personally liable on an executory promise, except concerning her estate already possessed, or referring to it, or in relation to property to be acquired by the contract, or in consideration of it. A note given for any other consideration is void (Kenton Ins. Co. v. McClellan, 43 Mich. 564); and unless the consideration for this subscription relates to the separate estate already owned by defendant, or refers to it, or is in relation to property to be acquired by the contract, or in consideration of it, it would be void. On the other hand, if the consideration of this subscription was that the estate which she then -possessed was to be increased in value, and if, as a result of what was done, her estate in fact was increased in value, would it not be a sufficient consideration for the contract, and make it valid?

In Tillman v. Shackleton, 15 Mich. 447 (93 Am. Dec. 198), it was held that, where a married woman keeps a boarding house with the consent of her husband, and controls the entire business, contracts of purchase made by lief for the purposes of the business must be considered as contracts in relation to her sole property, and therefore binding upon her. In Campbell v. White, 22 Mich. 185, it was held that a married woman residing with her husband, and owning a separate estate, could be held liable for merchandise purchased by her on her individual credit, though the merchandise was family necessaries, and was actually used by the husband’s family, and in his household. Her liability was not contingent upon her ownership of other separate estate, or on the character of the goods bought, or their disposition. It depended on the fact that the property was obtained upon her credit. Her promise to pay for the articles' was an undertaking to pay for her separate property. In Rankin v. West, 25 Mich. 195, it was held that a married woman could carry on a meat market in her own name, and that an agreement to pay for stock furnished to supply the market was valid, though the business was carried on by her husband acting as agent. In Hirshfield v. Waldron, 83 Mich. 116, it was held that a married woman living with her husband was liable for the price of clothing purchased by her for a minor son, and charged to her by her direction, she agreeing to pay for the same. These decisions seem to be put upon the ground that the sale of the property was the consideration for her promise, and made her liable under the statute. The purchase of the goods by her made them her separate property. The use made of them afterwards was not material.

In Arthur v. Caverly, 98 Mich. 82, it was held that a wife who joins with her husband in a warranty deed of his land, the only consideration for which is the conveyance to her of other land, is jointly liable with him for a breach of the covenants in the deed. It was held that in such case she is contracting with respect to property to be held and owned as her separate estate; and that, while a married woman has no power to make contracts except concerning her separate estate, if the obligation was entered into for her own purpose, or the agreement was concerning property to be acquired by her in consideration of the contract, in either case she would be liable.

The case of Emery v. Lord, 26 Mich. 431, has long been a leading case in relation to the contracts of married women. While in that case it was held that a married woman is not liable upon her promissory note given for the purpose of securing a debt of the husband, it was also held:

“If the balance of the account for which the note was given was equitably due from the wife, and if, as between her and her husband and the plaintiff, there was an equitable obligation on her part, — as if the materials furnished by the plaintiff were thus used in improving her property, without her having paid or become bound to pay to the husband or any one else for them, * * * —then, whether the note was given in extinguishment or only as security for the indebtedness, and though the credit might originally have been given to the husband, there was a good and valuable consideration for the note, and she would be bound. It would then be, in effect; substantially a debt incurred on account of her own separate property, with respect to which she was, by our statutes, for all purposes of this kind, to be treated in all respects as if she had been unmarried.”

In Gillespie v. Beecher, 94 Mich. 374, it was said:

“ The married woman’s act was passed for the protection of married women. It was intended as a shield, and not as a sword. Its purpose was to enlarge her rights, not to contract them; and certainly it was not meant to deprive her of the right, either acting alone or jointly with others, of protecting her interests in property, either real or personal.”

I think the doctrine to be gathered from these cases is that, if the debt or obligation made by a married woman was incurred on account of her own separate property, or if the agreement was concerning property then owned by her, or to be acquired by her in consideration of the contract or agreement, she would-be liable. Would the subscription sued upon come within either of those conditions? If this had been a contract to increase the value of defendant’s property by making impi’ovements upon it, there could not be any question of her liability. If her purpose in making this subscription was to increase the value of her property by having improvements made in its immediate vicinity, which would not be made unless the subscription was made,. I think it becomes a contract concerning her separate property; and if, as a result of her subscription, substantial improvements are made which increase the value of her property, she does, in fact, acquire property as a consideration for her subscription, and she would be liable upon it. The circuit judge left the questions to the jury as to why the subscription was made, — whether it was made for the purpose of benefiting the defendant’s individual estate, whether it was acted upon by the erection of the Chamber of Commerce Building, and whether the effect of the action of the plaintiff • was to increase the value of defendant’s individual property. His charge in relation to those questions was without error.

It is suggested by counsel for defendant that the married woman’s act is unconstitutional, at least in part. The present statute has been in existence upwards of 40 years. It has been before the courts for construction many times. We are not inclined at this late day to discuss its constitutionality.

The judgment should be affirmed.

Grant, J., concurred with Moore, J.

Montgomery, J.

I agree fully with my Brother Moore that the enlarged powers of a married woman, under the married woman’s act (section 6295, 2 How. Stat.), -include the right not only to dispose of property already acquired, but to make contracts for the acquisition of property, and contracts directly relating to property owned by her. But I am not able to'agree that an executory contract made by a married woman, by which she agrees to donate money for any enterprise, public or private, which may incidentally benefit her property, is enforceable. The statute reads:

“The l’eal and personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her in the same manner, and with the like effect, as if she were unmarried.”

The statute does not intend to remove all the common-law disabilities resting upon married women. The design was to confer upon a wife the right to enjoy and dispose of her own property, and to acquire property, and the statute should not be extended by construction to cases not embraced in its language nor withixx its design. See De Vries v. Conklin, 22 Mich. 259. Such an engagemexxt as that involved in this case is not one by which the wife conveys or grants her property, nor is it one by which she acquires property by gift, grant, inheritance, or in any other manner. The most that can be said is that an incidental benefit may result to property which she already owns. In Russel v. Bank, 39 Mich. 671 (33 Am. Rep. 444), it was said by Mr. Justice-Cooley : “ The test of competency to make the contract is to be found in this: That it does or does not deal with the woman’s individual estate. Possible incidental benefits cannot support it. ” It is true that case was a case involving suretyship, but it is no xnore true in this case than in that that by the contract engagement the married woman acquires propex’ty, and in that case as well as this there was the contention and the fact of incidental benefit to the .married woman to result from the engagexnent. I think the reasoning of that case not inapplicable, and, basing my conclusion upon the statute itself, I am convinced that this undertaking is not within the power conferred upon married women by the act.

