text:
      In re HARTLERODE’S ESTATE. HARTLERODE v. THOMAS.
    1. Evidence — Estates of Decedents — Statements of Testator —Wills—Hearsay—Undue Influence.
    On the trial of a will contest, testimony of a daughter of decedent that her mother stated during her lifetime that the minister of a church to which the deceased left a considerable portion of her estate by will had told testatrix that she ought to leave something to the church and to him, was admissible in support of a claim of undue influence.

    2. Wills — Undue Influence — Presumptions.
    Where testatrix devised her entire estate to her husband for life, and granted to her daughter one-half of the estate after his death, bequeathing to a church the remaining half, and directing, in case of the death of her daughter before the death of testatrix, that the rector of the church should have the portion which was to he left to the daughter; that in the event of the death of both daughter and rector her property should become the property of said church, also, where it appeared that she had no acquaintance with the rector or his church until a few weeks before she executed the will, which revoked one wherein she disposed of her estate to the natural objects of her bounty, and that the rector called on her frequently before her decease and she was, during that time, weak and easily influenced, raised a presumption of undue influence that should have been rebutted by evidence, and presented an issue of fact.

    Error to Berrien; Bridgman, J.
    Submitted June 19, 1914.
    (Docket No. 56.)
    Decided October 3, 1914.
    Charles Hartlerode presented for probate an instrument purporting to be the last will of Elizabeth Hartlerode, deceased, and it was admitted to probate in the probate court. Winifred Thomas appealed to the circuit court. Judgment for proponent on a directed verdict. Contestant brings error.
    Reversed.

      Cady & Andrews, for appellant.

      Gore & Harvey, for appellees.

       On the question of ante-testamentary declarations as evidence of undue influence, see note in 3 L. B.. A. (N. S.) 749.

       As to the undue influence of the draftsman or person active In procuring execution of will, see note in 28 L. R. A. (N. S.) 270.

   Stone, J.

The principal question involved in this case is: Were certain provisions contained in the will of Elizabeth A. Hartlerode, deceased, procured by and through undue influence?

The will in question bears date February 19, 1913. The pertinent provisions are as follows:

"First. I will and bequeath to my beloved husband, Charles Hartlerode, Sr., all my real estate, including our home, situated in the county of Berrien, township of Pipestone, in the State of Michigan, and all my personal property during his life.
“Second. At the death of my said husband, it is my will and wish that one-half of my personal property and one-half of my real estate shall go to and vest in Winifred Thomas, wife of William Thomas, of Chicago, and that the balance of my said personal property and real estate shall go to, and become the property of St. Alban’s Episcopal Church, now located at No. 4338 Prairie avenue, Chicago, Illinois.
“Third. In case of the death of the said Winifred Thomas, prior to my death, or prior to the death of my said husband, it is my will and wish that the one-half of my real and personal property herein above willed to her, shall go to and become the property of Charles Kenneth Thomson, now rector of the said St. Alban’s Episcopal Church.
“Fourth. It is my will and wish that in case of the death of both the said Winifred Thomas and the said Charles Kenneth Thomson before my death, or before the death of my said husband, then all of my property, both real, personal and mixed, shall go to, and become the property of the St. Alban’s Episcopal Church.
“Fifth. I nominate and appoint my said husband, Charles Hartlerode, my executor.”

The said husband was the proponent of the will. Numerous objections to the probate of this will, including undue influence, were filed in the probate court by Winifred Thomas, daughter of deceased, but no contest was really made in that court, and the will was there admitted to probate. Contestant appealed to the circuit court, and there gave formal notice that on the trial she would only attack the provisions and bequests in said will, giving certain property of deceased to the St. Alban’s Episcopal Church, located at No. 4338 Prairie avenue, Chicago, and Charles Kenneth Thomson, rector of said above named church.

At the trial in the circuit court, at the close of the testimony, the court directed a verdict and judgment for the proponent, and the will was admitted to probate. Contestant has appealed, and the principal contention is that there was a question for the jury upon the subject of undue influence. In stating the case the contestant’s evidence is to be considered in its aspect most favorable to her; for, if, in giving contestant’s evidence its strongest probative force, it was sufficient, unexplained, to support a verdict, then she was entitled to have the case submitted to the jury.

Contestant’s evidence tended to show that decedent came from England to this country a number of years ago, locating in Chicago, where she followed the occupation of a nurse, and, after residing there for a number of years, she went to Berrien county, Mich., where she married Charles Hartlerode in 1900. They lived upon a farm in Berrien county during the whole of their married life until she went to Chicago, as hereinafter stated. Mrs. Hartlerode contracted pulmonary tuberculosis, from which she died April 17, 1913. Contestant is the only child of decedent, and has been for a number of years living in Chicago. Decedent, on the 21st of September, 1912, went from her home in Berrien county to Chicago for the purpose of obtaining medical treatment, took apartments with contestant, and remained with her until January 14, 1913. For the purpose of accommodating her mother, contestant was obliged to move to a house with additional rooms, which she did. Contestant was married in 1894, and, after some domestic differences, she and her husband separated January 14, 1913. Prior to their separation it was arranged between decedent and contestant that they were to occupy rooms together, but decedent afterwards concluded that would be too much of a burden for contestant to assume, so she made an arrangement to, and did, go to room with a Mrs. Brock, who resided in premises adjoining those decedent had occupied while staying with her daughter and son-in-law.

Rev. Charles Kenneth Thomson was the rector of St. Alban’s Episcopal Church, which church is situated in the vicinity of Mrs. Brock’s premises. Mrs. Anna Cragg is a member of the Episcopal Church, and was the wife of a deceased brother of Mrs. Hartlerode. Decedent was not a member of any church, and had never seen the St. Alban’s Church building, and had never seen the Rev. Thomson until he made a call upon her while she was living with contestant. He called upon her at the request of Mrs. Cragg for the first time about the middle of October, 1912, and continued his visits until decedent went to a hospital on March 10, 1918. Decedent was confirmed as a member of St. Alban’s Episcopal Church the day before she was taken to the hospital.

From the time decedent went to Chicago for medical treatment she gradually failed until her death, at the date above stated. She was weak, changeable, and easily influenced.

Decedent, just prior to the signing of the will in question, was the owner of 21 acres of land in Berrien county, which was subject to a life estate of her husband, and she was . also the owner of personal property, including three notes, aggregating about $700. The real estate was worth from $1,000 to $1,200, and the personal property, outside of the promissory notes, only amounted to a few dollars. Mr. Ayres, an attorney, who drew the will in question, was a witness for proponent, and testified that he was called over the phone and requested to draw the will; that he did not know who called him, but it was not Rev. Thomson; .that in accordance with the request he called, but did not draft the will until he had called there three or four times; that upon his arrival he found Mr. and Mrs. Hartlerode alone; that he talked with them at length about the proposed will, and about the deed which she had from her husband, and advised that the husband deed absolutely to her, as there was some question in the mind of the attorney about the validity of the deed. Later, upon being notified, he drew a deed from the husband to decedent and a will like the one signed, except that it referred to contestant as her daughter. Decedent objected to signing it on account of such reference, and the will was redrafted, eliminating such reference. Rev. Thomson visited decedent the day the will was taken to her for her signature.

Just prior to going to Chicago, decedent, in September, 1912, had made a will giving all of her property to contestant (subject to a life estate in her husband), except that she thereby gave $350 to one Alonzo Asel, a boy that decedent and her husband had taken from the Children’s Home at Coldwater. On February 18, 1913, on the advice of the attorney aforesaid, Mr. Hartlerode gave an absolute warranty deed to decedent covering the 21 acres of land, and on February 19, 1913, while decedent was confined to her bed, she signed the will in question. The attorney made no charge for his services. Two of the witnesses to the will were members of St. Alban’s Episcopal Church, and had called on decedent frequently prior to the time she was removed to the hospital. Neither the Rev. Thomson nor either of the witnesses to the will called to see decedent after she was removed to the hospital. The contestant visited her mother every day while she was living with Mrs. Brock, and called nearly every day while she was at the hospital. Contestant was not present when the will in question was signed. Upon the trial Mrs. Brock, among other things, testified as follows:

“Q. Did she ever say anything regarding Mr. Thomson in connection with the will?
“A. Not at that time; no, sir.
“Q. Did she later?
“A. Only to the effect that Mr. Thomson having called, and not having — her not having sufficient money that she could give him, or pay for his trouble, he thought it was no more than right that she should donate some of her property, should she have any, to the church.
“Q. How long was this after she came to your house that she began talking about that?
“A. About four weeks.
“Q. Did she talk about it more than once?
“A. Well, that was somewhere around in February some time, and then she told me she was having a new will drawn up, and through Rev. Thomson she. had secured a lawyer who would draw up the new will, and in that way — she didn’t tell me the contents of the will, but she told me the will was changed, in which Mrs. Thomas would not get the full amount of the will.
“Q. Did she say why that change was made?
“A. Only as I said, that she thought that — the minister thought that they ought to get some of the money as long as they — she was going to be a member of the church.
“Q. Did she say anything to you about what it cost her to have the will drawn?
“A. She told me the lawyer who drew up the will, his charges were usually $25, but as a favor he would charge $10, and then she said that he charged her nothing, being a friend of Rev. Thomson. * * *
“Q. Were you at home the day they came to draw the last will?
“A. Yes, sir.
“Q. Do you know whether or not Mr. Thomson was there that day?
“A. He was there; yes, sir.
“Q. Do you know whether or not he talked with Mrs. Hartlerode?
“A. Yes, sir; he did, in my room, which happened to be my parlor. He was there not more than ten minutes.”

