author: MOORE, J.

text:
    FEIGE v. BABCOCK.
    1. Partnership—Sale—Right to Accounting.
    The right of a member of a partnership to an accounting with a copartner in respect to the partnership business, and in respect to transactions before the formation of the partnership, whereby the amount to be paid by the former for his interest was to be determined, is not defeated by a sale of their respective interests in the firm property and business to a third person, where neither contemplated that such right would be lost by the sale.
    2. Same—Contracts—Intent—Equity.
    Although a literal construction of the contract by which the partner acquired his interest would permit him to be charged in an accounting with a given proportion only of the cost of the partnership property as shown by vouchers, moneys actually paid out in the business prior to the sale to him, for which no vouchers can be produced, but of which there is legal evidence, may be considered in the adjustment, if it appears from the whole contract that both parties intended that the amount to be paid should be determined by the sum so invested.
    3. Same.
    A member of a partnership is entitled, upon an accounting after a sale of the interests of both partners, to a credit for the amount of the firm debts paid by him in excess of the amount assumed by the purchaser of their interests.
    4. Same—Costs—Interlocutory Decree.
    The costs, in proceedings for an accounting between partners» should await the final decree, although the interlocutory . decree upon reference to a commissioner is most favorable to the complainant, where the amount of the interests involved cannot be ascertained until the commissioner makes his report, and the defendant has obtained affirmative relief by way of a reformation of the partnership contract; especially, if the provisions of the decree prescribing the manner of taking the account are modified upon appeal.

      5. Accounting—Right to Take Testimony—Laches.
    Where several years elapse after the commencement of a suit for a partnership accounting, and the record of the proceedings prior- to a reference to a commissioner to state ' the account is very voluminous, embracing testimony taken, at great expense in several States, and the circumstances are such as to show clearly that the omission of certain testimony is, the fault of the party claiming its benefit, an order permitting such testimony to be taken is properly denied.
    6. Equity Pleading—Partnership Accounting—Cross-Bill.
    One whose rights in a partnership business have been violated, by a sale of the firm property by his copartners, in whose names it stood, may file a cross-bill to obtain affirmative relief in respect to such interests in a suit instituted by one of the partners for an accounting.
    7. Same—Amendments—Coverture—Estoppel.
    The refusal to allow a party to a bill for an accounting to amend his pleadings so as to allege the coverture of the other party, and the consequent invalidity of the contract upon which she bases her rights, is not an abuse of discretion, where it would be manifestly inequitable to urge such objection, and the applicant delayed for a long time in seeking to interpose it after learning of the facts.
    Appeal from Saginaw; Daboll, J., presiding.
    Submitted November 13, 1896.
    Decided February 2, 1897.
    Bill by George Feige against Helen M. Babcock and Samuel G. M. Gates for a partnership accounting. Defendant Babcock filed a cross-bill against complainant and defendant Gates. From the decree rendered, defendant Gates appeals.
    Modified and affirmed.

      Camp & Brooks, for complainant.

      Hanchett & Hanchett, for defendant Babcock.

      G. L. Collins (Humphrey & Grant, of counsel), for defendant Gates.
   MOORE, J.

The bill was filed in August, 1889, by complainant, for the purpose of obtaining an accounting between Feige, Gates, and Babcock, doing business under the firm name of the Michigan Lumber Company. It alleges that on the 15th day of February, 188 8, they entered into articles of copartnership for the purpose of manufacturing, etc., under the name of the Michigan Lumber Company, and states that the partnership was to date from February 15, 1888, and continue for three years, unless sooner dissolved by mutual consent. The articles of copartnership are made a part of the bill. They show that Gates owns 13-24 of the property, Feige owns 8-24, and Babcock 3-24, subject to the contract with the Seminole Lumber Company. By the articles, Feige was to be the general manager of the business. Babcock was to be represented by her husband, John W. Babcock, as assistant manager, who was to receive $1,000 per year. An agreement between the Seminole Lumber Company and Samuel G. M. Gates, of date the 27th day of October, 1887, is made a part of the bill. This agreement recited that on the 4th day of October, 1887, the Seminole Lumber Company agreed to sell to Gates and Helen M. Babcock a large quantity of lands, situated in the county of Baldwin, State of Alabama, and county of Escambia, State of Florida, upon the terms named in the contract; that, after making this agreement, another agreement was made, by which the lands were to be purchased by Gates, and Helen M. Babcock’s interest protected by a contract between herself and Gates. A contract between Gates and Feige, of date February 15, 1888, is also made a part of the bill of complaint. This contract is for the purchase by Feige of one-third of all the benefits and advantages of the contract with the Seminole Lumber Company. Another contract is made a part of the bill of complaint, bearing date October 27, 1887, between Babcock, Gates, and Feige, by which Babcock releases Gates from her right to acquire one-fourth of the property, and reserves only the right to acquire one-eighth. It provides for the employment ■ of John W. Babcock for the term of three years, at an annual salary of $1,000.

The bill alleges that Feige went to Millview, Fla., and assumed the management of the business; that, when he arrived there, he found that large lumber contracts had been let by Gates and Babcock; that he continued in charge of the business as manager, and they carried on the business of manufacturing, selling, and shipping lumber and timber, until the 30th day of March, 1889, when they closed down, for the reason that Gates and Babcock refused to furnish their share of the money necessary to carry on the business; that on the 30th day of March, 1889, with the knowledge and consent of Gates and Babcock, he sold out his interest in the copartnership property and assets to Bucki, Bucki assuming to pay the firm liabilities to the extent of $49,000; but that in stich sale he reserved all the rights which he had against his copartners for advances in excess of his share, and the right to call them to an accounting. He alleges that he advanced a large amount in excess of his share; that, by reason of Gates’ and Babcock’s failure to 'contribute their share to the business, they were obliged to borrow $15,000 from the Merchants’ Bank of Pensacola, and to secure the payment thereof by mortgage upon their personal property; that, to meet this mortgage indebtedness when it became due, they were obliged to sell their lumber at a sacrifice. The bill further alleges that the $13,572.99 which the complainant agreed to pay Gates for his interest in the property was based upon the producing by Gates of vouchers showing that the property up to that date had cost him three times this amount, and that the amount which he was really to pay for the interest was to be increased or diminished by so much as the vouchers should show a less or greater sum to have been so paid by Gates; and he charges that the sum paid by Gates up to that date for the property was much less than three times the $13,572.99, and much less than Gates then represented it to be. The bill contains a prayer for an accounting, and for general relief.

The answer of defendant Gates to the original bill sets forth an admission of the execution of the written instruments in the bill, but denies that the Gates-Feige purchase agreement sets forth the true agreement; admits the commencement of the business shortly after the 15th of February, 1888. and that it was carried on until the spring of 1889, under the name of the Michigan Lumber Company; admits a sale by Gates of his interest in the partnership property to Charles L. Bucki, subject to the rights of Helen M. Babcock; alleges that Feige sold his interest in the partnership property at the same time Gates did, and that the effect of such sales was to cut off the right of a further accounting between Gates and Feige; that it was a fact that complainant and Bucki making the agreement they did make was an inducement to Gates to sell to Bucki; that Gates did not know personally of any reservation in the sale of Feige to Bucki, and that, if such reservation was made, it was a fraud on Gates; denies that Feige furnished more than his share of the partnership money, and alleges that, on an accounting, the other parties will owe Gates; alleges.that, by agreement, Feige was the manager of the company, but did not manage it profitably, and abandoned it about April, 1888, by reason of which facts defendant has a claim, against Feige of $10,000; that, before the purchase by Feige, Gates had expended more than $34,000 in advances for the business and as purchase price of the property; that the agreement by which Feige purchased was that Feige was to pay $3,000 more than one-third of the cost of said property and advances thereon, and that an omission to set forth this provision in the contract was a mistake. The answer prays that the answer be treated as a cross-bill for reforming said Gates-Feige contract; that said contract be reformed so as to show Gates’ right to said additional $3,000, and that it be decreed that Feige shall pay it to Gates; that Feige pay Gates any balance found on accounting.

Mrs. Babcock filed an answer to the original bill, and a cross-bill, which sets forth the filing of the. original bill, and the proceedings thereon, • up to and including the replications to the answers to the original bill, and alleges the pendency of the suit; that she is the wife of John W. Babcock; and describes his experience as a lumberman, and his discovery of the property in controversy; describes the same in general terms, the same being generally described as the property of the Seminole Lumber Company, Limited; that he gave his information respecting the property to the defendant Gates, who, it is alleged, was then a man of large means, notifying said Gates that it was the wish of Helen M. Babcock to pay for an interest in the property out of the proceeds thereof and of the business carried on in connection therewith, said John W. Babcock to be connected with the business; that Gates was desirous of entering into the arrangements as thus proposed; that pursuant to this arrangement, about October 4, 1887, Gates and Helen M. Babcock entered into an agreement for the purchase of this property, which was followed by a new agreement of purchase, dated October 27, 1887, this agreement being only between themselves, pursuant to which agreement Gates made a purchase of the property from the Seminole Lumber Company, dated October 27, 1887; and it is alleged that, in making the contract and purchase, it was understood that Helen M. Babcock had no means except they should be derived from the proceeds of the property and business, and that Gates agreed that he would make payments and advances for the purchase of the property, and allow Mrs. Babcock to repay Gates for her share of such advances out of her share of the property and business, and that John W. Babcock should be empolyed therein; that, after the purchase was made, Helen M. Babcock and Gates proceeded at once, as partners, to lumbering said property, and that in order to carry on the business, and with the intention and understanding that he would make advances to her, which would be repaid out of the business, Gates made the written agreement of November 12th with Mrs. Babcock, which is set out in the cross-bill; that Gates and Mrs. Babcock, as such purchasers, and as partners, in the interest of three-fourths to said Gates and one-fourth to Mrs. Babcock, took possession of said property, and carried on such business pursuant to such intention; that John W. Babcock was employed in the business at $50 per month.

