text:
    ADAMS v. HENRY.
    1. Physicians and Surgeons — Negligence—Malpractice—Diligence in Attending Patient.
    A physician who had attended a patient threatened with miscarriage resulting from an accident, and who, after being summoned by telephone and notified of the approaching travail, failed to attend promptly as he had promised, and arrived two hours after the birth of the ohild, notwithstanding repeated summonses over the telephone, was not entitled to a directed verdict, where plaintiff claimed and offered to show injuries resulting from his alleged' neglect.
    2. Appeal and Error — Action Pending — Plea in Bar.
    On error from a directed verdict and judgment in favor of defendant, a physician, the point that he had brought suit for services rendered to plaintiff and recovered a judgment in justice’s court, which he pleaded as a bar to plaintiff’s action for malpractice, will not be considered if it was not passed upon by the trial court.
    Error to Wayne; Murfin, J.
    Submitted February 15, 1911.
    (Docket No. 193.)
    Decided May 8, 1911.
    Case by Nellie Adams against Thomas J. Henry for malpractice. A judgment for defendant, on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Reversed.

      James & Kilpatrick (McHugh & Gallagher, of counsel), for appellant.

      Washington I. Robinson, for appellee.
    This is an action against defendant, a physician, for malpractice. On December 26, 1907, plaintiff, who was then in an advanced state of pregnancy, claims to have received a jar while alighting from a street car which brought on premature labor. On that evening defendant was called and prescribed for her. Next morning, the 27th, defendant again called, and advised her that she would shortly be delivered. In the afternoon plaintiff’s condition continued to be serious, and she says she suffered great pain. During the afternoon defendant called upon her five or six times, the last time about 7 o’clock p. m. Upon the occasion of the last visit, plaintiff testified to the following statement made to her by the defendant:
    • “He said he would send a trained nurse down, that my condition was growing worse, and that he would be there at 11 o’clock prompt, maybe a little earlier.”
    Defendant did not return until 2 o’clock a. m. of the 28th. Plaintiff’s child had meantime been born at five minutes after 12 a. m. Plaintiff in her declaration sets out the contract of employment, and avers that defendant wantonly neglected and refused to give her the care and attention her condition required during parturition, and charges that—
    “Through the wanton neglect and negligence of the defendant, she, the said plaintiff, was torn and lacerated, in and about the cervix or uterus, and unnecessarily suffered great pain and agony in giving birth to said' child without the proper medical attendance, through the wanton neglect and negligence of said defendant, and in and about the uterus, and was made to suffer great pain and agony by the wanton neglect and negligence of the defendant in wantonly and negligently refusing to call and attend said plaintiff as he, the said defendant, had promised so to do, and as it was his duty to do in and about the premises.”
    Plaintiff further charged that defendant was negligent in his subsequent treatment of her, in that he had not himself repaired or advised the reparation of the lacerated parts. As to defendant’s knowledge of her condition, she testified that:
    “ On. February 10th, when he made an examination after I was operated on (this operation was the curetting of the uterus), he told me that I had bad lacerations of the womb, and a bad tear. I asked if there was any way for those things to be repaired. He didn’t give me a definite answer.”
    Plaintiff offered to show that shortly after 11 o’clock her husband had called defendant at his office by telephone, that defendant had himself answered the telephone, and, upon being advised of plaintiff’s condition, stated that he would at once attend her; that, after waiting a time, defendant was again called, and again agreed to “come right over;” that a third time defendant was called, this time a few minutes after the child was born; that he was advised of the situation, and again agreed to respond at once, but did not arrive until 2 o’clock, when he stated that he had been at home, drinking wine with some friends. Plaintiff made this further offer:
    “We propose to show that the defendant was culpably negligent, after ascertaining the lacerations and the tear, in not repairing them, and that eventually, under date of October 13, 1908, a surgeon did repair the lacerations, did repair the tear, and that that was a proper method of procedure in order to relieve her sufferings, and that that method should have been adopted by the defendant in the first instance. We propose to show that his first operation was for the sole purpose of scraping the womb, and that subsequently it was his duty, after ascertaining the more serious condition in which she was, namely, a rupture of the perineum and the lacerations, it became and was his duty, after learning that, to take some action with reference to either medical treatment or the performance of an operation in order to relieve that condition, and that he failed to either treat her for the condition that he found to exist, or to advise an operation or to see that an operation was performed.”
    Whereupon the learned circuit judge directed a verdict for the defendant in the following charge:
    “Well, gentlemen of the jury, during your absence, I have asked from counsel for this plaintiff what specific testimony he could or would produce which would show any place that the defendant in this case had neglected any duty which he owed to the plaintiff. He has been unable to tell any testimony. He has been unable to make the offer of proving any specific concrete testimony to prove carelessness or negligence. He does not know, and is not prepared to show, what medicines were given to this woman, nor is he prepared to show that the medicines that were given were proper medicines or not proper. In other words, the result of the colloquy that we have had in your absence has demonstrated that his offer of proof, made in very general terms, will go simply to the effect that the woman did not get well while under this doctor’s treatment, coupled with the allegation in the declaration and in the offer to prove that the doctor was late in getting to this premature birth. I have asked counsel to show me any authority which holds, as a matter of law, that because a doctor is late in getting to the bedside of a woman about to be confined that it is actionable. He has failed to produce any such authority, and I question the existence of any such authority. It seems to me that it would be a most startling rule of law to announce that any doctor who is summoned to attend a woman in confinement, could be held liable in a lawsuit if he was late getting to such a patient. I know of no such rule of law. My attention has not been called to any such case, and I question if there is any such case.
    ‘ ‘Aside from that, it is further urged by counsel that this physician neglected his duty in the premises because he did not advise an operation for certain lacerations. He does not assume to state in his offer to prove, whether that is the sole and only way of curing this condition, or whether there was anything else that could have been done, aside from that which this doctor was doing. All of us, gentlemen of the jury, know, as a matter of common knowledge, that doctors frequently advise operations. Some doctors discourage operations^ Some patients want operations, and some patients don’t want operations. There is no offer to prove here, yet made by counsel, that would indicate in the slightest degree that anything this doctor did was careless or a wilful neglect. The whole case as outlined by him, and as detailed by his client, evidences that a condition arose which caused apparent difficulty in his treatment; but that that condition was due in any way to the neglect of this physician, there is no testimony yet introduced, nor has counsel been able to assure this court, during the colloquy, that any such testimony can be produced. And because, gentleman, I do not think it is actionable, because a doctor does not cure a patient, I think it my duty to stop this case and direct you to render a verdict of no cause of action. You may take such a verdict, Mr. Clerk.”
    Plaintiff has removed the case to this court for review by writ of error.
   Brooke, J.

