author: Hooker, J. Blair, J.

text:
    PEOPLE v. BROTT.
    1. Appeal and Error — Criminal Law — Saving Questions eor Review.
    Except as a matter of grace, where it is apparent that an injustice has been done, the Supreme Court will not, on appeal, reverse a conviction for an omission to charge the jury as to a point not presented by any request to charge, nor brought to the attention of the trial court by exception.
    2. Same — Motion to Quash.
    On a motion to quash, first presented after a jury has been sworn, based on the ground of want of testimony before the examining magistrate, no error was committed in refusing to discharge the respondent.
    3. Same — Burglary—Statutes.
    A conviction upon a charge of burglary, under 3 Comp. Laws, § 11547, will not be reversed for failure to charge the jury that they must find, in order to convict the accused, that the building which he entered was not adjoining to or occupied with a dwelling house; the evidence being clear upon the point, no request to charge covering it having been offered and no dispute as to the matter having been raised on the trial. Blair, J., dissenting.
    Error to Osceola; Sessions, J., presiding.
    Submitted April 21, 1910.
    (Docket No. 134.)
    Decided November 11, 1910.
    Walter Brott was convicted of breaking and entering in the nighttime, a store not adjoining to or occupied with a dwelling house, with intent to commit larceny.
    Affirmed.

      Howard F. Withey, for appellant.

      Fred Trumbull, Prosecuting Attorney, and John E. Bird, Attorney General, for the people.
   Hooker, J.

The defendant was convicted upon a valid information charging him with breaking and entering in the nighttime a store “not adjoining to or occupied with a dwelling house,” with intent to commit the crime of larceny.

The testimony was abundant that the store was not adjoining to nor occupied with a dwelling house, and there was no testimony to the contrary, and there was no request to charge that it was essential that the jury investigate or find the fact as charged. It is contended in this court, apparently for the first time, that the testimony left the fact in doubt. We think otherwise, and the court might properly have so informed the jury.

The learned circuit judge instructed the jury as follows:

* “In this case the people charge these respondents, Walter Brott and Fred Compton, together with Henning Hammer, with having on the 29th day of March last, in the nighttime, broken and entered the store of Walter Budge, with the intent then and there to commit the crime of larceny; that is to say, to steal, take, and carry away, and to convert to their own use, some of the property of Mr. Budge, then situated in that store. You will observe that there are several elements or ingredients in the offense charged against these respondents, and to warrant a conviction in the case you must find: (1) That these respondents did break and enter, or did assist in breaking and entering, the store of Walter Budge. (2) That the breaking and entering was in the nighttime, and that at that time they had the intent to commit the crime of larceny; that is, to steal some of the property in that store.”

Error is assigned upon this charge upon the ground that it omits an essential element. It is urged, in support of this assignment, that it is the duty of the trial judge to instruct the jury regarding all essential elements of the case, and that this court should reverse a conviction although no request was made nor exception taken. We may concede the duty, without admitting the alleged consequence. We might perhaps (but do not) even say that the charge was erroneous in this particular without also admitting a right to reversal. The contention of the defendant involves the proposition that there is a class of irregularities in the trial of a case which are exceptional in this: that as to such a defendant has a right to a review and reversal, without an exception, aside from those upon which the statute permits assignment of error, without exception, such as errors upon misstatements in the charge.

This court has often held that it will not review questions that have not been raised in the trial court, and such is the rule according to the great weight of authority. In Driscoll v. People, 47 Mich. 414 (11 N. W. 225), a case of homicide, Mr. Justice Campbell, said:

“No specific instructions were asked, * * * and. the court cannot be held to have erred in not giving them, so long as the charge actually given was not misleading.”

This case was quoted and approved in People v. Willett, 105 Mich. 117 (62 N. W. 1115). In People v. Waller, 70 Mich. 239 (38 N. W. 262), a larceny case, error was assigned on the failure to define a “reasonable doubt.” The court held that, not having requested it, the question would not be reviewed. In People v. Warner, 104 Mich. 337 (62 N. W. 405), a forgery case, we refused to review the omission to explain the meaning of the words “false and forged,” and the failure to instruct that the fact that defendant did not testify was not evidence of guilt, for the reason that the respondent’s counsel did not call the attention of the trial court to these points. In People v. Smith, 106 Mich. 434 (64 N. W. 200), counsel claimed a reversal on the ground that the court should have directed a verdict in a case of assault with intent to murder. We held that the point was made too late, not being raised in the trial court. In People v. Gray, 135 Mich. 544 (98 N. W. 261), we refused to consider questions when no exceptions had been taken. In People v. Carter, 117 Mich. 577 (76 N. W. 90), the defense was made that defendant was so drunk as to have been incapable of having an intent to murder. The omission of instruction on the point was held not error; no request having been made. In People v. Raher, 92 Mich. 167 (52 F. W. 625, 31 Am. St. Rep. 575), the omission to instruct-that defendant, charged with assault with intent to do great bodily harm, might be found guilty of assault and battery, was held not cause for reversal; no request having been made. In People v. Prinz, 148 Mich. 307 (111 N. W. 739), we held that “the general rule in criminal as well as civil cases is that this court will, on review, consider only such questions as were presented for the consideration of the trial court.” In 12 Cyc. p. 808, it is said to be “a general and almost universal rule that questions not raised at the trial will not be reviewed,” citing many cases from the various State courts, among them some Michigan cases. See, also, 13 Cur. Law, p. 193 et seq. In 12 Cyc. p. 820, it is said that “in most jurisdictions the improper refusal or neglect of the court to charge on a particular point, or its action in granting and giving improper instructions, will not be reviewed on appeal unless specially excepted to on the trial, and this rule applies to instructions given by the court of its own motion,” citing cases from 18 different States, and contra the single State of Michigan, the following cases: People v. Murray, 72 Mich. 10 (40 N. W. 29); People v. Macard, 73 Mich. 15 (40 N. W. 784); People v. McGuire, 89 Mich. 64 (50 N. W. 786). See, also, 12 Cyc. pp. 658, 815.

We have already attempted to show that the decisions of this court are not at variance with the general proposition, by citing some of its cases overlooked in the note to 12 Cyc. The same authority (viz., 12 Cyc. p. 820) proceeds as 'follows in the text:

“An exception to this rule is made, however, in some States in capital cases, and an improper instruction will be reviewed if it appears to have prejudiced the accused, although no exception was taken.”

Several cases from Illinois, New York, and other States admit this exception, which, it should be remarked, is sometimes based upon .statutes (see State v. Heinze, 66 Mo. App. 135), or, as in this State so far as it applies, upon the Constitution. It is fair to say that this is not always so, and there is some confusion on the subject; but we think the general rule in this State is in conformity to the text first quoted from Cyc. We will now discuss the cases from Michigan which are cited in Cyc. as “contra.” They are three, as already stated, and counsel for the respondent has not cited them.

The first in chronological order is People v. Murray, 72 Mich. 10 (40 N. W. 29). This was a capital case, i. e., rape, and therefore is within the limits of the exception. Sherwood, C. J., said:

“While this court cannot reverse a judgment or set aside the verdict upon a review of the facts, when such facts have been properly submitted to a jury, and will not ordinarily depart from such rules of practice as have been adopted as the result of the longest experience, yet, under the general superintending power and control over all inferior courts, and their proceedings, given under the appellate jurisdiction of this court, I have no doubt, in a criminal case, upon a review of all proceedings had which have resulted in the conviction of a respondent, if the court-can see that a fair trial has not been had, and it is made manifest that injustice has been done, it then becomes the imperative duty of the court, with or without objections and exceptions by the respondent’s counsel, to set aside such proceedings, and order a new trial; and we all think the present presents such a case.”

It will be seen that the general rule is recognized, and so far as the adjudication goes the exception is limited to capital cases, “in which the court can see that. a fair trial has not been had and it is made manifest that injustice has been done” and it declares the duty of this court under its power in such cases.

The next case was People v. Macard, 73 Mich. 15 (40 N. W. 784), also a capital case, i. e., murder. In that case the court had charged that the jury must find that all of the material facts were proved beyond a reasonable doubt. It was held, in an opinion by Sherwood, C. J., that this was not sufficient, although no exception had been taken.

The third case was People v. McGuire, 89 Mich. 64 (50 N. W. 786), a case of burglary. It was reversed upon the ground that the charge omitted certain instructions which were properly requested, though it was claimed that no exception was taken. It related to a crucial question, and the course taken was held “manifestly prejudicial.” Upon the authority of the two earlier cases already discussed, the writer of the opinion said:

“We have heretofore held that the neglect of the court in criminal cases to properly charge the jury upon a material point could be taken advantage of without an exception on the trial.”