The cross-bill further sets forth that said property was treated, and intended to be, and was in fact, the partnership property of Gates and Mrs. Babcock; that said business was a partnership business,'and was continued until about the 15th day of February, 1888, when George Feige sought to purchase from Gates an interest in said property and business; that Gates desired to introduce said Feige into the business, by selling a portion of his interest in the property to Feige; that Mrs. Babcock was unwilling to enter into this arrangement, lest it would interfere with her contract with Gates in respect to the property; that her unwillingness was explained to both Gates and Feige, and that she was assured by both of them that her interests would be promoted by the proposed sale from Gates to Feige; and that, relying upon such statements, she consented to reduce her interest in the property to one-eighth, instead of one-fourth, which was accomplished by a contract which was made on or about the 15th day of February, 1888; that said contract was signed by her relying upon said statements and agreements of Feige and Gates, and that no change of understanding or arrangements was made as to her right to pay for her interest out of the proceeds of the property and business; that thereupon Gates sold one-third of the property to Feige by a contract dated February 15, 1888, and that at the same time a copartnership agreement was made between Gates, Feige, and Mrs. Babcock, dated February 15, 1888, which was intended by the parties thereto as the means of lumbering said property, and enabling Mrs. Babcock to pay for her interests therein; that, by means of said contracts, all of the property and the business carried on therewith became the partnership property of Gates, Feige, and Mrs. Babcock, in the shares and interests of 8-24 thereof to Feige, 13-24 to Gates, and 3-24 to Mrs. Babcock; that it became the right of Mrs. Babcock to have the purchase contract with the Seminole Lumber Company, Limited, carried out, and to have said partnership continued, and said business carried on, and said property made use of in said business, for the full term provided by said contract; that neither Feige nor Gates had the right to terminate the same at an earlier date than provided by the contract, without her consent; that, pursuant to the contract agreement, the parties entered into and earned on business.

It is further alleged that about June 22, 1888, Gates commenced negotiations with parties for the sale of two-thirds of said business and property, which negotiations resulted in a sale and transfer thereof by him to one Charles L. Bucki; that Feige also sold a third interest in said property and business to said Bucki; that, by such sales and transfers, the entire property and business was transferred to Bucki, the firm dissolved, its business terminated, and Mrs. Babcock was deprived of its advantages and all her opportunity to purchase under it; that Mrs. Babcock did not sell or transfer her said business; that, by the sale above set forth, the business was broken up, and her opportunity to realize out of said property, and pay for her part of the same, was destroyed; that, in respect to said business, her husband, John W. Babcock, acted for her, and represented her. in all respects as fully as she could herself in his place; that Feige and Gates made large profits in the sales they made to Bucki; that the conduct of Feige and Gates and their sale destroyed the business, and her power to proceed therein and save her interest therein, thereby causing her loss and damage to the amount of many thousand dollars; that she was ready to perform the contract on her part all of the time; that she made a tender in May, 1889, of the contract amount falling due in February, 1889; that such tender was made to Gates and the Southern States Land & Lumber Company; that, by the acts of Gates and Feige, she was wholly excluded from and deprived of all her rights in the property and business, the partnership, and its assets, and to the purchase of one-eighth of said property, which was worth many thousand dollars more than she had agreed to pay for it; and that no account of the business has been had. It was the prayer of the cross-bill, among other things, that a partnership accounting be had between the three parties; that a,n accounting be had as to the sale of the property and business, so that the interest of Mrs. Babcock in said partnership business, and in said property and business, be determined and decreed; that the loss or damage she has suffered through the acts and conduct of Feige and Gates be settled and determined, and that Feige and Gates be required to pay the amount due her on such accounting; and that they, one or both of them, be decreed to pay said amounts, and to pay to her an equitable share of the proceeds of the sale of said property; and a prayer for general relief.

The answer of defendant Gates to the cross-bill admits the execution of the papers set forth in the cross-bill; admits that John W. Babcock brought to the notice of defendant the property in question; says that Mrs. Babcock was unable to carry out the purchase of October 4, 1887, and that, consequently, the agreements of October 27,1887, were made; that between the 27th day of October, 1887, and the loth day of February, 1888, no agreement as to advances by Gates to Helen M. Babcock other than the agreement of November 12, 1887, was made; that no specific amount was agreed upon to he advanced, and that the arrangement for the advance made by this agreement was a temporary one; that it was through the solicitation and consent of Helen M. Babcock that the negotiations and sale to Feige were made; that the business of the partnership was not profitable or satisfactory to any of the parties, and that its continuation would not have worked out a payment of the interest of Mrs. Babcock therein; that it was with Mrs. Babcock’s consent that negotiations were carried on for the sale of the interest of Gates in the partnership; that, in making the sale, the parties who purchased the property purchased with notice of the rights of Mrs. Babcock therein, and without prejudice to her rights; that the papers setting forth the sale stated that the sale was made subject to the rights of Helen M. Babcock; that, as to the sale actually made to Charles L. Bucki, the same was made with the knowledge and consent of Mrs: Babcock. In February, 1893, the defendant Gates moved the court to be allowed to amend his answer to the cross-bill, so as to show that when the various contracts Were made, to which Mrs. Babcock was a party, she was then a married woman; that the contracts were made in Florida; that they related to real estate, and, according to the laws of Florida, were ■void. This motion was denied, with leave to renew it on the hearing of the cause. This was done, and it was again denied.

The printed record contains more than 1,000 pages of testimony, and the record is not all printed. In February, 1896, a decree was made, in which it is found, in substance, that the said Samuel G. M. Gates and the Seminole Humber Company, Limited, executed the contract dated October 27, 1887, by which said Gates purchased of the Seminole Lumber Company, Limited, the lands and property mentioned in said contract, on the terms therein stated, consisting of pine lands and sawmill property, and ."that Gates and Helen M. Babcock contemporaneously executed the contract of date October 27, 1887, by which Gates agreed to sell to said Helen M. Babcock an undivided one-quarter of said lands and property, upon the terms stated in said contract; that, under said contract, Gates and Helen M. Babcock took steps for lumbering on said lands and operating the mill situated thereon, constituting a part of said property; that, with a view to such lumbering operations, Gates and Helen M. Babcock executed the contract dated November 12, 1887, by which Helen M. Babcock agreed to pay the said Gates interest at the rate of 10 per cent, per annum on all moneys advanced by Gates for the carrying on of said business; that, under the three contracts, said lumbering business was carried on by Gates and Helen M. Babcock until the 15th day of February, 1888; that Gates advanced moneys to carry on the business; that on February 15,1888, Gates and Feige executed a contract by which Gates sold to Feige an undivided one-third of said land and property, and that at the same time Helen M. Babcock and Gates and Feige executed a contract, by which Helen M. Babcock released to Gates the right to purchase the undivided one-quarter of said land and property, and reserved the right to acquire an undivided eighth of said land and property; that, at the same time, Gates, Feige, and Helen M. Babcock executed a contract, dated February 15,1888, by which Gates, Feige, and Helen M. Babcock made and entered into a copartnership under the firm name of the Michigan Lumber Company ; that said three last-mentioned contracts were executéd contemporaneously, and, upon their execution, Gates, Feige, and Helen M. Babcock proceeded to carry on a lumbering business with said land and property, which business was carried on in the name of the Michigan Lumber Company; that, in carrying on the business, Gates advanced certain moneys; that, by virtue of said contracts, Helen M. Babcock was entitled to acquire an undivided one-eighth of the lands and property, and was entitled to have the copartnership business carried on, and to have the share of the profits thereof, belonging to her, applied to the payment of the sum owing by her to Gates for advances made by him, and to the payment of the purchase price for said undivided one-eighth of said lands and property to be paid by her to Gates; that Gates and Feige sold to Bucki all the partnership property of the said Michigan Lumber Company, and it was transferred to Bucki, and, by said transfers, said partnership was terminated; that the sale and transfer made by Gates to Bucki was made by said Gafes without the consent, and against the protest, of said Helen M. Babcock; that, on the 15th day of February, 1889, the sum of $2,500 became due from Helen M. Babcock to Gates, upon the purchase price of an undivided one-eighth of said land and property, and afterwards, and on the 25th day of May, 1889, said Helen M. Babcock tendered payment to Gates, which tender was refused; that the rights of said Helen M. Babcock as purchaser of said one-eighth of said lands and property were preserved.

The decree provided for an accounting, and the manner of it, and decreed that—

“It will be referred to Hon. Chauncey H. Gage, special commissioner, of Saginaw, to take and state the account between Gates and Helen M. Babcock, and to report the same to this court. Such accounting is to be made upon the files and records of said cause, and the testimony heretofore taken therein. It is decreed that Mrs. Babcock is entitled to her costs upon the cross-bill, to be taxed.

“It is also decreed that the $13,572.99 named in the contract of date February 15, 1888, includes the $3,000 which in these proceedings is termed a ‘ bonus ’ to be paid to Gates by Feige for the privilege of acquiring one-third interest in said property; that the balance of $10,572.99 was assumed to be one-third of the amount, with interest thereon, paid by Gates for and on account of the property conveyed to Feige under said contract, prior to such conveyance, but of this assumed amount only such part thereof is payable to Gates under said contract as the vouchers produced by Gates show payment for and on account of the property conveyed by said contract; and that said sum of $10,572.99 assumed to be payable to Gates shall be lessened or increased by so much as said vouchers show payments of a greater or less amount than that sum.