The judgment will be reversed, with costs, and no new trial granted.

Long, C. J., and Hooker, J., concurred with Montgomery, J.


author: ■ Long, C. J.

text:
    SHEARS v. WESTOVER.
    Mistake — Equity—Reformation of Voluntary Deed.
    An error in the description of land in a voluntary conveyance will not be corrected in equity unless all of the parties consent.
    Appeal from Ottawa; Padgham, J.
    Submitted June 9, 1896.
    Decided July 31, 1896.
    Bill by Theresia Thompson Shears and another against Charles M. Westover and others to reform a deed. From a decree for complainants, defendants appeal.
    Reversed.

      Walter I. Lillie, for complainants.

      George A. Farr, for defendants.
   ■ Long, C. J.

This bill is filed to reform a deed made by Stephen Thompson in his lifetime. The deed was executed on the 8th day of October, 1886, and described the premises as the N. \ of N. E. £ of section 23, and N. ■J of S. E. £ of N. E. J of section 23, all in town 8 N., range 15 W., Ottawa county, Mich. It is claimed by complainants that the land intended to be conveyed was the N. % of S. E. ¿, and N. \ of S. E. ¶ of S. E. \, of section 23, town 8 N., range 15 W., Ottawa county, Mich.

It appears that Mr. Thompson was about 78 years of age at the time this deed was made. He died in the year 1888. For many years, and up to his death, he lived upon the lands last described, and was the owner thereof. His wife died in 1886. He had two children, — a son, Charles, and a daughter, Alice. Charles died in 1885, leaving his widow, Theresia, and a son, the complainants here. After the death of her husband, she married Barnard Shears. The daughter, Alice, married John West-over. She died in -1886, leaving- six children, the defendants in this case. After the wife of Stephen Thompson died, his daughter-in-law, the complainant here, with her child, George C. Thompson, came to live with him. This was in September, 1886. She remained at the house of Stephen, and, on October 8th of the same year, the deed in controversy was made to George C. Thompson, the grandson. The consideration expressed in the deed is one dollar, and there is a stipulation in it as follows:

“Theresia Thompson is to have enough of the west forty to cover buildings north and south across the forty, and what wood she needs to burn off from the one hundred acres anywhere, until George C. is twenty-one years of age. Alice Thompson Westover’s children shall have the use of the balance of the one hundred acres until George .C. Thompson is of age, by keeping fences in good repair, and not to cut or destroy any timber on said premises; but not until Stephen Thompson’s death shall they have any control over these premises, and they are to pay all taxes assessed against said land from his death. If George C. Thompson should die before coming to the age of majority, the west thirty acres shall belong to Theresia Thompson, and the rest be equally divided with Alice’s heirs; and all personal property left at his death shall go to Theresia Thompson or her child, George C. Thompson.”

As soon as Stephen Thompson died, John M. Westover, with his children, took possession of the part going to the children of Alice, and they have continued to live there since. Theresia and her son have lived upon and occupied the other portion in accordance with the stipulation in the deed. The error was not discovered in the deed until the year 1893, when an ejectment suit was commenced in behalf of one of these defendants. The plaintiff in that suit prevailed, and this bill was then filed to correct the error. The testimony was taken in open court, and a decree entered in favor of the complainants. Defendants appeal, and now claim:

1. That the grantor was incompetent at the time the deed asked to be reformed was executed.
2. That the deed was a voluntary one, given without consideration, and that equity will not extend its aid in reforming such an instrument.
3. 'That, under the case made by the complainants, there was no mutual mistake .made or claimed, and no contract between the parties leading to the conveyance, and for this reason the case does not fall within any equitable jurisdiction.

But one question need be discussed. The deed was a voluntary one, and will not be reformed in equity. The ruléis well stated in section 987, 2 Story, Eq. Jur.:

“The general principle is established that in no case whatsoever will courts of equity interfere in favor of mere volunteers, whether it be upon a voluntary contract or a covenant or a settlement, however meritorious may be the consideration, and although they stand in the relation of a wife or child.”

The case is governed by Redding v. Rozell, 59 Mich. 476. In that case the principle is settled that a voluntary deed cannot be corrected without the consent of all the parties. In the present, case no consideration is claimed. The grantor, if living, could not be compelled to correct the deed, it being a mere voluntary conveyance; and, under the well-settled rule, a court of equity will not lend its aid to correct the description.

The decree of the court below must be reversed, and a decree entered here dismissing the bill. Defendants will recover their costs of both courts.

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


text:
    CARMODY v. CRANE.
    1. Bills and Notes — Negotiability—Agreement to Pay Taxes.
    A stipulation in a promissory note that the maker shall pay all taxes assessed against the land described in a mortgage given to secure the note, or against the mortgagee’s interest therein, destroys its negotiability, even though, at the time of the execution of the note, there is no statute authorizing an assessment of taxes upon the interest of a mortgagee.
    2. Same — Bona Fide Purchaser — Agency—Estoppel.
    Complainant filed a bill in equity alleging that she had executed such a note and mortgage; that she had delivered the same to the payee, relying upon his promise to pay off an outstanding incumbrance before placing the mortgage of record; that he had failed to procure the discharge of the incumbrance, but that defendant, to -whom the note and mortgage had been transferred, claimed the right to enforce payment for the full amount. Held, that the facts alleged did not constitute such an averment of the agency of the payee as would estop complainant from denying the validity of the note.
    8. Same.
    A purchaser of nonnegotiable paper given without sufficient consideration cannot invoke the rule that, where one of two innocent parties must suffer loss from the conduct of a third, such loss should fall upon the one whose act enabled the wrong to be committed.
    Appeal from Van Burén; Buck, J.
    Submitted June 9, 1896.
    Decided July 31, 1896.

      Bill by Mary Carmody against Edgar A. Crane and another to suspend foreclosure proceedings and for other relief. Defendant Crane appeals from an order overruling his demurrer to the bill.
    Affirmed.

