text:
    SULLIVAN v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.

    1. Contracts — Construction—Permanent Employment.
    A contract to make a person the permanent attorney of a railroad company is satisfied by his employment as such, at a fixed salary, for the period of one year.
    2. Corporations — Liability on Contract with Promoters.
    The question of the liability of a corporation, as upon an implied contract, to pay for services rendered under an express contract with its promoters, is discussed, but not decided.
    Error to Wayne; Carpenter, J.
    Submitted April 7, 1903.
    (Docket No. 2.)

    Decided March 8, 1904.

      Assumpsit by J. Emmet Sullivan against the Detroit, Ypsilanti & Ann Arbor Railway for services rendered. Erom a judgment for plaintiff, defendant brings error.
    Reversed.
    Some time in the summer or fall of 1897, three men, Messrs. Russell, Angus, and Liggett, entered into a scheme for the organization of an electric railway to run from Detroit to Ann Arbor. There already existed a street railway in Ypsilanti, another in Ann Arbor, and a third between those two cities. The scheme was to unite those three, and extend the road to Detroit. Plaintiff was an attorney at law in the city of Detroit, and had been engaged in practice for about 11 years, the first 3£ years of which he was a clerk in the law office of Hon. Don M. Dickinson, and after that engaged in practice by himself or in partnership with, others. He was known to Mr. Russell, one of the promoters. It was deemed necessary to have legal advice and the services of an attorney in preparing and drawing papers. Plaintiff claims that the three original promoters agreed to employ him. The agreement rested in parol, and, as stated by plaintiff, is as. follows:
    “Mr. John A. Russell.came to me first, and told me of the enterprise they had on hand, which was to build a road between Detroit and Ann Arbor, and told me that Mr. Angus and Mr. Liggett were in with him, and. wanted to know whether I could handle the law business,— what kind of an arrangement they could make. They said that they would have no bonds or stock for me, but wanted to know if I would take it on consideration of' being made permanent attorney. After some consideration I said that I would, provided the expenses would be paid. Then I was introduced to Mr. Angus and Mr. Liggett by Mr. Russell, and I made an arrangement with them to the same effect, — that I was to go ahead and do. all the legal business connected with this enterprise, help them to secure franchises, do anything on that line they called upon me to do until the enterprise would be a success, or in such condition it was sure of success. In the meantime I should be paid my expenses, and, if it was not. a success, I was not to get any compensation; but, if it was a success, I was to be made permanent attorney of the. road. * * * There was no different arrangement under which I performed these services.”
    Mr. Angus was introduced as a witness for the plaintiff, and testified that he did not recollect that there was any condition to the appointment of Mr. Sullivan. He further testified:
    ‘ ‘ Q. What compensation was he to receive if the project was successful?

      “A.' My connection with it was, would I consent to his. becoming attorney for the company ?
    “ Q. Permanent attorney, after the organization of the company ?

      “A. I do not recollect any permanent.
    “ Q. That he should be appointed attorney, you did not. mean to terminate in a year ?

      “A. No, I had not anything special in mind as to the length of time. It did not occur to me at that time.
    “ Q. He was to be the regular employed attorney; that, was your understanding ?

      “A. Yes, I think that I will put it that way; I think I will say it was. * * * The substance of what was said to him, to the best of my recollection, is that I would be favorable to his appointment as attorney for the company.”
    Mr. Liggett was produced by the defendant, and denied any such contract as is claimed by the plaintiff, but testified that his understanding from the talk with Mr. Russell was that plaintiff was doing the work for Mr. Russell. Mr. Russell was not produced as a witness. Plaintiff had no other talk with any stockholder or officer of the company in regard to his employment or this alleged contract. Under his own testimony, the contract was made with these three promoters, and was never divulged to any other stockholder or officer of the corporation until after his employment under the resolution hereinafter referred to had terminated. In his conversation with Hawks at that time he only claimed that he had made the arrangement with Angus and Russell. Mr. Russell told Mr. Hawks that h© had employed Mr. Sullivan, and that his (Sullivan’s) services were a part of what he (Russell) was putting into the company, — “a part of his contribution to the enterprise.” Mr. Hawks received no information of any different arrangement until he received the letter of March 15, 1898, when Mr. Russell sold his stock in the company— 980 shares — to Mr. Hawks. In the letter offering to sell he said:

      “ Inasmuch as I have been active in securing the franchises and doing preliminary work for this company, which has necessitated the making of promises of various natures in return for assistance rendered, I desire, as ,& further consideration, that these promises made by me, which I will no longer be able to carry out, be composed along the following lines:
    “1. Mr. J. E. Sullivan, who did all the preliminary law work for the company gratuitously in consideration of permanent employment as attorney of the company from and after March 1st, to be guaranteed such employment for the period of one year at the rate of $1,500 per year, payable monthly.”

      On March 15, 1898, the board of directors, six in number, passed a resolution reading as follows:
    “That J. Emmet Sullivan be employed as the attorney of this company for the period of one year from and after March 1, 1898, at an annual salary of $1,500, payable in equal monthly installments; this payment to be in full settlement of services to date and for the coming year.”
    At the organization of the company, November 2,1897, four other men became stockholders of the corporation, and signed the articles of incorporation, among whom was Mr. Hawks, who afterwards became president of the company. Mr. Russell became its secretary. There were at the time of the adoption of the above resolution six directors, three of whom were Hawks, Russell, and Angus. Of these six directors only two — Russell and Angus — had any knowledge of the arrangement made with the plaintiff.
    Mr. Sullivan was paid $125 per month during the year. He afterwards attended to some suits, and did some other business, for which he received $600. After the expiration of the year for which he was employed, he made claim to Mr. Hawks for $15,000 for services rendered to the company from November 2, 1897, to March 1, 1898. The company denied liability, and thereupon plaintiff brought this suit upon the commoD counts in assumpsit. He rendered no bill of items to the defendant, and his bill of particulars filed in the suit recited the services in drawing the articles of association, bond and mortgage, and other papers, giving advice, attending meetings of the directors, and negotiating the purchase from the three companies, etc., for which he claimed the lump sum of $15,000. He recovered a verdict and judgment for $9,028.12.

      Corliss, Andrus, Leete & Joslyn (Otto Kirchner, of counsel), for appellant.

      Sullivan, Bland, Cook & Van Syckle (Elliott G. Stevenson and Leo M. Butzel, of counsel), .for appellee.

      Rehearing denied July 27, 1904.

   Grant, J.

(after stating the facts). The theory of the declaration and of the right of recovery in this case is that plaintiff had no express contract with the defendant, but that he rendered services for it under such circumstances that the law implies a contract, and presumes a promise by the defendant to pay for the services so rendered, and of which it has had the benefit. Plaintiff’s own evidence conclusively establishes the fact that he had no contract, either express or implied, with the defendant, until the contract of employment of March 15th, but that he made an express contract with the three original promoters of the scheme to perform the services for which he now seeks to recover, upon their agreement that they should make him the permanent attorney of the company. He had no other agreement, and at no time until more than a year after the services were rendered did he make any claim to any of its officers of the contract which he now asserts was made. These promoters could make no contract for the defendant, which was not then organized. That contract could not bind the corporation until it was known to and appróved by it. The knowledge of Messrs. Eussell and Angus, after they became directors, was not the knowledge of the corporation. The only knowledge possessed by Mr. Hawks, its president, was that plaintiff was the personal employé of Mr. Eussell. This statement •did not, of course, bind the plaintiff, but shows that Hawks had no knowledge of plaintiff’s alleged contract.

When, under plaintiff’s version of the contract, did he hegin to render services for the defendant ? Certainly not until the corporation was organized. But his contract with these three promoters was that the scheme should be a success, not that the company should be organized.. If the promoters had secured options for the purchase of the three companies then in existence, and franchises from the townships along the proposed line, before the organization of the company, and it had not been organized until all his services in carrying out his contract had been performed, would the corporation, with new stockholders and new directors, have been liable, either under the express contract, or under an implied contract for his services performed under the special contract ? The promoters evidently thought it wise to organize the company early as ‘one of the means to assist, in carrying out the scheme. But plaintiff performed services no more for the corporation in one case than in the other. He made his contract with the promoters. He knew he could not enforce it against the corporation. If he chose to make a contract which he could not enforce against the promoters, under Durgin v. Smith, 133 Mich. 331 (94 N. W. 1044), it is his misfortune. But whether he could enforce his contract with them is immaterial here.

The circuit judge correctly instructed the jury that plaintiff could not recover in accordance with that agreement, but instructed them that, if the plaintiff was entitled to recover at all, he was entitled to recover what his services were reasonably worth. The fatal error of the-charge and of the plaintiff’s theory is that he had an express contract with the promoters, which precludes any possibility of an implied contract with the corporation. Plaintiff, a lawyer, must have known that the contract could not bind the future corporation, unless, after it was formed, it knew of its existence and ratified it.

If we understand the argument of counsel correctly, it is that the defendant never ratified the contract made with the three promoters before the organization of the company, but, having received the benefit of his services-rendered under that contract, the law implies a promise on its ‘«part to pay, not in accordance with the contract, but on a separate and distinct implied contract. If defendant had ratified the contract and appointed plaintiff its attorney in accordance therewith, and that was carried out for a year, and then broken by the defendant, the only remedy of plaintiff would be an action upon the contract for the breach thereof. If, as he contends, his employment was virtually for life, or for the life of the corporation, he could not, in the event of a subsequent violation of the contract by the defendant, recover upon the basis of an implied contract the value of his services previously rendered. After six years such claim would be barred by the statute of limitations. A contract will be implied only when no express contract exists. If A. makes an express contract with B. to perform services for C., C. is not liable on an implied contract because he received the benefit. The two contracts cannot exist together, governing the same transaction.