‘ ‘ Feige, under the contracts set out in this bill, paid money to Gates upon the purchase price of his interest in said property, and advanced money for the carrying on of the business; and he paid money to Gates on account of his purchase of the one-third interest in the property by paying it to the Michigan Lumber Company for Gates. It is decreed that Feige is entitled to an accounting against Gates for all the payments and transactions made and had by Gates in connection with the property prior to Feige’s purchase, and for moneys paid Gates after the purchase, and for money paid to the Michigan Lumber Company on - account of purchase.. And he is also entitled to an accounting against his copartners, Gates and Helen M. Babcock, of and for all business transactions and doings of the Michigan Lumber Company, and of and for all moneys and property which each of the copartners have paid to and for the Michigan Lumber Company, and of and for all moneys and property which each of the copartners have received from said company, and of and for all moneys and property at any time owned by said company. The basis upon which the accounting is to be had is that Gates is the owner of 13-24, Feige is the owner of 8-24, and Babcock is the owner of 3-24, of said property and interest in the co-partnership; and, Gates having agreed to furnish Babcock’s share of the contributions, advances, and payments to the company, he is chargeable, on an accounting, with the payment of the 3-24 which Babcock’s interest should make.

“By the contracts of the parties, Gates and Feige were each to receive a salary of not less than $1,000 for the first year, 'and not less than $1,500 for subsequent years, and John W. Babcock was to receive a salary of $1,000 each year. These salaries will be allowed for the time in which the respective parties were acting for the benefit of the company, except as they are modified by the court upon the report of the commissioner, on testimony which may be taken before him concerning the connection of Gates with the McLennon mortgage, and further consideration of the testimony already taken upon Gates’ connection with the McLennon mortgage. The salary of J. W*. Babcock will be an allowance to Helen M. Babcock. The time which each of the copartners are entitled to receive the salary, and the amount of salary to which each would be entitled, without reference to the question of Gates’ connection with the McLennon mortgage, will be reported by the commissioner separately from the other items in his report.

“It is further decreed that the whole matter in controversy between the parties be refereed to said circuit court commissioner, to take and state an account between Feige and Gates, and between Feige and Gates and Babcock, upon the basis herein indicated, and report the same to the court. In making and stating the account between Feige and Gates of the payments and disbursements claimed to have been made by Gates for and on account of the property purchased by Feige, and for and on account of the business carried on in connection with said property before the date of Feige’s purchase, the commissioner will not allow any payments or disbursements claimed to have been made by Gates for which there are no vouchers ; and’ checks, drafts, or orders payable to Gates or order, Gates or bearer, or payable to bearer, or payable to any party whose name Gates is authorized to sign, shall not, for the purpose of this accounting, be considered as vouchers. The commissioner, in such accounting, will give Gates credit for only such sums paid by him after he and Feige sold out as he has shown affirmatively exceed $50,000, and he shall give him credit for payments in such cases only when such payments have been made with Gates’ money, and have not since been repaid him. Gates is not entitled to receive credit in the accounting for any payments or disbursements made by him after the 15th day of June, 1888, while he acted as the agent for, Bucki. In the accounting, the commissioner shall take, state, and report an account agreeable to the practice of the court, between the parties:

‘ ‘ First. As to the true amount of moneys paid by Gates to the Seminole Lumber Company at the time of the purchase by Feige of his one-third interest in the property under the contract of February 15, 1888, as determined by the vouchers which the said Gates has submitted therefor.

Second. As to the true amount of moneys before that time advanced and paid by Gates for the Michigan Lumber Company, or on account of the business of himself and Babcock, other than for the real estate, and which Gates claims enter into the $13,572.99, as shown by vouchers produced by him, entitled to be considered under the direction respecting vouchers hereinbefore contained.

Third. To make, state, and report a true account of all the money received by the Michigan Lumber Company, and a like statement of all the moneys disbursed in the course of operations of said company: (a) From the date of the purchase by said Feige down to the 22d day of June, 1888, when Gates gave his option for the sale. (6) A like account from said date of February 15, 1888, to March 30, 1889, when Feige sold and dis- - posed of his interest therein, (c) A like statement of such account extending from February 15, 1888, to the time of the final delivery of possession to Bucki, or to his assignees, of all the property and assets of the Michigan Lumber Company, and conclusion of its business. (d) To make, state, and report the account, separately, of the said Gates with said Michigan Lumber Company, showing all moneys advanced by him to said Michigan Lumber Company in the course of its business, and all moneys received by him therefrom, exclusive of salary, and showing what, if any, sum he paid on account of the McLennon mortgage, and any sum repaid him from or through the action taken on the McLennon mortgage. (e) To make, state, and report a true account between the said Feige and said Michigan Lumber Company, showing all moneys advanced by him to said Michigan Lumber Company in the course of its business, and all moneys received by him, exclusive of salary, making in both cases rests at the date of the respective sales by Feige and by Gates, so as to indicate the state of the account at the date of such sales, as well as at the conclusion of the business. (/) Also to make and state an account, separately, showing the character and value, as near as may be, of all the assets, independent of land, owned by the Michigan Lumber Company at the time of the sale by Feige and Gates to Bucki, and also the indebtedness, in itemized form, owing by the company at the time of making of such respective sales, and also at the time of the final delivery of the property into the hands of said Bucki or his assignees.

“And, for the purpose of such accounting, the said commissioner shall have access to and examine all the records of this case, and all the testimony heretofore taken therein, and no other, except that the commissioner shall take, consider, and return, as a part of his report, testimony of such witnesses as shall be produced, concerning Gates’ connection with the ‘McLennon Mortgage,’ so called.

“It is further ordered, adjudged, and decreed that the said George Feige is entitled to receive his costs of this suit upon the oi’iginal bill, to be taxed.”

Defendant Gates appeals from the decree, and in an original brief of nearly 100 pages, followed by a supplemental brief of nearly 50 pages, states his reasons for the appeal. They have all had careful consideration, but the interests of the parties and the public do not require a discussion of them all here.

It is claimed by defendant Gates that, when Feige and Gates sold to Bucki the business and property, these sales conveyed to Bucki all the interest that both of them had, .and that neither of them after that could require the other to account for the contracts made between each other which resulted in the partnership, and for the business done during the existence of the partnership, and that, therefore, the original bill must be dismissed, and that the dismissal of the original bill would carry with it the cross-bill. The contention of the solicitors for Mr. Gates cannot be sustained, for the reason that the record shows very clearly that neither Mr. Feige nor Mr. Gates expected that the result of the sale to Bucki would relieve either from accounting to the other for the results of the business during the existence of the partnership, nor was it expected by either of them that Mr. Gates was to be released from the contract he made with Mr. Feige, when the latter entered into the partnership, that he would produce vouchers showing the cost of the plant and business up to that time, and that the amount paid for a third interest in the business by Mr. Feige should be adjusted upon the basis of the cost to Mr. Gates, up to that time, upon the terms of the contract, less the $3,000 bonus which Mr. Feige was to pay for being allowed to come into the business. We think the complainant was entitled- to a decree for an accounting.'

In this connection we should determine whether the circuit judge erred in decreeing that the commissioner, in making an accounting as to the amount of the cost of the property to Gates at the time Feige became a member of the firm, and of the part thereof payable to Gates, should be limited, in determining the amount thereof payable by Feige to Gates, to the amount for which Gates produced vouchers. If the contract is to be literally construed, the decree is right; but we think the record clearly establishes that Feige was rrot only to pay a bonus of $3,000 for becoming a member of tbe firm, but that he was to pay to Mr. Gates one-third of what Mr. Gates had at that time invested in the business and property; and it would be inequitable in this equitable proceeding, commenced by Mr. Feige, to require Mr. Gates to lose what he had paid out on account of the property and business at the time Mr. Feige acquired an interest in the firm, one-third of which Mr. Feige agreed to pay, simply because Mr. Gates is not able to produce a written voucher showing the payment. We think the decree should be so modified as to allow the commissioner to consider any legal evidence in the case bearing upon that feature of it.

The decree provides that the commissioner, in the accounting between Feige and Gates for the business done after Feige became a member of the firm, should not credit Gates for any disbursements made by him after the 15th day of June, 1888, while he acted as the agent for Bucki. We agree with the circuit judge that, in the accounting, the partnership ought not to be charged with any of the debts assumed by Bucki, and that Mr. Gates ought not to be credited with any payments of debts contracted after he had sold to Bucki; but we think, in the accounting, that he should be credited with any payments he may have made of the debts of the firm consisting of Feige, Gates, and Babcock, in excess of the 150,000 assumed by Bucki, even though some of those debts were paid by him after June 15, 1888, and the decree should be modified in that respect.

Complaint is made of that portion of the decree giving costs to Feige against Gates. The decree gives Gates affirmative relief to the extent of reforming the contract made between Gates and Feige by finding that it was intended by the parties that Feige was to pay Gates a bonus of $3,000 for the right to purchase a one-third interest in the property. In view of that fact, the modifications made in the decree here as affecting Feige and Gates, and the uncertainty of what their respective interests are, until the commissioner has made his report, we think the matter of costs between Gates and Feige should await the result of the final decree, and the decree will be modified in that respect, and neither of them will be awarded costs in this court against the other.

It is urged upon the part of defendant Gates that, in the accounting before Judge Gage, he should be allowed to put in further proof. More than six years have elapsed since this litigation commenced. The parties to it have had every opportunity to put in testimony bearing upon any phase of the case. The -record i« very voluminous. Not all of it appears in the printed record. The printed record contains more than 1,000 pages, and embraces testimony taken at great expense in several States. If there is anything omitted that is essential to the proper disposition of the case, it is the fault of the party omitting it. We think the case should proceed to a speedy determination, and we decline to direct further testimony to be taken except as provided for in the decree.