This witness also testified that decedent told her that she always preferred seeing Mr. Thomson alone, and that she did so.

Contestant testified in part as follows:

“I am not personally acquainted with Rev. Charles Kenneth Thomson, but I let him in my house on his first visit to see my mother. My mother did not know he was coming; thought at the time that he was a traveling salesman. He told me he was an Episcopal preacher, and had been sent there by Mrs. Anna Cragg. I think he called there about eight times to see my mother at my place. I think he was there three times in the daytime, and the other times he would come just before I would leave for my work, so I don’t know how long he would remain. Mrs. Anna Cragg is a sister-in-law to my mother; married my mother’s brother, who has been dead for several years. Mrs. Cragg was only at my house twice to see my mother, to my knowledge. My mother talked with me about her property when she first came to my house. She told me she had made a will in Benton Harbor, and had left the bulk of her property to me, with the exception to Alonzo Asel, a boy she took out of the orphans’ home in Michigan. After that my mother told me that she might change it in favor of my husband; that she would give the property equally to my husband and myself, provided we live together. She asked me if I was willing, and I told her I was. She told me up to the time she left my house, that she had left everything to me, with the exception of a little money to that boy. After she left my house she talked with me one day about Rev. Thomson, and said she didn’t know how to repay the minister for his visits, and said, ‘Of course you know, Daughter, ministers, as a rule, expect a little fee every time they call,’ and of course I didn’t know that, and she said, ‘I am not able to pay that fee,’ and she said — he said —the minister said to her that she really ought to leave something to the church, and she said, T don’t know what to do about it.’ She said that he said he ought to be left something and also the parish; that is what she told me.”

Mr. Hartlerode, husband of decedent, was sworn in behalf of proponent and legatees, and on his direct examination testified as follows:

“Q. Did your wife explain to you why she wanted to give a portion of this property to St. Alban’s Church?
“A. Well, she thought they had helped her on the road to God, you might as well say.
“Q. Did she ever tell you that Rev. Thomson had asked her for any property?
“A. No, sir.”

There seems to be no question that a confidential or fiduciary relation existed between decedent and the Reverend Mr. Thomson. It is the claim of appellant that, this confidential relationship having been established, a prima facie fact of undue influence was proven, without proof of any additional facts, which fact required proof on the part of proponent to overcome, and the weight of the testimony, both for and against, was for the jury.

Mr. Thomson was not sworn in the case. It was competent, under our rulings, to admit evidence of statements made by decedent, at and about the time she made the will, as to the conduct of a legatee. In re Foerster’s Estate, 177 Mich. 574-587 (143 N. W. 616).

Taking into consideration the significant facts that decedent, up to within a few weeks of the making of the will in question, was an entire stranger to both St. Alban’s Church and its rector, that she willed to them a substantial part of her property, thus changing a former will, in which she had disposed of the same to the natural object of her bounty, did not the duty then devolve upon the legatees to explain the cir-' cumstances in such a manner as to exonerate them from the use of undue influence? St. Alban’s Church could only act through its agents or representatives. The Reverend Mr. Thomson stood in'that relation, and whether the property was willed to him personally, or to the church which he represented, was he not called upon here to show that the presumption of undue influence should not prevail under the circumstances of the case? In other words, was not the contestant, in the state in which the evidence left the case, entitled to have it submitted to the jury? There are certain cases in which the law indulges in the presumption that undue influence Has been used, as where a patient makes a will in favor of his physician, a client in favor of his lawyer, or a sick person in favor of a priest or spiritual adviser, whether for his own personal advantage, or for the advantage of some interest of which he is a representative. This rule has been recognized and applied by us.

In Re Bromley’s Estate, 113 Mich. 53 (71 N. W. 523), the jury was charged as follows:

“Where a person devises his property to one who is acting at the time as his attorney, either in relation to the subject-matter of the making of the will, or generally, during .that time, such devise is always carefully examined, and of itself raises a presumption of undue influence. But this is by no means a conclusive presumption, but it is one that may be overcome by evidence.”

This court, in affirming the judgment, said:

“We think the charge, as a whole, correctly indicated to the jury that the burden does rest upon the proponent to overcome the presumption that arises from the confidential relation.”

In McPherson v. Byrne, 155 Mich. 338 (118 N. W. 985), where defendant, a priest, claimed to be the owner of certain certificates of deposit, as a gift from deceased while she was in extremis, this court, in referring to the confidential relation, stated:

“That the burden of proof in such a case as this rests upon the one occupying a confidential relation is clearly settled by the authorities. See In re Bromley’s Estate, 113 Mich. 53 [71 N. W. 523]; Ross v. Conway, 92 Cal. 632 [28 Pac. 785].”

To the same effect are In re McMaster’s Estate, 163 Mich. 210 (128 N. W. 259); Conklin v. Conklin, 165 Mich. 571 (131 N. W. 154). In the last-cited case Justice Blair, speaking for the court, said:

“The relations of defendant Conklin to testatrix raised a presumption of influence which would call for explanation on his part.”

The case of Ross v. Conway, supra, is worthy of examination on this subject.

We are of opinion that enough was shown by contestant to raise a presumption of undue influence, which was not overcome by evidence, and that the question should have been submitted to the jury, under proper instructions. As the case must go back for a new trial, we would sáy that we think that the trial court should have permitted the answers to the questions asked of Dr. Moore to have been read to the jury. This deposition had been taken in Chicago. While other answers which were permitted to be read render the answers objected to somewhat unimportant, yet we think they were unobjectionable.

We find no other errors in the record.

The judgment of the circuit court is reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    DELANO v. MALCOLMSON-HOUGHTEN CO.
    1. Landlord and Tenant — Term—Notice—Tender.
    Where defendant occupied land of the complainant for five years under leases for that term, and the latter declined to renew the tenancy but served notice of its intention to take possession, and where defendant tendered rent for a quarter of the ensuing year, which tender was, without authorization, accepted by a clerk, notice of his act not appearing to have been received by the railroad or its receivers until the quarter had nearly expired, the lessee acquired no right of ■ occupancy beyond the term of its lease and no notice of expiration was required to entitle the lessor to possession.
    2. Same — Receivers—Summary Proceedings.
    Receivers of such railroad appointed by the Federal court were properly held by the trial court to be entitled to maintain summary proceedings for the possession of the premises leased, without any showing that the receivers deemed the proceeding necessary.
    Error to Wayne; Van Zile, J.
    Submitted June 22, 1914.
    (Docket No. 65.)
    Decided October 3, 1914.
    Summary proceedings by Frederick A. Delano and others, as receivers of the Wabash Railroad Company, against the Malcolmson-Houghten Co. for the possession of premises occupied by defendant. From a judgment of ouster defendant appealed to the circuit court. Judgment for complainants. Defendant brings error.
    Affirmed.

      Walker & Spalding, for appellant.