      T. J. Cavanaugh, for complainant.

      F. A. & Robert B. Crane, for appellant.
   Montgomery, J.

The bill in this case alleges that the complainant was the owner of a piece of land in the township of Hartford, Nan Burén county, upon which there were two mortgages, — one made to August N. Spaulding, in the sum of $100, and one running to S. S. Rockwell, in the sum of $450; that on the 20th day of October, 1894, being desirous of borrowing sufficient money to pay off the two mortgages, she applied to one George E. Breck, and sought and obtained a loan of $840, and executed a certain note or bond in the sum of $840, and five interest coupon notes, and secured the same by a real-estate mortgage upon the same property, which notes and mortgage were delivered to Breck; that the consideration for the making and executing of the notes and mortgage was:

“First, $40 to Breck for his services rendered your oratrix, and for effecting said loan; second, said Breck was to pay off and take up and discharge the Spaulding mortgage; third, he was to pay and cause to be discharged the Rockwell mortgage; fourth, he was to pay the balance, namely, $200, in money.”

That he paid the money at the time, caused the Spaulding mortgage to be discharged, but failed to procure a discharge of the Rockwell mortgage. The bill further alleges that the defendant Crane claims to be a purchaser of the note and mortgage executed to Breck, and avers that he is not a bona fide purchaser, for the reason that the note is not a negotiable note, and alleges that complainant is entitled to set off, as against the Breck note and mortgage, the $450 mortgage due to Rockwell, but held that defendant Crane refuses to make such reduction. The bill prays appropriate relief, and to this bill the defendant Crane filed a demurrer.

The note given to Breck was in form precisely like that considered in Walker v. Thompson, 108 Mich. 686, and this case must Be ruled by that, unless the contention of defendant’s counsel be admitted upon one or both of the following propositions: First, that, inasmuch as the stipulation to pay taxes assessed upon the mortgagee’s interest was made at a time when there was no statute authorizing an assessment of taxes upon a mortgagee’s interest in land, it adds nothing to the obligation of the payor, and hence that the amount of the note is certain; second, that, under the allegations in the bill, it should be held that Breck was constituted the agent of complainant in negotiating the note in question, and that complainant is therefore estopped to deny the validity of the note.

While it is true that the mortgagee’s interest in land was not, at the date of the making of the note in question, October 20, 1894, subject to assessment for taxation as such, yet the obligation under this note is not limited to such assessments as might in the future be made under existing laws, but it covers as well assessments which might thereafter be authorized by legislation. The stipulation imposed in terms a superadded duty, which, under the authority of Cayuga Co. Nat. Bank v. Purdy, 56 Mich. 6, renders the note nonnegotiable.

We think the second contention of. defendant’s counsel cannot be maintained. Fairly construed, the bill of complaint does not allege that Breck was constituted the agent of complainant. On the contrary, it is very clearly averred — First, that the note and mortgage were made payable to him individually; second, that he personally faithfully promised that the outstanding mortgages should be paid, and that he would then place the mortgage given by complainant of record, and that she relied upon his integrity, and delivered the mortgage and notes to him, and left the same in his possession until such time as he should fulfill the conditions of his promise and agreement with complainant.This is far from an averment of agency, nor was there any holding out as agent, except it he inferred from the fact of giving nonnegotiable securities without sufficient consideration. That this does not entitle a.purchaser to invoke the rule -that, where one of two innocent parties must suffer loss from the conduct of a third, such loss should fall upon •the one whose act enabled such wrong to be committed, was determined in Walker v. Thompson, supra, and had been previously repeatedly held in this State. See Judge v. Vogel, 38 Mich. 569; Williams v. Clink, 90 Mich. 297 (30 Am. St. Rep. 443).

The order overruling the demurrer will be affirmed, with costs to complainant, and the cause remanded.

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


author: Long, C. J. Moore, J.

text:
    BURLESON v. VILLAGE OF READING.
    1. Personal Injuries — Evidence—Married Women.
    In an action by a married woman to recover for personal injuries, it was error to permit her to testify that her husband, who lived apart from her, contributed nothing towards her support.
    2. Same — Exclamations of Pain.
    The natural and' ordinary exclamations of pain by the plaintiff in an action for personal injuries, called out by her suffering, and not by any motive of making testimony, are admissible in evidence. Strudgeon v. Village of Sand Beach, 107 Mich. 496, followed.
    3. Municipal Corporations — Defective Sidewalk — Notice of Defect — Opportunity to Repair.
    Failure to put a sidewalk in proper condition within a reasonable time after notice of a defect therein is essential to the liability of a municipal corporation for personal injuries caused by such defect, whether the notice of the defect be actual or constructive.
    4. Personal Injuries — Unfavorable Presumptions — Evidence to Overcome.
    Where the plaintiff in an action for personal injuries testified, on cross-examination, that she went to work soon after the accident, her testimony that the duty of paying her mother’s funeral expenses and of meeting other pressing obligations required an early resumption of work was properly received'to overcome the presumption against the seriousness of her injuries which otherwise might have arisen. Long, C. J., dissenting.
    Error to Hillsdale; Lane, J.
    Submitted June 11, 1896.
    Decided July 31, 1896.
    Case by Lora A. Burleson against tbe village of Reading for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Reversed.

      LoeJcerby & Kinney, for appellant.

      F. A. Lyon, for appellee.
   Long, C. J.

This action is brought by the plaintiff against the defendant village for damages occasioned by a defective sidewalk, by reason of which the plaintiff was injured in June, 1893. The particular defects in the walk complained of were, as shown by plaintiff’s testimony, that the stringers were rotten, so that they would not hold nails, and that they had become broken; also, that the boards had become and remained loose, rotten, broken, and defective. Plaintiff’s testimony also shows that she and two other ladies were walking along and over this walk in a careful and prudent manner, and that Lois Hart, one of the ladies, stepped upon one of the boards in this walk, which was loose, and that it flew up in front of plaintiff, tripping her and throwing her forward, breaking and crushing her knee cap, bruising her leg, and as the result of her fall her spine and head were greatly injured. Defendant contended that the walk was not out of repair; that in the spring of 1893 it was in a reasonably safe condition; that it was inspected by the village officers, and found in-safe condition, and no repairs ordered; that, if any defects existed at the time of the accident, they were of short duration, and that the same had never come to the attention of the village authorities; that the particular defect complained of was that a wedge-shaped piece of board had become split off the main board, which, when stepped upon, flew up, tripping the plaintiff. It was also contended that plaintiff was not seriously injured, and that whatever injury she may have sustained was aggravated by her own negligence. The cause was tried before a jury, and there was verdict and judgment for the plaintiff for $1,600.

We think there was error on the part of the trial court in the admission of certain of the evidence. The plaintiff was called as a witness, and testified that after she was injured she went to the factory to work, and did not know for several days that her knee was fractured. She was then asked:

“ What reason did you have for being so anxious to work?”