It is claimed by Mr. Gates, among other reasons, that the cross-bill cannot be sustained, because it makes a defense which was equally available by way of answer to the original bill, and that, as Mrs. Babcock takes no decree against Feige, she does not need a decree against Gates to make perfect a decree against Feige. We understand that “ whenever it is necessary to bring all the equities of all the parties fully before the court, that even and complete equity may be done, as well in favor of the defendant as of the complainant, it becomes necessary to file a cross-bill; and this may be done by any or all the defendants, against any or all of the complainants, or by a defendant against his co-defendants, or a part of them, as the nature of the case may require.” Put. Mich. Ch. (2d Ed.) 322; Story, Eq. PI. § 392; Andrews v. Kibbee, 12 Mich. 94 (83 Am. Dec. 766); Farmers & Mechanics' Bank v. Bronson, 14 Mich. 372. We think this case comes clearly within the rule that a cross-bill is designed for the purpose of enabling a defendant to avail himself of some defense which can only be made complete by granting him some affirmative relief against complainant' or against some co-defendant. It is difficult to see how the equities of this case could be worked out between the complainant and the two defendants, and between the defendant Babcock and her co-defendant, Gates,- and the complainant, Feige, so as to do justice to all of them, without the filing of the cross-bill. Cornwell Manfg. Co. v. Swift, 89 Mich. 503; Worrell v. Wade’s Heirs, 17 Iowa, 96; Wilkinson v. Roper, 74 Ala. 140.

It is also urged that Mrs. Babcock cannot maintain her cross-bill, because, when she entered into the contracts with Mr. Gates, she was under coverture, and, by the laws of Florida, could not lawfully enter into such contracts. Three years and more after this action was commenced, Mr. Gates asked the court for permission to amend his pleadings, so as to enable him to interpose this defense. His application was denied. Mrs. Babcock and Mr. Gates made their contracts with each other, treating each other as residents of Michigan, and so describing each other in the contracts. The record shows the contract of October 4, 1887, was made in Michigan. This contract was changed by the two contracts made in Chicago, October 27, 1887. The contract of November 12, 1887, was made in Michigan, and was dated at Bay City, and Mrs. Babcock and Mr. Gates were both residents of Michigan; and the other contracts were made having in view that the parties were residents of Michigan, and competent to enter into contract relations. All the parties dealt with each other as though there were no disability. Their business relations were commenced, continued, and ended with the belief on the part of both of them that both were competent to make the contracts and engage in the business. In pursuance of her agreement with Mr. Gates, and because of it, Mrs. Babcock surrendered the interest she had in the Seminole Lumber Company contract, which was the right to purchase a one-fourth interest in 146,000 acres of land. Because of thp surrrender of this contract, a new contract was made out between the Seminole Lumber Company and Mr. Gates, it being expressly provided that Mrs. Babcock’s interest in the previous contract should be protected by a contract between her and Gates. A new contract was drawn, in which Mrs. Babcock’s interests were protected, if the contract was valid. Where one has contracted with a married woman, knowing her to be such, and the contract includes a contract of partnership, and the contract has been entered upon, and in part executed, „,and he has received substantial benefit therefrom by the surrender of a contract to which she was a party, and by conducting the partnership business for nearly two years, in an action brought by her to compel him to account for the results of the partnership, and for what he has received by virtue of the contract, is it not too late to plead coverture as a bar to her maintaining her action? Can it be'the law that one can appropriate the fruits of such a contract, and at the same time disavow the contract ? ■ The business relations between Mr. Gates and Mrs. Babcock were entered into, both supposing they had a right to enter into such relations. Business was conducted by virtue of these contracts, on a large scale, for upwards of a year and a half. These relations were terminated by Mr. Gates, both parties still supposing Mrs. Babcock was competent to make the contracts. This litigation was commenced, and Mr. Gates, by the pleadings, admitted the making of the contracts, but claimed that Mrs. Babcock’s acts were such as to release him from any liability to her; and the parties entered upon th¿ taking of the testimony, and a large amount of expense was incurred. The testimony was taken, and the case was ready to be heard, before any suggestion was made that the contracts were not valid. It was not until 1891 that Mr. Gates learned what the law of Florida was in relation to the disability of married women to make contracts in relation to real estate. When he did learn, did he act promptly? No application was made to the court to amend the pleadings until in 1893. It is true, an endeavor was made to excuse the delay. The trial judge had full knowledge of the situation. The case presented by Mr. Gates did not appeal very strongly to the sense of justice of the circuit judge, and, in the exercise of his discretion, he denied the motion to amend. In doing this, we do not think he abused his discretion, and we decline to interfere. Haines v. Haines, 35 Mich. 138; Bussey v. Bussey, 71 Mich. 504; Mills v. McLeod, 94 Mich. 627.

It is the claim of Mr. Gates that he sold his interest to Mr. Bucki subject to Mrs. Babcock’s interest in the business. We do not think this claim is sustained by the evidence, but, if it were, Mrs. Babcock would not be bound by it. Her contract was with Mr. Gates, and she had a right to look to him for its performance. Atkinson v. Scott, 36 Mich. 18; Weaver v. Aitcheson, 65 Mich. 285; Wright v. Dickinson, 67 Mich. 580 (11 Am. St. Rep. 602).

We note the claim of counsel that the cross-bill interposes new controversies between- defendants to the original bill, the decision of which is unnecessary to a determination of the controversy set up in the original bill between the complainant and defendants, and thereby becomes an original bill, and that, as there cannot be two original bills in one case, the cross-bill must be dismissed. We also note the claim that the case stated in the cross-bill is not sustained by the evidence, and the claim that Mrs. Babcock, by her husband, consented to the sale to Bucki; but we do not deem it necessary to discuss them.

The facts disclosed by the record fully justify the decree, except as herein noted. The decree will be modified in the particulars suggested, and affirmed, with costs to Mrs. Babcock against defendant Gates.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    CITY OF MUSKEGON v. SODERBERG.
    Taxes — County and Township Treasurers — Adjustment of Accounts.
    . Under section 87 of Act No. 154, Pub. Acts 1895, providing that the county treasurer shall render to the several townships quarterly statements of account between the county and the township, and shall pay over ‘ ‘ all moneys ” shown by such statement to be due the township, the treasurer has no right to 'deduct from the amount found to be due an amount due to the county for delinquent personal taxes, for the collection of which he has issued his warrant to the township treasurer.

      Certiorari to Muskegon; Russell, J.
    Submitted January 5, 1897.
    Decided February 2, 1897.

      Mandamus by the city of Muskegon to compel Samuel A. Soderberg, county treasurer, to pay oyer certain real-estate taxes collected by him for the city. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      H. L. Delano, for relator.

      Macdonald & Marr, for respondent.
   Long, C. J.

At the quarter ending April 30, 1896, the respondent, as county treasurer, had in his hands the sum of $3,255.26 for delinquent real-estate taxes collected by him for the year 1895; and on May 6, 1896, he paid over to the city treasurer said amount, less $1,569.18. He claimed the right to retain this amount, for the reason that he had issued his warrant to the city treasurer to collect certain delinquent personal State taxes for the year 1895, amounting to $526.89, delinquent personal county taxes of 1895, of $785.15, delinquent personal county road taxes of 1895, of $257.14. He settled with the city treasurer on that basis, by deducting the sum of $1,569.18. The city thereafter made demand upon the county treasurer for the payment of the money so deducted. This being refused, the city made application to the circuit court of Muskegon county for a mandamus to compel the payment. The county treasurer made return to the order to show cause, and, after the hearing, the court directed the issuance of the writ to compel the payment. The case comes to this court by writ of certiorari.

The contention of the respondent is that he had the right to set off the amount of the personal taxes against the amount which he owed as county treasurer to the city. It is not disputed but that he collected the amount of money charged, and that that amount belonged to the city, and was payable at the quarter ending April 30, 1896. Attached to the return of the county treasurer made in the coui’t below is the affidavit of his deputy, showing that the city treasurer admitted to him that he had collected a portion of these personal taxes, but what amount had been collected is not stated; but, however that may be, we think that fact cannot affect the rights of the parties in the present proceeding. The county treasurer having in his hands an amount of money which it is conceded belonged to the city treasurer on April 30, 189Ó, it was his duty to pay the same over to the city treasurer; and he had no right to set off against it these personal taxes for which he had issued his warrant to the city treasurer to collect. Section 87, Act No. 154, Pub. Acts 1895, among other things, provides:

“The county treasurer of each county shall, on or before the first days of Februarsq May, August, and November in each year, make out a statement of the account between the county and the several townships, and render the same to the township treasurer, and pay all moneys shown by such statement so rendered to be due the township to the proper receiving officer of the. township, and notify the township clerk of the items and total amount, thereof. * * * The township clerks shall charge such amounts to the township treasurers on the books of their respective offices.”

We think, therefore, that it was the duty of the county treasurer of Muskegon county to pay over to the city treasurer the total amount found due the city by such statement, and that he had no legal right or authority to deduct from it the amount 'which he claimed was due the county for delinquent personal taxes. It is true that the collection of these delinquent personal taxes rested with the city treasurer, but they were to be collected by him upon the warrant issued by the county treasurer. That warrant had been issued, and, so far as shown by this record, was still in the hands of the city treasurer.

■ The order made by the circuit judge will be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    DANIELS v. LONG.
    1. Municipal Corporations—Bonds—Injunction—When a Bar to Subsequent Proceedings.
    A suit in chancery to enjoin the issuance of bonds by a village in accordance with a vote of the electors, and the granting therein of a preliminary injunction, do not constitute a bar to a proceeding by mandamus to compel the village authorities to sign bonds voted at an election subsequently held, where it do'es not appear but that the injunction was granted because of some mere irregularity in the first election.