(after stating the facts). We are of opinion, if plaintiff had been permitted to produce, and had been able to produce, testimony tending to establish the statements contained in the offer, that it cannot be said, as a matter of law, that defendant was not negligent. If defendant was present and responded personally to each call that is said to have been made upon him between 11 and 12:30 o’clock, and upon each occasion agreed to at once attend the plaintiff and failed to keep his promise, we think he should be held liable, if his failure to attend resulted in injury to plaintiff. We note that plaintiff did not offer to prove that the laceration of the cervix and the rupture of the perineum resulted from defendant’s failure to attend as it is alleged he had agreed. The declaration contains the averment, however, and we are disposed to the view that plaintiff should have been permitted to offer such testimony as she possessed pertinent to the issue.

Defendant contends that, inasmuch as by his plea he shows that he has obtained a judgment against plaintiff in justice’s court (now pending on appeal to the circuit court) for his services rendered at the time of plaintiff’s confinement, the judgment operates as a bar to the present action. That question was not passed upon by the court below, and has not been briefed by plaintiff in this court. Until an adjudication is had upon the question in the circuit court, we must decline to consider it.

The judgment is reversed, and a new trial ordered.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DOWNING v. HILL.
    Mortgages —Cancellation of Discharge — Equity — Clean Hands.
    That complainant wrongfully loaned to defendant funds of a fraternal society, of which she was treasurer, taking mortgages for the loan, is not a defense, on the theory that complainant does not come into equity with dean hands, in a suit to cancel discharges of such instruments executed by complainant on defendant’s promise to pay the loans.
    Appeal from St. Clair; Law, J.
    Submitted February 16, 1911.
    (Docket No. 106.)
    Decided May 8, 1911.
    Bill by Amy A. Downing against Gertrude F. Hill to cancel certain mortgage discharges and reinstate the mortgages. From a decree for complainant, defendant appeals.
    Affirmed.

      W. L. Jenks, for complainant.

      Moore & Wilson, for defendant.
   Hooker, J.

The complainant’s bill was filed to obtain a decree setting aside the discharge of two mortgages obtained by fraud. Two defenses were interposed, one of fact and one of law.

Complainant claimed that the mortgages were given to secure money previously loaned by her to the defendant, and that she discharged them upon defendant’s request and promise that defendant would execute a new mortgage to a bank, and thereby would obtain the money and pay her obligation to the complainant. This she after-wards omitted doing, and, when asked about it, denied that she was indebted to the complainant. Defendant claims that she did not owe the complainant, and that the mortgages were given to complainant to enable her to obtain money to settle her account as secretary of the “Ladies’ Auxiliary to the Brotherhood of Railway Trainmen,” which account was in arrears, and for which, defendant claims, complainant was, or was likely to be, charged with embezzlement. She testified that, after ascertaining that complainant had caused the mortgages to be recorded, she secured their discharge, and admits that she afterwards refused to aid her further.

It seems to be conceded that the loans, if made, were in small sums, and were made as a matter of accommodation between friends, and that the money was taken from the society funds. We do not find that defendant knew this, and nothing indicates an intent on the part of complainant to wrong the society. Counsel for defendant contend that, under the circumstances, the complainant does not come into equity with clean hands, and therefore is not entitled to relief. The learned circuit judge granted the prayer of complainant’s bill, and defendant has appealed.

We are convinced, by what seems to us the clear preponderance of the evidence, that the decree of the learned circuit judge was a just one so far as the merits are concerned, and that the rule above asserted by counsel for defendant should not be applied in this case. The turpitude on the part of complainant in loaning funds that were not her own, if there was any, is not a matter in which the defendant is interested. The third party — i. e., the society whose fund was depleted by the loan — may be interested; but its rights may be better and more certainly cared for by protecting the securities taken for the loan than by relieving the defendant from her obligations. What arrangements for the payment of complainant’s obligation to the society, and what steps the latter may have taken to avail itself of the securities, if any, do not appear in this record. At all events, the defendant shows neither injury nor equities, and nothing indicates that the. interests of the society, or public policy, will be subserved by denying complainant relief. City of Chicago v. Transit Co., 164 Ill. 224 (45 N. E. 430, 35 L. R. A. 281).

The decree is affirmed, with costs.

Bird, Moore, MoAlvat, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    SWAINE v. HEMPHILL.
    1. Estates of Decedents — Executors and Administrators — Duty to Close Estate — Liability.
    Where an administrator continued a manufacturing business of the estate for several years with the consent of the widow and children of deceased, in good faith' and in order to sell the business as a going concern, and lost money without his fault, he is not chargeable with the amount of such losses.
    2. Same — Liability for Losses.
    It is ordinarily the duty of administrators to liquidate estates without undue delay, and if they violate the rule, even in good faith, they are held strictly liable for all losses incurred, and are not permitted to offset against them profits that they may have made.
    Appeal from Washtenaw; Kinne, J.
    Submitted March 2, 1911.
    (Docket No. 130.)
    Decided May 8, 1911.
    Bill by Lizzie Swaine, Florence Swaine, and Jessie Swaine, against Robert W. Hemphill to set aside his discharge as administrator of the estate of Frederick J. Swaine, deceased, and for an accounting. From a decree dismissing the bill of complaint, complainants appeal.
    Affirmed.

      Allen Campbell (William Lucking, of counsel), for complainants.