The Michigan cases relied upon by counsel for defendant are: People v. Bielfus, 59 Mich. 576 (26 N. W. 771); People v. Dowell, 136 Mich. 306 (99 N. W. 23); Liebler v. Carrel, 155 Mich. 199 (118 N. W. 975); People v. Prinz, 148 Mich. 307 (111 N. W. 739). In People v. Bielfus, the question wás properly raised in the trial court. We presume it was cited for the remark that “in such a case justice requires that no element of the crime shall be left out of sight,” a palpable truth injected into the opinion as a reason for reversal on a question properly raised below, and open in this court. Justice requires in all cases that the trial shall in all respects conform to legal rules, but reversal does not ordinarily follow where an appellant omits to give the trial court information of his claim in relation to questions subsequently raised. The case is not in point. The same may be said of People v. Dowell, supra, when Mr. Justice Grant wrote the opinion. It does not show that the question upon which it was reversed was not properly raised below. Liebler v. Carrel, supra, was not a criminal case and we do not discover that it sustains complainant’s proposition. People v. Prinz, supra, did not pass upon the question of the want of exceptions. The case was a capital case, and the last enunciation of this court upon the subject.

A case earlier than any of those discussed is that of People v. Maunausau, 60 Mich. 15 (26 N. W. 797). It was a case of larceny and was reversed by an opinion written by Mr. Justice Morse, upon the(ground that the court admitted the statements of a codefendant and neglected to state to the jury, in connection with the giving of said testimony or in the charge, that it could not bind the appellant. No reference was made to it, no request to charge was made, nor was an exception taken. The opinion says:

" It was manifestly error to receive the evidence without cautioning the jury, as aforesaid, not to use the admission of one against the other. * * * The error lies in not instructing the jury as to its use.”

The opinion continues:

"The question now arises whether the counsel for respondents, by their failure to request such instruction, or to except to the failure of the court to do so without request, have waived their clients’ rights in the premises. The objection made to the reception of this evidence, though not as clearly stated as it might have been, was evidently aimed at the injustice as well as the incompetency of using the declarations of one of these respondents against the other. It was the plain duty of the trial judge, when he received this testimony, or when he instructed the jury, to clearly point out the bearing of these admissions upon the vital issue of guilt or innocence, and to forbid, as far as he could, the use of the declarations of Richard to convict Samuel, or the admissions of Samuel to prejudice the case against' Richard. In a criminal case all doubts should be solved in favor of the accused, and in the present case, when the evidence of the respondents’ guilt depends almost entirely upon these declarations, we consider the neglect of the court to properly confine this testimony within its lawful limit as an error too grave to be overlooked, and one entitling the defendants to a new trial.”

It is probably safe to say that this case goes much further than any other case that can be found in the books, but it shows that it was a most important point in the case. The opinion states that it was a case of "petit larceny.” The property was charged to be worth $6, and three months was the limit of imprisonment under the law. No authority was cited in support of it, and it is a significant fact that the case was not cited in the later cases. It is also worthy of mention that the writer of that opinion, in a later case, affirmed a conviction in which the cases of People v. Murray and People v. Macard and People v. Maunausau were much weakened, if not practically overruled. The offense was a heinous one. People v. Graney, 91 Mich. 646 (52 N. W. 66). It was followed in an opinion by Long, J., in People v. Smith, 92 Mich. 11 (52 N. W. 67), and again in People v. Ostrander, 110 Mich. 63 (67 N. W. 1079).

Referring now to the cases from other States upon which defendant’s counsel rely, we find nothing in Goldsberry v. State, 66 Neb. 312 (92 N. W. 906), to satisfy us that the question may not have been raised below. The same may be said of McDow v. State, 113 Ga. 699 (39 S. E. 295), while an exception was taken in State v. Fulford, 124 N. C. 798 (32 S. E. 377). In Falk v. People, 42 Ill. 331, it was held that, where incorrect instructions are given, the appellate court will refuse to pronounce a sentence of death and will order a new trial, though exceptions are wanting. In McMillan v. State, 35 Tex. Or. R. 370 (33 S. W. 970), the court said that it would not reverse the .cause unless the error were calculated to injure appellant’s rights. This was a capital case and was affirmed. In People v. Barberi, 149 N. Y. 257 (43 N. E. 635, 52 Am. St. Rep. 717), the court held that:

“An erroneous statement of the law in the charge * *, * or improper comments upon facts or the evidence bearing upon them may be reviewed and corrected in the court of appeals in a capital case, without any exception, when it can be seen that they may have operated to the prejudice of the accused.”

Our decisions are undoubtedly in line with the general rule regarding the necessity of exceptions, etc., and this court is also committed to the exception stated in Cyc., already quoted. One or more of our cases have applied the exception to other than capital cases, but all have been cases where serious injury had been done to defendant’s rights, in the opinion of the appellate court. It is a significant fact that in none of these cases have other authorities been cited, and, as we have seen, the most extreme cases have been questioned, and therefore it might perhaps be said that there is no impediment to holding that the exception is limited to capital cases, where it is clear that manifest injustice has been done. Of the latter proposition we are satisfied and can dispose of this case upon that ground.

It is clear from this record that the defendant has suffered no injustice on the question raised:

(1) Because it is clear that the store was within the statute.
(2) Because there is nothing to indicate that it was a disputed question upon the trial, or that it was not tacitly taken as a conceded fact in the case.
(3) Because the jury found defendant guilty as charged, and there is no presumption, nor is there any proof, that the jurors did not find the element of the offense said to have been omitted.

The defendant is relying upon a technical claim which we feel fully justified in disregarding, in view of the manifest justice of the verdict. We adhere to the general rule that questions will not be reviewed unless raised in the court below, and brought here in accordance with the general practice, for to hold otherwise would enable defendants to raise most any question without exception. There is much good sense in the strictest rule upon this subject, and certainly to extend it beyond the exception mentioned, as intimated in People v. Farrell, 146 Mich. 291 (109 N. W. 440), where advantage was sought upon technical grounds, would be to put a premium upon a practice of treating a point as inconsequential, or conceded, and thereafter asking a reversal, upon the ground that it has been overlooked, thus allowing a defendant to have an anchor to windward ” in case he shall fail of acquittal on the merits. If it be admitted that this court has this power, and on occasion will exercise it, in a capital and even in other cases, it should be done only when the record clearly shows that a manifest injustice has been done; but this should be held as in the nature of an act of grace, wherein the noncompliance of counsel with the rules of practice is overlooked, rather than a recognition of a defendant’s right to disregard the rules and practice usually required to assure justice to the State in the prosecution of offenders. See People v. Graney, 91 Mich. 646 (52 N. W. 66 ). Being satisfied that substantial justice has been done in this case, we must decline to reverse it upon this technical ground, in the absence of a request and exception if we should in such case reverse it, which we do not decide.

There are other questions in the case; but they require no extended discussion. The motion to quash for want of testimony before the justice on the examination was properly overruled. Upon that question, also, the magistrate was permitted to act without his attention being called to this claim, which was first raised at circuit after the jury was sworn, and when a discharge on a technical point might be final, by reason of defendant’s having been in jeopardy. We have examined the remaining questions and find in them nothing that requires a reversal.

The judgment should be affirmed.

Ostrander, Moore, McAlvay, Brooke, and Stone, JJ., concurred with Hooker, J.

Blair, J.

Respondent was arrested and examined upon a complaint and warrant charging him and three others with breaking and entering in the nighttime the store of one Walter Budge, not adjoining to or occupied with a dwelling house, with intent to commit larceny. At the examination of respondent, no proof was offered that the store was not adjoining to or occupied with a dwelling house. Respondent was bound over for trial at the circuit court for the offense charged, and an information was filed for that offense; respondent refusing to plead. A plea of not guilty having been entered by order of the court, respondent moved to quash the information, for the reason, in substance, that there was no testimony produced before the justice or returned by him tending to show that the store was not adjoining to or occupied with a dwelling house, as required by section 11547, 3 Comp. Laws. The motion was overruled, and at the close of the case the respondent was convicted, and has appealed to this court.

The principal points relied upon for a reversal are:

First, that the court erred in overruling the motion to quash.
Second, that the court erred in defining the offense in his charge to the jury by omitting to include therein as an element the location of the store with reference to a dwelling house.

First. Technical nicety would have been better served by presenting evidence as to the location of the store with reference to other buildings; but where the respondent presents no request to the examining magistrate for his discharge upon that ground, and it does not appear that his rights were prejudiced, we think justice requires that he should not be permitted to raise the question after the return has been filed and an information presented charging the same offense as the complaint and warrant. The complaint specifically informed the respondent of the precise offense of which he was charged, and, manifestly, the matter of prime importance to him was the proof upon which the people relied to connect him with the breaking and entering of the store with larcenous intent. The proof was ample upon both these elements and furnished all of the information which respondent needed for the preparation of his defense. We think the motion was properly overruled.