      2. Same—Validity of Election—Two-Thirds Vote.
    Under a statute requiring that a proposition to borrow money must have the approval of “two-thirds of the electors voting ” at a general election, or at a special election called for that purpose, an affirmative vote equal to two-thirds of the whole number voting at the election, and not merely a two-thirds vote of those voting upon the particular proposition, is necessary to authorize the loan. Stebbins v. Judge of Superior Court, 108 Mich. 693, followed.
    3. Same—Improvement Contract—Estoppel,.
    The president and inhabitants of a village are not estopped to dispute the liability of the village on contracts for the erection of an electric-light plant and waterworks by allowing the work to be done, where the contractors, before making the contracts, had notice that the propositions for entering into such contracts had not been legally carried.
    4. Same—Issuance of Bonds—Mandamus—Defenses.
    In mandamus proceedings against a municipal officer to compel the execution of certain bonds of the municipality, the respondent may set up the illegality of the election by which the issuance of such bonds was provided for.

      Certiorari to Kalamazoo; Buck, J.
    Submitted January 5, 1897.
    Decided February 2, 1897.

      Mandamus by Henry J. Daniels and others, trustees of the village of Vicksburg, against John Dong, president of said village, to compel the signing of certain bonds voted for improvement purposes. From an order granting the writ on demurrer to the answer, respondent brings certiorari.

    Reversed.

      Hoioard, Moos & Howard, for relators.

      N. H. Steioart, for respondent.
   Hooker, J.

The circuit court, upon application of several trustees of the village of Vicksburg, issued a peremptory mandamus against John Long, president of said village, to compel the signing of certain bonds voted for the purpose of raising the necessary funds to provide a municipal electric-light plant and waterworks, It is before us upon certiorari.

The case was heard below upon relators’ demurrer to the answer of the respondent; hence the only question before us is whether the answer states a prima facie defense. The first ground alleged is that the respondent had been enjoined. The record discloses that an election was held on the 27th of April, 1896, and that the issue of bonds was enjoined by the circuit court in a suit brought by one Dell to declare the election invalid. Subsequently the council undertook to abandon those proceedings, and called another election, at which, it is said, the projects were declared to be carried. Upon the refusal of respondent to sign the bonds, this proceeding was instituted. 'He alleges, in his answer, that the meeting at which the second election was called was irregular and invalid, and contrary to law; but he does not set forth in what particular it was invalid, except that, by reason of the pendency of the former suit, he alleges that it was irregular to call a second election, in view of the fact that the council was enjoined from taking any proceedings to bond the village in the amount of $12,000 for waterworks and $3,500 for an electric-light plant, and that the election was, therefore, void. The answer denies the accuracy of the petition in its statement of the vote for and against the propositions, and states that the poll list shows that 307 votes were cast, and that 9 of those which were cast for said projects were illegal. As a further answer the respondent alleges that it was the avowed purpose—presumably of relators—to unlawfully hypothecate said bonds, or some of them, for a loan of $1,300, at 8 per cent, interest, notwithstanding the fact that the condition of the resolution ordering said bonds was that they should be sold at par, and not draw over 5 per cent, interest; and, further, that, at the meeting at ■ which it was determined to do this, a quorum of the council was not present, without counting the president pro tempore, and that he fears that said bonds will be unlawfully disposed of if he signs them. We may therefore resolve the case into the following questions:

1. Was the chancery suit a legal obstacle to a second election ?

2. Does the record disclose that less than two-thirds of those voting upon these propositions voted in favor of them?

3. Was respondent’s belief in the failure of the projects, or in the avowed intention of the relators to hypothecate the bonds as collateral security for a loan at a rate of interest higher than that authorized, a sufficient justification for the respondent’s refusal to sign the bonds ?

The answer does not show the grounds upon which the Dell suit was planted. If it appeared that it was based upon a foundation broad enough, and called for a decree forbidding the issue of any bonds because of the amount being in excess of the power of the council, we might be justified in saying that a discretionary writ should not issue, though we reserve the question; but it may be that it attacks the proceeding because of some irregularity, and that the council, recognizing or fearing invalidity, has chosen to save time and money by'submitting the question again. If there was no impropriety in this, and we cannot say, from this record, that there was, the former suit does not preclude the issue of bonds upon a new election.

The answer alleges that the poll list shows that 307 votes were cast at such election. It does not state how many of these .were cast upon each proposition, and, as it is possible, and perhaps not improbable, that some electors voted upon but one of the propositions, the statement in the answer is not inconsistent with the declaration of the inspectors, viz., that 298 votes were cast upon the proposition for waterworks, of which 205 were for, and 93 against, the proposition, and that 290 votes were cast upon the proposition for electric lighting, of which 197 were for, and 93 were against, such proposition. If the 9 alleged illegal votes be deducted, it would reduce the aggregate of votes cast, as well as reduce the votes for the respective propositions. Upon the relators’ theory, ■ this would leave the vote to stand as follows:

Watenvorks:

Aggregate, 298; subtracting 9, equals 289.

Necessary to carry the proposition, 193.

"Vote for, 205; subtracting 9, equals 196.

This shows an excess of 3 over the necessary two-thirds.

Electric Lights:

Aggregate, 290; subtracting 9, equals 281.

Necessary to carry the proposition, 188.

Vote for, 197; subtracting 9, equals 188.

It will thus be seen that, if the respondent be given full benefit of the alleged illegal votes, a full two-thirds of the vote cast upon each proposition was in favor of it.

The law provides, by section 4 of chapter 11 (Act No. 3, Pub. Acts 1895), that-—•

“Before any money shall be borrowed, appropriated, raised, or expended for the purchasé or construction of waterworks in any village, the council shall cause to be made an estimate of the expense thereof, and the question of raising the amount required for such purpose shall be submitted to the electors of the village, at its annual election, or at a special election called for that purpose by the council, as provided in this act, and shall be determined as two-thirds of the electors voting at such election by ballot shall decide.”

The respondent contends that each proposition must have received votes in its favor equal to two-thirds of the number of voters who voted at the election. If we construe this to mean legal votes, we must deduct 9 from the poll list, which leaves 298 as the aggregate of votes cast, and 199 would be the necessary two-thirds for each proposition. Neither received that number. In the case of Stebbins v. Judge of Superior Court, 108 Mich. 693, a similar question was raised, and that case will be found to sustain the respondent’s contention. Hence, if the allegations of the respondent’s answer are true, both propositions were lost. This case is here upon demurrer to the respondent’s answer, and we must, therefore, assume its statements to be true.

It is contended that this question cannot be raised in defense of an application for mandamus, and that the act of the president in signing bonds is ministerial, and that he cannot question the result of the election after it has been legally declared; and, again, that he has assented to and signed the contracts under which waterworks and an electric-light plant have been commenced and nearly completed. It is urged that he and the inhabitants of the village are estopped by their conduct in allowing such work to be done, and cannot now dispute the liability of the village. We recognize the impropriety of refusal by officers to take the essential steps to levy and collect the public revenue, but we think this case does not fall within the cases which hold that such officers cannot refuse to act. This president is asked to pledge the credit of the village, that its bonds may be put upon the market and sold. Upon the facts stated, any taxpayer-might enjoin his action; but that is unnecessary where the officer himself, recognizing the illegality of such vote, refuses to sign the bonds. The answer alleges that those who have contracted to erect the plants had notice, before making the contracts, that the propositions were not legally carried. This negatives any question of estoppel upon this record, if the acts of the president or the neglect of the taxpayers could effect an estoppel in any event.'

No authority, other than the tax cases mentioned, is cited in support of the claim that the respondent cannot try the question of the legality of the election and canvass in a mandamus proceeding. We find that it has been done in several instances. In People v. Trustees of Village of Ft. Edward, 70 N. Y. 28, a mandamus was asked to compel the issue of bonds, and denied. An inquiry into the question of whether the votes cast constituted a majority of the taxable inhabitants was held proper. In McMahon v. Supervisors, 46 Cal. 214, the court investigated the proceedings preliminary to the election, and denied the writ, for want of a proper notice. In People v. Ohio Grove Tp., 51 Ill. 192, while the writ was granted upon the insufficiency of a return which was demurred to, there is no suggestion that the proceedings were not open to investigation. Again, in People v. Cline, 63 Ill. 394, a mandamus was sought to compel a supervisor to sign and deliver bonds of his township, of which he had previously executed and delivered $3,000. He defended on the grounds, among others, that the 10 residents who signed the petition for the election were not all legal voters, and that a sufficient number of the votes cast for the proposition to reduce the number below a majority were fraudulent, and that relator knew it. In this case the claim was made that the respondent was estopped by the canvass. But the court held otherwise. The propriety of refusal by an officer to sign bonds under such circumstances was emphasized on rehearing.

We are of the opinion that the circuit court erred in sustaining relators’ demurrer. He should.have overruled it, and given them an opportunity of joining issue upon the answer, if they desired. His order is, therefore, reversed, and the case remanded for further proceedings.

The other Justices concurred.


author: Grant, J.

text:
    De Long v. Board of Supervisors of Muskegon County.
    1 Attorneys at Law—Indigent Prisoners.
    While it is the duty of an attorney to undertake the defense of an indigent prisoner if ordered to do so by the court, the statute (2 How. Stat. § 9047) expressly relieves him from any obligation to follow the case into another county or into the Supreme Court.
    2. Same—Costs op Appeal—Liability op County.
    An attorney, therefore, who, upon his own motion, causes an appeal to be taken to the Supreme Court, cannot enforce a claim against the county for fees and expenses incident to the appeal.

      Certiorari to Muskegon; Russell, J.
    Submitted January 5, 1897.
    Decided February 2, 1897.

      Mandamus by Nelson De Long to compel the board of supervisors of Muskegon county to allow a claim for attorney’s fees and expenses incident to an appeal from the conviction of an indigent prisoner. From an order denying the writ, relator brings certiorari.