“As in physics two solid bodies cannot occupy the same space at the same time, so in law and common sense there cannot be an express and an implied contract for the same thing existing at the same time. This is an axiomatic truth. It is only when parties do not expressly agree that the law interposes and raises a promise.” Walker v. Brown, 28 Ill. 378, 383 (81 Am. Dec. 287).

So, plaintiff could not have an express contract with these three promoters that they, in consideration of his services in assisting to successfully accomplish the scheme, would make him the permanent attorney of the company, and at the same time have an implied contract with the company to pay him for the same services. Lyndon Mill Co. v. Lyndon Literary Institution, 63 Vt. 581 (22 Atl. 575, 25 Am. St. Rep. 783) Royston v. McCulley, (Tenn.) 59 S. W. 725, 52 L. R. A. 899; Thorp v. Bateman, 37 Mich. 68 (26 Am. Rep. 497); Boughton v. Boughton’s Estate, 111 Mich. 26 (69 N. W. 94).

In Walker v. Brown, S., assuming to act for himself and for defendants, made a contract with plaintiffs to perform certain work. The work was done, but S. had no authority to bind defendants. Thereupon plaintiffs sought to recover from defendants upon an implied contract for the value of the work, which was beneficial to them. The court held that the express contract, executory in its provisions, totally excluded any implication of an implied one.

In Lyndon Mill Co. v. Lyndon Literary Institution, the defendant received the benefit of certain lumber furnished under an arrangement between some of the directors of the two companies. The contract was a personal one between the directors. Plaintiff sought to recover from the defendant upon the ground that it had the benefit of the lumber furnished, and that the law implied a promise to pay. The court held that the express contract excluded any liability on the part of defendant.

In Thorp v. Bateman, Bateman made an express contract with Thorp by which Thorp’s infant daughter was to live with Bateman until she became of age. Bateman’s wife died, and Thorp then took his daughter away. Bate-man sued Thorp upon an implied contract. It was held that, if Thorp violated the express contract, “its existence and the breach thereof cannot be the foundation for an implied assumpsit of a wholly different character.”

This is not the case of Davis v. Strobridge, 44 Mich. 157 (6 N. W. 205), where the vendor in a parol land contract, which had become valid by part performance, repudiated it, and the vendee was allowed to recover as his damages that part of the purchase price which he had paid, and the value of the improvements put upon the land.

It is manifest from the record that thé verdict was rendered upon an entirely false basis. The late Edwin E. Conely, then living, and a witness for defendant, testified to the value of such services as the plaintiff rendered. He was permitted on cross-examination by the plaintiff’s counsel to state what services such as these rendered by the plaintiff would be worth upon the contingency that he was to receive nothing if the scheme did not succeed. Witness replied, “Well, I should say $7,500.” This is the precise amount of the verdict, with interest added. The motion to strike this testimony out should have been granted. Plaintiff could not recover upon the contingent contract with the promoters, and therefore all evidence of this contingency was incompetent, and should have been eliminated from the consideration of the jury.

If the above views are correct, there would be no occasion to discuss any other question. But my Brethren do not agree with me in holding that the plaintiff, having made an express contract, cannot, under the circumstances, rely upon an implied one. It therefore becomes necessary to determine another question, which I proceed now to discuss.

The other important question raised is, assuming that plaintiff had a contract as claimed, was it performed on the part of the defendant by his employment for a year ? When he entered upon his employment, and as well during the entire year, he believed that he was employed under his agreement with the three promoters;^ that the company had ratified that agreement, and that he was made the permanent attorney for the company. Upon this point he testified as follows:

“I received $125 a month, and receipted for it each month. I understood that I was to get $1,500 a year, and did not stop to inquire whether any resolution to that effect had been passed at all. I considered that I had an agreement for permanent employment, and did not need a resolution, and did not stop to inquire.
“Q. Did not inquire how the $1,500 had been fixed ?
UA. I knew how that was fixed.
“Q. When did you first know that ?
“A. The arrangement I had was to get $1,200 a year and $300. I was sworn on the last trial, and testified that $1,200 had been mentioned, and office rent, in the first year. The $300 over $1,200 was in lieu of office rent. That is the way I took it. I was content with that. I did not get any office rent from them.
Q. Don’t you know, as a matter of fact, the salary was fixed at $1,500 a year because your friend, Mr. Russell, had asked that you be employed one year at $1,500?
“A. I did not state what they say on the last trial—
Q. Did anybody confer with you as to fixing the salary at $1,500 in lieu for your services and in lieu of your office rent ? '
“A. No, sir; they did not.
Q. Simply began to pay at the rate of $1,500 a year ?
“A. Yes, sir.
Q. Never questioned it?
“A. Never questioned it. I thought they were carrying out their agreement with me.
Q. Never asked why it was _done, or what resolution wa's passed ?
“A. I did not have to, because I had an agreement.
Q. Answer the question, did you or did you not ?
“A. I did not.”

He also testified that when, at the expiration of the year, he was informed by Mr. Hawks that his services were no longer required, he told Mr. Hawks:

“ I said, ‘ My arrangement with you was that I was to be permanent attorney for the road;’ and he said, ‘No such thing;’ and I said there was; and I said, ‘ I made it to Mr. Angus and Russell.’ ”

Mr. Russell was not called as a witness by plaintiff, though he had no connection whatever with the company. Mr. Russell placed his construction of his agreement with plaintiff in the letter written to Mr. Hawks March 15th, in which he said, in substance, in consideration of Mr. Sullivan’s doing preliminary work, he had agreed to give him permanent employment as attorney of the company, and requested that he be employed for one year at a salary of $1,500 per year. On the same day the directors met, and passed the resolution of employment, in accordance with the terms of that letter. This was the first notification to the company of the plaintiff’s alleged agreement. Whether, under these facts, the resolution amounted to ratification of the agreement of Mr. Russell with plaintiff,.it is probably unnecessary to determine. If the agreement was ratified, plaintiff’s only remedy, as above stated, would be upon the contract for a violation thereof. Hobbs v. Brush Electric-Light Co., 75 Mich. 550 (42 N. W. 965).

Upon the assumption that plaintiff had a binding contract for permanent employment, and was employed for one year at a salary of $1,500, which has been fully paid, counsel for defendant insist that this was a permanent employment within the true intent and meaning of the parties, and that it operated as a complete accord and satisfaction of his claim. Counsel for defendant cite in support of its contention Louisville, etc., R. Co. v. Offutt, 99 Ky. 427 (36 S. W. 181, 59 Am. St. Rep. 467); Perry v. Wheeler, 75 Ky. 541; Elderton v. Emmens, 4 C. B. 478; Lord v. Goldberg, 81 Cal. 596 (22 Pac. 1126, 15 Am. St. Rep. 82); Roddy v. McGetrick, 49 Ala. 159.

In Elderton v. Emmens the contract was identical with -this, except that there was no contingency of success. It was urged that the word “permanent” implied an appointment, if not for life, at least for so long a time as the .society should require the services of a solicitor and the plaintiff gave no cause for dismissal. The court took a contrary view, saying:

‘ ‘ Whether the expression ‘ permanent attorney and solicitor ’ means an employment for life, or so long as the company shall exist, or what, we have no means of judging. ”

The court held that it meant no other than a general employment, and said that, if it had been the intention of the parties to give the word “ permanent” the sense contended for by the plaintiff, the agreement would have contained a variety of stipulations that were not found in it.

In Poddy v. McGetrick the plaintiff contracted for permanent employment as clerk for the defendant at a salary of $75 per month. The court instructed the jury, “If the employment was not for a month, a reasonable construction would be for a year, in the absence of a construction by the parties.” This instruction was sustained.

In Perry v. Wheeler a clergyman was elected permanently to the rectorship of a church. The contract was held to be for an indefinite period, and terminable at the will of either party.

In Lordr. Goldberg it was “agreed by and between plaintiff and defendants that in consideration of his entering into their employment as such solicitor, and using all his efforts to secure certain named persons as customers, and to extend their business, they would give him permanent employment so long as he should use his best efforts to extend their business, paying him at the rate of $20 per week, and increase his salary as the business increased." It was held that such contract was for an indefinite time, and continued only until either of the parties should wish to sever the relation. It further appears in that case that plaintiff was in the employ of another party in the same business, and that he gave up that employment under his contract with the defendants.

In Louisville, etc., R. Co. v. Offutt the railroad company employed the plaintiff, agreeing to keep him in its service so long as he did faithful and honest work. The contract was held terminable by either party at any time.

In Texas, etc., R. Co. v. City of Marshall, 136 U. S. 393 (10 Sup. Ct. 846), the railway company entered into an agreement with the city of Marshall by which the city-donated to the construction of the road $300,000 and 66 acres of land in consideration that the railway company “ agreed to permanently establish its eastern terminus and Texas offices at the city of Marshall, and to establish and construct at said city the main machine shops and car works of said railway company.” The company carried out the contract by constructing its shops and establishing its offices at Marshall as provided. At the expiration of eight years Marshall ceased to be the eastern terminus of the road, and the company removed some of its shops. It was held that the contract for permanent establishment was complied with by the establishment of the terminus and the offices and shops contracted for with no intention at the time of removing or abandoning them. It was there said:

“ If the city desired to make sure that these establishments should forever remain within the limits of the city of Marshall, and that the railroad company should be bound to keep them there forever, such an extraordinary obligation should have been acknowledged in words which admitted of no controversy. It would have been very easy to have inserted into this contract language which forbade the company from ever removing the terminus of the road to some other point, or from ever removing or ceasing to use the depot or the car and machine shops, and thus have ■ made the obligation perpetual.”

A permanent abode is a home, which a party may leave as interest or whim may dictate, but which he has no present intention to abandon. Dale v. Irwin, 78 Ill. 170.