Second. The court instructed the jury, as to the elements of the offense, as follows:

“ In this case the people charge these respondents, Walter Brott and Fred Compton, together with Henning Hammer, with having on the 29th day of March last, in the nighttime, broken and entered the store of Walter Budge, with the intent then and there to commit the crime of larceny; that is to say, to steal, take, and carry away, and to convert to their own use, some of the property of Mr. Budge, then situated in that store. You will observe that there are several elements or ingredients in the offense charged against these respondents, and to warrant a conviction in the case you must find:
“ ‘ (1) That these respondents did break and enter, or did assist in breaking and entering, the store of Walter Budge.
“ * (2) That the breaking and entering was in the nighttime, and that at that time they had the intent to commit the crime of larceny; that is, to steal some of the property in that store.’ ”

No reference was made in any part of the charge to the necessity of finding that the store was not adjoining to or occupied with a dwelling house. It is argued by the counsel for the people that this was error without prejudice, since the undisputed testimony showed that the store was not adjoining to or occupied with a dwelling house. The record supports the contention of counsel as to the testimony on this point being all one way, and there can he no doubt that, if the attention of the jury had been called to the necessity therefor, they would have found that the store was not adjoining to or occupied with a dwelling house. But the question which presents itself to us is: Have the jury found by their verdict that the store was not adjoining to or occupied with a dwelling house ? As shown by the quotation from the charge, the court, in stating to the jury what the charge against respondent was, excluded this element, and, in stating what the jury must find from the evidence, he again eliminated this element. It would seem to necessarily follow that the verdict of the jury convicted the respondent of breaking and entering the store of Walter Budge in the nighttime, with intent then and there to commit the crime of larceny. The verdict, therefore, did not convict the respondent of the offense with which he was charged in the information, nor of any offense known to the law. Koster v. People, 8 Mich. 431.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DIEL v. KELLOGG.
    1. Pleading — Declaration—Joinder of Counts.
    The filing of a plea to a declaration for fraud waives the objection that certain counts alleged fraud against one defendant and other counts against two defendants.
    2. Same — Trial—Election.
    An election should be required on defendant’s motion to determine on which counts plaintiff would proceed.
    3. Same — Dismissal Against One Dependant — Election.
    Error in failing to require such election was cured by plaintiff’s dismissal, at the close of his testimony, of his case against one of the defendants, no bad faith being apparent.
    4. Same — Evidence—Fraud.
    Nor was the admission of testimony concerning representations made by the defendant as to whom the action was dismissed, prejudicial to the other defendant, in view of the charge of the court which withdrew that evidence from the consideration of the jury.
    5. Fraud — Stock Subscriptions.
    Where plaintiff subscribed to stock of a corporation because of alleged false representations contained in a letter from defendant to a promoter of the enterprise, and communicated to the plaintiff, representing falsely that the product to be manufactured had been earning 12 to 15 per cent, on a capitalization of $100,000, the letter was admissible in evideuce, although defendant claimed it was written for another purpose, and that the promoter was not authorized in using a single and material sentence, apart from its context, which, however, did not appear to qualify the effect of representations made.
    6. Same — Subsequent Statements.
    The repetition of the alleged fraudulent statements in a subsequent letter had a tendency to refute defendant’s claim that the representation was an inadvertence or mistake.
    7. Same — Evidence—Other Transactions.
    Evidence that the promoter, to whom defendant wrote the letter, used it to procure other subscriptions to stock of the corporation, was properly received to establish a fraudulent intent and the complicity of the promoter.
    8. Evidence — Value—Stock—Opinion Testimony.
    It was competent to show the value of stock in a project that failed, by the opinion of one of the interested investors who was familiar with the enterprise.
    9. Fraud — Stock—Damages.
    Plaintiff was entitled to recover for stock which he bought after his original subscription, where the evidence tended to show that it was treasury stock, although another party had promised to take it, and, without paying for it, indorsed the certificates over to plaintiff, who paid the amount to the managing stockholder.
    10. Evidence — Admissions.
    A conversation of a witness with defendant, which might, though not necessarily, tend to show a sense of obligation consistent with plaintiff’s claim, was competent evidence.
    11. Same — Hearsay—Corporate Reports.
    Reports of business of a corporation, not supported by sworn testimony as to their correctness, are hearsay.
    12. Same.
    The form in which defendant furnished information concerning the business of another corporation was not material.
    Error to Calhoun; North, J.
    Submitted June 16, 1910.
    (Docket No. 162.)
    Decided November 11, 1910.
    Case by Herman Diel against Will K. Kellogg and John H. Kellogg. Judgment for plaintiff against defendant Will K. Kellogg, who brings error.
    Affirmed.

      George W. Mechem and Henry B. Graves, for appellant.
    ‘ Arthur B. Williams and Sam A. Mitchell, for appellee.
   Hooker, J.

The defendant has appealed from a verdict and judgment for $4,400 against him- in an action on the case for fraud and deceit.

An outline of facts as stated in defendant’s brief, apparently undisputed, is that Dr. Kellogg of Battle Creek was owner of a formula for an alleged fat inducing food, which he used in three food preparations; the same being manufactured by the Sanitas Nut Food Company, a corporation, and he being practically its owner, as he owned all but two shares of its stock. His brother, W. K. Kellogg, managed the concern, for which he received one-fourth of its net profits. A scheme was devised with a view to organizing a corporation to purchase this business and all of the rights of Dr. Kellogg therein and in the formula for $20,000. One- Bolin of St. Louis, Mo., and W. K. Kellogg, were active in this, also a man named Clague of Chicago, and it was proposed to sell stock in the concern. Bolin was to sell $30,000 of the stock, and to receive $15,000 from the treasury stock for his service. W. K. Kellogg was to receive $15,000 of the stock, and upon certain conditions $5,000 more, for his interest in the old company and services.' Bolin resided in St. Louis and sold certain shares of stock in the new company to the plaintiff, and, the business not proving successful, the plaintiff brought this action, alleging that the two Kelloggs had represented to Bolin that the Sanitas Nut Food Company had earned a net profit of 12 to 15 per cent, per year, on $100,000, and that for the purpose of inducing the purchase of stock said W. K. Kellogg had written a letter to Bolin, in which he said:

“The business which is already established is paying twelve to fifteen per cent, on $100,000,”

With the expectation and intention that the statement should be used by Bolin to induce the purchase of stock by plaintiff and others; and that said statement was communicated to him, the plaintiff, by Bolin, and he was thereby fraudulently induced to purchase certain treasury stock, and afterwards certain other stock that had been previously sold to another person. The declaration contained four counts. The first two charged fraud and deceit upon both Kelloggs and claimed damages against both; the last two charged fraud and deceit and claimed damages against W. K. Kellogg only.

At the beginning of the trial, counsel for the defendants asked that the plaintiff’s counsel be required to elect whether they would proceed under the first two counts against both defendants or under the last two against Will K. Kellogg alone. This motion was denied, and the plaintiff’s counsel proceeded with the testimony. Bolin, who was plaintiff’s main witness, testified to conversations with both Kelloggs in which oral representations were made by each in the absence of the other to the effect that the Sanitas Nut Food Company was doing a profitable business. Bolin also said that Dr. Kellogg stated that one of said food preparations, Peptol, was earning $15,000 to $20,000 a year. These, however, he did not communicate to plaintiff. Bolin also testified that Dr. Kellogg referred him to W. K. Kellogg for a definite statement of the exact earnings, and he (Bolin) asked Dr. Kellogg to have his brother insert in a regular-business letter what the earnings were, so that he could show it to prospective purchasers of stock, and that he afterwards said to W. K. Kellogg:

“Mr. Kellogg, you understand in organizing a company — I want you to fix this just as you did with the Corn Flake Company, when we organized that. You want to write me a business 'letter and give in that letter the earnings so that I can show the people what they are buying, what business they are going into.
“ And he promised to get the earnings and give it to me in a letter.”

In this connection, we insert Exhibits 3, 4, and 5; Exhibit 5 being the one relied on as containing the fraudulent statement by W. K. Kellogg:

“September 21, ’06.
“Mr. Chaeles D. Bolin,
“c/r of J. W. Thatcher & Co. and General Delivery, Toledo and
“c/r of the E. E. Nelson & Co. and General Delivery, Columbus, Ohio—
Dear Mr. Bolin:
“After I left you Thursday night, the Doctor walked part way home with me and we continued the conversation for half or three quarters of an hour. The result is as follows:
“The Doctor agreed (positively this time) to accept twenty thousand dollars for his entire right and interest in Peptol, formulas, etc., for $13,750 of this amount to be paid in cash when the company is organized, and the company’s note for the balance, $6,250, payable in six months. The company is not to pay royalty.
“I think we are now on a basis where we can get together and do business quickly. Am writing Clague.
“My last proposition to the Doctor is what brought him to time. When I suggested turning over to him all my interest and letting him manage the deal to suit himself, he accepted, but later decided he wished me to continue to represent him in the company. I refused to act on the board of the company or have anything to do with the concern except to get it organized. The Doctor suggested one or two other parties whom he might have represent his interest, and I told him all right, to go ahead and fix things up to suit him, but after some lengthy and heated discussion the Doctor asked if I thought the company would pay him $20,000 in cash and he release his claim on royalty, and I told him I was quite sure they would. I feel quite confident that you, Mr. Clague, and all parties concerned will approve of the arrangement.
“ Just as soon as I can hear from you and Mr. Clague and know that everything is O. K. and satisfactory, we will proceed to organize the company and get to doing business right away quick.
“ Yours very truly,
“W. K. Kellogg*
“ WKK F
“ P. S. I believe I shall object to the assessment of a thousand dollars mentioned by you for Mr. Steele. I think you ought to be able to manage this matter in some other way and have so advised Mr. Clague.”
“Exhibit 4:
“ Columbus, Ohio, Sept. 24, ’06.
Dear Mr. Kellogg:
“Yours concerning Pan Peptogen at hand, I do not think the Doctor should raise his price. You will recall having said to me you thought $10,000 enough, and he once put $18,700 and now he wants $20,000, he made a great mistake in doing this. I still think $18,700 is all we should give and that you should retain your stock. I would not want to go into it unless you did. The success must be made and it is a great undertaking. However, if Mr. Clague is willing, I am, to pay him his last price. I hope his last figures are final. Mr. Steele must be taken care of as agreed. We cannot put through the deal, I am willing to pay Mr. Steele 1,000. Clague is willing to pay 1,000, and it is up to you. I do not want to go into the deal without him, he is a valuable man, and a brainy man. Let me know if you are willing. Will expect letter at Cincinnati, O., on this subject.
“Yours truly,
“C. D. Bolin.
“To Mr. W. K. Kellogg.”
“Exhibit 5:
“Sept. 27, 1906.
“ Chas. D. Bolin,
“Louisville, Ky.
“Dear Friend:
“ I have yours concerning Peptol. I do not want to appear obstinate or stubborn, but after giving the matter considerable thought I do not feel inclined to donate any of my $15,000 block of Peptol stock to Mr. Steele, and if the deal is to fall through for the reason that I will not comply with Mr. Steele’s demand, I think we will have to let it go. I have an option from the Doctor for his Peptol business. If obliged to do so, I can pay the Doctor October seventh for his option $20,000 worth of Corn Flake stock, two for one. I will do as much for Dr. Davis as either yourself or Mr. Clague, but I have the impression that Mr. Steele should be satisfied with what you have already offered him. If the deal is to be called off, kindly wire me promptly on receipt of this, at my expense. Papers are already being executed by the attorneys, but we can go ahead and organize it with Battle Creek people, without the assistance of a large amount of capital. The business which is already established is paying 12 to 15 per cent, on $100,000. If necessary to do so, I can handle the deal on my own account, without the assistance of any one, however, would like to have you in it, as I am confident it will be a money maker.
“With kind regards and best wishes, I am,
“Very truly yours,
“W. K. Kellogg.”

Bolin’s testimony as to the transaction with the plaintiff contains the following:

“ Receiving the letter of September 27, 1906, marked Exhibit 5, terminated my trip, and I immediately went home to St. Louis. I got the subscriptions. I used the word ‘subscriptions.’ I got the people to agree to go into it. There never was any written subscription taken by me. I used the letter to raise the money. I called this letter to the attention of Mr. Diel, the plaintiff in this suit. Up to that time I had not opened this matter at all with Mr. Diel. I saw him in what Í3 called the vegetarian restaurant on Pine street. It was where the Sanitarium foods were sold in St. Louis. I said: ‘ Mr. Diel, I have a proposition for you that is the best that I know of. I asked you to go into the Corn Flake deal and you did not. Now I have another one of the Kellogg propositions that is paying 12 to 15 per cent, already, and if you want to take some stock in it you can get in.’ And I reached in my pocket for the letter, and Mr. Diel says: ‘Well, what is that?’ I said: ‘It is Peptol.’ I took the letter out ot my pocket. I said: ‘ The business already established is paying 12 to 15 per cent. Here is Mr. Kellogg’s letter to that effect.’ Mr. Diel said he would like to go in, but he didn’t have the cash just then, but would have it later on. I said I could get the money for him. He said all right he would take $3,000 of the stock in the company. I started to hand Mm the letter, and he said: ‘ That’s enough, you have the letter ?’ And I said: ‘ Yes, I have the letter. Here it is for you to read.’ ‘Well,’ he says, ‘I will take $3,000 in the company on that basis.’ He said he had previously been a patient there. He knew the standing and reputation of the Kelloggs and of the Sanitarium. He said: ‘That is sufficient. I will take the stock.’ Later on he took $1,000 additional stock, making his subscription $4,000. I think that was in November. It was some of the stock, as I remember, that had been issued, and a gentleman wanted to put his money in something else just about the time it came. Mr. Diel took that additional $1,000. * * * The last $1,000 of the stock that Mr. Diel took was subscribed for by a man by the name of Saunders. The certificate was issued in the name of Mr. Saunders, but it was never delivered to him. He never paid anything on it. He indorsed the assignment of the certificate, and a certificate was reissued to Mr. Diel. The stock was sent to me in St. Louis with a draft attached drawn by Mr. W. K. Kellog. I paid the draft. I paid all of Mr. Saunders’ subscription — I mean what he had agreed to take. I had no written subscription for the stock from Mr. Saunders. I simply had his word.”

At the close of the testimony introduced on behalf of the plaintiff, his counsel voluntarily discontinued the case against Dr. Kellogg, and elected to proceed on the last two counts against W. K. Kellogg.

The foregoing outline of the case may be supplemented in some particulars in connection with the various assignments of error, which will be referred to in the order in which the defendant’s counsel have discussed them in the brief.

Election of Counts. It is unusual to include in a declaration counts charging one defendant only and other counts charging two defendants. But a plea was filed, and, if the joinder was objectionable, the technical point was waived. The plaintiff should have been required to elect, however. Strawbridge v. Stern, 112 Mich. 19 (70 N. W. 331). At the close of his testimony, Ms counsel announced “that he dismissed his suit as to John Kellogg and elected to stand on the last two counts only of his declaration.” This they had a right to do, and we do not discover that any objection was made to it. Counsel for defendant charge bad faith, and an attempt to prejudice the jury, by introducing the statements of Dr. Kellogg, which would have been inadmissible had the election been made at the beginning of the trial. We are of the opinion that bad faith and sharp practice are not so obvious as to warrant a reversal on this ground, and we also think that the testimony was not injurious, in view of the charge of the learned circuit judge, who instructed the jury to disregard it. Moreover, the case was submitted upon the statements of W. K. Kellogg alone, which seem to have been the only ones that were communicated to the plaintiff. It is highly improbable that any statements of Dr. Kellogg influenced the jury. That W. K. Kellogg made a false statement in the letter is practically undisputed, as is also the fact that it was communicated by Bolin to plaintiff, who rests his case upon it. If this was made with the intention that Bolin should use it to induce persons to take stock, and he did so use it in his transaction with plaintiff, thereby deceiving him, to his injury,, the plaintiff made out his case, and the court did not err in refusing to direct a verdict, unless the next assignment of error should be sustained.

Letter of September 27th. It is contended that this letter was not admissible:

(а) Because plaintiff did not read or hear it read.
(б) Because Bolin was not authorized to communicate a sentence of the letter, only.
(c) Because plaintiff should not have relied on an isolated sentence, when the contents of the letter showed that it was written for another purpose.

(a) We are of the opinion that the statute (3 Comp. Laws, § 9518) :

“ No action shall be brought to charge any person, upon or by reason of any favorable representation or assurance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized” — does not preclude plaintiff’s claim.

The jury found that this letter was written by defendant, with the intent that its contents should be used to induce the purchase of stock, and that the sentence in question was false. Furthermore, the purchase of stock was essential to the interest of the defendant, who was to acquire a #15,000 or #20,000 interest in a #100,000 company, if the stock could be sold. Not only is the case of Getchell v. Dusenbury, 145 Mich. 197 (108 N. W. 723), consistent with this view, but the cases there cited are in harmony with it. See Bush v. Sprague, 51 Mich. 41 (16 N. W. 222); Hess v. Culver, 77 Mich. 602 (43 N. W. 994, 6 L. R. A. 498, 18 Am. St. Rep. 421); Hubbard v. Long, 105 Mich. 442, 449 (63 N. W. 644). See, also, the later case of Massey v. Luce, 158 Mich. 128 (122 N. W. 514), which seems apropos to this question.

(6) Defendant’s claim that Bolin was not authorized to communicate a portion of the letter is without merit. They were engaged in an enterprise in which the defendant made a statement to be used by Bolin. It was not necessary to use the other statements, contained in the letter, and if defendant’s intent was fraudulent, as the jury found, it is enough if Bolin communicated the falsehood, whether he believed it or not.

(c) The plaintiff was justified in relying on this statement, as it was all he desired to know. Moreover, there is nothing in the letter tending to contradict or qualify it. It is apparently defendant’s notion that, inasmuch as a perusal of the letter might have indicated that it was written for another purpose than to be used to influence him, he could not have been justified in relying upon it. That is the best kind of a letter for such use, as Bolin and defendant seem to have understood, when they agreed that defendant should “ write a business letter, and give in that letter the earnings, so that he (Bolin) could show the people what they were buying, what business they were going into.” Defendant’s liability does not necessarily depend upon the good or bad faith of Bolin, who may have been a willing party to the fraud if no more.

Letter of October 1st. We agree with the learned circuit judge that a repetition in substance of the representation in the letter of September 27th tended to refute the claim that such representation was an inadvertence or mistake.