    Affirmed.
    The relator, an attorney at law, was appointed by the circuit court of the county of Muskegon to defend one Smith, an indigent prisoner, charged with the crime of assault with intent to do great bodily harm less than the crime of murder. He was convicted. The relator, ■upon his own motion, and without any petition to or order of the circuit court, brought the case to this court by a writ of error. A bill of exceptions was settled. The relator procured the record and his brief to be printed. The case was affirmed by this court. People v. Smith, 106 Mich. 431. The relator thereupon presented a claim against the respondent for $356.80, of which $200 was for his services and $156.80 for printing the record and brief. The respondent refused to allow the claim, and the relator petitioned the circuit court for the writ of mandamus to compel its allowance. The court refused to issue the writ, and the relator has brought the proceeding to this court by the writ of certiorari.

      James O'Piara, for relator.

      Macdonald & Marr, for respondent.
   Grant, J.

(after stating the facts). The relator contends that, when an attorney is appointed to defend an indigent prisoner in the circuit court, he has the right, upon his own motion, upon conviction, to appeal the case to the Supreme Court, and that the supervisors of the county are required by law to pay the expenses of printing the record and brief, and for his services in taking the case to this court. If such a right exists, it must be found in the statute. The right of appeal in civil and criminal cases is statutory. Section 9046, 2 How. Stat., as amended by Act No. 96, Pub. Acts 1893, provides for the appointment by the court of an attorney to defend an indicted person when he shall be unable to procure counsel, and that the court shall determine his compensation, which shall not exceed $50. Section 9047 is as follows:

“An attorney shall not, in such case, be compelled to follow a case into another county or into the Supreme Court, and, if he does so, may recover an enlarged compensation, to be graduated on a scale corresponding to the prices above allowed.”

These two sections must be construed together. No attorney can defend a prisoner, and subject the county to pay for such expense, without an order of the court. It is the duty of the circuit judge to examine into the circumstances, and determine whether it is his duty to appoint an attorney to defend at the expense of the county. The order of the circuit court is the sole authority for subjecting the county to the expense of the prisoner’s defense. Section 9047 means this, and nothing more, viz., the attorney cannot be compelled, even by the order of the court, to follow the case into another county, or into the Supreme Court. The attorney is an officer of the court, and as such is required by law to obey its orders. He may therefore be compelled, though against his wish, to defend the prisoner, when ordered by the court to do so. The purpose of this act is to relieve him from this duty if there be a change of venue, or an appeal to the Supreme Court. If the prisoner desires the attorney so appointed to follow the case into another county, he must obtain an order of the court to that effect. If the attorney refuses, as he may, then the court before which the case is to be tried must take care of his rights. If the prisoner desires to have his case reviewed by the court of last resort, he must apply to the court to obtain an order. This was the course pursued in People v. Hanifan, 90 Mich. 516. It seems impossible of belief that the legislature intended that any attorney defending an indigent prisoner under the order of the circuit court should, upon his own motion, subject the county to the expense of an appeal to this court. It is a consistent view to take that the legislature did intend to provide for the employment and payment of an attorney to follow the case to this court if, in the opinion of the circuit court, the case should be appealed. Upon conviction the presumption of innocence has disappeared, and the presumption of guilt prevails. There may be cases involving questions which should be determined by the court of last resort, and in such cases it would be very proper for the circuit court to make an order authorizing the prisoner’s counsel to appeal the case, and he would then be entitled to compensation under section 9047. If he chooses to appeal the case upon his own motion, he must look to his client for compensation. We are confirmed in this view by the fact that this section was enacted 40 years ago, and has never been construed by the profession or the circuit courts to confer the power now claimed.

The judgment is affirmed.

The other Justices concurred.


text:
    WATERMAN v. BAILEY.
    1. Appeal—Statutory Limitations—Effect of Delay. •
    The Supreme Court has no jurisdiction to consider an appeal in a cause wherein the settlement of the case was delayed, without the fault of the circuit court or its officers, until the statutory time for settlement, including extensions, had expired.
    2. Same—Jurisdiction by Consent.
    Since jurisdiction is not conferred Upon the Supreme Court by consent of the parties, the court cannot take cognizance of such appeal, even though the delay was with the acquiescence ■of the appellee.
    Appeal from Calhoun; Smith, J.
    Bill by Lewis Waterman and others against Betsey A. Bailey and others to set aside a deed. From a decree dismissing the bill, complainants appeal. On motion to dismiss.
    Submitted January 5, 1897.
    Granted February 2, 1897.

      L. B. Tompkins, for the motion.

      Mains & Mains, contra.

   Hooker, J.

A decree dismissing the complainants’ bill was entered on March 23, 1894, in the circuit court. In October, 1894, an order was obtained extending the time to make and settle a case (under 3 How. Stat. § 6647) until November 12, 1894. On March 25, 1896, counsel asked the circuit judge to settle a case, and on April 1, 1896, he filed a written opinion, in which he said that—

“I have much doubt about the right of the complainants to have this case settled, taking into consideration its condition. No extension of time since November 12, 1894, has been asked for or granted; and the record has been in the hands of the complainants’ solicitor since May 2,1895. Not wishing to put anything in the way of a review of cases heard by me, I have concluded to settle the case. Where there is contention about the evidence, as in this case, I feel it is better to settle the case upon the whole record as presented to me. Upon presentation of this record, at the next session of the court on the 10th instant, I will sigh it as a settlement of the case. ”

This order was not satisfactory to the complainants,who desired to have a case settled which should contain only the substance of the testimony, whereas the judge proposed to include a verbatim report, including questions and answers. The complainants asked this court for a mandamus in the premises, but on April 7, 1896, this was denied, the court stating, in its memorandum as announced, that the (circuit) “court had no power to settle the case.” As the statute referred to expressly provides for a case which shall contain only the substance of the testimony, and as this is the usual practice, it would seem that the mandamus was denied upon the ground that the time within which the circuit judge had jurisdiction to settle a case had expired. As the application for mandamus was ex parte, and no order to show cause issued, it is probable that the circuit judge was unaware that it was made. Accordingly, a case was settled upon April 10th, in accordance with his opinion, before mentioned, and at the same time the appeal bond was approved. The record has been filed and printed at a large expense, and counsel claim that defendants’ counsel had .knowledge of the steps being taken, and made no objection, but tacitly signified a willingness that the case should proceed in this court.

The questions before us are two:

1. Did the court acquire jurisdiction of the cause?

2. Have defendants, through counsel, waived a right to have the cause dismissed ?

Appeals are statutory, and, in the absence of statutes, no right to appeal exists. See Sullivan v. Haug, 82 Mich. 555, and cases there cited; Bevins v. Ramsey, 11 How. 185; 2 Enc. Pl. & Prac. 15, 16. In the authority last cited, it is said: “It follows, therefore, that all the requirements of the statute for taking and perfecting an appeal are deemed jurisdictional, and must be strictly complied with.” This is the doctrine of this court. In Portage Lake, etc., Canal Co. v. Haas, 20 Mich. 326, it was said that, “when an appeal is not taken within the statutory time, and there is no provision for an extension, there is no jurisdiction to hear it.” To the same effect is the case of Canfield v. The Brig City of Erie, 21 Mich. 160; People’s Ice Co. v. Steamer Excelsior, 43 Mich. 336. And it is said that, “where the conditions are not complied with, the appeal is void upon objection.” Hardaway v. Biles, 1 Smedes & M. 657; Porter v. Grisham, 3 How. (Miss.) 75. “The conditions required by statute as precedent to taking and perfecting an appeal cannot be modified or extended by any judge or court without express statutory authority.” Emerson v. Clark, 2 Scam. 489; Sholty v. McIntyre, 136 Ill. 33. The statute referred to expressly limited the time for settling a case to 3 (now 4) months, including extensions; yet the case was not settled for over 2 years, and section 6738, 2 How. Stat., limits the right to appeal to 40 days after the settlement of a case. See Gale v. Gould, 40 Mich. 62; Love v. Francis, 63 Mich. 189 (6 Am. St. Rep. 290).

It is argued that the cases of Cameron v. Calkins, 43 Mich. 191, Gram v. Wasey, 45 Mich. 223, and Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5, are inconsistent with the proposition contended for, viz., that the statutory requisites are necessary to confer jurisdiction. These were cases in which the court refused to dismiss proceedings, where, owing to some default of the court or its officers, parties were prevented from taking appeals seasonably; and the opinions seem to make such cases exceptional. All courts do not recognize this rule. Excelsior Electric Co. v. Chicago Waifs’ Mission & Training School, 41 Ill. App. 115. But see Cook v. Hoyt, 13 Ill. 146; White v. Frye, 2 Gilman, 65.

We are therefore constrained to hold that this court acquired no jurisdiction, and, as the Supreme Court cannot assume jurisdiction by express consent of parties (see Doerr v. Mut. Life Ass’n, 92 Iowa, 39), a waiver by delay and acquiescence would be ineffective.

The motion to dismiss is granted.

The other Justices concurred.


author: Montgomery, J.

text:
    CAMPBELL v. KENT CIRCUIT JUDGE.
    Equity Jurisdiction—Injunction—Boundaries.
    A court of equity is not deprived of its jurisdiction to quiet title and to issue an injunction in a proper case by the fact that a determination of the questions involved requires the location of a disputed boundary.

      Mandamus by James Campbell to compel Allen C. Adsit, circuit judge of Kent county, to dissolve an injunction.
    Submitted October 6, 1896.
    Denied February 18, 1897.

      Frederick W. Stevens, for relator.

      M. H. Walker, for respondent.
   Montgomery, J.

One Frances A. Shafer filed a bill in the circuit court for Kent county against the relator, praying that the title to certain land of complainant be quieted, and also praying for an injunction to restrain the defendant from building a cement driveway and cement or stone coping upon land claimed to belong to complainant, and adjoining the boundary line between land owned by complainant, on the one side, and defendant, on the other. The circuit judge granted an injunction. The defendant moved to dissolve the injunction, and, upon the application being refused, applies to this court for mandamus to compel the dissolution of the injunction.