Permanent employment means “employment for an indefinite time,- which may be severed by either party.” 2 Bouv. Law Diet. Such contracts, in the absence of special considerations, conditions, and circumstances, are not construed to continue indefinitely, but are terminable at any time by either party. . 20 Am. & Eng. Enc. Law (2d Ed.), 16.

The term “permanent employment” has, under special circumstances and conditions, been construed to mean continuous or indefinite employment, not terminable at the will of either party. Counsel for plaintiff cite and rely upon Carnig v. Carr, 167 Mass. 544 (46 N. E. 117, 35 L. R. A. 512, 57 Am. St. Rep. 488); Stearns v. Railway Co., 112 Mich. 653 (71 N. W. 148); Harrington v. Railway Co., 60 Mo. App. 223; Pennsylvania Co. v. Dolan, 6 Ind. App. 109 (32 N. E. 802, 51 Am. St. Rep. 289); Carter White Lead Co. v. Kinlin, 47 Neb. 409 (66 N. W. 536); McMullan v. Dickinson Co., 63 Minn. 405 (65 N. W. 661, 663).

In Carnig v. Carr the contract was that if the plaintiff, an enameler, would give up his business, and enter that of the defendant in the same occupation, he would furnish him permanent employment at stipulated wages. After employment for several months, defendant discharged plaintiff, though he had plenty of work of that kind for him to do. The court said:

“To ascertain what the parties intended by ‘permanent employment,’ it is necessary to consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties, and the sense in which, taking these things into account, the words would be commonly understood.”

Applying this rule of construction, the court found that the contract meant employment so long as the defendant was engaged in the business of enameling, and had work which the plaintiff could do and desired to do, and so long as plaintiff was able to do the work satisfactorily. It was held not to mean life employment.

In Stearns v. Railway Co. plaintiff was seriously injured while in the employ of the defendant, and brought suit against the defendant for damages. The defendant settled with him by paying him $175, and making an agreement to employ him in the capacity of baggage master during his entire life or his ability to do the work. The basis of liability in that case was the surrender and cancellation of a claim against the company. Such cases are Harrington v. Railway Co., Pennsylvania Co. v. Dolan, and Carter White Lead Co. v. Kinlin.

In McMullan v. Dickinson Co. the contract which the court sustained was in writing, and provided that the defendant should employ the plaintiff as an assistant manager ; said employment to continue during the time of the business of said corporation, not exceeding the term and existence of said corporation, and so long as plaintiff should own and hold in his own name 50 shares of the capital stock, fully paid up, in said corporation.

Counsel for plaintiff seek to bring this contract within the above cases cited by them, for the reason that the plaintiff agreed to render some services for which he was not to be compensated unless the enterprise was a success; in other words, that he rendered services in consideration that he was to be made permanent attorney. Plaintiff gave up no occupation or business, as did plaintiff in Carnig v. Carr On the contrary, he maintained his law business the same as usual, during the same time, at the same place, and in the same office. He gave up none of his other work. He released no claim and gave no past consideration for the contract, as was done in Stearns v. Railway Co. and similar cases. He did not agree to devote his entire time as a manager or assistant manager, nor agree to hold any stock in the corporation, as did plaintiff in McMullan v. Dickinson Co. He had no claim for damages or otherwise to release, as did the plaintiffs in the other cases cited. Immediately after his employment, he drew the articles of association, and the defendant was duly organized. According to his own statement and theory of the contract, he then became the attorney for the defendant, with the understanding that, if the defendant secured the franchises contemplated, the company should make him its permanent attorney. This •employment, under his theory, dated from the organization of the company. All the services to be rendered were services as the attorney for the company. All the services contemplated and provided for were current and future services. The life of the corporation was 30 years. Legal services would be required during the term of its existence. It follows that this contract was either a contract binding for 30 years upon the defendant, or else it was terminable at the will of either party. The contract is unusual, and it certainly should be made to clearly appear that the parties intended to make it. If that was in fact their intention, they were singularly unfortunate in the use of language necessary to bind a corporation to employ a lawyer for 30 years. It is significant that neither of the three persons with whom plaintiff alleges he made the contract supposed they were making such a one •as plaintiff now claims.

If the clergyman in Perry v. Wheeler had agreed to preach four months upon trial, with the agreement that, if his preaching were found satisfactory, the church would employ him permanently, would that have changed the construction of the contract? If plaintiff in Roddy v. McGetrick had agreed to work as clerk for four months on trial, with an agreement for permanent employment if his work was satisfactory, would the holding have been different ? If the lawyer in Elderton v. Emmens had agreed to do the legal work of the company for four months with the agreement that, if his legal services were Satisfactory, the defendant would employ him as permanent attorney and solicitor for the society, would the court have given a different construction of the word “permanent ” ?

I find, it impossible to conclude that the parties who made this contract contemplated that the plaintiff was to be employed for 30 years, or as long as he was able to do the legal work of the defendant. I think the case falls clearly within the authorities first above cited, and that-the employment under the above resolution was a full compliance with its terms.

The judgment is reversed, and, inasmuch as it is impossible for the plaintiff to make out any different case upon a new trial, I think none should be granted.

Moore, C. J., Montgomery and Hooker, JJ., concurred in the reversal of the case upon the last point, stated in the opinion.

Carpenter, J., did not sit.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    FULLER v. FULLER.
    Divorce — Extreme Cruelty.
    Evidence examined, and held to entitle complainant to a-divorce on the ground of extreme cruelty.
    Appeal from Ingham; Wiest, J.
    Submitted October-23, 1903.
    (Docket No. 74.)
    Decided March 8, 1904.
    Bill by Lois L. Fuller against William J. Fuller for a. divorce. ' From a decree dismissing the bill, complainant appeals.
    Reversed.

      Q. A. Smith and O. J. Hood, for- complainant.

      L. B. & H. M. Gardner, for defendant.
   Moore, C. J.

The complainant filed her bill for 'divorce, claiming defendant was guilty of extreme cruelty. Defendant in his answer denied the allegations of the bill, hut asked no affirmative relief. The circuit judge dismissed the bill. The complainant has brought the case here by appeal.

The question involved is one of fact. The record is long, consisting of upwards of 150 printed pages. It would profit no one to set out the testimony in detail. A ■careful reading of the record satisfies us that complainant has very clearly shown such treatment from the defendant as constitutes extreme cruelty within the meaning of the statute, and a decree of divorce should have been granted to her in the court below.

It is difficult to determine from the record just what amount of property is possessed by defendant, though some testimony is given here upon that question; but, inasmuch as the solicitors say the complainant will be content with an award of $500 for permanent alimony and a reasonable allowance as solicitors’ fees, we will dispose of the property question now.

The decree of the court below is reversed. Five hundred dollars as permanent alimony is awarded complainant, which shall be in lieu of all dower in defendant’s real estate; complainant to have costs of both courts, including .a solicitors’ fee of $50 in this court, in addition to the $30 already allowed them in this court. The complainant is allowed to tax as part of her costs whatever sum she was obliged to pay for the transcript of testimony obtained by bier to enable her to take her appeal. A decree may be entered in accordance with this opinion.

The other-Justices concurred.


text:
    McCURDY v. DILLON.
    1. Attorney and Client — Contracts—Public Policy — Husband- and Wife.
    A contract between an attorney and a married woman, whereby the attorney should receive as compensation for his services a certain per cent, of the alimony to be allowed in a divorce case and of the damages to be recovered in an action for assault and battery against the husband, a minimum sum being agreed upon as the basis of computation in case of settlement, is contrary to public policy, as tending to prevent a. reconciliation between husband and wife, and therefore void.
    2. Married Women — Contracts—Services of Attorney.
    A married woman may make herself liable for the services of' her solicitor in a divorce suit.
    3. Same — Void Contract.
    A valid contract by a married woman to pay an attorney a. retainer is not abrogated by a subsequent agreement for compensation which is contrary to public policy.
    4. Same — Quantum Meruit.
    Where an attorney’s contract for compensation for services rendered a married woman was void as against public policy, he could recover what his services were reasonably worth.
    Error to Shiawassee; Smith, J.
    Submitted October 23 f 1903.
    (Docket No. 75.)
    Decided March 8, 1904.

      Assumpsit by John T. McCurdy against Susan Dillon for services rendered. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Watson & Chapman, for appellant.

      John T. McCurdy, in pro. per.

   Moore, C. J.

Plaintiff sued defendant to recover for services rendered her as attorney in a case commenced by capias by her against her husband, and for services rendered as solicitor in a divorce case commenced by her against her husband; also for expenses incurred by him in the two cases. Both of the oases were settled before the plaintiff brought this suit. No evidence was offered on' the part of the defendant, and the trial judge directed a verdict in favor of plaintiff for the sum of $431.35. The case is brought here by writ of error.

The items going to make up the verdict were, expenses, $81.35; retainer in divorce case, $100; percentage agreed upon in capias case, $250. The defendant claims the agreement as sworn to by the plaintiff was void as against public policy; citing Hackley v. Muskegon Circuit Judge, 58 Mich. 454 (25 N. W. 462); Jordan v. Westerman, 62 Mich. 170 (28 N. W. 826, 4 Am. St. Rep. 836). It is also claimed that services performed under a void contract can be recovered only under the quantum meruit.