      John P. Kirk, for defendant.
    Complainants are, respectively, the widow and daughters of Frederick J. Swaine, who died intestate on April 14,1897. Deceased had for many years prior to his death been engaged in the malting business in the city of Ypsilanti. Defendant, who was at that time cashier of the Ypsilanti Savings Bank, was appointed, first special, and later general, administrator of the estate. As such administrator, he continued the business of the deceased from April, 1897, to November, 1903, when his final account was allowed and his bond canceled. Complainants signed a waiver of notice of hearing upon defendant’s final account, and at the same time executed a power of attorney authorizing him to continue the business, which he did until November, 1904, when it was closed out. At that time there remained due from the estate to the Ypsilanti Savings Bank the .sum of $4,000. The bill of complaint sets out at length the dealings of defendant with the estate, and avers that it was complainants’ expressed desire that the business should be continued only so long as it was profitable, that defendant, without informing them, continued to run it at loss, and that he fraudulently secured their consent to his discharge as administrator and the cancellation of his bond as such. Complainants pray that the order allowing the final account and discharging defendant as administrator be set aside because procured by fraud, and that his bond be reinstated; that defendant be held liable for all losses occasioned by the conduct of the business and ordered to reimburse complainants therefor. Defendant answered, denying all material averments of the bill. From a decree dismissing .the bill, complainants have appealed.
   Brooke, J.

(after stating the facts). The record conclusively shows that at the death of Frederick J. Swaine, his personal estate amounted to $16,261.01, and that included in this sum were notes of the Ann Arbor Brewing Company for $4,485.79 and note and account of Kolb Bros, for $7,300. Swaine at that time was indebted in the sum of $16,132.14, $10,500 of which he owed to the Ypsilanti Savings Bank. If all the assets of the personal estate had been collectible, they would barely have equaled the liabilities. By carrying on the business for nearly eight years, the Kolb Bros, account was collected in full and the Ann Arbor Brewing Company account was reduced so that the final loss upon it was less than $2,500. The personal estate in the hands of defendant was increased shortly after Swaine’s death by the payment to him by the widow of $5,450, which she had received as insurance on her husband’s life, and as a legacy from a brother. This money was used by defendant to liquidate, in part, the obligations of the estate. During the entire time defendant ran the business he paid to complainants the sum of $9,493.88. He likewise paid for improvements to the real estate at complainants’ request the sum of $1,-578.66, and during the whole period the residence of complainants was heated at the expense of the business, and one of the men employed at the plant did various odd jobs about complainants’ home. According to a statement from defendant’s books, conceded to be correct by complainants, it appears that the net loss on manufacturing account for the whole period of eight years was $1,685.65, or a little over $200 per year. The continuation of the business probably facilitated the collection of doubtful or slow assets of the estate. We do not think it can be said that complainants would have been better off than they are had the entire matter been closed up at once upon the death of Swaine. Some profit appears to have been realized in each of the first three years. Thereafter the statement shows losses in three of the years and profits in two. The losses during the latter part of the operation appear to have been caused in part, if not wholly, by competition with large manufacturers of malt, who sold at prices so low that this small plant could not make a profit if it met them. We think the record shows with sufficient certainty that the business was continued with the consent and at the solicitation of all of the complainants. Lizzie Swaine, the widow, seems to have taken an active and somewhat unusual interest in its prosecution. There is no claim made that defendant has not kept a proper and correct account of his dealings with the estate, nor that he has failed to account for every dollar which has come into his possession as administrator. The continuation of the business after the third year was probably an error of judgment, but it was one for which defendant should not alone be held responsible. Mrs. Swaine’s brother, a business man of Kansas City, frequently visited with and advised the complainants.