The relator contends that a court of equity has not j urisdiction to settle a' dispute over a boundary line, and, therefore, that the court had no jurisdiction in this case to grant the injunctive relief prayed. The cases relied upon are Andries v. Railway Co., 105 Mich. 557; Wykes v. Ringleberg, 49 Mich. 567; Bresler v. Pitts, 58 Mich. 347. These cases undoubtedly establish the doctrine that a court of equity has not jurisdiction to settle every dispute relating to a bound ary line, or, to use the language of Mr. Justice Campbell in the case last cited, that “there is no jurisdiction in a court of equity to settle boundaries merely because disputed and difficult of ascertainment.” O n the other hand, if a case is brought within some other head of equity jurisprudence, it is not conceived that the mere fact that there is involved in the question of the complainant’s right a necessity for fixing a boundary line ousts the court of jurisdiction. This was determined in Wilmarth v. Woodcock, 58 Mich. 482, 66 Mich. 331. See, also, Stewart v. Carleton, 31 Mich. 270.

The bill in this case sets out that complainant occupies the premises described in her bill, and has been in the full and complete possession thereof since the 28th of January, 1870; that there was an adjustment of the boundary line between herself and the prior owners of the lot occupied by defendant, upon the line now claimed, and that a fence was constructed upon this line, and has since been treated and acquiesced in by all the parties as the true line fence; that complainant has occupied the premises for more than 21 years; that, when defendant purchased the land, the fence was pointed out to him as a true boundary, a,nd that he bought with that knowledge and understanding; that said fence became old, and was removed in the last few years, but that most of the posts that marked the location of the same are still there in the ground, although some of them, at the rear, have been removed or buried by said defendant; that defendant is about to take possession of said disputed strip, and build on the front portion, and running about 40 feet back, a cement stone coping and cement or tar driveway; that nearly the whole coping and part of the driveway is upon complainant’s lot, and north of the line of said fence or posts; that, for a large portion of said 40 feet, said fence or coping will come under complainant’s eaves; that the strip which defendant declares his intention to take possession of is worth $200, and the building of said .coping will damage complainant over $100; and that two men have commenced to remove the turf to build said coping, and will, unless enjoined, dispossess complainant. This is followed by an allegation of irreparable injury, and by the prayer, which includes a prayer that the title of complainant be quieted, for an injunction, and for general relief. By the case made by complainant below, it also appears that she is in possession, and that the remedy by ejectment was not open to her at the.time of filing the bill, and it would appear, also, that an action, of trespass, or even of ejectment, ' based upon the occupancy by defendant of that portion of the land which he proposed to take for the driveway and coping, would not settle the right to the other portion of the disputed territory in the rear of the lot. 2 How. Stat. § 6626. We think a prima facie case for equitable relief was made out by the bill, and it follows that, the court having jurisdiction of the subject, we will not, by mandamus, review the action of the circuit judge in refusing to dissolve the injunction.

The other Justices concurred.


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    TURNER v. ST. CLAIR TUNNEL CO.
    Conflict of Laws—Torts—Personal Injuries.
    The liability of a corporation engaged in constructing a tunnel under a river between Michigan and Ontario, and employing an overseer on each side, in an action for injuries to an employé alleged to have been due to its negligence in allowing him to enter upon work in compressed a'ir on the Canadian side of the tunnel at a higher pressure than that to which he had been accustomed on the American side, without warning him of the increased danger, is to be determined by the laws of Canada, although the employé was sent to the Canadian side by direction of the American foreman. ,
    Error to St. Clair; Vance, J.
    Submitted October 22, 1896.
    Decided February 18, 1897.
    . Case by David Turner against the St. Clair Tunnel Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Geer & Williams and L. G. Stanley (E. W. Meddaugh, of counsel), for appellant:
    The negligent act, if any, was done in Ontario, Canada. • The rights of the parties are governed, therefore, by the law of Ontario. Story, Conf. L. (7th Ed.) § 307d; Rafael v. Verelst, 2 W. Bl. 1055; Mostyn v. Fabrigas, 1 Cowp. 161; Whitford v. Railroad Co., 23 N. Y. 471; Crowley v. Railroad Co., 30 Barb. 99; Beach v. Steamboat Co., Id. 433; Bridger v. Railroad Co., 27 S. C. 456; Knight v. Railroad Co., 108 Pa. St. 250; Railroad Co. v. Moore, 29 Kan. 632; Herrick v. Railway Co., 31 Minn. 11; Smith v. Condry, 1 How. 28. Anri what the law is, is a question of law for the court. Rog. Exp.. Test. § 99; 1 Greenl. Ev. § 486; Story, Conf. L. § 638; Kline v. Baker, 99 Mass. 253; Ely v. James, 123 Mass. 36; Railway Co. v. Tuite, 44 Ill. App. 535. It is a matter of justice to the parties to decide the case by the law of the place of injury. Wingert
      v. Circuit Judge, 101 Mich. 395; Boyd v. Clark, 8 Fed. Rep. 849. By the law of Ontario, plaintiff has no right of action. McFarlane v. Gilmour, 5 Ont. 302; Rudd v. Bell, 13 Ont. 47; Matthews v. Powder Co., 14 Ont. App. 261, 12 Ont. 58; Allen v. New Gas Co., L. R. 1 Exch. Div. 251; Wilson v. Merry, L. R. 1 H. L. Sc. 326; Howells v. Steel Co., L. R. 10 Q. B. 62.

      Chadwick & Mcllwain, for appellee.
   Hooker, J.

The defendant is a corporation, and was engaged in constructing a tunnel under the St. Clair river between Ft. Gratiot, Mich.; and Port Sarnia, Ontario. Compressed air was used to prevent caving, access to the tunnel being had through an air lock, in which the air was made to correspond in density with that in the tunnel, or with that of the atmosphere outside, by the use of valves. Letting air into the lock from the tunnel accomplished the former, and allowing it to escape outside from the lock effected the latter. It was known by defendant that those who entered the tunnel experienced an inequality of air pressure, which, for a time at least, caused an unpleasant pressure from the outside upon the eardrums, and perhaps a similar pressure from within upon going out. It was also known that after going out some persons were attacked with violent pains in the members and joints, which, among the men, at least, went by the name of “the bends.” It is, perhaps, not improper to say that these were more -common among beginners in work in compressed air, and that it was generally understood that they might be avoided, or at least that the danger of their occurring might be greatly lessened, by changing the pressure gradually and slowly in the lock. It was shown that the practice of the company was to require an examination by a surgeon of the men employed, to ascertain that they were in a proper physical condition to make it prudent for them to work in compressed air. This tunnel was constructed by starting a drift from each side of the stream, and each had its overseer or superintendent, though both were-under one manágement. Mr. Hobson was chief engineer, Murphy had charge of the excavation, and Eames was in charge of the mechanical work and the working of the machinery. Minto was assistant to Eames, and looked after work at the Canadian end. Hushin was employed by Eames as mechanical foreman on the Michigan side. The plaintiff was employed by Hushin, and first worked outside as a laborer, but was desirous of getting a job where he could draw more pay, which seems to have been understood to mean that he applied for work inside, and he was finally given such work, and worked a day, or perhaps two, before the occurrence which gave rise to this action. After the plaintiff commenced work in compressed air, he and three or four others were requested or directed by Hushin to go to the Canadian side to work, and to report to Minto, which they did, and they were set at work in the tunnel, where, after working eight hours, they were persuaded by the overseer in charge tó remain for another shift of eight hours. At the end of that time they came out through the lock. They started for the Michigan side, but, before getting across the river, the plaintiff was attacked by “the bends,” and had to go home. He became unconscious, and when he recovered consciousness he found that he had lost his hearing altogether. There was testimony from experts tending to show that they had many patients whose ears were temporarily affected by work in compressed air, but it is claimed that it was shown that, up to the time of plaintiff’s experience, no case of total deafness or permanent injury to the ears had fallen within the observation of the defendant or any of the witnesses. This action was brought, charging the defendant with negligence, and plaintiff recovered a verdict and judgment, which the defendant has brought to this court by writ of error.

There was evidence tending to show that, shortly before the plaintiff was ordered to go to the Canadian side, some difficulty had occurred there, owing to a stratum or pocket of loose soil, which threatened to cave and let the water into the tunnel, which would have been a serious damage, if it had not made abandonment of the enterprise necessary; that, to prevent it, the air pressure had been increased, and that, owing to a reluctance to work under such pressure, most of the men had quit work, and it was difficult to secure others to take their places. Whether this was from fear of injury from work in the air, or from a lack of faith in the efficacy of the air, and a fear that the water would get in and drown them, is perhaps not altogether clear; but, at all events, men were needed, and were sent from the Michigan side. The plaintiff testified that he told Hushin that he did not want to go, because he had heard that they were working over there in a pressure of 28 pounds, and that the men agreed-that they would not work in that pressure, and that Hushin denied it, saying there was only 19 or 20 pounds, and said: “Go over there, and stay until 8 in the morning, and that won’t hurt anybody, and come out and bring a good record back;” that, upon that assurance, they went. There was testimony tending to show that the pressure carried that night was from 26 to 28 pounds, and Hushin testified that he knew it was 26 pounds when he sent the men over. The plaintiff also testified that he informed Hushin that he was fatigued, and needed sleep, and that Hushin replied that he could sleep tomorrow. It also appeared that the men went in at 4 o’clock, and at 12 they prepared to go out, but, on solicitation of the overseer in charge of the work inside, who said he would be without men if they did not stay, and that it would not hurt them to stay until morning, they remained. There was testimony that they were from one and a half to five minutes in going through the lock.