Testimony of Bolin. 5. Testimony of Steele et al. Bolin was allowed to testify to the amount of money secured by him from other purchasers of stock by the use of the representation in the letter of September 27th, and several such persons were allowed to testify that they made such purchases relying on said representations. While this may have tended to indicate a fraudulent intent on the part of Bolin, it was only upon the theory that there was complicity between him and defendant in the fraudulent act that it was admissible against defendant. We cannot say that such was not plaintiff’s theory, although Bolin was not made a party defendant. In our judgment there was enough evidence to go to the jury upon such a theory had he been a party, and we think that the cause should not be reversed on this point. The testimony was comparatively unimportant, and if inadmissible it could not well have harmed defendant.

Bolin’s Testimony as to the Value of the Stock. We are of the opinion that Bolin was competent to give testimony of the value of the stock. It was given with knowledge of all that had transpired up to the time the testimony was given, and. he appears to have been as well qualified as any one.

Plaintiff’s Last Purchase. The last hundred shares that plaintiff purchased were shares which one Saunders promised to take but did not. We think that the evidence fairly showed it to be a purchase of treasury stock, and, if the jury thought so, it was proper to include it in their verdict.

Conversation with Defendant. We think this testimony competent. It tended to show a sense of obligation consistent with plaintiff’s claim, though it was not necessarily so.

Refusal to Admit Certain Reports of Business. These were offered by defendant to show Bolin’s information regarding the business, contrary to his testimony. The secretary who made them was not sworn, and they were hearsay.

Corn Flake Business. The tenth point arose upon the refusal of the court to permit Kellogg to testify regarding the form in which he furnished information concerning the business of the Corn Flake Company. We think it was immaterial.

Report of Manager. Defendant claimed that Exhibit N was a report of the manager of the business, of date of December 18, 1906, and that Bolin was present and heard it read.

Letter from Kellogg to Bolin, April 23, 1906. We are of the opinion that no possible harm resulted to defendant from the exclusion of these documents.

Refusal to Direct Verdict. 14. Motion for New Trial. There is no occasion to discuss these points, further than to say that no error appears.

The judgment is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: McAlvay, J.

text:
    HAYES v. WABASH RAILROAD CO.
    1. Appeal and Error — Saving Questions for Review — Variance.
    The point that a variance appears, between proofs and declaration, cannot be raised on error, without presenting it to the court below.
    2. Carriers — Principal and Agent — Authority of Ticket Agent.
    Ticket or shipping agents of common carriers have authority to make all usual and ordinary contracts of carriage and shipment, and the public may assume that they are authorized to make such ordinary and usual contracts as they attempt to execute.
    3. Same — Transportation—Contracts—Ticket Agents.
    A city passenger and ticket agent is authorized to contract to carry several persons promptly from his station to another city and to guarantee them to connect with the train of another company at an intermediate station.
    4- Same — Parol Evidence — Ticket.
    The contract of carriage may be shown by parol, and is not limited to the terms of the ticket.
    6. Damages — Carrier—Special Claims.
    The expense of hiring a special train may be recovered ot a carrier for failure to make a promised connection, where the ticket agent was informed in advance of the necessity and purpose of arriving on time.
    6. Evidence — Time-Table.
    Since the passenger made his arrangements with the ticket agent who had apparent authority to make arrangements, evidence was inadmissible that defendant’s public schedule stated that the time of arrival and departure of trains, or connections with other roads, were not guaranteed.
    Error to Wayne; Mandell, J.
    Submitted June 17, 1910.
    (Docket No. 80.)
    Decided November 11, 1910.
    Assumpsit by Edward Hayes against the Wabasb Railroad Company for breach of a contract of carriage. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Hunt & Altland, for appellant.

      J. Lawrence Hibbard (Stevenson, Carpenter & Butzel, of counsel), for appellee.
   McAlvay, J.

Upon writ of error this case is brought to this court for review by defendant, asking that a judgment recovered against it be reversed, for reasons hereafter stated. The suit was brought by plaintiff to recover certain damages claimed to have been sustained by him on account of the failure of defendant to perform a certain special contract of carriage, made and entered into between plaintiff and the agent of defendant company in. Detroit having entire charge of its ticket office in the city, being styled the “city passenger and ticket agent,” and who has been so employed for many years. Plaintiff having urgent business before one of the departments at Washington, D. C., requiring his presence with his attorneys on July 20, 1904, at 10 o’clock a. m., and desiring to use the least time possible in making the trip, claims that he stated the circumstances to this passenger and ticket agent of defendant at Detroit, several days prior to that date, desiring to know if the defendant company, whose train left later than a Michigan Central train, would, without fail, furnish transportation and carry the party from Detroit to arrive at Washington before the required time; that if this could not be done he would take the Michigan Central; that both parties understood that the making of the connection at Buffalo was essential to make the trip within the time specified; that the agent promised to convey and transport plaintiff and his party from Detroit to Washington in time for the hearing and guaranteed and agreed to make the connection at Buffalo with the Pennsylvania Railroad Company without fail; that, relying upon this agreement, plaintiff afterwards on July 18, 1904, purchased five tickets and berths for himself and party at the office of defendant company in Detroit from such agent for transportation to Washington, D. C., and proceeded upon the journey; that at Buffalo the train missed connections, and plaintiff, in order to arrive at his destination on time, chartered a special train at Buffalo at an expense of $140, and succeeded in catching the train for Washington at Olean; that on that train he was required to pay a further sum of $4 for berth accommodations. For the recovery of these sums this suit was instituted. Upon the trial there was a dispute as to whether the claimed special contract was .in fact made. This question was submitted to the jury and determined in favor of the plaintiff. A motion to direct a verdict for defendant was denied. The jury found a verdict for the amount claimed by plaintiff. Defendant made a motion for a judgment in its favor non obstante veredicto, which was denied, and a judgment was duly entered for plaintiff. The errors assigned relate to the denial of these motions, refusals to charge, portions of the charge as given, and the acceptance and rejection of evidence. Of these many errors assigned, it will be necessary to discuss but a few.

Defendant claims in its brief that there is a fatal variance between the declaration and the proofs of the plaintiff. We do not find that such a claim was made in the court below. It is well settled that this question cannot for the first time in a case be raised in this court.

The question as to whether the special contract of carriage was made by defendant’s agent, as claimed by plaintiff, has been settled by the jury and will be accepted by this court as an established fact.

The question of importance in the case relates to the authority of the agent to make this contract. It is vigorously denied on the part of defendant that this agent had authority to make the contract claimed by plaintiff, and insisted that no testimony was introduced by him showing such authority; that the evidence on the part of defendant upon the question was positive and undisputed.

It is established by the authorities that the ticket or shipping agents of common carriers have authority to make all usual and ordinary contracts of carriage and shipment, and that the public has a right to assume that they are authorized to do whatever they attempt to do. Rudell v. Transit Co., 117 Mich. 568 (76 N. W. 380, 44 L. R. A. 415), and cases cited. From that case we quote:

“Only when contracts are of an unusual and extraordinary character is the shipper put to inquiry as to the agent’s authority. Hutchinson on Carriers, § 267; 5 Am. & Eng. Enc. Law (2d Ed.), p. 351. A guaranty to a theatrical troupe that it would arrive at a given time is held valid. Foster v. Railway Co., 56 Fed. 434. One writer says:
" ‘As common carriers especially at the present day transact the greater part, if not all, of their business with the public through agents and servants, it is plain that the public have a right to assume that they are authorized to do whatever they attempt to do.’ Lawson, Contracts of Carriers, § 229.
“The rule does not include contracts so unusual and extraordinary that they cannot reasonably be included within the general authority. * * * Many cases like the present and that of the theatrical troupe are constantly arising, where delivery at a certain time is essential. When the shipper and the carrier agree through its agent upon a date of delivery at destination which gives the usual time to make the trip, such contract cannot be held unusual or extraordinary and is within the general authority of the agent, * * * and when the contract is a reasonable one it must be upheld, in the absence of notice of lack of authority.”

The facts in the case of Foster v. Railway Co., cited supra, were as nearly identical as possible with the case at bar. The contract made with the agent of the carrier was the same as that made in this case. That court said:

“The transportation was not, and was not to be, any different from what any party might have had upon the same train. The substance of the guaranty was that such connection should be made at Crawfordsville as would take the troupe through in time. This was nothing undue, but was what was due, and if it was not undue it was not unreasonable.”

The contract in the case was to carry plaintiff and his party promptly from Detroit to Washington upon the regular train, to arrive there at the time required, guaranteeing the connection at Buffalo. The agent of defendant company who made this agreement was its passenger and ticket agent. We are unable to distinguish this case from Rudell v. Transit Co., supra. The court was not in error in holding and instructing the jury upon this proposition that, if they found that the contract as claimed by plaintiff was made, he had a right to rely upon it in this case.

Argument is made that the contract between these parties is determined by the ticket issued at the time, claimed to have been a reduced rate ticket, under which plaintiff cannot recover. The record does not warrant the claim that this was a reduced rate ticket. This passenger and ticket agent testified that it was the regular rate to Washington given at the time by all the railroads. The authorities already cited hold that the contract of carriage may be shown by parol, and plaintiff’s proofs tended to show that it was made several days before the tickets were purchased. This is also held in Erie R. Co. v. Winter’s Adm’r, 143 U. S. 60 (12 Sup. Ct. 356).