Upon this question, the testimony of F. B. Worden, who was foreman of the malt house under Mr. Swaine, in his lifetime, and who occupied the same position under the administrator, is in part as follows:

“The malt house is about a mile from Mr. Hemphill’s office. At Mr. Swaine’s death, I told Mrs. Swaine I would not run the business if I was in her place. She said her brother thought it ought to be run, and she thought he knew. Her daughters were not present at this conversation. Mrs. Swaine came quite often to the malt house. Her daughters came also, every few days. Mr. George came from Kansas City every fall. We started buying barley to be manufactured into malt in the fall.
“Q. And about every fall Mr. George would come from Kansas City ?
“A. I think nearly every fall. I would not say sure every fall.
“Q. Would Mr. George advise with you and Mr. Hemphill when he came down ?
“A. He always advised me to run it as heavy as I could.
“Q. Did Mrs. Swaine ever say she was being advised and governed by her brother, Mr. George ?
“A. I don’t know as she said those words. She always seemed to me to be depending upon him to come over. I think we both looked for him to come over before we started.
“Q. When Mr. George came, do you know about his coming to Ann Arbor to look after the account with the A. A. Brewing Company?
“A. Yes; I came with him.”

As to the effect of competition and Mrs. Swaine’s knowledge of the business, this witness further testified:

“The trust had a bad effect on the business and on some of our customers. I think we received one or two letters asking us to join the trust. Kolb Bros., of West Bay City, was one of our best customers. We never lost a customer by the trust. We had to sell cheaper. Kolb Bros, informed us they could buy their malt from Milwaukee at four or five cents less a bushel than they could buy it of us. The last few years we had to meet that price in order to sell, and I presume that had something to do with the loss the last year or two. In the fall we go and buy barley, and then if you had a competitor that would sell it cheaper than you could afford to sell it, you couldn’t help but make a loss out of it. We certainly had to sell at the price made by the Milwaukee concern, or could not sell. We had to compete with Milwaukee the last few years. We had to meet this competition. Malt sold for 50 cents a bushel, and some we would get at 54 and 55. We never lost a bushel of malt through its being damaged or having it returned to us. Mrs. Swaine kept a book showing what we paid for the barley and all the prices. She never passed two or three days without coming to the plant. In the fall she inquired as to how much barley was bought, and took my book and checked it off as it was drawn in, and knew how much was bought. She kept an account of the malt that was sold. She would get that out of the book by the scales. This book showed how much was being sold and to whom, and the price obtained, and she knew this during the time the business was conducted. The home was heated from the malt house. One of the men from the malt house would hitch up the carriage for Mrs. Swaine. The men in the malt house fixed up the yard. The residence was not more than 100 feet from the malt house, and complainants must have known the number of men employed at the malt house. Always four employed.”

Defendant is charged with fraud in procuring the consent of complainants to the allowance of his final account. We think the method he pursued while thus dealing with three women, who were not advised by counsel, is not to be commended, but, as the account itself has in this proceeding been subjected to scrutiny and found to be correct, we are unable to see how complainants were injured by its allowance, and the discharge of the bond, unless it should be held that defendant is liable for the losses sustained by reason of continuing the business.

No reason is apparent or indicated by complainants why defendant should have wished to continue the business at a loss. By a forced liquidation of the entire estate at the time of Swaine’s death, it is probable that the debt due to the bank of which he was cashier would have been paid. His compensation as administrator was small and the labor connected with his office considerable. It is said the bank profited largely through the discount of the paper of the estate during the period. It does not appear that the bank charged more than the usual rate of discount. Moreover, the bank accepted some $3,000 worth of bonds of the Ann Arbor Brewing Company in lieu of notes for that amount upon which the estate was indorser, reducing the contingent liability of the estate to that extent. These bonds, if not entirely worthless, are of little value.

We are of opinion that it was the conviction of all the complainants, as well as of Mr. George, the widow’s brother, in whose judgment the family had confidence, that it was best to continue the business in the hope that it might be disposed of as a going concern. Changes and improvements in the method of manufacturing malt, and large combinations of malting interests, made it impossible to realize this hope. It would be unjust and inequitable to now compel this defendant to bear the loss occasioned by this course of action.