      Campbell, Bulkley & Ledyard and Rufus G. Lathrop (Harry C. Bulkley, of counsel), for appellees.
    Under two leases, the terms created by which began, respectively, July 22 and August 27, 1908, and expired in five years, defendant occupied premises as tenant of the Wabash Railroad Company. Each of the terms was determinable by the lessor at any time, it being further provided that within 30 days after notice of determination the lessee should remove its buildings from the premises and surrender possession. Plaintiffs were appointed receivers of the railroad company December 18, 1911. A notice, signed “Wabash Railroad Company, W. S. Danes, Engineer Maintenance of Way,” dated August 15, 1913, was sent to and received by the lessee, containing, among other things:
    “You are hereby notified and required to remove the said coal sheds and all your belongings from the grounds of this, the Wabash Railroad Company, within thirty days of the date of this notice, it being the intention of this company to terminate your tenancy thereon. This notice dated as on August 16, 1913, with thirty days duration.”
    The notice was served on the lessee August 20,1913, at which time, it will be perceived, one term had expired by limitation and one had not. Subsequently, August 29, 1913, the lessee tendered rent, in the amounts fixed by the leases, for the quarter year ending October 22 and November 27, 1913, to a clerk in a local freight office of the railroad company, and it was accepted by the clerk. As business was then carried on, this clerk received bills for all rentals from the superintendents. The superintendents had been instructed not to make any bills. No further instructions had been given. No bills were rendered to the defendant, who, however, tendered the money to a clerk, who received it. It is not, perhaps, clear when it was first brought to the attention of any one in authority that this money had been tendered and received. The division freight agent, Sullivan, learned about it October 17, 1913. Before Mr. Sullivan knew about it, he had several conferences with a representative of defendant, in which he told the said representative that the Wabash Railroad Company wanted possession of the premises. He was informed that possession would be refused. In some or all of these conferences defendant was seeking a renewal of its leases, or the creation of a new term. Checks for another quarter’s rent were tendered by defendant on October 13, 1913, and were returned to it. A second notice to quit was served on defendant October 21, 1913, reading:
    “The leases entered into by the Wabash Railroad Company with C. F. Lane, covering two parcels of land at Delray, expired on July 22d for one parcel and August 27th for another parcel. By letter dated August 16th, delivered to you on August 20th, we notified you that we expected possession of these premises, the leases for same having expired. Thereafter, one of our clerks, under' misapprehension accepted rent from you for these premises for a period of three months in each case, ending respectively Oct. 22d and Nov. 27, 1913. We now notify you that we eléct to cancel the two leases given by us to C. F. Lane, taken over by you, and that you are required to deliver to us possession of the premises covered by said leases, on November 28th, 1913.
    “Your checks of October 13, 1913, Nos. 2275 and 2276 for $26.50 and $31.25, respectively, are returned herewith”
    —and signed:
    “Frederic A. Delano, William K. Bixby, Edward B. Pryor, Receivers.
    “The Wabash Railroad Company, by J. A. Sullivan, Division Freight Agent.”
    Defendant refusing to deliver possession, an action was begun before a circuit court commissioner December 6, 1913. Judgment for plaintiffs was rendered December 17, 1913. Defendant appealed to the circuit court, where there was a trial with a jury and a verdict and judgment for plaintiffs. At the trial no testimony was offered by defendant, who saved various exceptions, assigned errors, and presents in this court the questions:
    “1. Whether there is any competent evidence of the authority of the agent, Sullivan, to give the notice of October 21, 1913.

      “2. Whether the circuit court had jurisdiction of the subject-matter of the suit.
    “3. Whether the suit could be maintained in the absence of a showing that the suit is necessary in the opinion of the receivers, as contemplated by the terms of the order of their appointment.

      “4. Whether by reason of the situation of the parties after the first notice and before the second notice, the defendant did not become a tenant at sufferance and therefore entitled to a three months’ notice under the statute.
    “5. Whether the plaintiffs, by their proofs, made out such a case as entitled them to the direction of a verdict in their favor by the court.”
   Ostrander, J.

(after stating the facts). I have searched the record in vain for evidence of the right of defendant, appellant, to occupy the premises after the expiration of the terms created by the leases. Nothing is clearer than that the occupancy which was continued was in opposition to the expressed will of the landlord. In the face of refusals to create a new term, while unlawfully holding the premises, after the expiration of both terms, defendant tendered, and a servant of the landlord, inadvertently and without authority, received, money equal in amount to a quarter’s rent. Knowledge of this payment appears not to have been brought home to any one in authority in the premises until the quarterly period was nearly ended. The money was not returned to defendant. There is no other act, or failure to act, which can be pointed out as creating any right of defendant to continue in possession. It is inferred that the purpose of defendant in making the payment was surreptitiously to acquire a position of apparent right. No notice was required, upon the expiration of the terms, to entitle plaintiff to possession of the premises. However, one was given, and the position of plaintiffs as expressed therein was not thereafter changed. On October 21, 1913, another formal notice was served. It repeated, merely, the conclusions stated in the earlier notice, and was in accord with oral communications repeated during the interval. It is therefore not upon a question of the authority of the persons signing these notices so much as a question of a showing of any right on the part of defendant to occupy the premises that the validity of the judgment depends. Apparently, it was in this view of the case that the circuit judge advised the jury there was no question for them to determine and directed a verdict for plaintiffs. He committed no error in so doing.

Assuming the plaintiffs are entitled to possession of the premises, no reason is given for refusing them the right to proceed in the courts of the State to recover possession. There is attempted no interference by the State court with the jurisdiction of the Federal court over property in the hands of its receivers, or with funds in the control of the Federal court. Defendant’s right while it continued was a contract right, respected by the Federal court and by its receivers. When this right expired, the right of the receivers to possess and deal with the property accrued. In face of an unlawful detention they needed a remedy. They have ratified the proceeding in the State court which their agent instituted. In principle, the case cannot be distinguished from an action of replevin.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


author: Per Curiam. Ostrander, J.

text:
      In re HOFFMAN’S ESTATE. MICHIGAN TRUST CO. v. HOFFMAN.
    1. Appeal and Error — Review—Trial by Court.
    It is only where there is a total want of evidence, or where the finding is contrary to the undisputed evidence, that the facts found by the trial court, sitting without a jury, can be overturned on error.
    2. Same — Briefs.
    And assignments of error that are not discussed in the briefs of appellant will not be considered.
    ON REHEARING.
    3. Appeal and Error — Findings of Fact — Saving Questions fob Review.
    On writ of error the Supreme Court reviews the action of' the court below on questions of law only, but examines the conclusions of that court on questions of fact for the purpose of determining such questions of law as arise upon them.
    4. Same — Equity—Distinctions.
    Such proceeding in reviewing the determination of the trial court on the accounting of the trustee of a decedent’s estate is not a chancery appeal or to be treated like one. The court should be informed by appellant of the errors of law relied upon.
    5. Trusts — Accounting—Evidence.

      Held, on a review of the question of fact whether the action of a trustee in investing the funds of a deceased minor in a fiat or apartment building was ratified by the minor after he became of age and before his death, that the finding of the circuit judge was supported by the, evidence and that there was sufficient testimony supporting the judgment and determination of the court in favor of such ratification.
    Appeal from Allegan; Cross, J.
    Submitted April 14, 1914.
    (Docket No. 30.)
    Decided July 24, 1914.

      Rehearing granted December 19, 1914.
    Affirmed June 7, 1915.
    Clayton H. Hoffman, trustee of the estate of Israel O. Hoffman, deceased, filed his final account which was allowed in probate court. The Michigan Trust Company, administrator of the estate of Roscoe C. Hoffman, one of the persons interested in said estate of Israel O. Hoffman, appealed from the final order: Bessie Hoffman, personally and as guardian of Mabel G. Hoffman, an infant, joined in the appeal. The circuit court entered a final order modifying in part the judgment of the probate court. Appellants bring error.
    Affirmed.

      Norris, McPherson & Harrington, for appellants.

      A. C. Hindman (Myron H. Walker, of counsel), for appellee.
   Per Curiam.

Appointed by the probate court under Act No. 253, Public Acts of 1899 (4 How. Stat. [2d Ed.] § 10710 et seq.), trustee of an estate belonging to himself and his brother, the estate being created by the will of their father, Clayton H. Hoffman filed certain accounts in probate court at the instance of the administrator of his brother’s estate and the guardian of his infant child. After a hearing in probate court, an appeal from the order entered was taken to the circuit court. In the circuit court the cause was tried by the court without a jury. A finding was requested and was made and filed. Appellants, the administrator and guardian, filed exceptions and moved to amend the finding. One additional finding was made; in other respects the motion was denied. Exceptions were filed to the refusal to amend the finding as requested. A judgment was entered, and the record is brought into this court for review upon assignments of error 33 in number.

An examination of the brief for appellants and of the errors assigned suggests the inquiry whether there is any point properly open to review in this court. Neither party presented to the trial court points of law to be passed upon as the rule permitted them to do.