It is contended that the damages recovered are special, and could not have been within the contemplation of the parties at the time of making the contract. It appears from the record that defendant’s agent was fully and repeatedly informed of the exigency that plaintiff and his attorneys must be in attendance before one of the departments at Washington on July 20th, in the forenoon, on a matter of importance, and the agent so testifies. It is true the department and the case were not mentioned. The notice, however, was sufficiently explicit for the purposes of this case. The entire claim is for money spent by plaintiff to accomplish exactly what defendant failed to do, and the particular risk was expressly assumed by defendant as the verdict indicates.

Defendant discusses but two other assignments of error. The court refused to admit in evidence defendant’s timetable for the purpose of showing that it contained a paragraph stating the time of arrival and departure of its trains was not guaranteed and the company did not hold itself responsible for failure to make connections, to show the limited liability of the company, and as bearing upon the credibility of the agent. The plaintiff went to the proper place for his information, and made his contract with the agent who assumed the authority to make it. He had a right to rely upon the representations of the agent and the contract entered into, and was under no obligation to consult time-tables or public schedules. Van Camp v. Railroad Co., 137 Mich. 471 (100 N. W. 771). For these reasons it was properly excluded and as bearing upon the agent’s credibility was not admissible.

The other error relates to the claimed inconsistencies contained in plaintiff’s testimony, and the charge of the court as to what the contract was which was relied upon by plaintiff. The testimony of plaintiff taken together does not present to us the difficulty complained of. In fact, it appears to us both consistent and clear in stating the terms of this agreement. The contract relied upon was to transport plaintiff and his party to Washington by a certain time, by way of Buffalo, and guaranteeing to get them to Buffalo in time for the connection for Washington. It is obvious that the connection at Buffalo was a necessity in order to fulfill the contract, and it was the failure to make this connection in which defendant defaulted. Defendant does not appear to grasp the fact that both propositions were necessarily included in the contract which the jury found was entered into between the parties. The portions of the charge of the court complained of are consistent with this understanding.

We find no error in this case.

The judgment is affirmed.

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


author:
Blair, J. Stone, J.
      Hooker, J.

text:
    PEOPLE v. CURRY.
    1. Criminal Law — Constitution — Trial by Jury — Directing Verdict.
    In a prosecution for a violation of the local-option act, it is an invasion of respondent’s constitutional right to a trial by jury for the court to instruct the jury that it is their duty to render a verdict of guilty, and, without permitting them to retire or deliberate, direct the clerk to take the verdict. People v. Doyle, 160 Mich. 433 (135 N. W. 358.)
    3. Intoxicating Liquors — Local-Option Act — Furnishing Liquors.

      Qucere: Does it constitute an unlawful furnishing of liquor, under the local-option law, for several persons in a county where the law is in force to contribute to a fund for the purchase of beer from a county where it may be sold, and to help themselves from the quantity purchased and held in common ?
    Exceptions before sentence from Ionia; Davis, J.
    Submitted June 2i, 1910.
    (Docket No. 141.)
    Decided November 11, 1910.
    John Curry was convicted of violating the local-option law.
    Reversed.

      John Nichol, for appellant.

      Dwight O. Sheldon, Prosecuting Attorney, and John E. Bird, Attorney General, for the people.
   Blair, J.

A number of young men of Ionia county, where the local-option law was in force, arranged to obtain a quantity of lager beer from Grand Rapids, where such law was not in force. The arrangement was, according to the undisputed testimony, that each of the parties thereto, including respondent, was to contribute $1 to a fund which was to be used by respondent in purchasing beer, cigars, and sandwiches and paying respondent’s expenses. The refreshments, when secured, were to be delivered to the contributors at the fair grounds in the city of Ionia. In accordance with the arrangement, respondent went to Grand Rapids and purchased a half barrel and a case of beer, which was consigned and shipped to him by express, received by him, and by him caused to be transported to the grand stand at the fair grounds, where any of the contributors to the fund helped himself to as much as he chose and as often as he chose, without reference to the proportion that he had paid for. The record is silent as to whether respondent paid the dollar which he was to pay or whether he drank any of the beer, although he remained at the fair grounds until the next morning and shipped the empty half barrel and bottles to Grand Rapids. The circuit judge directed a verdict of guilty, and from such verdict respondent appeals, on the ground that the court should have directed a verdict of not guilty.

Respondent’s counsel takes the position that, since the purchase of the beer was made in a county where such purchase was lawful, and the evidence shows, as he alleges, that the respondent merely acted as the agent of the others in the shipment and delivery of the beer, he was guilty of no offense and was entitled to an instructed verdict. There would be force in this contention if the evidence disclosed that respondent had no interest in the beer and merely purchased with the money furnished to him by individuals and delivered to each of such individuals the amount of beer paid for and belonging to him. People v. Converse, 157 Mich. 30 (121 N. W. 475). Such was not this transaction. The witness Miller testified:

“ Curry was to go down and get the beer.
“ Q. What was he to get out of it ?
“A. He wasn’t to get nothing out of it. He was to get his expenses. He was to contribute the same as the rest of us, $1. I think we got a rebate for it, 10 cents, something like that. Somebody gave it to me the next day at Lynes’. I am not sure, I got 10 or 15 cents. He figured out the expense of the hack and everything and gave us the rebate. I don’t know what the beer cost, nor what the hack hire was, and I never asked Curry his expenses. * # #
“Q. As I understand it, you boys were to put up $1 apiece and somebody was to go down to Grand Rapids and get some beer ?
“A. Yes, sir. It was agreed that whoever went should be paid his expenses. At the time we put up the dollar apiece I didn’t expect to get any money back. It was to pay for the picnic and the expenses of the parties who purchased the beer and sandwiches and cigars. That was what the dollar apiece was contributed for. The money was placed in the hands of either Bowersox or Curry. Each man helped himself to the beer he wanted. I don’t know whether any beer was left in the keg or whether there wasn’t. Each man had what he wanted. I considered it my own beer I was drinking. I didn’t purchase any beer from John Curry, nor did he give me any, or furnish me any except as he ordered it from Grand Rapids.
“Q. By Mr. Sheldon: No attempt whatever at any equitable distribution of this beer, was there ?
“A. No, sir.”

It is clear, therefore, that, under the agreement, respondent had the same interest in the beer, sandwiches, and cigars that the others had, and the testimony of all of the participants demonstrates that it was not the intention that the beer should be proportionately divided between them, but should be drunk indiscriminately by all, in accordance with their respective thirsts and holding capacity. It is clear that if each of the parties had received individually a certain number of quarts or bottles of beer as his own property, and each had poured such beer into a receptacle to be drunk in common, he would have been guilty of furnishing such beer to the others, in violation of the local-option act. People v. Myers, 161 Mich. 40 (125 N. W. 701).

It seems equally clear to us that where, as in this case, the beer is undivided and drunk in common, each person is furnishing a portion of the beer paid for by him to others, and that each of the parties to the agreement engaged in drinking the beer in question was guilty of a violation of the loeal-option law. We are also of the opinion that, whether respondent had any pecuniary interest in the beer or not, or whether he drank any of it, he would be equally guilty with the others, if he procured the beer for them to be used as it actually was used.

We feel obliged to reverse this case, however, for the reason that in directing the verdict the court invaded the constitutional rights of respondent. In his instructions to the jury the court said, among other things:

“The Court: I think the way the case stands, gentlemen, it is one for the court to dispose of. I would much rather submit the matter to the jury if based upon any facts that might warrant the court in submitting it. * * * In the judgment of this court the title and control of that property was in Mr. Curry, and by permitting others to take from what was then, in part at least, his individual property, it has been a violation of the law, and it would be your duty to return a verdict of guilty on all three counts. Take the verdict, Mr. Clerk. (Yerdict received.)
“The Court: I think, in view of what our court have held in this class of cases, there will be an order entered giving you until the first day of next term of this court to have this matter passed upon by the Supreme Court; in the meantime, the respondent will remain upon the same recognizance for his appearance here until the first day of the next term of this court.”

These instructions really made the verdict that of the court, and not of the jury, and compel a reversal of the conviction. People v. Doyle, 160 Mich. 423 (125 N. W. 358). In view of the important nature of the constitutional right invaded, we have felt it to be our duty to consider the point, although it is not raised by respondent.

The conviction is reversed, and a new trial ordered.

McAlvay, J., concurred with Blair, J.

Stone, J.

I concur in the result because of the directed verdict.

Ostrander, J., concurred with Stone, J.

Hooker, J.

I concur in the conclusion reached by Mr. Justice Blair upon the ground that, in directing the clerk to enter a verdict without giving the jury an opportunity to retire, the learned circuit judge gave the jury no opportunity to consider the case and disobey the instruction. The case of People v. Collison, 85 Mich. 105 (48 N. W. 292), is a case directly in point, and established the rule in this State that, in a case of misdemeanor, a party has a right to expect, if not to ask, a jury to disobey the instructions of the court to find a verdict of guilty, and that the trial court must give the jury the opportunity of doing so, though we have held that a defendant was not entitled to an instruction that they might disobey the instruction of the court to find a verdict of guilty, in the case of a misdemeanor. See People v. Gardner, 143 Mich. 116, 117 (106 N. W. 541). The Collison Case has been followed since. See People v. North, 153 Mich. 616 (117 N. W. 63).