It is Mr. McCurdy’s claim that defendant sent a request by her son to him to act as her lawyer, and requested him to come to her house, as she could not come to him; that he went to her house after preparing some necessary papers, and had a talk with her about her cases and his pay, and, in reply to her inquiry as to his fee, told her:

“‘I will charge you $100 in the divorce case for retainer fee, and $50 in the law case as a retainer fee, and, when we get among your friends, we will make a new bargain;’ and then I said, ‘ The question of retainer fee can be taken care of at that time.’ She says, ‘Very well; I will do that, and I will pay you.’ She says, ‘ What else will you charge me for ?’ I said: ‘ I will charge you for the work I did yesterday, — making the examination and preparing the bill of divorce in the case, — $25. I shall charge you $15 for coming out here and leaving my office today. I will charge you whatever the liveryman charges me for the livery rig, and whatever I am obliged to pay Mr. McBride.’ We turned to him, and he said he ought to have $5 for his day’s work. She said, ‘ I am willing to pay the retainer fee, the chárge you make, and your expenses.’ It was under that agreement that I took the lady’s case. I completed the bill of complaint, — read it over to her.”

It is his claim that, after he commenced the cases, he had a further talk with her about his fees, and what she could probably recover in the two cases, and the fact that defendant before this had litigation with her husband, which she settled without paying her lawyers.

“I said: ‘In my opinion, you ought to have about $3,600 in the chancery case; that would be my best judgment; but,’ I said, ‘they have talked a settlement of $2,000. Will you take that?’ She said: ‘No; I won’t take $2,000. It isn’t enough.’ I said: ‘Would you be willing to use $2,000 in the divorce case as the minimum sum that you would -accept in settlement, and $1,000 as the minimum sum that you would accept as a settlement in your assault and battery case, in case you should discontinue your suits, and figure up 25 per cent, on that, which is to be my pay for the services in this case, providing you discontinue them and settle with your husband as you see fit ?’ She turned to Mr. Markham and said, ‘ What would that amount to ?’ Mr. Markham took a piece of paper and figured it. He said it would be $750. She said, ‘ For both matters ?’ I said: ‘ Don’t figure them together. I wish to keep them separate. The law case is one case, and the chancery case is another. That would be $250 for the law case, and $500 for the divorce case, on the minimum sum of $1,000 for the law case,-and $2,000 for the chancery case.’ She says, ‘Yes; that is all right.’ Then she said, ‘Mr. McCurdy, you spoke about a retainer fee.’ I said, ‘Yes; I told you that I would make that right.’ I said, ‘If this is satisfactory, if satisfactory to you, as far as the retainer fee is concerned, we will consider that is merged into the new contract.’ In other words, I wasn’t to charge $50 in the law case, or $100 retainer fee in the divorce proceedings, but I was to take a per cent., — charge her an amount equal to 25 per cent, of the amount she would recover. In case she dismissed her suit, I was to receive my pay on the minimum sum of $1,000 for the assault and battery case, and $2,000 for the divorce case, making $750, and the little court expenses; and that was agreed upon.”

Upon the trial he apparently conceded the last agreement, so far as it related to the divorce case, was void, and did not take the place of the former agreement that he should be paid in that case a retainer fee of $100.

We think that portion of the contract providing for a percentage of what should be recovered in the divorce case, the minimum amount of which was fixed at the sum of $2,000 in case of settlement, is directly within Jordan v. Westerman, 62 Mich. 180 (28 N. W. 826, 4 Am. St. Rep. 836). In that case the court said, among other things, as follows:

“The power to decree alimony is statutory, and incident to the jurisdiction in suits for divorce, and the statute prescribes the entire powers and regulations on the subject. In fixing the amount and time of payment, the court is entitled to have all the facts which would influence its decision laid before it. Can it be supposed that the court would make an allowance to the wife of a gross sum for permanent alimony, to he paid by the husband out of his estate, if it was possessed of the fact that the wife had contracted to pay one-half or any other portion of what she should be awarded to her solicitor ?
“Such contracts are against public policy for aüother reason. Public policy is interested in maintaining the family relation. The interests of society require that those relations shall not be lightly severed, and that families shall not be broken up for inadequate causes or from unworthy motives; and, where differences have arisen which threaten disruption, public welfare and the good of society demand a reconciliation, if practicable or possible. Contracts like the one in question tend directly to prevent such reconciliation, and, if legal and valid, tend directly to bring around alienation of husband and wife, by offering a strong inducement, amounting to a premium, to induce and advise the dissolution of the marriage ties, as a method of obtaining relief from real or fancied grievances which otherwise would pass unnoticed. The evil pointed out is well illustrated in this case. Here every effort to effect a reconciliation was opposed and thwarted because it was for the interest of the solicitors, under their contract, that there should be no reconciliation.”

We are unable to see why the reasoning employed to show the contract was void as against public policy does not apply with equal force to that portion of the contract relating to the capias case.- It is evident that the price to be paid before such a case can be settled will influence or may influence the question of settlement, and might stand in the way of a reconciliation between the parties.

It is said this court has upheld an agreement between an attorney and his client as to compensation based upon a percentage of the alimony allowed; citing Chadwick v. Walsh, 70 Mich. 627 (38 N. W. 602). A reference to the case will show the validity of the agreement was not questioned.

The contract for a percentage, then, being void, the next question presented is, What should be the rule of recovery ? It is the law of this State that a married woman may make herself chargeable for the services of an attorney employed by her in a divorce suit. Wolcott v. Patterson, 100 Mich. 227 (58 N. W. 1006, 24 L. R. A. 629, 43 Am. St. Rep. 456). If a valid contract for retainer fees was in fact made, it would not be abrogated because an attempt was made to merge it in a void contract. See Dietrich v. Hoefelmeir, 128 Mich. 145 (87 N. W. 111). On the other hand, if no contract was made as to how Mr. McCurdy should be paid, except the void contract, then he .would be entitled to recover what his services were reasonably worth. Cadman v. Markle, 76 Mich. 448 (43 N. W. 315, 5 L. R. A. 707).

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    EIGHMEY v. THAYER.
    1. Deeds — Execution and Delivery — Evidence.
    Evidence in a suit to remove a cloud from title, consisting of the record of a deed, examined, and held sufficient to prove that the deed was executed and delivered.
    2. Tenants in Common — Rents and Profits.
    Where a person, ignorant of the true state of the title to land', but chargeable with notice of it by reason of the record of a deed, purchases from a tenant in common, he cannot escape liability to the other tenants for rents and profits on the ground that he expended them in caring for his grantor under the contract of purchase.
    3. Same — Improvements. *

    Where a tenant in common is allowed for improvements, made under the belief that he was the sole owner of the land, he should not recover from his co-tenants more than their proportionate share of the cost, and, if the added value of the land by reason of the improvements is less than the cost, not more than their proportionate share of the added value.
    4. Same.
    A tenant in common who demands pay from his co-tenants for improvements must share with them the rents and profits.
    Appeal from Monroe; Lockwood, J.
    Submitted February 4, 1904.
    (Docket No. 65.)
    Decided March 8, 1904.
    Bill by James Eighmey against Herbert H. Thayer and others to remove a cloud from title. From the decree rendered, both parties appeal.
    Modified (defendants prevailing).

      C. A. Golden and George M. Landon, for complainant.

      Willis Baldwin and C. C. Whitmore, for defendants.
   Hooker, J.

Alanson Thayer, now dead, filed the original bill in this cause June 8, 1896, to remove an alleged cloud from his title. This cloud consisted of the record of a deed of the premises from himself to one Anna 5. Thayer; Anna S. Thayer was alleged to be dead, and her children were made parties; all but one of whom, being nonresidents, were brought in by publication, but did not appear. The other, Edward A. Thayer, answered, admitting the allegations of the bill; and a decree was entered on April 21, 1897, in accordance with the prayer of the bill.

In March, 1902, the other four defendants united in a petition to vacate the decree, and for an opportunity to answer and make defense against the bill; and this petition was granted, and answers were filed. The suit was heard, and resulted in a decree establishing a fifth interest in each of four of the defendants, and the remaining fifth in one Eighmey, a grantee of the original complainant; he being admitted to prosecute the case in place of Alanson Thayer, who was dead. This fifth was the interest of Edward A. Thayer, who was held to be concluded by his admissions, and the decree first entered, and his laches. The decree also provided that Eighmey should have a lien upon each fifth interest for the sum of $106, the amounts expended by him for improvements and taxes. Both parties have appealed.

Anna S. Thayer was the wife of Alanson Thayer, and the defendants were their children. The Thayers lived upon the premises prior to Anna Thayer’s death, which occurred in January, 1877, and Alanson Thayer married a second time, about eight months thereafter. This wife filed a bill for divorce on August 9, 1879, and obtained a decree, without alimony, afterwards. After this second marriage, and on December 20, 1877, the deed from Alan-son Thayer to Anna S. Thayer was recorded. The record shows it to have have been dated October 10,1871. Thayer afterwards took the deed from the register’s office, and there is testimony tending to show that he left it for record; a witness named Wakefield testifying that, at a time when he was having trouble with his second wife, Thayer and he had a talk, and he told the witness that he had in his possession a deed to his first wife, that he had made at a time when he was ill, so that, in case he should die, she, and not the children, would control the property, and that he had never made any use of the deed; and the witness advised him that “it was a good time to make use of it to protect himself, and he could still hold the property after she got a bill,” and Thayer said that he thought it the easiest way out of the muss, and would attend to it. Soon after, the fact of its record was published.

Alanson Thayer continued to live on the place until January 18, 1898. On that day he conveyed to the complainant, and complainant mortgaged the premises to Thayer, the condition being—

‘£ That the said party of the first part shall and do well and truly board, lodge, care for, and support on the premises above described the said second party for and during his natural life, and furnish medical care and medicine when sick, clothe him during his life, pay the expenses of1 his funeral, and further pay him $25 every six months during his natural life, * * * according to contract.”

Complainant had leased and was living on the farm at the time, and Thayer then resided with him, and continued to do so until Thayer’s death, September 19, 1900. Complainant performed the condition of the mortgage.