This was objected to, and counsel for the plaintiff responded:

“I think it bears on the question that they now raise, as to whether she was negligent in caring for herself after she was injured. Circumstances make a great deal of difference.”

The court permitted the answer, and the plaintiff then testified:

“I had buried my mother. I had her funeral expenses —a part of them — to pay, and her doctor bill, and I felt as if I must work. And I just bought a sewing machine, and that was $50, due in. July, and I thought I had to work.”

This testimony was well calculated to arouse the sympathy of the jury, and should not have been admitted by the court. The claim of counsel that “circumstances make a great deal of difference could ,not make the testimony competent. There were no circumstances which would warrant counsel in placing before the jury the struggles of the plaintiff in meeting other obligations. A like question arose in Marsh v. Bristol, 65 Mich. 383, and the admission of the testimony was severely criticised by this court. In Van Dusen v. Letellier, 78 Mich. 508, the plaintiff was permitted to testify that he had no means of support but his daily wages, and it was said:

“This was an indirect way of bringing the poverty of the plaintiff before the jury, which is not permissible in actions of this character, and we cannot say that it may not have been prejudicial to defendants.”

Other testimony of like character was permitted. It • was shown that plaintiff was a married woman, and she testified that she was living apart from her husband, .and collected her own wages. She was then asked if her husband contributed anything to her support. Under objection she was permitted to testify that her husband “never let her have a cent.” She stated further: “He did not support me. I had to work, and take care of myself.”

Some question is raised over the ruling of the court in allowing the plaintiff’s witnessés to testify as to her exclamations of pain. Complaints of present pain ■and suffering are admissible. Girard v. City of Kalamazoo, 92 Mich. 610. We find nothing in the record .which takes the case out of the rule laid down in Strudgeon v. Village of Sand Beach, 107 Mich. 496, and cases there cited.

Some other questions are raised upon the admission of evidence, which we do not deem it necessary to dis■cuss.

The charge was a very fair one in most respects. But counsel for defendant contend that the court was in error in the rule as to constructive notice to the village authorities as to the defective condition of the walk. The court should have stated to the jury, in connection with what was said about the length of time the walk had been out of repair, and its bad condition, that they must find it had been in that condition for such a length of time that the village authorities must be presumed to have had notice of the defect, and have had reasonable time to repair. The court omitted this last important element in the charge, although the defendant had requested such a charge, as follows:

V Neither would the plaintiff be allowed to recover if the walk was defective, unless she prove, in connection with that, that she was injured by reason thereof, and that the village had received notice of such defect prior to such injury, and that it had neglected for a reasonable time after such notice to put the same in a proper condition.”

This would apply to constructive as well as to actual ■notice, and is the rule in either case.

For the reasons pointed out the judgment of the court below will be reversed, and a new trial ordered.

Moore, J.

I agree with the Chief Justice that the case must be reversed, but cannot agree with him in the conclusion that the testimony of Mrs. Burleson, explaining why she went to work so soon after the accident, was incompetent. After she had given her testimony in chief, she testified, on the cross-examination, that she went to work in the factory soon after she was hurt. If the testimony had been left there, it would have been argued to the jury that she could not have been seriously hurt, or she would not have gone to work so soon, and this would have been a fair presumption from the testimony. To overcome that presumption, I think it competent to show, in view of the cross-examination, that it was because of the stress of circumstances that she went to work; and the testimony was competent for that purpose, and that only.

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


author: Long, C. J. Hooker, J.

text:
    HILT v. METROPOLITAN LIFE INSURANCE CO.
    Life Insurance — Conditions of Policy — Waiver.
    The provision of a policy of life insurance, that no obligation is assumed unless at the date thereof the assured is in sound health, is waived by the collection of premiums thereon after an inspector of the company, authorized to “lift” the policies of people who were not in sound health when their policies issued, and pay them back their money, learned of the sickness of the assured at the time the policy was issued, notwithstanding a further provision that waivers must be in writing, signed by the president or secretary of the company. Hooker and Grant, JJ., dissenting.
    Error to Muskegon; Russell, J.
    Submitted June 11, 1896.
    Decided July 31, 1896.

      Assumpsit by. Lizzie Hilt against the Metropolitan Life Insurance Company on a policy of insurance. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fletcher & Wanty, for appellant.

      James E. Sullivan, for appellee.
   Long, C. J.

This is an action upon an insurance policy issued September 10, 1894, by the defendant company, upon the life of plaintiff’s husband, who died July 3, 1895. Plaintiff recovered. The company defended upon the ground that, at the time the policy was issued, the assured was not in sound health, but was ailing from a disease of the spine, which continued, and caused his death, and that the plaintiff was not entitled to recover, because of the proviso in the policy that “no obligation is assumed by this company prior to the date hereof, nor unless, on said date, the assured is alive and in sound health.”

The plaintiff was called as a witness, and, on cross-examination, was shown the proofs of loss, which had been signed by her, and which she identified. These proofs were put in evidence by the defendant. In them the plaintiff had stated that her husband died of spinal trouble; that he quit work about six years before; that he complained of ill health about six years before his death, and had consulted Dr. Woodward, a physician, six years before; that the duration of his last illness was six years; and that he was confined to the house, or prevented from attending to business, about one year. Plaintiff, on redirect examination, then testified that the deceased was well at the time the policy was delivered, so far as she knew; that he was around all the time; that the reason he did not work was because he could get no work. She also emphatically denied that she made the statement, as shown by the proofs of loss, that her husband was confined to the house for about a year, and that he had been sick for six years. It appeared that these proofs of loss were prepared by Mr. Velzy, assistant superintendent of the company, who wrote down the answers of Mrs. Hilt; that she was German, and could not read English, and, as she explains, did not “understand high words.” Mr. Velzy admitted that, after he got her signature to the statement, he did not read it over to her, but says, ‘ ‘ She could have read it if she had wanted to,” but claims that he read the questions to her, and put down the answers as she made them.

Plaintiff also introduced the statement of the attending physician at the time of death, Dr. Gordon, by which it was shown that the cause of death was: (1) Chief or primary, spinal disease; (2) contributory or secondary, general debility. Dr. Gordon testified that he had been attending deceased since March of the year he died, that physicians were able to tell how long a disease had lasted only from a post mortem examination, and that he had made none in this case. It also appeared that, in the application made for the policy by the deceased to the company, no allusion whatever is made to the condition of the health of the applicant, and the only reference to this subject is found in the provision of the policy before quoted, except a statement accompanying the application by the agent who secured the business for the company, in which he says:

■“ Said life has stated to me that the said life has never been rejected by this or any other company, and has always had, and now has, good health, and has never been attended by a physician for any serious injury or disease or illness, and has never had any pulmonary disease, or chronic bronchitis, or disease of the heart, liver, or kidneys, and that neither parent or any brother or sister of said life has died of any pulmonary disease or bronchitis, or any scrofulous, except as follows: * * * All questions answered satisfactorily, and I recommend to and request of the company the issue of a policy of insurance on said life as applied for.”