It is alleged as error that the facts found do not support the judgment. It is not alleged, either in exceptions or assignments of error, that any finding is wholly unsupported by evidence. It is alleged in some of the exceptions, and restated in the assignments of error, that certain findings “are contrary to the fact and the evidence in said cause.” To this allegation there is added, in some instances: “And is erroneous in law.” It is assigned as error (assignments 19-29) that the court refused to amend the finding as requested, but these and most of the other assignments rest ultimately upon what the facts are found to be. No objection is made to the form or extent of the findings. Circuit Court Rule 26 reads, in part, as follows:

“(d) The finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict.”

It is only where there is a total want of evidence or where the finding is contrary to the undisputed evidence that the facts found by the trial court can be overturned. Upon this point the decisions of this court have been many times repeated. See notes to Stevens’ Rules of Practice (2d Ed.).

The first two assignments of error are based upon rulings admitting testimony. We do not find either discussed in the brief. The assignment that the facts found do not support the judgment, which is open for our consideration, does not appear to be discussed in the brief.

We therefore affirm the judgment.

ON REHEARING.

Ostrander, J.

In this cause an opinion was handed down ante, 67 (148 N. W. 268), affirming the judgment. A rehearing was granted on motion of appellant, chiefly for the reason that some members of the court were doubtful whether the form of the finding and the assignments of error precluded an examination of the question whether there was any testimony supporting the important conclusion that the deceased brother, Roscoe, approved of the investment of the trust funds in the so-called Hoffman Flats, and whether—

“With full knowledge of his rights he approved and ratified the investment of the trust funds and treated the building as belonging to him in part. * * * The investment having been ratified by Roscoe after he became of age, his representatives cannot now complain that the same was improperly made * *

The exceptions to the finding divide and subdivide the conclusion, as stated in the findings, making it the ground for seven exceptions, and six of them state, as reason for the exception, that the finding is contrary to the fact and the evidence in said cause and erroneous in law. One of the seven states the reason for the exception to be that “No evidence in said cause justifies the said finding.” It is assigned as error— and for this purpose the subdivision of the finding already noticed is followed — that the court erred in finding (repeating portions thereof), 6th, the same being “contrary to the fact and the evidence and erroneous in law,” 7th the same, 8th, “the same being erroneous in law,” 9th, “the same being contrary to the fact and erroneous in law,” 10th like the 6th, 11th, “Such finding being unsustainable by evidence and erroneous in law,” 12th, “the said finding being contrary to the fact and erroneous in law.” It is said in the brief filed in support of the motion for rehearing:

• “Where a fact found is alleged to be ‘contrary to the facts and the evidence in the cause,’ it can be fairly construed to mean that there is no evidence to support that finding.”

This might be true in a case where counsel had, in argument, so construed the language, if the construction was necessary to save a position intended to be taken, but not clearly indicated. But counsel did not, in argument, so construe the assignments of error. On the contrary, it was insisted, and is still insisted, and the arguments proceed upon the theory, that because of the nature of the transaction which is being investigated, because it is an appeal from an accounting in probate court, the findings of fact are not conclusive as in a law case.

“The case,” it is said, “is before this court as an equitable proceeding, and this court should examine the entire record as in equity cases.”

This being the position assumed by counsel, it is made plain that the assignments of error were not intended to be construed otherwise than as their language imports and that it was intended that the court should examine and should weigh the evidence and find facts opposed to those found by the trial court.

The rule applied in the former opinion is adhered to. The practice is settled, and has been settled for many years. There is nothing in any opinion cited by counsel—Gott v. Culp, 45 Mich. 265, 275 (7 N. W. 767); Brinsmade's Appeal, 52 Mich. 537, 538 (18 N. W. 346); Mower’s Appeal, 48 Mich. 441, 448 (12 N. W. 646); Bondie v. Bourassa, 46 Mich. 321, 323 (9 N. W. 433),—which amounts to an intimation that this court will review, on error, the findings of fact of the trial court, or find facts contrary to those found in the court below. On the contrary, it is said in Mower’s Appeal:

“On writ of error this court reviews the action of the court below on questions of law only, but examines the conclusions of that court on questions of fact for the purpose of determining such questions of law as arise upon them.”

This is not a chancery appeal, nor to be treated like one, and the fact that eminent counsel have, in evident good faith, asserted to the contrary is the reason for this somewhat extended reference to the subject. In all cases brought to this court upon writ of error the court should be informed of the errors of law alleged to have been committed — the precise questions involved — and to this end the rules of court have been framed. It is an error of law if a fact is found without support of evidence or contrary to undisputed evidence. And it is, of course, an error of law if a fact is lacking — is not found or found but not sustained by some evidence — which is necessary to support the judgment.

The finding which has been referred to in its entirety is as follows:

“The trustee invested $23,500 of the trust funds in the erection in the city of Grand Rapids of what is known as the ‘Hoffman Flats.’ This building cost about $73,000, has fifteen apartments, fourteen of which rent for $500 each per year. The vacant lot upon which this building was erected was purchased by Georgia Hoffman, who at the time was living in the homestead in the city of Allegan, while Clayton H. Hoffman and Roscoe G. Hoffman were living in the city of Grand Rapids. It was necessary to borrow some money to complete the building and for convenience and to obtain a better credit the property was conveyed by Georgia Hoffman to Clayton H. Hoffman.
“The project of building this building was discussed with Roscoe and he approved of the same and of the use of the trust funds for that purpose. The plans for the building were inspected and approved by Roscoe. He was present part of the time during the erection of the building and at his suggestion certain changes were made. He knew that the trust funds were being used to erect the building, and after he became of age he fully ratified the investment of the trust funds in the erection of the building. With full knowledge of his rights he approved and ratified the investment of the trust funds and treated the building as belonging to him in part. He expressed himself as satisfied with the investment of the trust funds in the Hoffman Flats., No loss has resulted from this investment, the building is a substantial one and is a safe investment. The investment having been ratified by Roscoe after he became of age, his representatives cannot now complain that the same was improperly made, and his estate owns a pro rata share in said property and has an equity in said Hoffman Flats for the amount thereof.
“Upon the argument in this case complaint was made that the record title to the property was in the name of Clayton H. Hoffman and that there was no written declaration of trust. The trustee agreed in open court to file a written declaration of trust and this has been done.”

Explanatory of this, to some extent, is the following:

“Israel O. Hoffman departed this life the 19th day of August, 1901, and left surviving him a widow, Georgia Hoffman, and three sons, Clayton H., Arthur and Roscoe C. Hoffman, Roscoe C. Hoffman being a minor of the age of fourteen years, Clayton H. Hoffman was appointed one of the executors in the will, and later, September 20th, 1902, was appointed trustee of the estate, since which time he has been in the active discharge of his duties as such trustee.
“Friendly relations existed at all times and the estate was invested, managed and controlled by the consent, advice and acquiescence of all the parties interested, and the strict rule of law governing trust estates were not always followed; that is, the authority of the probate court was not secured to make certain investments.
“The trustee, Clayton H. Hoffman, is an attorney at law, whose honesty and integrity has never been questioned. He has taken the place of his father in looking after the education, welfare and property of his •minor brother, Roscoe C. Hoffman, and the best of friendly relations existed at all times between them.
“On March 31st, 1908, Roscoe C. Hoffman departed this life and left surviving him a widow, Bessie Hoffman, a minor, and also a daughter, Mabel Hoffman, four years old. The Michigan Trust Company of Grand Rapids was appointed administrator of the estate of Roscoe C. Hoffman, and Bessie Hoffman was appointed guardian of her minor child, Mabel Hoffman. Later, as such administrator and guardian, they filed a petition in the probate court for the county of Allegan, claiming that the trust estate had not been administered according to the law and the will of Israel O. Hoffman, and asking that the trustee be required to render an account of his administration of the trust estate, and that he be required to deliver to said trust company, as such administrator, the entire trust fund belonging to Roscoe C. Hoffman. An account was rendered and an order of the probate court was duly entered, directing that an amended account be filed in accordance with the terms of said order. The amended account was duly filed as directed, and afterwards this appeal was taken from said order by the said trust company, as such administrator and by Bessie Hoffman as guardian of Mabel Hoffman.
“Israel O. Hoffman by his will gave his wife, Georgia Hoffman, the sum of five thousand dollars absolutely, and a life estate in the homestead, being lot 311 of the city of Allegan, and at her death the homestead to belong to his three sons. He gave each of his three sons $5,000, to be paid to each of them when each one should arrive at the age of twenty-one years. After making this bequest he gave the balance of his estate to his three sons, to be paid to them when his youngest son should arrive at the age of twenty-two years. He directed his executors to manage, keep invested and carefully preserve his estate. By a codicil he directed that the gift of $5,000 should not be paid to Roscoe and Arthur when they arrived at the age of twenty-one years but should be paid to them when, they should arrive at the age of twenty-five years, but that they should each receive the income from the sum of $5,000 from the time they arrived at the age of twenty-one years; also that the residue of his estate should not be paid to his sons until they arrived at the age of twenty-eight years respectively. By another codicil he directed that in place of the provisions made for his son Arthur that he should receive -the income and interest on the sum of $7,000, the principal to be kept invested by his executors.”