Complainant, Eighmey, testified that he was ignorant of the record of this deed to Anna hntil a year and a half after he received his deed. Thayer’s original bill was verified by him. It states that he did not execute the deed; that the grantee, Anna, had been dead several years before its date; that the alleged notary was not a notary at the time; and that Sabra T. Anthony, whose name appeared as a witness to the deed, never signed it as such. Upon the last hearing of the case, the original deed to Anna S. Thayer appears to have been produced; also the record of the same. The complainant’s counsel produced the record of commissions and list of notaries kept in the county clerk’s office for the period after 1865, but the last entry was on August 5, 1875. They also showed that Alanson Thayer caused the property to be assessed and insured in the name of Anna Thayer’s estate for many years. Complainant, also introduced the testimony of Alanson Thayer, taken upon the first hearing, April 21, 1897. It was, in substance, that he had owned and been in continuous possession of the property for 35 years, that he did not execute or deliver the deed to Anna Thayer, and that she was not alive on October 10, 1871, the date of the deed. There was no appearance by defendants; hence no cross-examination.

If we eliminate the testimony of Thayer from the case, there is still abundant evidence that the deed was made and delivered to Anna Thayer in her lifetime, and very little to the contrary. The deed is produced. It is witnessed and acknowledged, and no satisfactory proof is made that Anthony did not witness it, or that Talford was not a notary, or did not take the acknowledgment. The fact of the existence of the deed is corroborated by the failure of the second Mrs. Thayer to. claim dower in the premises, which she was probably entitled to, under the law, if this deed was made, after her marriage. It is reasonable to conclude that she knew of its existence and validity, and so made no effort to prove that it was fictitious. Again, Thayer’s conduct at the time and after the record of the deed indicated a recognition of. the conveyance. His bill and testimony contained false allegations and statements as to the death of his wife, if not the execution of the deed. The learned circuit judge, who saw these witnesses, was of the opinion that the complainant had failed to establish the invalidity or want of delivery of the deed, and we think his conclusion a correct one in those particulars. This disposes of the complainant’s appeal.

In complainant’s supplemental bill there is a prayer that complainant be allowed the value of his improvements upon the premises, and this was allowed, as already stated. Eighmey took possession under his lease, and paid rent to Alanson Thayer, from whom he obtained possession. Subsequently he obtained a deed, and became tenant in common with the defendants, whose tenant in common had previously been Thayer. Although ignorant of the true state of the title, Eighmey was chargeable with notice of it, and cannot escape liability to account to defendants for the rents and profits upon the ground that he expended them in caring for Alanson Thayer under his contract with him. He occupied the premises under his deed from January 18, 1898, to the present time; and the circuit judge appears to have found the net profits, after payment of taxes, to have been $155 per annum,- — a fair conclusion, in our opinion. He also finds that the increased value by reason of certain improvements made is $840, according to our interpretation of his -decision, in which he allowed $530 for the excess of improvements over rents. The alleged improvements consisted of (1) a well, which cost $17, but is said to increase the value of the premises $52; (2) the building of 315 rods of fence; (3) cleaning out the brush from 383 rods of fence; (4) shingling a shed, $35; (5) cleaning out some open drains on the premises; (6) the clearing of 8.6 acres of the land.

When a co-tenant is allowed for improvements, he should not, in such a case as this, be allowed to recover more than the cost; and not that, if the added value of the land, arising from such improvements, is less than the cost. And, on the other hand, he should not be allowed more than a proportionate share of the cost of the improvements if the value added is greater than the cost, for, if his co-tenant pays a share of the cost, he is entitled to a corresponding share of the profits,— i. e., added value to the property by reason of the expenditure. Again, a co-tenant who asks pay-for improvements must be willing to share the rents and profits of the land, and, from our examination of the testimony, we are convinced that they equal, if they do not exceed, any just allowance for the cost of improvements.

The decree will be modified by striking therefrom the third paragraph, and denying an allowance to either party for rents or improvements. The defendants will recover costs of both courts.

The other Justices concurred.


author: Carpenter, J.

text:
    WACHUSETT NATIONAL BANK v. STEEL.
    Corporations — Individual Liability op Directors — Pleading —Misjoinder op Actions.
    A creditor of a corporation organized under chapter 188, 2 Comp. Laws, cannot unite a cause of action arising under section 23 of that chapter (compiler’s section 7059), for the recovery of the debt of the company against its directors who ordered or assented to the violation of any of the provisions of the act, with a suit upon the common counts in assumpsit, or with a count charging fraud.
    Error to Clinton; Stone, J.
    Submitted November 6, 1903.
    (Docket No. 106.)
    Decided March 8, 1904.

      Assumpsit by the Wachusett National Bank against .George A. Steel, Edwin P. Waldron, David S. French, and Robert G. Steel, to enforce the collection of a debt of a corporation of which defendants were directors. From a judgment for defendants on demurrer to the declaration, plaintiff brings error.
    Affirmed.

      Lyon & Moinet, for appellant.

      EL. E. & Eh L. Walbridge, for appellees Steel and Waldron.

      William M. Smith, for appellee French.
   Carpenter, J.

Plaintiff asks this court to reverse a judgment sustaining a demurrer to its declaration. The declaration consists of the common counts in assumpsit and four special counts. In two of these counts plaintiff seeks to recover damages for fraud practiced by defendants. In one of them it seeks to hold defendants, who are directors of the St. Johns Mercantile Company, liable for certain indebtedness of that company, under section 7048 of the Compiled Laws of 1897. In the other it seeks to hold defendants liable for said indebtedness under the provisions of section 7059 of the Compiled Laws of 1897. Defendants demurred to the declaration on several grounds, of which we have occasion to consider but one, viz., that of misjoinder of causes of action.

Can plaintiff unite a cause of action under section 7059 with the common counts in assumpsit and with counts based on fraud ? Section 7059 reads as follows:

“If any corporation organized or existing under this act shall violate any of its provisions, the directors ordering or assenting to such violation shall be jointly and severally liable in an action founded on this statute for all debts contracted after such violation as aforesaid, to the extent of three times the amount paid in on the stock standing in the name of such director in any such corporation.”

In disposing of this case it is not necessary to determine whether creditors have a right, by suits in their own names, to invoke the provisions of this statute, though the case of American Steel & Wire Co. v. Eddy, 130 Mich. 266 (89 N. W. 952), indicates that they may. It is no injustice to the plaintiff, which has planted its case upon that theory, to assume that a creditor has that right, and this case will therefore be decided upon that assumption. On that assumption we think it clear that plaintiff cannot unite such a cause of action with a suit upon the common counts in assumpsit, or with a count charging defendants with fraud.

There is authority for the proposition that an action based upon a penal statute cannot be joined with an action at common law. See People v. Judges of Washtenaw Circuit Court, 1 Doug., at page 447; Hogsett v. Ellis, 17 Mich., at page 360; Smith v. Meanor, 16 Serg. & R. 375. If this proposition is sound, there is clearly a misjoinder of causes of action in plaintiff’s declaration; but that misjoinder can be determined without going so far as to maintain that a cause of action arising from a penal statute can never be joined with a common-law action. If that joinder might be permitted when no principle of justice is violated, authority need not be cited to the proposition that it is not permissible when it results in such violation. Under section 7059, 2 Comp. Laws, the liability of each defendant is limited to three times the amount paid by him on his stock subscription. This liability will cease when, and only when, that limit is reached. If it is to be enforced, as plaintiff maintains, and as we assume it may, by the individual creditor proceeding in his own name, the precise amount of the liability thereunder must be determined; otherwise, after directors have paid a judgment following a general verdict, where there was submitted to the jury the issue of their liability under this statute and their liability under another statute and their liability on a common-law cause of action, we must decide either (a) that the liability shall be lessened by the amount of said payment (see Hall v. Zeller, 17 Or. 381 [21 Pac. 192]; White v. Simonds, 33 Vt. 178 [78 Am. Dec. 620]); (b) that the liability shall be unaffected by the payment; or (c) that the ground upon which the verdict proceeded shall be open to litigation in every subsequent case (see Burlen v. Shannon, 14 Gray, 433).

It is difficult to say which of these three alternatives is most repugnant to justice. The first may result in entirely releasing a director from this obligation to the creditors of the corporation. The second may compel the director to pay his maximum liability under this statute several times, and therefore converts a limited into an unlimited liability. The third is open to all the objections which apply to the first and second. If it is true that cases may arise when a jury must determine the ground upon which a former jury reached a verdict (see Burlen v. Shannon, supra), courts should not unnecessarily increase these cases. The machinery of the law does not enable the second jury to make such a determination with any degree of accuracy. Indeed, such a determination must be mere guesswork. That guess may result in freeing a director from liability without his paying anything whatever, or it may compel bum to pay the maximum liability a second or a third time. We are, therefore, as already indicated, forced to conclude that the precise amount of the liability determined under this section must be ascertained, if it is to be enforced, as plaintiff claims, by suits in the names of individual ■creditors.

If this cause of action is joined with other causes of action, I know of no provision in law by which that liability will be precisely ascertained. Though the jury have a right to adopt the unusual course of rendering a special ■verdict indicating this separate,, liability, their right to render a general verdict which does not indicate it is undeniable. It is true we have a statute which enables parties to a controversy to obtain the answer of the jury to special questions. Those questions must, however, be such as to control the general verdict, and must be answerable by yes or no. No questions which could be asked under this practice, it will be seen on careful, reflection, will enable a director to prove precisely what part of the amount of a general verdict was based on this statutory liability.

It results from these views that there is a misjoinder of causes of action in plaintiff’s declaration, and the judgment of the trial court must therefore be affirmed.