The court submitted to the jury the question of the deceased’s state of health at the time the policy was applied for; stating that, if they found that the assured was in sound health at the time the policy was delivered, the plaintiff was entitled to recover, but if, on the contrary, the assured was not in good health at that time, the policy was void. Under the evidence, we think the court was not in error in submitting this question to the jury.

It is also claimed on behalf of the plaintiff that, if the deceased was not in sound health at the time of the application for the policy, the condition was waived by the defendant. The court permitted the plaintiff to testify to the following, under objection of defendant’s counsel:

“Q. Mr. Parker was one of the men that came to see you to get your money ?
“A. Yes, sir. When I had mine insured, and my children, they sent a doctor to examine me. With Mr. Hilt, they didn’t.
Q. Did Mr. Parker speak to you about your husband’s health some time before his death ?
“A. Not as I know of.
“Q. I want you to recall. You had a conversation with me concerning the health of your husband. Did he introduce any man to you as the head man of the company ?
“A. Oh, yes; I didn’t know what you meant.
‘ ‘ Q. When was that ?
“A. Oh, about two months or so before the time. I can’t swear to it, — just the time.
“Q. About two months, you think? Did you have a talk with that head man ?
“A. Yes, sir.
“Q. Where was that ?
‘A. In my kitchen.
“Q. What did he say to you?
“A. He said — ■ * * *
“The Court: What did you say this man Parker did?
“A. He was the next agent, when Lucas didn’t come any more.
“The Court: What did he come for?
“A. After money.”
(Here followed an explanation of counsel of the method of conducting the defendant’s business, by which, in collecting the premiums, if one agent was discharged, or quit, his book was transferred to another agent, who went around and did the weekly collecting, — in this case, 15 cents.)
“The Court: You concede this man Parker had authority to do that?
Defendant’s Counsel: I haven’t any reason to doubt it. I presume likely it is so. We do not concede he had any other authority, though.
“The Court: What did you say he said, — this man Parker ?
“Counsel: She said he introduced her to a man that he called the head man of the company.
“A. Yes; he fetched the head man there. He told me he come to see me, and I told him all right, and he come.
The Court: Go on.
“A. He says, ‘Mrs. Hilt, do you think it was right to have your husband insured?’ and I told him I didn’t know nothing about it.
“Counsel: Was there anything further said?
“A'. And he said if I thought there was any fraud. I told him I didn’t know nothing about it, on my side; I didn’t know; if he thought so, it was not me. That 'is what I said.
“Q. About how long was that before your husband died, as near as you can fix it ?
“A: On my knowledge, about two months or so, — a little more. I don’t know.
“Q. Did you have any hot words with him? Did you get warm,- — -you or him?
“A. Yes; it made me mad when he said I was a fraud, a swindler. I told him I was not; it was his business, not mine.
“Q. That was in your kitchen, after you had been introduced to him by Mr. Parker ?
“A. Yes.
Q. Did they come around and collect the weekly premiums after that ?
“A. Yes.”

The witness also testified:

‘ ‘ I paid the premiums on this policy, three days before he died, to Mr. Parker, the agent of the company.”

Mr. Velzy was sworn for the defendant, and testified that he was one of several thousand assistant superintendents, who were said to be “ just a rank higher than an agent in the town; ” that their work was to do office work in their offices, and occasionally to visit policy holders and examine receipt books, to see that agents had turned in to the company all collections made; that he had not heard Hilt was sick until the man from the home office — Mr. Shafer — was there; that this man was a home inspector, and that the business of such inspector was to go around and get the date of the last payment, from the receipt books, to see if the agents had turned in all the money collected, — also, to see if there were any impaired healths in the district; that it was his duty to lift those policies, and pay the people back their money.

Plaintiff’s counsel claims that the above action of the defendant’s agents in collecting premiums after they claimed to have knowledge of the assured’s unsoundness of health, and fraud perpetrated upon the company, even though the policy did contain the provision that “its terms cannot be changed or its conditions varied except by a written agreement signed by the president or secretary of the company,” was a waiver of the condition. The court evidently took this view of the case in giving" to the jury the plaintiff’s third request to charge, — that, “the defendant could waive any condition of the policy, without an indorsement in writing, even though the policy provides that no condition could be waived except by such indorsement. ” The' court further charged:

“If you find that this man was sick at the time the policy was issued, but afterwards, after knowing all about the health of the party, and his bodily ailments, the company assented to carry the party and carry the risk, and collected the premium, then the plaintiff will be entitled to recover.”

We cannot say that there was no question of waiver to, go to the jury. The plaintiff’s testimony was uncontradieted that there were charges of fraud made against her by the defendant’s inspector. The latter’s visit to her was, corroborated by Mr. Velzy; the only point of difference being that he claimed it was in the week beginning June 17th, while she claimed it was about two months prior to her husband’s death. It is not denied that the company received premiums, after the inspector’s visit, on this policy.

It is claimed by defendant’s counsel that such evidence being taken under objection, and admitted by the court on condition that plaintiff must show that the persons she was talking with had authority to represent the defendant, and the plaintiff not having shown such authority, the court should have withdrawn the evidence from the jury. By Mr. Velzy’s own testimony it is shown that Parker was the authorized agent of the company, and it is admitted that Shafer, whom Parker introduced to plaintiff, was a home inspector. Yelzy says that he heard of Hilt’s sickness from the home inspector; that this man was a home inspector, whose duty it was to go around and see if there were any impaired healths, and to lift the policies of such people, and pay back their money. This was apparently the' duty of Shafer. According to the testimony of Mrs. Hilt, he was at her house two months before the death of Mr. Hilt. He then knew of Hilt’s impaired health, and accused Mrs. Hilt of being a swindler. The knowledge of Hilt’s condition before the policy was issued was known to Shafer, who had the right, and whose duty it was, to lift the policy; and yet the moneys were collected on the policy for at least two weeks thereafter.. These acts constituted a waiver, under the rule stated in Beebe v. Insurance Co., 93 Mich. 514 (32 Am. St. Rep. 519); Smith v. Insurance Co., 107 Mich. 270; Rediker v. Insurance Co., Id. 224.