An additional finding, made later, was:

“I find that on the first day of December, 1911, the interest of the estate of Roscoe C. Hoffman in the trust estate amounted to the sum of $20,459.29, which the trustee should deliver and convey to the representatives of the estate of Roscoe C. Hoffman.
“No accounting has been made of the income from the Hoffman Flats, the same having been reserved until the question of the interest of the estate of Roscoe C. Hoffman therein should be determined. A supplemental account should be made of the income and disbursements on account of the Hoffman Flats since the completion thereof, and of the trust estate since December 1st, 1911.”

As is apparent, the trial court concluded that the investment of the trust funds in the Hoffman Flats was approved and consented to by Roscoe, that it was an investment made with his knowledge and consent. Upon this subject, in the brief for appellant, and in oral argument, the questions discussed are, “Was it a loan or was it an investment?” “If a real estate investment, was it ratified by Roscoe C. Hoffman?” and these are discussed as questions, first, of fact, depending upon conflicting testimony, and, second, as questions of law. It may be said that in this finding the court determined a mixed question of fact and law, and it is in this view of it that doubt arose concerning the denial of the right to review it upon this record.

It is said in the reply brief for appellant that—

“The testimony given by Ambrose Hindman on his direct examination might be a sufficient basis, if standing alone, for a finding of ratification by Roseoe after he became of age.”

But, it is added, that when the direct and cross-examination of the witness are considered together—

“It establishes affirmatively and conclusively that there was no ratification by Roseoe Hoffman after he became of age.”

The point in issue will be explained by a brief reference to the facts.

When the building of the Hoffman Flats was begun, in 1904, Roscoe C. Hoffman was 17 years of age. He died March 3, 1908, less than six months after attaining his majority, leaving a widow, then a minor, and one child, aged about four years. Clayton H. Hoffman had been appointed trustee of his own and his brother’s joint estate (which was not to be distributed until Roscoe became 28 years of age), October 11, 1902, and in April, 1903, he filed an inventory in probate court. He filed his first annual account August 9, 1904, covering the period ending September 19,1903. A second annual account was filed February 5, 1907, covering the period from September 20, 1903, to September 19, 1904. He filed no further account until May 16, 1911, after litigation had been begun. The later accounts purport to cover the years 1904-5, 1905-6, 1906-7, 1907-8, 1908-9, 1909-10, 1910-11. Upon hearing, with some modifications they were allowed. From the order allowing them, an appeal was taken. The trustee used in the Hoffman Flats, — in 1904, $4,000, in 1905, $7,000, in 1907, $6,000, in 1908, $3,000, in 1909, $1,000, in 1910, $2,500. The amount used after the death of Roscoe was $6,500. The trustee contends, and the court found, that this use of trust funds was an investment of them known to and approved by Roscoe while a minor and ratified by him upon and after attaining his majority. It appears to be conceded that it was necessary to establish his ratification of this use of the funds. Upon the other hand, it is contended that ratification is a question of law — at least of law and fact — and that the law applied to the testimony conclusively establishes non-ratification. It is claimed that Roscoe was not informed of the legal effect of certain material facts, that he died without knowing the amount of funds claimed to have been invested, the true state of the title to the property or his rights in the premises. It is also further claimed that as to the money used after he died he could not have ratified its use.

The Hoffman Flats were erected upon land originally purchased in the name of Georgia A. Ely, mother of these young men. Title was later transferred to the trustee, individually, and now stands in his name. Prior to the trial of this cause, no written declaration of trust had been executed. The entire property was mortgaged to the Kent State Bank for $35,000 by Clayton H. Hoffman, and there is nothing of record to show that any one but him has any interest in the property. Mr. Ambrose Hindman, who had acted as legal adviser of the trustee, claims to have himself put several thousands of dollars into the building and an interest in the property.

Without entering now upon the subject of the manner in which the trustee kept his accounts, it may be said that from an examination of them Roscoe would not have been informed of the condition of the title or the amount of trust funds invested in the property. No statement showing the condition of the trust estate was submitted to Roscoe, nor showing what amount of trust funds had been used in the property. Nor would the accounts filed in probate court during the life of Roscoe have informed the court about the alleged investment of the funds. After a petition had been filed in probate court in November, 1910, asking for an accounting by the trustee, he made out and executed, as maker, six promissory notes, payable to himself as trustee, purporting to be for sums out of the trust funds used in the Hoffman Flats. Each note contains the recital, “secured by a mortgage on the Hoffman, 68 Ransom Street, City.” No mortgage was in fact ever executed. And if a mortgage had been executed, by himself to himself as trustee, the natural, if not necessary, inference would be that he had lent the trust funds to himself.

Many reasons move relatives to adopt a course of action with which the public and other relatives are not at all concerned. If the arrangement is mutually satisfactory to those who make it, it ought to be to everybody. In this case, it is conceivable that the brothers, without any particular examination of the legal effect of their action, may have agreed that it was desirable to build flats to be called by the family name with the trust funds and treat the property as the fund. The agreement having been made, and the trust fund having been so mutually devoted to a particular purpose, the death of one of the brothers before the building was paid for would not necessarily prevent the other from using the funds for the agreed purpose. Acting upon equal terms, with equal information, their mutual arrangement ought not to be interfered with by the courts, although it may appear that as to one or the other or both contracting parties a more profitable or better secured investment might have been made. Such an arrangement being claimed by the survivor, the courts will look to see if it was mutual, the mutuality involving substantially equal terms and equal knowledge.

The apartment house, which is said by the trustee to be in place of the fund, is a seven-story structure, of fireproof construction, for fifteen families. It has a garage, with six stalls, in the rear. It cost about $75,000, and was completed in 1905, in the spring. It has been occupied since that time. The mother invested $3,500 in the lot, and this sum has not been repaid to her. The mortgagee bank advanced funds from time to time, aggregating $35,000. Mr. Hind-man invested some money, and $23,500 of the trust fund was used. This is the testimony of the trustee. It may be inferred, I think, that Roscoe Hoffman, who lived three years after the building was completed, knew that the property was not wholly paid for with the trust funds, must have known that some money was otherwise procured, must have understood, generally, the fact that the investment was likely to be a continuing one, and profitable or unprofitable as the demand for apartments and the management of the property warranted. It may be inferred, too, that an unearned increment of value was considered. These natural, and I think necessary, inferences are supplemented by positive testimony to the effect that Roscoe knew what the property cost, knew that his mother and Hindman had contributed, that money had been borrowed, knew what the property produced in rents, and he once joined in putting a price upon it for an inquiring purchaser.

Was there a mutual arrangement? It was not exactly a family arrangement. The elder brother was a trustee of the' fund. But, assuming that consent of the other beneficiary would be sufficient answer to that suggestion, was there a mutual arrangement?

I have said that after the death of Roscoe the trustee executed certain notes aggregating the amount of trust funds used in the building, payable to himself as trustee. He testified:

“Q. Now, you made these six notes which I have shown you and which are marked ‘Exhibits 9, 10, 11, 12, 13 and 14’ and wrote each of them ‘Secured by a mortgage on the Hoffman, 68 Ransom Street, City,’ what did you regard that as meaning?
“A. Simply did that as a memorandum.
“Q. Did you swear in probate court on the previous hearing that you regarded them as a mortgage on the Hoffman Flats?
“A. I did; I think I did.
“Q. Do you say it now?
“A. I have always so considered since Roscoe died, but before he died I did not consider it that way. Since he died I considered it as a second mortgage on the property.
“Q. Before Roscoe died you never considered that as anything of that sort, that is what your statement is?
“A. I considered Roscoe’s part in there share and share alike.
“When I was putting this money into the building of the Hoffman apartment property I considered Roscoe and I were joint owners in it. I did not make any division with Roscoe because the time was not ripe for it. Under the will it was to be divided when he was twenty-five and twenty-eight, and he died when he was twenty-one. I did not even divide up my own. I was nine or ten years older than Roscoe. Roscoe was born in eighty-six. I was born in seventy-six or seventy-seven.”