The other Justices concurred.


author: Moore, O. J.

text:
    DODGE v. REYNOLDS.
    1. Evidence — Sale—Harmless Error.
    In an action to recover damages for a failure to deliver fruit baskets as contracted, evidence.by defendants that plaintiff ■ had loaned them money, which they had secured by an assignment of certain accounts, if inadmissible, was not prejudicial.
    3. Same — Hearsay—Explanation of Testimony.
    Where, in such action,.plaintiff showed that defendants had published a notice that they had no agent in their employ soliciting for them or managing their business, it was permissible for defendants to show, for the purpose of explaining why the notice was published, that they had learned that plaintiff claimed to be their general agent and business manager.
    3. Contracts — Breach—Sale of .Goods on Commission. -
    A' contract whereby plaintiff was to sell goods for defendants on commission was violated by his selling them at a less price than that agreed upon, justifying a refusal by defendants to furnish him further goods, where it was understood that defendants wpuld continue to sell in the same locality, and plaintiff, by such underselling, induced their customers to : buy of him.
    4. Trial — Instructions—Credibility of Witnesses.
    A charge that “You are to-believe as jurors what you would' believe as men, and there is no rule of law that requires you to believe as jurors what you would not believe as men,” was not error, where it followed a statement properly instructing them how they should weigh the testimony of the witnesses.
    5. Contracts — Construction—Sale.
    Where defendants agreed to furnish plaintiff with fruit baskets-for sale by him, but not all he could sell, and, after baskets had been furnished him for a part of the season, it developed that defendants could not manufacture more than they themselves could sell at retail, which plaintiff had understood they were to continue to do, they were under no obligation to supply him further with baskets.
    Error to Van Burén; Carr, J.
    Submitted October 23, 1903.
    (Docket No. 185.)
    Decided March 8, 1904.

      Assumpsit by Thomas F. Dodge against Sylvester Gr. Reynolds and Anson R. McRill, copartners as Reynolds ■& McRill, for the breach of a contract to supply goods. From a judgment for defendants, plaintiff brings error.
    Affirmed:

      William J. Barnard and William G. Howard, for appellant.

      Lincoln H. Titus, for appellees.
   Moore, O. J.

The plaintiff, a resident of Lawton, had been engaged for some years in selling fruit packages. It is his claim that defendants agreed to supply him with fruit packages for the season of 1901; that, after supplying him for part of the season, they refused to do so for the balance of the season. He brought this suit to recover the damages. The case was tried before a jury, which rendered a verdict in favor of defendants. The case is brought here by writ of error.

The following is the plaintiff’s version of the contract:

“ I reside in Lawton, and for upwards of 10 years have been engaged in selling fruit packages, and have a warehouse there for that purpose. I make it a business. I had a conversation during the spring or fore part of the summer of 1901 with Mr. McRill, who came to me to know if I would sell baskets for them. I think he was coming from his factory, and met me near the .Michigan Central depot there one day, which I think was about the middle of May, and he says to me, ‘ Why cannot you sell our baskets this year just as well as to bring baskets in here, and we will give you the same commission ?’ I told him that that was perfectly satisfactory to me, and I would do so. That constituted our trade, just in a few words, but it covered the whole ground. He said he would give me the same commission I was getting, which was always 10 per cent., and pursuant to that conversation I went on and sold baskets for them.”

His orders were filled by defendants for a time, settlements were made, and plaintiff was allowed his commis.sions in full for the orders that were filled. Later in the season defendants declined to furnish him with crates. The defendants claim they performed all the agreement they ever made with the plaintiff.

It is the claim of plaintiff that the court erred in relation to the admission of evidence, and also as to portions of his charge. The defendants insist there was no error in either of these respects, and that, conceding there was, no harm was done, as plaintiff, upon his own showing, was not entitled to recover, because the contract lacked mutuality. The judge was of the opinion that, if the jury found plaintiff’s version to be true, he was entitled to recover, and submitted that feature of the case to them. A considerable portion of both briefs is devoted to a discussion of the last question, but, with our view of the case, it is not necessary to decide it.

Mr. Reynolds was examined as a witness on the part of defendants. After he had been cross-examined, he was; allowed to testify that in August the plaintiff had loaned his firm $500, to secure which it had assigned to him certain accounts. It is difficult to see upon what theory this testimony was admitted, and, upon the other hand, we do not see how any harm came of it.

Complaint is made because the court allowed Mr. McRill to answer the following question:

“Did it come to the attention of the firm that Mr. Dodge claimed to be your general agent and business manager ?”

In making his case, the plaintiff caused to be put in evidence a notice published on the 30th of August in the. local paper, reading as follows:

“Fruit Growers, Take Notice!
‘ ‘ Fruit growers will please take notice that we have no agent in our employ soliciting for us or managing our business. If you wish to buy home-made packages, call at the factory.
“Reynolds & McRill.”

We think it was competent to permit an answer to the question as tending to show why the notice was published.

Complaint is made of that portion of the charge reading as follows:

“If you find from the evidence that the plaintiff, Dodge, sold baskets at a less price than that agreed upon by the parties, and thereby induced customers of the defendants to purchase of him, this would be a violation of the contract between the parties, and would justify the defendants in dismissing Dodge.”

Prior to making the arrangement between the parties, defendants had retailed their own goods, and it was expected they would continue to do so. The retail price for baskets was $19 a thousand. It was the claim of defendants that Mrs. Eaton had been a customer of theirs, but was induced to buy 10,000 baskets of the plaintiff because he sold them to her for $18.50 a thousand. ■ Plaintiff at first claimed he got from her the full $19 a thousand, but, when confronted with the receipt, said the 50 cents per thousand was allowed to her for drayage. In view of this situation, we do not think the charge was error.

Complaint is made of the following:

“You are to believe as jurors what you would believe as men, and there is no rule of law that requires you to believe as jurors-what you would not believe as men.”

We think this portion of the charge should be read with the following, which immediately preceded it:

“You are to take into account, in weighing the testimony of any witness, his interest or want of interest in the result of the case, his appearance upon the witness stand, his manner of testifying, his apparent candor or want of candor, whether he is supported or contradicted by the facts and circumstances in the case as shown by the evidence. You have a right to believe all the testimony of a witness, or believe it in part and disbelieve it in part, or you may reject it altogether, as you may find the evidence to be.”

When so read, we think it was not misleading, and was a proper charge.

Complaint is also made of the following:

“ It is not claimed in this case that plaintiff, Dodge, was made the sole or exclusive agent of defendants for the sale of these- baskets, and defendants, therefore, had a right to sell their own baskets to whomsoever they could, and, if they could not manufacture more than they themselves could sell, then they were under no obligations to supply Dodge with baskets, unless the contract, bargain, or agreement was that they were to supply him all the baskets he could sell.”

It has already been stated that defendants had been in the habit of retailing their goods, and plaintiff knew this fact, and expected they would continue to do so. In view of this situation, we think the charge was proper.

The other assignments of error have been examined, but we do not deem it necessary to discuss them.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    CITY OF DETROIT v. PEOPLE’S TELEPHONE CO.
    Telephone Companies — Franchise — Deposit — Forfeiture — Stipulated Damages.
    Where a telephone company, pursuant to a provision in its franchise, deposited with a city a sum of money, which was to be forfeited in case it should not have its system in operation by a certain date, upon default by the company the city was entitled to retain the deposit as stipulated damages, and was not bound to show special damages. Whiting v. Village of New Baltimore, 127 Mich. 66, followed.
    Error to Wayne; Erazer, J.
    Submitted November 19, 1903.
    (Docket No. 137.)
    Decided March 8, 1904.

      Assumpsit by the city of Detroit against the People’s Telephone Company of Detroit to recover certain inspection charges. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Corliss, Andrus, Leete &Joslyn {Bay B. Morgan, of counsel), for appellant.

      Timothy JEJ. Tarsney and -John W. McGrath, for appellee.
   Montgomery, J.

This suit was brought by the city of Detroit to recover from the People’s Telephone Company the sum of $1,529, with interest, for' certain inspection charges, etc., made in connection with the' construction of defendant’s telephone system in the streets of the city of Detroit. Defendant does not dispute plaintiff’s claim. Defendant, under a notice of set-off, seeks to recover the sum of $5,000, and interest thereon, which sum was deposited with the city controller under the terms of.section 10 of the company’s franchise. This section provides that the company—

Shall deposit with the controller of said city a certificate of deposit, in the sum of $5,000, as a guaranty for the construction of said plant, which sum shall be forfeited to the city unless said grantee or his- assigns shall procure 3,500 bona fide subscribers in said city within four months from the acceptance hereof, and also that the plant is in operation as provided in section 5, in which event the said certificate of deposit shall be returned to the said grantee, his successors and assigns.”

Section 5, above referred to, as amended, provides that the construction of said plant shall be commenced within three months from the date of the acceptance of this ordinance, and shall be in operation within 15 months from July 1, 1901.”

On the 23d day of November, 1902, the common council, hy resolution, declared that—

“ It is the sense of this body that the certified check of $5,000, deposited by the People’s Telephone Company for the completion and operation of its plant by October 1, 1902, be, and the same is hereby declared to be, forfeited, and the city controller be and is hereby authorized and directed to place the aforesaid sum to the credit of the general fund.”

In accordance with this resolution, this money was collected and appropriated by the city.

Upon the trial, the evidence showed that the company had commenced the construction of the plant within the required time, and had procured 3,500 bona fide subscribers, as required. But the evidence of defendant also-showed that it had not operated the system put in by it, with the exception of some 30 telephones placed in an interior exchange at the Parke, Davis & Co. plant, and also that it was not in position at the time of the trial to supply any more patrons with telephones. The contention of the defendant was that, for any breach of the conditions imposed by section 10, the city was only entitled to such compensation and damages as it could be shown that it suffered by reason of the default of the telephone company, and that, as no such damages were shown, the defendant was entitled to offset the $5,000 and interest, and recover the balance above plaintiff’s claim. The circuit judge held otherwise, and directed a verdict for the plaintiff for the full amount claimed.