The judgment must be affirmed.

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

Hooker, J.

(dissenting). The plaintiff recovered upon a life policy issued September 10, 1894, upon the life of her husband, who died on July 3, 1895. The .premium was payable weekly, in installments of 15 cents. The policy contained the proviso that “no obligation is assumed by this company prior to the date hereof, nor unless, on said date, the assured is alive and in sound health.” The company defended upon the ground that, at the time the policy issued, the assured was not in sound health, but was ailing from a disease of the spine, which continued, and caused his death. This was not admitted, but it was claimed upon behalf of the plaintiff that, if it were true, the condition was waived by the defendant. Both questions were left to the jury, and a verdict was returned for the plaintiff. Counsel asserts that there was no testimony to the effect that spinal disease constituted unsoundness of health; but we think that where, as in this case, it appears that such disease was of' several years’ standing, and continued until death resulted, it is, in the absence of proof to the contrary, sufficient evidence of unsound health nine months before death. This appears, not only from the statements contained in the proof of loss, but by the testimony of the plaintiff herself upon the witness stand. We think that the unsoundness of health of the assured at the time the policy was issued was conclusively proved, and that the question should not have been left to the jury.

Was there testimony which could support the claim that the condition was waived ? Counsel for the plaintiff asked her the question:

“Q. Did you have any talk with any of the agents, concerning your husband, when he was sick? (Objected to by counsel for defendant as incompetent and immaterial.)
The Court: The reason that you claim that this evidence might be proper would be if they want to make any defense because there were certain statements that weren’t true, or something of that kind ?
“Mr. Sullivan: Yes; if they claim under a certain clause in the policy.
The Court: But you claim they waived it?
“Mr. Sullivan: Yes; by accepting the premium.
‘ ‘ The Court: As I understand it, your proposition is to show, after they had full knowledge of the fact, that they received your money. Is that about it ?
“Mr. Sullivan: After they had notice or knowledge of any sickness that Mr. Hilt had, they received our money, — yes, sir; and by receiving our money they are now estopped, and waived any condition in the policy to that effect. Will the evidence be received, your honor?”

The court permitted the witness to answer, and the examination proceeded as follows:

“Q. Mr. Parker was one of the men that came to see you to get your money ?
“A. Yes, sir.
“Mr. Potter: We would like to have all this testimony received under our objection and exception.
“The Court: All right.
“A. When I had mine insured, and my children, they sent a doctor to examine me. With Mr. Hilt, they didn’t.
“Q. Did Mr. Parker speak to you about your husband’s health some time before his death ?
“A. No, not as I know of.
“Q. I want you to recall. You had a conversation with me concerning the health of your husband. Did he introduce any man to you as the head man of the company ?
“A. Oh, yes: I didn’t know what you meant.
“Q. When was that?
“A. Oh, about two months or so before the time. I can’t swear to it, — just the time.
“Q. About two months, you think? Did you have a talk with that head man ?
“A. Yes, sir.
‘ Q. Where was that ?
“A. In my kitchen.
“Q. What did he say to you ?
“A. He said—
“Mr. Potter: I understand—
“The Court: As I understand, this man Parker was the man who took your policy, — made out the policy for you first?
“A. Mr. Lucas is the first man.
“Mr. Sullivan: They have several agents here in the city.
“The Court: What did you say this man Parker did?
“A. He was the next agent. When Lucas didn’t come any more, then Parker came as agent, — the second agent.
“The Court: What did he come for?
“A. After money.
“rlhe Court: Was he the same party to whom you gave this other paper?
“A. Yes, sir.
The Cotirt: When you notified him of the death?
A. No; that was that man, — Mr. Yelzy.
“Mr. Potter: Perhaps, with a slight explanation, I can make it plain to the jury and all of us: They have agents whose business it is to collect these weekly premiums, and if one agent, for any reason, is discharged, or quits, his book is transferred to some other agent, and that agent then goes around collecting the weekly premiums. This branch of the business, it is called the ‘ Industrial Branch,’ and weekly premiums are collected, — in this case, 15 cents a week. If the agent who took the policy originally leaves the service of the company, somebody takes his place, and takes his book and goes around and makes the weekly collections.
“The Court: You concede this man Parker had authority to do that?
“Mr. Potter: To make the collection? .
“The Court: Yes.
“Mr. Potter: I haven’t any reason to doubt it. I presume likely that is so. We do not concede that he had any other authority, though.
“The Court: What did you say he said, — this man Parker ?
“Mr. Sullivcm: She said he introduced her to a man that he called the head man of the company.
“A. Yes; he fetched the head man there. He told me he come to see me, and I told him all right, and he come.
The Court: Gro on.
“A. He says, ‘ Mrs. Hilt, do you think that was right, to have your husband insured ? ’ and I told him I didn’t know nothing about it.
“Mr. Sullivan: Was there anything further said?
“A. And he said if I thought there was any fraud. I told him I didn’t know nothing about it, on my side; I didn’t know; if he thought so, it was not me. That is what I said.
“Q. About how long was that before your husband died, as near as you can fix it?
“A. On my knowledge, about two months or so,- — -a little more. I don’t know.
“Q. Did you have any hot words with him? Did you get warm, — you or him?
“A. Yes; it made me mad when he said I was a fraud, a swindler. I told him I was not; it was his business, not mine.
“Q. That was in your kitchen, after you had been introduced to him by Mr. Parker ? That talk was had with you in your kitchen, after you had been' introduced to him by Mr. Parker. Is that right ?
liA. Yes, sir.
“Q. Did they come around and collect the weekly premiums after that ?
“A. Yes, sir.”

Velzy was sworn for the defendant, and testified that he was one of several thousand assistant superintendents, who were said to be “ just a rank higher than an agent in the town.” Their duty was to do office work in their offices, and occasionally to visit policy holders and ■examine their receipt books, to-see that the agents had turned in to the company all collections made. He testified that he heard that Hilt was ill, about two weeks before he died, from Charles Shafer, who was a home inspector, and who • came along 'at that time. He was able to fix the time that Shafer was there as the week beginning Monday, June 17th, from records in his office. He stated that Shafer’s duty was to go around and take the date of the last payment, from the receipt books in the hands of the assured, to see if the agents had turned in all collections; also: “If there are any impaired healths in the district, — people that were insured when the policy is issued, — it is his business to lift those policies, and pay the people back their money.”