Mr. Hindman’s testimony is to the effect that from the beginning Roscoe was consulted, was interested, understood; that after he became of age he expressed himself as satisfied and pleased with the investment of the fund. It does not appear, however, that he was told or that he knew his legal rights in the premises. That is, he was not told, and did not know, that there ought to be a declaration of trust or that the title of record should be so changed as to insure him an interest in the title to the property, or that he might disaffirm upon attaining his majority.

Assuming that the question is presented by the assignments of error, it is whether, in view of the facts, and the failure to prove that Roscoe knew his legal rights in the premises, the court below was required to find, and this court is required to hold, as matter of law, that the record fails to show an investment of the trust fund approved and ratified by Roscoe. I am impressed that we should not so hold and that the court below was right. While I do not understand the action of the trustee — never completed — in moving after the death of Roscoe as if the money had been lent instead of being invested, it seems to me to be clear that it was intended to be invested and that Roscoe understood and approved the investment both before and after coming of age. From what is made to appear, I should not expect him to disapprove upon attaining his majority, because, first, he had consented and participated in the use of the fund in this manner, and because, second, the investment was, apparently, a good one. That his legal rights should have been better evidenced of record is true, but that was a matter which, assuming the good faith of the brothers, could be attended to at any time. It has been attended to.

This conclusion is sustained, in my opinion, by our own decisions in Quimby v. Uhl, 130 Mich. 198 (89 N. W. 722); Skelding v. Dean, 141 Mich. 143 (104 N. W. 410); In re Shailer’s Estate, 172 Mich. 600 (142 N. W. 1087), and by Butterfield v. Cowing, 112 N. Y. 486 (20 N. E. 369); Walker v. Symonds, 3 Swanst. 1. Upon all the facts found it is not out of accord with White v. Sherman, 168 Ill. 589. (48 N. E. 128), and similar cases.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


author: Bird, J.

text:
    OCTOBER TERM, 1914.
    PEOPLE v. QUIDER.
    Constitutional Law — Criminal Law — Interest — Pawnbrokers — Searches and Seizures — Title—Usury.
    Act No. 105, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 2880 et seq.), entitled “An act relative to the loaning of money and prescribing rates of interest, penalties and forfeitures for violations,” etc., is unconstitutional, because it attempts to regulate the business of pawnbroking and provides for the issuance of search warrants upon complaint, under oath, of any person, without being sufficiently entitled to indicate the purpose to effect such object.
    Exceptions before sentence from, the recorder’s court of the city of Detroit; Connolly, J.
    Submitted June 13, 1913.
    (Docket No. 131.)
    Decided October 15, 1914.
    Gordon W. Quider was convicted of violating Act No. 105, Pub. Acts 1911, prohibiting usury.
    Reversed; respondent discharged.

      Grant Fellows, Attorney General, and Hugh Shepherd, Prosecuting Attorney, and Arthur W. Kilpatrick, Assistant Prosecuting Attorney, for the people.

      Ormond F. Hunt, for respondent.
   Bird, J.

The respondent was convicted in the recorder’s court in the city of Detroit for having violated the provisions of Act No. 105 of the Public Acts of 1911 (2 How. Stat. [2d Ed.] §2880 et seq.), in that he loaned money at a rate of interest in excess of 7 per cent., without having first applied for and obtained a license for carrying on such business, without having paid the license fee, and without having given an approved bond in conformity with said act.

The defense principally relied upon is that the law is unconstitutional. The grounds of attack are:

(1) The title of the act is defective in that the object of the law is not therein expressed.

(2) The act creates class legislation.

(3) The act is not a valid exercise of the police power of the State.

1. Section 21 of article 5 of the Michigan Constitution provides that:

“No law shall embrace more than one object, which shall be expressed in its title.”

It is the claim of respondent that this provision of the Constitution has not been observed in the passage of the law under which respondent stands convicted. The title of the act reads:

“An act relative to the loaning of money and prescribing rates of interest, penalties and forfeitures for violations * * * of such act, and repealing acts numbers 334 and 337 of the Public Acts of 1907.”

Under this title it would be competent for the legislature to enact legislation regulating the rate or rates of interest which might be lawfully charged for the use of money, and also to provide penalties for the violation of its provisions. It would be likewise permissible to gather beneath this title any matter or provision which was reasonably germane to the fixing of interest rates or of their enforcement. People v. Mahaney, 13 Mich. 494. But it would not be competent for the legislature to go beyond this and include provisions in the act which were not germane and had no proper connection with the subject-matter recited in the title. Ryerson v. Utley, 16 Mich. 269. The act under consideration is composed of 20 sections, and is a full and complete regulation in detail of the business of pawnbrokers and loan agents. Some of the sections of the act are germane to the subject-matter found in its title, but others are not. Section 16 is illustrative of several sections of the act which have not even a “far-fetched” relation or connection with the title. Section 16 reads:

“Whenever complaint shall be made by any person on oath to any magistrate in any city authorized to issue warrants in criminal cases, that personal property belonging to such complainant has been without his consent taken or retained from his possession, and that he has good reason to believe and does believe that the same is pawned or pledged, and that the complainant believes the same to be in some pawnshop within such city, such magistrate, if he be satisfied that there is reasonable cause for such belief, shall issue a warrant to search for such property in the several pawnshops in said city, which warrant shall be directed to the sheriff of the county or any police officer of such city, demanding such officer to search the several pawnshops where the property for which he is required to search is believed to be concealed, which places and the property or thing to be searched for shall be designated and described in the warrant and to bring such property or other thing before the magistrate issuing the warrant. The court before whom any property so seized shall be brought shall cause the same to be delivered to the complainant on his issuing a bond as hereinafter provided, and if such bond be not executed within twenty-four hours, excluding Sundays, said court shall cause said property to be returned to the person from whose possession it was taken.”

This section might not be out of place under a title regulating the business of pawnbrokers, but it appears to be very much out of place under the title to this act. What proper connection is there between the legal machinery for discovering and recovering stolen property and the fixing of interest rates and the enforcement of the same? One reading this title would never suspect that he could find within the text provisions for recovering stolen property from pawnbrokers. And, were the average man requested to read the law and give it a title, he would call it a regulation of the business of pawnbrokers. As a slight proof of this assertion, the compiler and indexer of the Public Acts of 1911 indexed the act under the head of “Pawnbroking/’ and not under the head of “Interest.” It has been the policy of this court to give this constitutional provision a liberal construction, so as not to embarrass legislation, but we feel that even such a construction would not save this act from falling under the ban of the constitutional requirement. The objection raised is not one merely of form; it goes to the substance of the act. The act in its entirety is aimed at the regulation of the business of pawnbrokers and loan agents, and it repealed and supplanted two other acts which regulated the same business. Acts Nos. 334 and 337, Public Acts of 1907. Such regulation has been recognized as proper legislation in this State, but, before it can become effective legislation, some effort must be made in passing it to observe the constitutional procedure. For the failure of the legislature to do this, the act must be declared void. Having reached this conclusion, it will be unnecessary to consider the other reasons assigned.

The judgment of conviction is reversed and vacated, and the respondent discharged.

McAlvay, C. J., and Brooke, Stone, Ostrander, Moore, and Steere, JJ., concurred. Kuhn, J., did not sit.


author: McAlvay, C. J.

text:
    O’BRIEN v. BROTHERHOOD OF AMERICAN YEOMEN.
    1. Insurance — Evidence—Construction of Policy.
    On the trial of an action upon a benefit certificate which defendant claimed was void for fraud, the trial court erred in excluding testimony tending to show that decedent’s son had died within two years prior to the application, in which the insured represented that no member of her household had been affected with consumption within two years; the representation including deceased members as well as those living.
    2. Same — Trial.
    The trial court committed error in leaving to the jury the question whether the policy was delivered on a date which the undisputed evidence showed was the date of delivery.
    3. Same — Defenses—Evidence.
    And the motion of defendant to direct a verdict on the ground that the testimony of its medical experts showed decedent was affected with tuberculosis at the time of making the application, should have been granted, where the only evidence offered to dispute their opinions was that of lay witnesses who stated that she looked well and was able to do housework.
    Error to Wayne; Van Zile, J.
    Submitted October 15, 1913.
    (Docket No. 47.)
    Decided December 18, 1914.
    Assumpsit by Thomas C. O’Brien, guardian of the estate of James O’Brien, an infant, against the Brotherhood of American Yeomen, a foreign corporation, upon a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Jasper C. Gates (Mark T. McKee and Lewis Coumans, Jr., ,of counsel), for appellant.