The court instructed the jury that—

‘ ‘ Fearing that I may not have made it sufficiently specific, I desire again to repeat the proposition to you that this plaintiff cannot recover, unless he shows, by a fair preponderance of evidence, to your satisfaction, (1) that the use of compressed air in the manner in which it was used on the Canadian side was dangerous; (2) that the defendant knew it when it directed Turner to go to work, or that it should have known it by the exercise of reasonable care and caution through its officers, superintendents, and foremen; (3) that Turner was ignorant of the danger; (4) that the danger was latent, or, in other words, concealed and hidden; (5) that the plaintiff did not know of this concealed or hidden danger; (6) that he was not cautioned by the tunnel company, or its officers or foremen, who employed him, of this danger, and that he did not know it from any other source; and (7) that his injury was caused by working in compressed air, and that while he was doing that he was in the exercise of due care and caution. Each one of these, I repeat, must be proven to your satisfaction before the plaintiff can recover.”

It is contended by the defendant:

1. That this injury to the plaintiff was not to have been anticipated, reasonably, so as to lay a duty on defendant to avoid it by warning him. There was no latent danger which the defendant knew, or ought to have known.

2. That the acts of Hushin and Minto and the overseer in the tunnel were the acts of fellow-servants.

3. That the defendant was not obliged to make the place of labor safe, under the rule laid down in Beesley v. F. W. Wheeler & Co., 103 Mich. 196, and Petaja v. Mining Co., 106 Mich. 463.

4. That the work was voluntarily performed in Canada, and that the case is governed by the law of the province, which does not permit a recovery.

At the threshold of the case lies the fourth question mentioned, because, if it is true that under the law of Canada there could be no recovery, it is- the end of the case, unless it can be said that the law of Michigan governs. In support of their contention counsel for the defendant cite a number of cases where wrongs were perpetrated in foreign states; such wrongs as assaults and batteries, malicious arrests and prosecutions, and false imprisonment, injuries to passengers and employés on railroads, etc. In all of these cases the rule is said to be that the action for the wrong is transitory, but that the right of recovery depends upon the law of the place where the tort is committed. In this case the alleged wrong consisted in allowing the plaintiff to enter upon a dangerous work, in ignorance of dangers known, or which it is said the defendant should have known, whereby the plaintiff was injured. This occurred in Canada, and we are of the opinion that the case falls within the authorities mentioned, which will be found cited in the briefs of counsel. Counsel for the plaintiff claim that the breach of duty occurred in the United States, by the defendant falsely assuring the plaintiff that the employment was safe. Continuing, they say:

“There are two elements necessary to constitute liability for negligence, viz., wrong and injury. Neither, alone, is sufficient. While it is true that negligence without injury gives no right of action, it is equally true that injury without negligence gives no right of action. The action is based on negligence. Negligence is simply a neglect of duty. That neglect of duty constitutes the ‘ wrong ’ which gives the right of action, which is founded upon the application of the general principle of law that ‘where there is fault there is liability.’ The breach of duty, the fault, and wrong were all on the American side. Upon these plaintiff’s right of action is founded. The injury is but the result of the breach, the fault, and the wrong. The injury alone 'created no liability. It is defendant’s connection with, and responsibility for, the injury which makes it liable, and that responsibility was fixed upon defendant when it gave the wrongful order which resulted in the injury. None of the cases cited by defendant are authority for the case at bar. They do not contain the initial wrong by the master to the servant injured which creates the right of action, viz., the deceit and wrongful order. They are all cases where the tort was committed in some foreign country or state. In this case the tort was committed on the American side, and committed by the master.”

If it is true, as counsel concede, that the liability rests upon the concurrence of an injury and a neglect of duty, without which neglect the injury would not have occurred, the tort cannot be said to have been committed in Michigan, and it can be said to have been done in Canada, where the dangerous service began when the plaintiff entered the dangerous place without warning, and which warning up to that time might have been given by the master or any other person. If, before he incurred the risk, knowledge of the danger came to the plaintiff in any way, or from any source, there would have been no actionable wrong. Counsel have not cited an authority for the position taken, and we think, as already stated, that the law of the place of the injury as to the duty of the master must apply. See Wingert v. Wayne Circuit Judge, 101 Mich. 395; 3 Suth. Dam. § 1280. The trial court reached a different conclusion upon this troublesome question, and we are constrained to hold that therein he erred. The importance of this ruling is seen in the following statement of the question involved: For plaintiff it was asserted that it was the duty of the master to warn the plaintiff that an increased and higher pressure Was maintained in the Canadian than in the Michigan tunnel, where the plaintiff had worked, and that this increased the danger; also that it was. dangerous to work for twice the usual time in this high pressure, and that greater deliberation in passing the lock in such case was necessary to safety. If the Michigan rule was to be applied, giving notice of the danger was a duty of the master, which he could not escape by authorizing a representative to perform it; while, if the Canadian rule governed, it was claimed that the master might safely leave that to a competent foreman, his duty being discharged by the exercise of due care in the selection and employment of such foreman. From the evidence offered, such would seem to be the law in Canada, and the injury to the defendant’s case by the ruling is manifest.

We think it unnecessary to discuss the large number of questions raised by this record, most of which turn upon legal principles repeatedly considered by us, and upon which we see no reason for anticipating difficulty upon another trial.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    WILKINSON v. COMMON COUNCIL OF CITY OF SAGINAW.
    Municipal Corporations—Police Officers—Salary.
    Under the charter of the city of Saginaw, providing that police officers shall be paid such salary, for the time engaged in “active service,” as shall be recommended by the board of police commissioners and approved by the common council, an officer whose removal is improperly ordered, and who ceases to perform the duties of his office pending proceedings for reinstatement, is not entitled, on reinstatement, to salary for the time lost.

      Certiorari to Saginaw; Kendrick, J.
    Submitted November 10, 1896.
    Decided February 18, 1897.

      Mandamus by John C. Wilkinson to compel the common council of the city of Saginaw to audit and allow his claim for salary as a police officer. From an order denying the writ, relator brings certiorari.

    Affirmed.

      A. H. Swarthout, for relator.

      E. L. Beach (W. G. Gage, of counsel), for respondent.
   Montgomery, J.

Relator was removed from the police force of ’the city of Saginaw December 15, 1894. Subsequently proceedings were instituted by which he was reinstated. Wilkinson v. Saginaw Police Com’rs, 107 Mich. 394. He thereupon made an application to the circuit court for mandamus to require the common council to audit and pay his account for salary up to the present time. It was held, on his application for reinstatement, that the board had the power to remove summarily, but that it had not proceeded under that power. The return made to the circuit court shows that relator has not performed the services of policeman from the time of his removal, in December, 1894, and that, during most of this time, he has been absent from the State, and has acquiesced in the order removing him. The return further shows that there was no fund against which the common council could issue an order for the payment of relator. This would furnish a sufficient ground for refusing mandamus; but, as the question of whether relator is entitled to receive compensation for services since the date of his removal is the meritorious question in the case, we think it proper to dispose of it.

The general rule, undoubtedly, is that where an officer has been prevented, through no fault of his own, from performing the duties of his office, he is entitled to recover his salary during the interim, and it has been held also that in such case he cannot be compelled, in an action to recover his unpaid salary, to account for wages earned in other and different employment. See Fitzsimmons v. City of Brooklyn, 102 N. Y. 536 (55 Am. Rep. 835). This rule rests upon the ground that the emoluments of the office belong to the officer as an incident of his office; that he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office. But, while this is the general rule, we think the present case is an exception. It is equally well settled that an officer is not entitled to receive compensation for services except as it is fixed by law. Section 5 of title 11 of the charter of the city of Saginaw (Act No. 455, Local Acts 1889) provides, as to police officers, that, “for the time engaged in active service, each member so engaged shall be paid such salary as shall be recommended by the board and approved by the common council.” The intention of the charter was to confer upon the board the power of directing as to the services of each officer, and it makes active service of the member a condition to his receiving any salary whatever. We think, in view of the fact that the board had the power to remove, and that relator was only entitled to compensation for the time he was in active service, he has not shown himself entitled to receive the compensation asked.

The order of the circuit court will be affirmed.

The other Justices concurred.


text:
    MICHELSON v. BOARD OF POLICE COMMISSIONERS OF CITY OF SAGINAW.
    Municipal Corporations—Police Officers—Removal—Reinstatement.
    A board of police commissioners, authorized by charter to remove policemen in certain cases, will not be compelled to reinstate an officer improperly removed, if such officer is regularly dismissed before proceedings are taken for his reinstatement.

      Certiorari to Saginaw; Kendrick, J.
    Submitted November 10, 1896.
    Decided February 18, 1897.

      Mandamus by Hans A. Michelson to compel the board of police commissioners of the city of Saginaw to reinstate him as a member of the police force, and the common council of said city to audit and allow his claim for salary. From an order denying the writ, relator brings certiorari.

    Affirmed.

      A. H. Swarthout, for relator.

      E. L. Beach (W. G-. Gage, of counsel), for respondents.
   Montgomery, J.

This case presents the same question as that involved in the case of Wilkinson v. Common Council of City of Saginaw, ante, 585, but the petition contains an additional prayer that the relator be reinstated as policeman. He was removed in December, 1894, and apparently acquiesced in the action of the board, and removed from the State, and delayed nearly 15 months taking any action in the matter. On the 12th of March, 1896, the petition in the present case was filed. It appears, however, by the return of the police commissioners, that on the 8th of January, 1896, relator had been removed regularly, so that he is not entitled to be reinstated. The other question involved is ruled by the case of Wilkinson v. Common Council of City of Saginaw.

The order of the circuit court will be affirmed.

The other Justices concurred.