I am not convinced that, where several persons send one of their number to purchase beer at a city where the purchase is lawful, and it is received by them via an express company, the one who purchased becomes liable for furnishing to one of their number, who drinks more than his proportionate share, as measured by the cost of the beer and their several contributions to the fund expended for the beer; nor am I sure that the evidence warrants the conclusion that one or more did so. The beer being owned in common, each had a right to help himself to his share, and another would not be liable as a furnisher of beer merely because one took more than he paid for. Apparently, my Brother Blair’s opinion rests upon the expectation of the parties that this beer, paid for and owned jointly, would or might not be accurately divided — a proposition that I doubt. On the other hand, I am not sure that I would withhold my assent to the doctrine that one who causes beer to be shipped to himself, or himself and others, with the understanding with his fellows that it is to be divided in proportion to their respective contributtons or to be used in common, might be guilty of unlawfully furnishing beer, if the beer was so delivered and shared by himself and others. I am unable to distinguish such a case from People v. Lapham 162 Mich. 394 (127 N. W. 366 ). Such would seem to be a clear case of furnishing, wherever he might get the beer.

I think, also, that such act is not within the decision in the case of People v. Converse, 157 Mich. 30 (121 N. W. 475). That case holds that the shipment by express from a county in which the selling of beer is lawful, to a purchaser residing in a county where it is prohibited, and the delivery there by the agent of the express company in the due course of business, does not make such express agent the keeper of a place where liquor is given away and furnished, or of unlawfully furnishing the same, which were the charges upon which the defendant was tried. It does not hold that a private citizen living in a “wet” county, may by agreement go and procure liquor, in his own county, or anywhere else, and bring it or have it brought into the “ dry ” county, and deliver or cause it to be delivered therein to another and not be guilty of “furnishing” within the local-option act. The Converse Case protects the agent of the express company, but it in no way sustains the claim that a party procuring and delivering liquor personally or in any other way within the dry county may escape the law against furnishing because he does it at the request of or under employment by the person for whom it is procured, and therefore was an agent. An agent may violate the law against furnishing as well as another, in my j udgment. The acts done in the “ dry ” county constitute the breach of the law. The case holds that the law, being penal, cannot be extended to the act of the express company and its agent in the course of business. This follows the rule requiring strict construction of penal statutes.

The conviction should be set aside, and a new trial ordered.


text:
    PEOPLE v. KEMPPAINEN.
    1. Abatement and Revival — Criminal Law — Bastardy Pro- • OEEDINGS.
    Neither tinder the common law nor by the provisions of chapter 153, 2 Comp. Laws, does a proceeding for the maintenance of an illegitimate child survive after the death of the respondent.
    2. Same — Death.
    At common law the cause of action survived if the injury done affected property rights; if the wrong affected the person alone the action abated.
    Certiorari to Houghton; Streeter, J.
    Submitted June 27, 1910.
    (Docket No. 147.)
    Decided November 11, 1910.
    Bastardy proceedings against Peter Kemppainen. A judgment for plaintiff is reviewed by defendant on writ of certiorari.
    Judgment and proceedings abated.

      John KiisTeila and P. H. O’Brien, for appellant.

      William J. MacDonald, Prosecuting Attorney, for the people.
   McAlvay, J.

Defendant was adjudged to be the father of an illegitimate child, before the circuit court for the county of Houghton, and to stand charged with its maintenance until it arrived at the age of 14 years. The order and judgment provided for the payment of money, the furnishing of a bond, and other details usual in such cases, and, in default of compliance therewith, he to be committed to jail until such bond was given. A motion for a new trial was denied, and the case was removed by defendant to this court for review upon writ of certiorari. Sixty days after the return to the writ was made to this court there was filed a notice to the prosecuting attorney of the suggestion of the death of the defendant upon the record of the court in this cause, which notice further states:

“ And it is hereby ordered that Andrew Bram be and is hereby substituted as defendant in said cause, instead of Peter Kemppainen, deceased.”

The intention, without doubt, was to suggest of record the death of defendant, with permission to Bram to defend as his legal representative, and it will be so treated by this court.

The question of the effect of the defendant’s death upon this action is not discussed in the briefs. To a suggestion to the attorney general that a brief upon the question would be received, a reply has been returned that he had no desire to be heard. The question presented is whether the right of action under chapter 153, 2 Comp. Laws, survived. In the investigation of the authorities in the United States, we find two cases where practically the exact question was involved under proceedings provided by statutes similar to chapter 153, 2 Comp. Laws; both holding that bastardy proceedings abate upon the death of the defendant. McKenzie v. Lombard, 85 Me. 224 (27 Atl. 110); Clements v. Durham’s Adm’rs, 52 N. C. 100. In the Maine case, the death occurred during the pendency of the proceedings, but before trial. That court said:

“No judgment is sought for or is obtainable against property. The process, though held to be a civil proceeding, is criminal in form, and is an extraordinary means to compel a father to assist in the support of his illegitimate child, or suffer imprisonment as a penalty for his neglect to do so. There is no fitness in the proceeding that would adapt itself to the principle of survivorship. If the pending action survives, then the cause of action would survive as well, and the process could be originally instituted against the administrator of the deceased. * * * The incongruities that would beset such a proceeding are obvious enough. It would be a strange sight to see an administrator arrested, required to give a bond, be put on trial, and perhaps imprisoned for an act of bastardy committed by the party officially represented by him.”

The reasoning of the North Carolina case is along the same lines. In that case the proceedings were instituted against the representatives of the deceased putative father, being in fact the suppositious case used by the court in McKenzie v. Lombard, above quoted, but a better illustration, as there were two representatives, who were proceeded against.

Such a right of action would not survive at the common law.

“The true test was whether the injury on which the cause of action was based affected property rights, or affected the person alone. In the former case the cause of action survived, while in the latter it abated.” 21 Enc. PL & Prac. p. 313, and cases there cited.

There is no statute in Michigan which provides for such survival. In our investigation, we have found in one State (Indiana ) by statute such right of action survives, “ with like effect as if such father were living, except that no arrest of such personal representative shall take place, or bond be required.” See State v. Williams, 8 Ind. 191. In the absence of a statute, we find no authority holding that the right of action in this case would survive. Upon the death of defendant it abated, and these proceedings, and the order and judgment brought here for review by reason thereof, became of no force and effect.

A judgment will be entered accordingly.

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


author: Ostrander, J.

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    WIPFLER v. WARREN.
    1. Attorney and Client — Lien—Judgment.
    The law creates the lien of a solicitor upon the judgment or fund resulting from his services.
    3. Same — Reducing Claim to Judgment — Termination oe Lien. An attorney’s lien is lost by reducing his demand to judgment.
    3. Same — Substitution.
    A solicitor may not complain of a substitution of solicitors if the order of substitution preserves his lien.
    4. Same — Determination oe Lien — Equity Jurisdiction.
    A court of chancery, after rendering a decree for defendants in a stockholder’s suit, and ordering the receiver, who was appointed pending a determination of the facts, to account for funds in his hands, may protect the lien of defendants’ solicitor on said fund in the receiver’s hands, and on motion of defendants to substitute solicitors, tendering an issue as to the amount due their solicitor, the court has power to determine the amount.
    5. Equity — Courts—Jurisdiction — Transitory Actions — Situs of Property.
    Complainant filed a bill for an accounting and other relief in the county of her residence, representing that in a suit by her husband to establish his interest in a corporation, a decree had been entered for the defendants; that the complainant who was the receiver in the cause, although ordered to account for property in his hands had failed to do so; that the defendants had, on motion, substituted a solicitor for their original counsel, whose lien the order of the court, made on such motion, preserved; that an issue of fact framed by said court in chancery as to the amount due defendants’ solicitor was joined and determined by order of the court; that the complainant later executed a mortgage upon property in the county of Wayne to pay an alleged claim against the defendant corporation of her husband, one of the defendants who had assigned the claim to a third party, also a defendant in the suit. The bill prayed that the respective rights of the parties be determined, the order determining the amount of the solicitor’s lien vacated, and the real estate mortgage be canceled. Held on pleas to the jurisdiction, that the Jackson cirouit court has no jurisdiction over the cancellation or foreclosure of a mortgage upon real estate situated in Wayne county, and complete relief could not therefore be rendered upon the claims of the defendants based on the instrument. .
    Appeal from Jackson; Parkinson, J.
    Submitted June 21, 1910.
    ( Docket No. 17.)
    Decided November 11, 1910.
    Bill by Lucy "Wipfler against Fred H. "Warren, Charles R. Robertson, Ross A. Rastall, Detroit Pattern Works, Charles E. Wipfler and J. Louis Horn to obtain an accounting, a determination of the several claims of defendants, for a receiver and the dissolution of defendant corporation. From a decree for defendants, complainant appeals.
    Affirmed.

      Grove H. Wolcott, for complainant.