      Harry H. Wait, for appellee.
   McAlvay, C. J.

Plaintiff, as guardian of James O’Brien, a minor, brought suit against defendant, an Iowa corporation, upon a certain fraternal insurance certificate issued by defendant association April 7, 1911, upon the written application of Elizabeth Downey, of Detroit, made April 3, 1911. The original beneficiary named in such certificate was Elizabeth Downey, a daughter of the insured. On or about May 13, 1911, on application by the insured, the beneficiary was changed to Michael James O’Brien, a grandson of the insured. Elizabeth Downey, the insured, died July 12, 1911. The suit brought upon this certificate resulted in a judgment in favor of plaintiff. Defendant has brought the case to this court upon a writ of error.

The fraternal insurance certificate, which was also a certificate of membership, in terms states that it was issued and accepted in consideration of certain warranties, conditions, and agreements contained in the application of membership made and signed by the assured, which application is of great length and which need not be quoted verbatim. It was made a part of the certificate sued upon, including answers to questions in the medical examination contained therein, which in terms were warranted by the insured as full, complete, and true, without evasion or concealment. It was agreed that the application, together with the constitution and by-laws of the order, should form the full and only contract between the parties; and also contained the agreement that any untrue answer to any question on said application should immediately, without process, render the certificate issued thereon null, void, and forfeited, together with all amounts paid thereon.

One question in the medical examination of this application by Mrs. Downey is as follows:

“(21) Is any member of your household affected with consumption, or been so affected during the past two years?”

To this question she answered, “No.”

During the trial defendant, in order to show that this answer was not true, and that Timothy Downey, a son of the insured, died of consumption April 5, 1909, within the two years covered by the warranty contained in answer to question No. 21 of the application, and for that purpose offered in evidence a certified copy of the certificate of death of Timothy Downey, the original of which purported to be signed by Elizabeth Downey, showing the date of his death and the disease of which he died, together with the medical certificate thereto attached, all certified by the department of health of the city of Detroit.

Counsel for plaintiff objected to the introduction of the same on the ground that it was—

“Incompetent, irrelevant, and immaterial. In the first place, it is not the best evidence; in the second place, it is immaterial under the issues in this case. There is nothing in the contract between the parties in this case to show that there was any warranty to the effect that any member of the family had not died within two years.
“The Court: Was there any living member of the family so affected?
“Mr. Gates (Counsel for Defendant) : No, I think not.
“The Court: I will sustain your objection.”

Counsel for defendant thereupon excepted. From the above remark it is apparent the court’s construction was that question No. 21 did not include any member of the applicant’s household affected with consumption who had died from that cause within the two years preceding the date of the application.

We do not think that this question will bear such construction. Our construction is that it refers to all who had been members of the applicant’s household at any time during the preceding two years. Under the pleadings in this case, the evidence offered was material and relevant. This was a public record required to be kept by law, and a duly certified copy was admissible in evidence.

The benefit , certificate upon which suit was brought contained the following, after the seals and signatures of the proper officers:

“Member adopted. Certificate delivered this 15th day of April, 1911.”

Below this appears the following warranty signed by the insured:

“I hereby warrant that I am in good health and that no change has occurred in my condition as set forth in my application and I accept this benefit certificate and agree to all the conditions herein contained.
“Elizabeth Downey,
“Member Adopted.”

The record shows that Clarence J. Williams, foreman of the homestead (which in most organizations is called a lodge) to which Mrs. Downey belonged, testified that he received this certificate April 15, 1911, and dated it as of that date; that Mrs. Downey did not sign it on that day; that he kept it from eight to fifteen days and then sent it to Mark McKee, the State manager of defendant. Mr. McKee testified .that he gave the certificate to Thomas R. Hayes on April 28, 1911; Mr. Hayes, who at the time was an officer of defendant company, testified that after he received the certificate he took it to Mrs. Downey, who thereupon signed it and he delivered it to Mr. O’Brien at her request. As we understand the record, Mr. O’Brien is the father and guardian of the minor and the plaintiff in this suit. The foregoing testimony in relation to the delivery of the certificate to Mrs. Downey and her signature to the warranty is all of the testimony in the case upon that subject.

The court, in submitting the case to the jury, charged as follows:

“I cannot say to you that this policy was delivered on the 29th day of April; that is a question for you to determine.”

Defendant has assigned error upon such portion of the charge for the reason that it was contrary to the undisputed evidence in the case which, as already stated, showed that it was in fact delivered, signed, and accepted by her April 29th. In a motion made by counsel for defendant for a directed verdict, which will be considered later, the fact that the undisputed evidence in the case showed that this certificate was not delivered until April 29th was urged and argued at length. The court therefore was in error in charging the jury as quoted. The evidence upon the question was undisputed.

The record shows from the testimony of two reputable physicians, both of whom attended Mrs. Downey during her last sickness, that she died from pulmonary consumption. One of them testified that as early as the 15th of April she was suffering from that disease. He testified that he made a culture which developed germs of tuberculosis.

It is contended on the part of defendant that this testimony is undisputed as to the fact that she was suffering from this disease before April 29, 1911. Plaintiff urges that the testimony of several witnesses, all of whom were laymefi, that during this time she was doing housework, was about the house, looked and acted well, contradicts the testimony of the expert witnesses and makes it a disputed question of fact. Under the circumstances of the instant case, in a disease of this character, the testimony of ordinary laymen, as these witnesses were, cannot be considered as raising a disputed question of fact against the testimony of the character that was given in this case by reputable physicians based upon professional diagnoses and approved scientific tests.

The motion of defendant for an instructed verdict in its behalf on the ground that Mrs. Downey before and at the time of accepting the benefit certificate was not in good health and was suffering from pulmonary consumption should have been granted. The court was in error in denying it.

Plaintiff urges that defendant had waived the defense of any and all breaches of warranty contained in the policy, as shown by its correspondence with plaintiff’s attorney. An examination of these letters discloses that they referred to the matter of proofs of loss necessary to get the claim in proper shape for presentation to the board of directors for consideration and do not constitute a waiver of the defenses relied on.

There are other questions discussed which do not require consideration.

The judgment of the circuit court is reversed, and no new trial will be granted.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


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    IRWIN v. WOLCOTT.
    1. Pleading — Defense — Notice of Special Defenses — Admissions — Evidence.
    Statements of fact made in defendant’s notice of special defenses, with his plea of the general issue, are admissions, under Circuit Court Rule 7 (e), and need not he proved by plaintiff.
    2. Bills and Notes — Accommodation Paper — Consideration.
    Defendant was accommodation indorser upon paper of an insolvent national bank. He claimed to have been induced by fraudulent representations to execute the notes, and gave notice, as a special defense, that the notes were a pre-existing indebtedness of the corporation maker and that they were without consideration and obtained by fraud. The cashier of the bank had notice that the notes were accommodation paper and they were drawn directly to the bank. Held, that the facts did not preclude the bank from recovering.

    3. Fraud — Promises—Essential Elements.
    Representations of the president of a corporation inducing defendant to execute accommodation paper of the company, to the effect that the notes would be taken up and satisfied by the company at maturity, that they were not enforceable, that the company was doing better financially, and would soon be prepared to take up the notes, held, not to amount to representations as to facts so as to entitle defendant to defend against an action on the notes for the alleged fraud.
    Error to Calhoun; North, J.
    Submitted January 8, 1914.
    (Docket No. 23.)
    Decided December 18, 1914.
    Assumpsit by Frank L. Irwin, as receiver of the Albion National Bank, against L. J. Wolcott upon two promissory notes. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Weeks & Cooper, for appellant.

      Edward R. Loud and Burritt Hamilton, for appellee.

       As to the imputation of knowledge of bank officers to bank, where officers are personally interested, see note in 29 L. R. A. (N. S.) 558.

   McAlvay, C. J.

This suit was instituted by plaintiff, as receiver of the Albion National Bank, to recover against defendant on two promissory notes found by him among the assets of said bank after the comptroller of the currency had taken possession. These notes were dated March 27, 1906, each for the sum of $1,500, with interest at 6 per cent., payable to the-Albion National Bank six months after date. The case was tried before the court with a jury, and at the close of taking the testimony a verdict was directed to be entered for the full amount due in favor of the plaintiff, upon which a judgment was duly entered. Defendant asks for a reversal on account of errors assigned.