The plaintiff’s case, then, hangs on the slender thread that the failure of Shafer to lift this policy, and pay back the premiums received, and the acceptance by Parker of one or two payments of 15 cents after this visit by Shafer, constituted a waiver of the condition of sound health provided by the contract. There is no evidence in the record of what Shafer knew, except as it is to be inferred from the conversation related by Mrs. Hilt. She says he asked her if she thought it was right to have Hilt insured, and she disavowed knowledge upon the subject, and that he then asked if she thought there was any fraud, and she told him she did not know; if he thought so, it was not her. Her testimony implies that he accused her of being a fraud and a swindler, and she replied that it was his business, and not hers. It is not claimed that Shafer received any money, or that he directed any one else to. The most that can be said is that after this conversation, from which we may infer that he believed, and possibly knew, that the policy was obtained when the assured was not in sound health, he did not offer to pay back the premiums, and demand the policy. There is, in my opinion, no evidence that the home office was informed of, or acted upon, the knowledge obtained by Shafer. There is nothing to indicate that he saw Hilt, with whom the contract was made; and, if the company is to be held liable, it is to say that, when notice is brought home to one having authority to cancel policies for fraud, his failure to do so, and the subsequent receipt of money by a collector not a general agent, constitute a waiver, notwithstanding the express provision that waivers must be in writing, signed by the president or secretary of the company. We think this is not the law. The case is within the rule of Mallory v. Insurance Co., 97 Mich. 416; Cleaver v. Insurance Co., 65 Mich. 527 (8 Am. St. Rep. 908). See, also, Bourgeois v. Insurance Co., 86 Wis. 402; Pitney v. Insurance Co., 65 N. Y. 6; 2 Biddle, Ins. § 1081; 2 May, Ins. §§ 507, 508.

The judgment should be reversed, and a new trial ordered.

Grant, J., concurred with Hooker, J.


author: Moore, J.

text:
    KELLY v. PUBLIC SCHOOLS OF MUSKEGON.

    1. Building Contract — Plans and Specifications — Discrepancies — Decision of Architect.
    A provision in a building contract that, if any apparent discrepancy should be found to exist between the plans, working drawings, and specifications, the decision as to the fair construction and the true intent and meaning thereof should be made by the architects, whose decision should be binding, is reasonable, and binds both parties; especially where the plans and specifications, an examination of which would have revealed apparent discrepancies, were accessible to the parties before the contract was made.
    3. Same — Finality of Decision — Evidence of Fraud.
    A finding that the decision of the architects against the right of the contractor to extra compensation was fraudulent cannot be based upon the mere fact that they drew the plans and specifications, and were to receive from the owner as their compensation a cetain per cent, of the total cost of the building.
    Error to Muskegon; Russell, J.
    Submitted June 11, 1896.
    Decided July 31, 1896.

      Assumpsit by William D. Kelly, assignee of Joseph D. Boland, against the Public Schools of the City of Muskegon, upon a contract for the erection of a high-school building. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Arthur Jones, for appellant.

      Smith, JSFims, Hoyt & Erwin, for appellee.

       Rehearing denied December 9,1896.

   Moore, J.

The plaintiff is the assignee of Joseph D. Boland, and as such brought suit. Mr. Boland was the contractor for the erection of a high-school building in the city of Muskegon, under a written contract, dated July 6, 1892, which required him to perform all the work and provide all the materials for the erection and completion of the school building; the whole of said work to be performed, and all the materials to be furnished, in conformity with the plans and specifications of the same, as made by Patton & Fisher, of Chicago, 111., the architects appointed by the party of the second part. The contract provided that, on the fifteenth and last days of each month, payment should be made on the estimate of the architects, or person appointed by them for that purpose. It also contained the following provisions:

‘ ‘ Sixth. The said party of the first part shall, during the progress of the work, apply to the said architects, or the superintendent in charge of the work, for all needful explanation of the true intent and meaning of the said plans and specifications; that a working plan shall, at the expense of said second party, be furnished to the party of the first part, if required, it being expressly understood that all work described or referred to in the specifications is to be executed by said party of the first part, whether or not the said work is illustrated by the aforesaid plans or working drawings, and that all work shown by the plans and working drawings is to be executed by said party of the first part, whether or not said work is described or referred to in the said specifications; and if any apparent discrepancy shall be found to exist between the plans, working drawings, and specifications, the decision as to the fair construction, and of the true intent and meaning, of the plans, working drawings, and specifications, shall be made by the said architects, whose decision shall be binding in that regard upon the parties hereto.
‘Seventh. That any discrepancy or variance between this contract and the specifications hereinbefore referred to shall be interpreted and rendered in accordance with the requirements and stipulations of said specifications.”

When the plans and specifications were originally made, they provided for but three chimney stacks that should go through the roof, and two chimney ventilating stacks, running from the basement, and stopping at the third floor. Before the contract was let, the plans and specifications were returned to the architects, with instructions to change them so as to provide for the extension of the two ventilating chimney stacks through the roof. The ■architects undertook to make these changes, and did make them in some of the plans and in some of the specifications, but failed to make detailed changes in all the specifications. These plans and specifications were returned to the board about April 13th, and were consulted by Mr. Boland before he made his bid, which was made May 2, 1892. The contract was let to him May 3d. It was drawn later, and signed July 6th. When Mr. Boland, in his work of erecting the building, reached the third or assembly floor, he stopped work on the two chimney ventilating stacks, which he had erected from the basement to that place, because, as he read his contract, it did not call for the erecting of those stacks higher than that point. When the superintendent ascertained that Mr. Boland was not intending to erect the stacks higher than the third floor, he called the attention of the chairman of the building committee to it, and explained to him what Mr. Boland claimed with reference to the stacks. The chairman then examined the specifications and plans with the superintendent, and his attention was particularly called by the superintendent to the specifications, which called only for three chimneys to go above the roof, the other two to stop at the floor of the assembly room. The chairman said to the superintendent that these two chimneys must be built up, and, if there was any question as to the responsibility of the school board in the matter, he would report it at the next meeting of the board. The superintendent insisted that the chairman should go to the building and examine into the matter himself. He did so, and decided that it would not be practicable, with the experience they had had, to leave the flues in that shape. A school building in the city had formerly burned from that cause, and he insisted that such a thing should not happen again, and decided to carry the flues to the roof, and stated to Mr. Boland and the superintendent that the matter in controversy must be settled by the full board. The chairman testified that at that conversation at the high school building, just referred to, he stated and understood that the intention of the plans and specifications was to stop these stacks at the third floor, but that he protested against it, and would not have it that way, and ordered them built up. Accordingly, Mr. Boland went on with the work, and, in due course of time, finished the building and topped out these two chimney stacks. The matter was submitted to the architects whether he should receive extra compensation for that work, and they decided that he should not. The defendant corporation declined to pay for the labor and materials expended in the topping out of these two stacks; claiming that the contract made the architects the arbiters in the matter, and their decision protected the defendant. Mr. Boland assigned his claim to the plaintiff, who, after the building was completed and accepted, brought suit; and, on the trial of the case before a jury, the circuit judge directed a verdict for the defendant, on the ground that the decision of the architects was binding upon both parties and final.