      Charles B. Bobertson (Choate, Webster, Bobertson & Lehmann, of counsel), for defendants.
    Pending the suit of Charles Wipfler, complainant, v. Detroit Pattern Works, Lucy Wipfler, Charles E. Wipfler, and Louis Horn, defendants, to establish the rights of complainant in defendant corporation, the circuit court for the county of Wayne, in chancery, had, through its receiver, sequestered the property, or some of the property, of said corporation. After a decree had been entered in this court (140 Mich. 677 [104 N. W. 545, 112 Am. St. Rep. 430]), such proceedings were had in the court below that Charles Wipfler, who had been appointed receiver and who had filed a bond as receiver, was, on or about April 10, 1906, directed to pay the sum of $3,762.78, found to be in his hands as such receiver, to the Detroit Pattern Works. This order and decree of the said court neither he nor his surety, it appears, has ever performed. On or about January 7, 1907, a motion was entered in said cause in the said circuit court by defendants, or some of them, for an order substituting William C. Gottman as solicitor for defendants in the place of Fred H. Warren, who had been their solicitor. This motion came on to be heard in said court, and at said hearing it was represented to the court by affidavits and by oral testimony on the part of the defendants that said Warren had agread to do all the legal work in connection with said litigation to its final determination for $500, and to pay all the costs, “such as briefs, records, etc.;” that said Warren had been paid $550, and refused to consent to the substitution of solicitors until he had been paid a further sum. On the part of said Warren, it was denied that he agreed to perform the said legal services for the sum of $500 or any other specified sum, or ever agreed to pay out of said sum the costs for records, briefs, etc., or any other costs. The services which had been rendered and their value, and whether or not any such agreement was made, and the amounts of money which had been paid to the said Warren, were submitted to the court, and the court on January 7th made and entered a decree to the effect that said Warren made no such contract as was alleged; that the suit had passed to a final decree, and all that remained to be done was to collect the money from the receiver; that the reasonable value of the services rendered by such receiver was $1,500; that his disbursements were $167.43; that he had received certain sums from the defendants and collected certain other sums which he had legally and properly applied toward the payment of disbursements and fees; that there was due to him the sum of $651, for which sum he was entitled to a first lien upon the decree in said cause and the moneys payable .under said decree. The receiver and his surety were ordered to pay this amount to Warren forthwith. A claim of appeal from said decree was made and filed. Various periods of extension were granted by said court of the time to settle a case on appeal. The appeal was never perfected, and the decree of January 7,1907, aforesaid, became absolute on or about August 8, 1907. It further appears that Charles Wipfler, complainant in the action referred to, claimed that the defendants in said action were indebted to him for services, which claim, or a part of it, was assigned to one Charles R. Robertson of the city of Detroit, who thereby began a suit in assumpsit in the Wayne circuit court to recover the same against the Detroit Pattern Works, Charles E Wipfler, and Lucy Wipfler, and at the same time garnished the surety of the receiver. Lucy Wipfler appeared in said cause, but later, by an arrangement and agreement, made in writing October 29, 1908, Lucy Wipfler agreed that, if she or the Detroit Pattern Works should obtain a judgment against the receiver and his surety, she would pay the sum of $1,500 out of the money so recovered to a trustee named in said agreement to settle the said demand, and she made a mortgage upon certain real estate situated in the county of Wayne to secure payment of $1,000 of the said $1,500 to the said trustee. Later a mortgage upon another description of property was substituted for the mortgage first given. This arrangement was in settlement of the demand so asserted by said Robertson in said suit, and the suit was discontinued.
    The matters referred to being in the condition stated, Lucy Wipfler removed from Wayne county to Jackson county, Mich., and in the latter county, on September 21, 1909, she filed her bill of complaint and made the Detroit Pattern Works, Charles E. Wipfler, J. Louis Horn, William C. Gottman, Ered H. Warren, Charles R. Robertson, Ross A. Rastall, parties defendant, asking that they answer the bill; that an accounting might be had to determine the rights of herself, the said Charles E. Wipfler, and J. Louis Horn to the property and effects of the Detroit Pattern Works; that the claims and demands and asserted liens on Warren, Gottman, Robertson, Rastall, trustee in the mortgage, and Charles Wipfler upon said assets be considered, and, if found to be invalid, so declared, and, if valid, that decrees determining their nature, validity and extent be entered; that a receiver be appointed to discover and collect the property and effects of the Detroit Pattern Works (which are alleged to consist only of the money due from the receiver); that a decree be entered formally dissolving the corporation known as the Detroit Pattern Works, and distributing the assets to the persons entitled thereto. It is charged that the arrangement by which the demand asserted by Robertson was liquidated, and a part of it secured, was fraudulent. The facts here stated are not in dispute.
    To this bill of complaint Fred H. Warren filed his plea to so much and such parts of the bill as asked any relief against or sought a recovery from him, setting up in the plea some of the facts to which reference has been made, including the decree of the circuit court for the county of Wayne, in chancery, establishing his demand and lien. The defendants Robertson and Rastall also filed a plea to the effect that the subject-matter, in so far as such defendants were interested, was not local, but that the bill as exhibited, in so far as they were interested in it, related to and affected lands and real estate in the county of Wayne. The defendant Robertson also filed an answer in support of his plea to the jurisdiction; the essential allegation of which, in so far as the point to be considered is concerned, is that the bill in effect was filed to set aside and cancel a real-estate mortgage on real estate in the county of Wayne, quieting the title thereto. Later the bill was dismissed as to the defendant William C. Gottman. It was taken as confessed by the Detroit Pattern Works, Charles E. Wipfler, J. Louis Horn, and Charles E. Wipfler, as president of the Detroit Pattern Works, for want of appearance. But upon the pleas of the said Warren and the said Robertson and Rastall, respectively, it was determined, and a decree to that effect was made and entered, that the court had no jurisdiction with respect to the right of the said Warren to a lien upon the decree rendered in the original cause. It was further ordered and adjudged that the court had no jurisdiction with respect to the said defendants Robertson and. Rastall because the matters concerning said defendants were subject only to the jurisdiction of the circuit court for the county of Wayne. The pleas therefore were allowed, and, as to those defendants, the bill dismissed with costs. From this decree, the complainant has appealed to this court.
    As to the decree in favor of Fred H. Warren, it is contended that the decree of the circuit court for the county of Wayne, establishing the sum due to said Warren and declaring it to be a lien upon said original decree and the moneys due thereunder, was beyond the power of the court to make and enter; that the only issue which the said court had power to determine was whether Gottman should be substituted for Warren, or whether the said defendants were entitled to such substitution; and that the only order the judge should have made was that there should be substitution when the controversy as to Warren’s fees was settled.
    As to the defendants Robertson and Rastall, it is contended that no real estate or interest in lands is involved in the controversy; that one of the purposes of the suit is to determine the validity of the agreement made by complainant with respect to the lien of said defendants upon the original decree and the interest of the defendant Robertson in that decree, a proceeding which is transitory, and can be brought in the county of complainant’s residence ; that, if the agreement by which the mortgage was procured was fraudulent, the mortgage given as collateral security, for the performance of it must of necessity fall with it, but that the nature of the bill must be determined from the relief asked, which is only that the claim of lien of said defendants upon the said original decree be adjudicated with reference to its validity or invalidity.
   Ostrander, J.

(after stating the facts). The law creates the lien of a solicitor upon the judgment or fund resulting from his services. As a general rule, if the demand is reduced to a judgment against the client, the lien is lost, and, as a general rule, a solicitor may not complain of a substitution of solicitors if the order of substifcution preserves his lien. Jones v. Muskegon Circuit Judge, 95 Mich. 289 (54 N. W. 876). The original decree required the receiver to pay a fund, the amount of which was also established, to one of the clients of Mr. Warren. Complainant here claims to be owner of the fund. The decree determining the amount of the lien of Mr. Warren was, in effect, a modification of the original decree, was made in the same cause upon the determination of an issue of fact which was tendered by the clients of Mr. Warren, of whom the complainant here was one. It may be remarked that she proposes in her present suit to submit the identical issue to the circuit court in chancery for the county of Jackson. We have no doubt of the power of the court which, made the original decree to so direct its receiver that the lien of the solicitor should not be impaired, and find no reason or authority for denying the power to determine upon the application of the fund owners the extent of the lien.

As to the contention respecting the plea of defendants Robertson and Rastall, it is apparent, other considerations aside, that the circuit court in chancery for Jackson county cannot render complete relief. It cannot entertain a cross-complaint to foreclose the mortgage nor enter a decree which shall operate as a strict foreclosure, nor compel a discharge of the mortgage. The bill of complaint is directed to securing a release of the mortgage upon land in Wayne county, a result which, whatever the decree of the court may be, must be finally brought about by a proceeding in the county in which the land is situated. This court is not called upon to determine, but it is proper to suggest, whether the Jackson county court ought to make any order, determination, or decree respecting the fund which is in the hands and under the control of the Wayne county court; whether the receiver and his surety can be discharged of responsibility under an existing decree by obeying, not the order of the court appointing the receiver, but the order of some other court. It is a plausible argument that only the rights of certain persons as between each other are involved. But to the extent that we are called upon to determine those issues, effective and complete determination involves disposition of a fund still in the hands of a receiver of a court other than the court asked to render the required decrees.

The decree is affirmed, with costs to appellees.

Bird, C. J., and Hooker, Blair, and Stone, JJ., concurred.