On the argument, attention of counsel was directed to the case of Whiting v. Village of New Baltimore, 127 Mich. 66 (86 N. W. 403). We are unable to distinguish that case from the present. In that case, as in this, the municipal body, as such, suffered no damages by reason of the failure of the corporation to comply with the terms of its grant. But it was said that the contract was made by the corporate officers for and in the interest of the inhabitants. It might be added that their damages, likewise, would not be susceptible of proof, and this furnishes a strong reason for holding that the parties intended by their stipulation to treat such damages as liquidated. Indeed, what is said in Whiting v. Village of New Baltimore is equally applicable here. This is one of that class of cases where the damages for a breach are impossible to be estimated with certainty by reference to any pecuniary standard. In this case, as in that, the parties saw fit to enter into a contract which appears to be plain in its terms. The recovery of damages by the city was not even postponed, to be secured by an action in the courts; but the fund was actually placed on deposit with the city, with an express stipulation that, upon a failure to comply with the requirements of the charter, it should be forfeited. It is true that the law abhors a forfeiture, but there can be no other construction of this charter than that the defendant was to forfeit this sum as liquidated damages for a failure to fulfill the agreement to construct the plant and operate it as provided in section 5.

The case is in all essentials ruled by Whiting v. Village of New Baltimore, supra, and the judgment of ' the circuit court will be affirmed.

The other Justices concurred.


text:
    RATHBUN v. ALLEN.
    1. Sale — Action for Price — Evidence—Books of' Account— Harmless Error. o

    In an action for the price of lumber sold, where it appeared that a written estimate had been prepared, showing the number of pieces and the sizes and lengths desired, so that to find the amount due required only a calculation, no harm was done by the admission of plaintiffs’ books showing the amount, without testimony as to their correctness.
    2. Same — Instructions—Credit.
    Evidence examined, and held to justify a charge that it was not disputed that the credit was extended to defendant.
    3. Same — Use of Property Sold.
    Where, in an action for the price of lumber sold, the question in dispute was whether defendant had told plaintiffs to deliver the lumber on a third person’s order, it was immaterial what the lumber was used for.
    Error to Calhoun; Hopkins, J.
    Submitted November 6, 1903.
    (Docket No. 108.)
    Decided March 8, 1904.

      Assumpsit by Stephen J. Rathbun and Arthur J. Kraft against Dee Allen for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Stewart, Sabin & Hooper, for appellant.

      Charles C. Creen (Andrew W. Lockton, of counsel), for appellees.
   Moore, C. J.

The plaintiffs sued to recover the value of a quantity of lumber which they claim they sold to defendant, and recovered a judgment. The defendant brings the case here by writ of error. The questions involved are stated in part in that portion of the charge of the judge to the jury which reads as follows:

“This action is what is known in law as a civil action. It is also defined as an action in assumpsit, and is brought by Stephen J. Rathbun and Arthur J. Kraft, the plaintiffs, to recover the price and value of a bill of lumber claimed to have been sold and delivered by them on or about July 6, 1900, to the defendant, Dee Allen. There is no dispute as to the delivery of the lumber. There is no controversy as to the amount of the value of the lumber, and it is not disputed that the credit was extended by the plaintiffs, Stephen J. Rathbun and Arthur J. Kraft, to the defendant, Dee Allen.
“The only question, gentlemen, for you to determine, is whether or not the plaintiffs in this case, Stephen J. Rathbun and Arthur J. Kraft, had the light to extend the credit to the defendant, Dee Allen, which they did extend to him on or about July 6, 1900. If they did have such right, and if they were authorized to extend such credit, then your verdict should be for the' plaintiffs. If they were not authorized to extend such credit, then your verdict should be for the defendant, ‘ No cause of action.’
“In arriving at a determination as to whether or not the plaintiffs would have a right to extend this credit, and were authorized by the defendant, Dee Allen, to extend such credit, you are to take into consideration the acts and declarations and statements of the defendant, Dee Allen, made at or about the time this credit was extended to him; and I instruct you that if you find, as a matter of fact, that the defendant, Dee Allen, together with Mr. Blanck, went to the plaintiffs on or about July 3, 1900, and obtained an estimate upon a bill of lumber, and that the defendant, Dee Allen, authorized Mr. Blanck to order the lumber at such time as he might want it, and if you further find as a fact that the defendant, Dee Allen, did not state that the lumber was to be charged to the Michigan Traction Company, and if you find as a fact that the defendant, Dee Allen, did not say anything to the plaintiffs about whom they should charge the lumber to, they would have the right, as a matter of law, to charge it to the defendant, ^ Dee Allen.
‘ ‘ I further, instruct you that whether or not the defendant, Dee Allen, was acting in his capacity as vice-president of the Michigan Traction Company in ordering the said lumber, and whether or not he was acting as its agent in the purchase of said lumber, that the plaintiffs would not be bound by such fact, unless the defendant, Dee Allen, did something to bring the fact of such alleged agency to the attention of the plaintiffs at or before the time that the credit was extended to the defendant, Dee Allen, and the lumber was delivered to him, which delivery was made at the time that the lumber was loaded upon the cars at the station in Battle Creek. An agent who orders goods without legal authority for his principal binds himself, and, if an agent orders goods for a principal without disclosing the name of the principal to the party from whom he orders the goods, such party may charge the goods to the agent, and sue and collect from him; and I . instruct you that whatever may have been understood by the defendant, Dee Allen, as between himself and the offb . cers of the Michigan Traction Company, it would be wholly immaterial, unless the same was communicated to the plaintiffs, and the plaintiffs were instructed by the defendant, Dee Allen, or the defendant Dee Allen’s actions, conduct, or statements were such that the plaintiffs, Stephen J. Rathbun and Arthur J. Kraft, might have inferred from such actions, conduct, and statements, made at or before the credit was extended and the lumber was delivered, that such credit was not to be given to Dee Allen himself, but was to be given to the Michigan Traction Company.
“ As I have previously stated in this case, the burden of proof is upon the plaintiffs, and if you find from all the evidence in the case that some person ordered this lumber for the defendant, Dee Allen, the burden is upon the plaintiffs to show, by a fair preponderance of evidence, that such order was given by an agent of the defendant, Dee Allen, having the authority to bind him.
“ There is no evidence properly in the case as to what the lumber was used for, though it might have come to your attention that it is claimed to be used for the building of a terminal station at Gull Lake; and I instruct you that what the lumber was used for is wholly immaterial to the question to be determined by you in this case, to wit, were the plaintiffs, Stephen J. Rathbun and Arthur J. Kraft, justified in making this charge for lumber to the defendant, Dee Allen? If they were so justified, your verdict should be for the plaintiffs; if not, your verdict should be for the defendant.”

The plaintiffs claim that, before the lumber was sold, an estimate of what would be required was made; that one Mr. Blanck and the defendant were at the place of business of the plaintiffs when the estimate was made, and the defendant authorized the plaintiffs to let Mr. Blanck have the lumber when he was ready to order it; that two days thereafter Mr. Blanck placed with them the order, and soon thereafter the lumber was placed on a car, billed to Dee Allen, Yorkville. Mr. Allen denies that he was at the office of plaintiffs with Mr. Blanck, or that he authorized them to fill Mr. Blanck’s order for this lumber, though he admits that he had authorized him to buy a bill of lumber from plaintiffs earlier. He claims this lumber was for the Michigan Traction Company, of , which he was one of the officers, and that it is for them to pay. The testimony bearing upon these respective claims was as conflicting as it could well be.

It is claimed there is no evidence of the amount of the bill of lumber,' and that the books were improperly admitted in evidence before it was shown they were correctly kept. It is not necessary to pass upon the question of the admissibility of the books. Both parties are agreed there was a written estimate prepared, showing the number of pieces, the sizes and lengths required. To determine the amount simply required a mathematical calculation, and no harm was done by the admission of the books.

It is said the judge erred in saying it is not disputed the ■credit was extended to the defendant. We think this statement was justified by the evidence. When the lumber was furnished, it was consigned to Mr. Allen. It was charged to him upon the books. The statement of account was made out in his name, and was so presented to him.

Complaint is made of the following portion of the charge:

“There is no evidence properly in the case as to what the lumber was used for, though it might have come to your attention that it is claimed to be used for the building of a terminal station at Gull Lake; and I instruct you that what the lumber was used for is wholly immaterial to the question to be determined by you in this case.”

The pivotal question in the case was whether Mr. Allen told plaintiffs to fill Mr. Blanck’s order for this lumber. They claimed he did. Defendant denied this claim. What became of that lumber did not bear upon the disputed question.

We have examined the record carefully, and find no reversible error.

Judgment is affirmed.

The other Justices concurred.


text:
    RIKERD LUMBER CO. v. CHROUCH.
    Garnishment — Exemptions—Labor Under Contract. '
    A householder who takes work upon contract, and employs others, is entitled to his exemptions from garnishment to the extent that the amount due represents his manual labor, not exceeding $30. Act No. 172, Pub. Acts 1901.
    Error to Ingham; Wiest, J.
    Submitted January 6, 1904.
    (Docket No. 166.)
    Decided March 8, 1904.

      Assumpsit by the Rikerd Lumber Company against Frank Chrouch (Claude Quimby, garnishee). From a judgment denying defendant’s claim to an exemption, he brings error.
    Reversed.

      Richard Raudabaugh, for appellant.

      O. W. & W. 8. Foster, for appellee.
   Hooker, J.

This case was heard below upon stipulated facts. The defendant was garnished upon a judgment, and the question before us is whether he was entitled to an exemption of $30, which the justice allowed him, but which action the circuit court reversed upon certiorari; the sum of $43.15 having been paid, into court by the garnishee.