There are a good many assignments of error made by the plaintiff, but, in our view of the case, it is not necessary to discuss many of them, as the issues involved are questions of law, and grow out of the construction of the contract. After a careful consideration of this contract; we can reach no other conclusion than that it falls within the case of Guthat v. Gow, 95 Mich. 527, and should ,be governed by it. The plans and specifications were accessible to, and examined by, Mr. Boland, before he made his contract. An examination of them would show there were apparent discrepancies in them. With that condition of things existing, Mr. Boland signed a contract containing the following provision:

“That if any apparent discrepancy shall be found to exist between the plans, working drawings, and specifications, the decision as to the fair- construction, and of the true intent and meaning, of the plans, working drawings, and specifications, shall be made by the said architects, whose decision shall be binding in th,at regard upon the parties hereto.”

This seems like a reasonable provision, and we think both parties are bound by it. ’

The circuit judge was requested to charge the jury, in effect, that, if the architects were guilty of fraud in making their decision, it would not be binding upon Mr. Boland or his assignee. The circuit judge refused to give this charge, and counsel for plaintiff makes a learned and exhaustive brief upon the error assigned to the refusal of the court to charge as requested, calling our attention to many decisions. The trouble with the argument is, there • is no testimony to base it upon. Unless the fact that the architects drew the plans and specifications, and were to receive as their compensation 5 per cent, of the total cost of the.building, will warrant an inference of fraud in their decision, there is nothing in the record to indicate but that their decision was made in the utmost good faith. We are not prepared to draw any such conclusion.

Judgment is affirmed.

The other Justices concurred.


text:
    SHAW v. ASHFORD.
    Arrest — Capias ad Respondendum — Sufficiency of Affidavit.
    An affidavit by an agent and attorney of the owner for a writ of capias ad respondendum for the unlawful cutting of timber must show that the facts stated as to the trespass being without the consent of the owner are within the personal knowledge of deponent, or must set forth in detail the facts and circumstances which are the basis of his conclusions.
    Error to Ogemaw; Sharpe, J.
    Submitted June 12, 1896.
    Decided July 31, 1896.
    Trespass by Humphrey Shaw against Charles N. Ash-ford, commenced by capias ad respondendum. From an order dismissing the writ, plaintiff brings error.
    Affirmed.

      F. L. Snodgrass, for appellant.

      W. A. Weeks, for appellee.
   Moore, J.

Defendant was arrested upon a capias ad respondendum issued upon an affidavit reading as follows:

Affidavit for Capias.
“ George K. Newcombe, being duly sworn, on his oath says that he is agent and attorney for Humphrey Shaw, of the city of Saginaw, in said State, and makes this affidavit in his behalf. Deponent further says that on or about the 1st day of May, 1894, and on divers other days and times since that day, at the township of Horton, in said county, one Charles N. Ashford, of s¿iid township, with force and arms, and contrary to the provisions of section 1 of chapter 198 of the Compiled Laws of 1871, being section 7957 of 2 How. Stat., entitled ‘Trespasses on Lands,’ did enter upon certain lands there situate, to wit, the south half of the northwest quarter of section 30, in township 21 north, of range 2 east, belonging to and in the possession of said Humphrey Sha-w, and with like force and arms, and against the said statute, and without the leave and consent of said Shaw, and without color of title, then and there did cut down a large number, to wit, 200 or more, standing hemlock trees, of the value of $100, and a large number, to wit, 100 or more, standing basswood trees, of the value of $100, and with like force and arms, and against the said statute, and without the leave and consent of said Shaw, the owner thereof, a large quantity, to wit, 150 cords, of hemlock bark, of the value of $150, and a large quantity, to wit, 100 cords, of basswood bolts, of the value of $100, did carry off and convert to his own use, and other great injury to the said land, and to the trees and timber standing thereon, then and there did; whereby, and by force of the said statute, the said Charles N. Ashford has forfeited to the said Humphrey Shaw, owner of said land, three times the amount of damages so sustained by him, the said Shaw, on account of the premises aforesaid. ' And, for other complaint, further says that on, to wit, the 1st day of May, 1894, and on divers other days and times from that day hitherto, at the township of Horton, in the county aforesaid, said Charles N. Ashford, with force and arms, did enter upon certain lands of him, the said Humphrey Shaw, there situate and described as aforesaid, and then and there did cut down, prostrate, and destroy certain trees and timber standing and growing thereon, to wit, 200 or more hemlock trees, of the value of $100, and 100 or more basswood trees, of the value of $100, and the bark of said hemlock trees, by him then and there peeled and stripped, and the bolts and merchantable products of said basswood trees and other trees and timber, by him then and there cut, manufactured, and made, of great value, to wit, of the value of $250, then and there did carry away, convert, and dispose of to his own use.
“George K. Newcombe.
“Subscribed and sworn to before me, this 21st day of February, A. D. 1896.
“ Clyde B. Stocken,
“Notary Public, Ogemaw Co., Mich.”

Upon motion, the writ was dismissed, because the affidavit did not appear to be made upon the personal knowledge of the deponent, and because it was insufficient to authorize defendant’s arrest. The plaintiff appeals.

There is no suggestion in the affidavit that the facts stated as to the trespass being without the leave and consent of Shaw are within the personal knowledge of the deponent. Nor does it set forth the facts and circumstances in detail which are the basis of the conclusions of the deponent. The case comes clearly within a long line of decisions: Proctor v. Prout, 17 Mich. 472; Brown v. Kelley, 20 Mich. 27; De Long v. Briggs, 47 Mich. 624; Sheridan v. Briggs, 53 Mich. 569; Stensrud v. Delamater, 56 Mich. 144; Marble v. Curran, 63 Mich. 283; Hart v. Grant, 8 S. D. 248.

Judgment is affirmed.

The other Justices concurred.