The facts necessary to be stated are as follows: The Albion National Bank was the successor of the First National Bank of Albion, whose charter expired by limitation January, 1905. The Cook Manufacturing Company was the successor of the Albion Implement & Windmill Company, which latter company had been a customer of said First National Bank of Albion. The Cook Manufacturing Company, above mentioned, was organized in 1901 or 1902, and was officered by the same individuals who were officers and directors of the First National Bank of Albion, being the same individuals who afterwards became the officers and directors of the Albion National Bank when it was organized in 1905. The Cook Manufacturing Company was a customer of both these banks. It appears that it was not a successful business venture, as it ran behind altogether, during the ten years it operated, from 1901 to 1911, from $140,000 to $1.60,000, and each year its losses averaged from $10,000 to $12,000.

The notes in question, upon which suit has been brought by the receiver, are renewals of a note given by defendant to the First National Bank of Albion, July 28, 1903, for $3,000. It appears that before this $3,000 note was given other accommodation notes of defendant had been discounted in the transactions between the First National Bank of Albion and the Cook Manufacturing Company, but whether these were paid or renewed and whether any part of the amounts such notes represented entered into this $3,000 note it is impossible to say from the record. The execution of the notes in suit is not denied by defendant. At the time they were given he was, and for several years had been, in the employment of the Cook Manufacturing Company, of which he at one time was a director. These notes were first given by defendant at the request of Mr. Dearing, the president of the company, as accommodation paper for the benefit of the company and were so received by the bank. Upon the backs of the notes in suit appeared indorsements, of payments of several years’ interest. It was admitted on the trial that these payments had been made by the Cook Manufacturing Company, and not by defendant. Mr. Dearing, who was president of the Cook Manufacturing Company, was at the same time cashier of the Albion National Bank, and had also been cashier of the First National Bank of Albion during its existence.

The president of the Albion National Bank, who had also been president of the First National Bank of Albion during the last ten years of its existence, testified that Henry M. Dearing was cashier of the Albion National Bank, and also of the First National Bank of Albion, during these transactions with defendants, and that, as a matter of fact, the board of directors allowed the cashier to run the whole institution; that is, they “acquiesced.” He further said:

“In a sense, Mr. Dearing had general control of the affairs of the bank and the board of directors allowed him that control, and he was exercising that general management and control of the bank’s affairs during 1903 and 1906. The directors usually acquiesced in what he did without first taking any formal action as to what to do.”

Defendant claimed that when he first gave this accommodation paper at the request of the president of the company, at which time he was employed by it as a salesman and collector, he was then told by the president that the company was overdrawn at the bank, and he desired this paper as a matter of accommodation to take care temporarily, of overdrafts,' and it would be taken up in a short time; that the company had big prospects; that the notes were renewed at the request of . the same officer, who stated that the business of the company was getting better every day. He insists that these statements so made at the time he gave and renewed these notes, by which he was induced to do so, were false and fraudulent.

The errors assigned and relied upon relate to the exclusion by the court of testimony offered on behalf of defendant, and also to the action of the court in instructing a verdict for plaintiff.

In this case the defendant, under the general issue, gave extended notice to the effect that these notes in suit were given as renewals of other notes of like amount given by him as accommodation paper for the benefit of the Cook Manufacturing Company, and for a pre-existing indebtedness owing by said company to said bank, and that they were without consideration; that said notes were procured by the fraud of the president of the Cook Manufacturing Company. The following brief excerpts from such notice will indicate the fraud charged:

“That he represented to said defendant at the time of making said original notes and the notes described in plaintiff’s declaration that they would be taken up and satisfied by the Cook Manufacturing Company at or prior to their maturity.”
“That said notes were not enforceable, and that he should not be called upon to pay them.”
“That the giving thereof was temporary accommodation to,the Cook Manufacturing Company to cover an overdraft of said company at said Albion National Bank.”
“That said notes would be taken care of by the paper of customers of the Cook Manufacturing Company.”
“That at the time of giving the renewal notes described in plaintiff’s declaration this defendant was induced to give them upon the representation that the Cook Manufacturing Company was doing better and would soon be in shape to take care of said renewals, and promised defendant that they would very soon be taken care of, and that defendant would never-be called upon to pay them.”

It is undisputed that the only person who made these representations to defendant was the president of the Cook Manufacturing Company, who made the representations in that capacity on behalf of the company, for the benefit of the company. The record shows that the original note was presented to the bank for discount, and was discounted for the accommodation of the Cook Manufacturing Company, and that the company was credited with that amount in reduction of an overdraft. If this were all that is claimed on the part of defendant for this transaction, it would appear to be the ordinary transaction of a concern in need of funds, which relieved such need by securing accommodation paper. It is the contention of defendant, however, that because the president of the Cook Manufacturing Company was at the same time the cashier of the bank, his knowledge and statements made as such president must be imputed to the said bank. It is further contended by defendant that the bank was not a holder of the note for value, for the reason that it had been discounted by the bank for an antecedent debt due it from the Cook Manufacturing Company, and therefore the bank had not parted with any actual consideration.

We desire to call attention at this point to the notice of special defense given by defendant under his plea, from which we have already freely quoted. The statements of fact made in such notice, under Circuit Court Kule 7 (e), are admissions made by defendant which need not be proved by plaintiff. Julius Hermann & Co. v. People’s Department Store, 160 Mich. 224 (125 N. W. 49).

From this notice we find that defendant admits that the notes in suit were given by him as renewals of other notes of like amount as accommodation paper for the benefit of the Cook Manufacturing Company, for a pre-existing indebtedness owing by said company to the bank, which notes he was induced to give at the solicitation and request of the president of said company upon the representation that it was a temporary accommodation to the company to cover an overdraft it had at the bank, and the record shows that the first of these accommodation notes was presented to and discounted at the bank and credit given, which reduced the overdraft to the amount of such discount.

Defendant contends that, because the officers and directors of the First National Bank of Albion and its successor, the Albion National Bank, were the officers and directors of the Cook Manufacturing Cornpany, the bank was charged with notice of the fraud claimed to have been perpetrated upon defendant. In view of the admissions made by defendant and the undisputed record, can it be said that the court was in error in instructing a verdict on behalf of the plaintiff, and also in refusing to allow defendant to introduce evidence in support of the proposition contended for? As-has already been stated, he gave these accommodation notes to be discounted for a certain purpose, at the request of, and for the benefit of, the Cook Manufacturing Company, and they were applied to the purpose for which they were given; at least, the original note was, and the others are admittedly renewals of the first note. The agreement authorized the discount of the note, and the fact that it was known to the cashier of the bank that the paper had been drawn for accommodation would not prevent the bank which discounted it for value, by giving credit to the company for the amount of the discount upon its account, from recovering thereon. In a case where this question was involved, the Supreme Court of the United States has so held. In that case, as in the instant case, the note was drawn directly to the bank. It was for the accommodation of one of its directors for the purpose of reducing an overdraft. The note was discounted by the bank, and credit given in reduction of the overdraft. Israel v. Gale, 174 U. S. 391 (19 Sup. Ct. 768).

It appeared that the notes sued upon had payments of interest for several years indorsed thereon. Defendant denied that he had made these payments of interest, and sought to show that the indorsements on these notes were actually made by checks from the Cook Manufacturing Company. Earlier in the record it was admitted by counsel for plaintiff, as already stated, that these payments on the notes were made by the Cook Manufacturing Company. This left the matter undisputed, and, upon any view, the fact that the interest was paid by the company for which the accommodation paper' was made was correctly held by the court to be immaterial.

The other errors relied upon by defendant which need be considered refer to the contention, already stated, that the close relations between these banks and the Cook Manufacturing Company imported knowledge of the fraudulent representations which defendant claims induced him to give these accommodation notes.

Our conclusion is that, admitting the representations to have been made to defendant, as claimed, by the president of the Cook Manufacturing Company at the time the original note was given and later, when renewals were given, it cannot be held that they amount to false and fraudulent representations of fact; nor, from a careful examination of the proof offered on the part of defendant to show the same, which was excluded by the court, in view of the admissions of defendant, do we find it was material to the issue joined in the case.

This court, therefore, holds that the trial court was not in error in excluding the testimony offered by defendant or in directing a verdict for the plaintiff.

The judgment is affirmed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.