It is agreed that defendant was a householder; that he had a contract for plastering a house at 9 cents a yard, and building a chimney at 25 cents a foot; and that the money, to wit, $43.15, was due upon said contract. Also that one Christopher, a plasterer, and a tender, assisted him in doing such work. The question in the case is whether one who takes work upon contract is entitled to the benefit of the statute, where the labor of others is covered by the contract price.

It would be a strict, if not an unreasonable, construction, to say that one should be denied the exemption provided by this statute, in a case where the work was done wholly by his own ^personal labor, merely for the reason that he did the work for a total sum for the job, instead of daily wages. The only difference between such a case and this one is that the defendant employed others to aid in the work, viz., a tender, without whom he could not well have done the job, and a fellow plasterer, who might have been dispensed with, but whose employment might have been an economical measure, to keep the tender employed. The case is complicated by the fact that the sum remaining due may represent the labor of the tender and employé, and there may be a possibility that it represents nothing else. But the language of the stipulation warrants the inference that $43.15 represents either the entire contract price, or, what is perhaps more probable, that it represents the whole or a part of the earnings by the personal labor of the defendant. In either case it includes the result of his manual labor, and, to the extent that it is included, he is entitled to the exemption, not exceeding $30. See Pennsylvania Coal Co. v. Costello, 33 Pa. St. 244-247.

The justice found, and in his return to the writ of certiorari certifies, (1) that “the defendant was a householder;” (2) “that said garnishee money was the result of, and for, the personal work and labor of defendant;” (3) that he was entitled to an exemption of $30. If the justice erred, it was in saying that the entire sum was for his personal labor. It probably was not, according to this stipulation; but it does not appear that $30 of it was not so, and, as the plaintiff in certiorari has not made it appear that there was error in saying.that at least $30 represented defendant’s earnings, it cannot prevail.

The judgment is reversed, and that of the justice affirmed, with costs of both courts.

The other Justices concurred.


author: Grant, J.

text:
    AUDITOR GENERAL v. CALKINS.
    1. Municipal Corporations — Public Improvements — Objections — Notice op Hearing — Publication—Sufficiency.
    1 Comp. Laws, § 3195, requiring the city council in cities of the fourth class to give notice by publication for two weeks of the time when it will meet to hear objections against a proposed public improvement, is not complied with by a publication once in each week for two weeks, unless the time of hearing is two weeks after the first publication.
    2. Same — Validity op Assessment.
    Failure to give a sufficient notice of the time when the council will meet to hear objections to a proposed public improvement is not cured by 1 Conap. Laws, § 3922, providing that no tax shall be held invalid by reason of irregularities in any proceeding that do not prejudice the property rights of the person taxed.
    3. Same — Foreclosure op Tax Lien. ‘
    Objections to the want of such a notice may be raised for the first time to the auditor general’s petition to foreclose the tax lien.
    4. Same — Designation op Assessment District.
    Resolutions of the council instructing the city engineer to make a plat of an assessment district, and authorizing the assessors “to make a special assessment roll according to” the plat prepared by that officer, — the same being on file with the city clerk, and showing the location of each lot, the lot numbers, and the frontage of each, — constitute a sufficient designation of the assessment district by the council, required by 1 Comp, Laws, §§ 3194, 3198.
    5. Municipal Corporations — Notices by Council — City Clerk.
    Publication of a notice by the city clerk under the instructions of the counciTis a notice given by the council.

      6.’ Same — Special Assessment Roll — Certificate—Irregularities.
    An irregularity in the certificate of the assessors to a special assessment roll which has been confirmed by the council does not render the assessment void.
    Appeal from Emmet; Shepherd, J.
    Submitted November 20, 1903.
    (Docket No. 76.)
    Decided March 8, 1904.
    Petition by Perry E. Powers, auditor general, for the sale of lands delinquent for taxes: On objections filed by Henry T. Calkins and others. Prom a decree for petitioner, contestants appeal.
    Reversed.
    Fifteen persons, the owners of 13 distinct parcels of land, appeared in this suit, instituted by the auditor general in 1903 for the sale of lands delinquent for taxes assessed thereon, and objected to the sale, alleging that the proceedings were void. The tax was levied for grading, paving the gutters, and filling the center of a fixed portion of a given street with gravel or crushed stone, and for crossings built of stone and brick. The owners of seven of the lots involved joined in a petition to the common council of the city* of Petoskey for this improvement, which extended on Mitchell street between two given points. The petition was signed by 33 of the property owners on the street. The improvement was ordered by a vote of two-thirds of the aldermen-elect. The council, by appropriate resolution, instructed the city surveyor to make a plat including the property liable for special assessments for said improvement. The surveyor complied with the resolution, giving the location of each lot, the lot numbers, and the frontage of each parcel. This was duly filed in'the city clerk’s office, and the common council directed the clerk to give notice that the council would meet July 3, 1899, to hear objections thereto. This notice was published in a newspaper in the city of Petoskey once in each week for two successive weeks, viz., June 21 and 28, 1899. The council met, and, no objection being made, authorized the board of special assessors to make a special assessment roll according to, and including the property-designated in, the plat prepared by the city engineer, and ordered two-thirds of the estimated cost, viz., $3,174.68, to be assessed pro rata according to frontage. Notice by publication was given that the common council would meet as a board of review on August 7th to review the roll and hear objections. No one objected, and the assessment roll was accepted and adopted. This published notice was directed by name to all those interested. The roll was confirmed by the council, certified by the clerk, the proper warrant attached, and delivered to the city treasurer for collection. The unpaid assessments were included in the annual appropriation bill of 1900, and by direction of the common council were reassessed against the same lands on the general tax roll of 1900. The court sustained the validity of the tax, and ordered a sale in accordance with the statute.
    The objections raised to its validity are:'
    1. That.the common council did not designate a district, as required by statute.
    2. That the council did not give the notice as required by section 3195, 1 Comp. Laws.
    3. That the notice under this section, and also of the meeting of the board of review, were not published a sufficient length of time.
    4. That the council did not designate the lots constituting the district to be assessed, as required by section 3198, 1 Comp. Laws.
    5. That the special assessors did not make out and indorse .on the said roll the certificate required by section 3200, 1 Comp Laws.
    Other objections are made, but they appear to be mainly conclusions from the above objections.

      Wade B. Smith, Prosecuting Attorney, for petitioner.

      Halstead & Halstead, for contestants.
   Grant, J.

(after stating the facts). The statute provides that:

“No tax assessed upon any property, or sale therefor, shall be held invalid by any court of this State on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice the property rights of the person whose property is taxed; and all proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be presumed by all the courts of this State to be legal, until the contrary is affirmatively shown.” 1 Comp. Laws, § 3922.

A publication once in each week for two weeks is not a sufficient compliance with the law, unless the time for hearing was two weeks after the first publication. The statute' contemplates a notice of two full weeks. Gantz v. Toles, 40 Mich. 725; Bacon v. Kennedy, 56 Mich. 329 (22 N. W. 824). . A publication upon Thursday of one week and upon Thursday of the following week of a notice that the board would meet upon Friday of the second week does not give the notice required by the statute. This defect is one of substance, within the statute above cited. Is it cured by the statute ?

Section 3195, 1 Comp. Laws, provides that, before ordering any such improvement, any part of the expense of which is to be defrayed by special assessment, the common council shall make an estimate, and give notice of the proposed improvement, and of the district to be assessed, by publication for at least two weeks. It also provides that, unless a majority of the persons to be assessed shall petition therefor, it shall not be ordered except by the concurrence of two-thirds of the aldermen-elect. It would seem, under this provision, that no petition is necessary, provided that two-thirds of the aldermen-elect shall order an improvement. It does not appear that a majority of the persons to be assessed united in the petition. The case must therefore be disposed of upon the theory that the common council have acted without such a petition.

It was obligatory upon the common, council to give the notice required as a condition precedent to further action. The notice is in the nature of a summons to bring a defendant into court. Its object is to summon the interested taxpayers before the council, and give them a hearing. The notice must give the time required by the law, or else the council obtain no jurisdiction, any more than a court would obtain jurisdiction by a void service of process. The council in the inception obtained no jurisdiction on account of a void noticé.

This is not a case where a court of equity will leave a party complainant to his remedy at law. The defendant is now for the first time brought into court and given an opportunity to contest the validity of the proceedings. The statute gives him the right to wait until the State moves to foreclose the tax lien upon his property, and then gives him the right to appear and make any objections which were fatal to the proceedings. He cannot, therefore, be charged with laches. If the statute, as formerly it did, gave a deed to the tax purchaser, and gave the taxpayer no opportunity to appear in court to contest it, we might then apply the rule, as In other cases, that equity will not afford him relief, but will leave him to his remedy at law.

Under this disposal of the case it would be unnecessary to determine the other questions, but, inasmuch as they are fully argued, and one of them is involved in another suit already submitted, we will decide them.

The proceeding to designate the district by instructing the city engineer to make a plat, etc., and by adopting such plat, is a sufficient designation within the statute. Davies v. City of Saginaw, 87 Mich. 439 (49 N. W. 667); Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204); Kundinger v. City of Saginaw, 132 Mich. 395 (93 N. W. 914).

The publication of notice of hearing of objections, made by the city clerk under the instruction of the common council, was a sufficient compliance with section 3195, 1 Comp. Laws, which requires the common council to give notice of such hearing.

The defect, if any existed, in the certificate of the assessors, does not render the assessment void. It was not a fatal defect. Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881); Auditor General v. Hutchinson, 113 Mich. 245 (71 N. W. 514).

Decree reversed, and decree entered in this court for the defendants.

The other Justices concurred.