The duty of administrators generally to liquidate estates without undue delay is not questioned, nor can it be doubted that they cannot leave estates at the risk of business disaster by continuing without authority to operate business ventures in which the estates are invested when they come into their hands. The authorities cited by complainants clearly establish this doctrine, and executors or administrators who violate the rule, even if acting in the utmost good faith, are held strictly liable for all losses incurred, and are not even permitted to offset the profits against the losses. Ward v. Tinkham, 65 Mich. 695 (32 N. W. 901); Warren v. Union Bank, 157 N. Y. 259 (51 N. E. 1036, 43 L. R. A. 256, 68 Am. St. Rep. 777); Mattocks v. Moulton, 84 Me. 545 (24 Atl. 1004); Lucht v. Behrens, 28 Ohio St. 231 (22 Am. Rep. 378); Guthrie v. Wheeler, 51 Conn. 207.

There seems to be no doubt, however, that, when all those interested in an estate agree that a certain course should be followed, the executor or administrator will be relieved from personal liability if disaster follows. Schouler on Executors, p. 422, lays down the rule as follows:

“We may presume that the personal representative can never be strictly justified in deviating from the line of bailment or fiduciary duty. But, in case of doubt as to his proper course, he may protect himself by prudently pursuing in advance one of two courses: (1) He may procure the advice and consent of all the parties in interest; or (2) he may take the direction of the court. * * * He may prosecute or defend suits, compromise claims upon the estate, or deal with the estate in a particular way, not usual or strictly legal, as by continuing the property in business; and those parties in interest, by whose request or assent it has been done, will not be permitted to impute it as maladministration ” — citing Poole v. Munday, 103 Mass. 174; Perry v. Wooten, 5 Humph. (Tenn.) 524; and Watkins v. Stewart, 78 Va. 111.

1 Perry on Trusts (5th Ed.), § 454, contains the following:

“So trustees are not bound to continue the capital in such trade, and they ought not to do so against their judgment. But if all the cestuis que trust are sui juris, and capable of acting for themselves, and they desire an executor, administrator or trustee to continue the business of the testator a few months, in order to preserve it for his son, and the executor acts in accordance with their request, and uses his best skill and judgment in the conduct of the trade, he will be allowed for the loss in his accounts.”

In French v. Davis, 38 Miss. 167, it is said:

“ It is certainly true, that it is competent for adult heirs at law to consent, or agree, that the property of the intestate should be kept together for the support of their mother, or for any lawful purpose, and such consent will justify the administrator, in the absence of creditors, or so far as the distributees are concerned, in conforming his action to their wishes on this subject.”

The case of Mathews v. Sheehan, 76 Conn. 654 (57 Atl. 694, 100 Am. St. Rep. 1017), cited by complainants, reiterates the familiar rule as to the duty of administrators generally, but adds:

“Where an administrator or an executor, acting in good faith and with ordinary care -and prudence for the good of the beneficiaries of the estate, deviates, with their consent and approbation, from the strict line of his duty, and loss results therefrom — as for instance by continuing the property in business without authority — the consenting beneficiaries cannot charge the representative of the estate with such loss.”

See, also, Pearson v. Gillenwaters, 99 Tenn. 446 (42 S. W. 9, 63 Am. St. Rep. 844), and 18 Cyc. p. 243, note 75. In Brown v. Forsche, 43 Mich. 493 (5 N. W. 1011), Mr. Justice Cooley said:

“Formal proceedings for the settlement of an estate are never necessary if all parties concerned can agree to dispense with them [citing cases]. Family arrangements for this purpose, it is said, are favorites of the law, and, when fairly made, are never allowed to be disturbed by the parties, or by any others for them. * * * Such an arrangement may be made after an administrator is appointed as well as before, and if the administrator is afterwards summoned to render his accounts, the court will accept as satisfactory, so far as it goes, the settlement the parties concerned have made.”

It is to be noted that no complaint is made of the continuation of the business during the first three years while it was making a profit. During those years, the youngest daughter attained her majority, and had then a right, as well as her mother and elder sister, to demand its discontinuance. This neither she nor they did. The brother of the widow went over the books of. the estate from time to time and advised with complainants.

We think it must be held that complainants themselves authorized defendant’s acts, and that, if the estate is a loser thereby (which is not at all certain), they must bear the loss

The decree is affirmed, with costs to defendant.

Ostrander, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: Ostrander, C. J.

text:
    OSGOOD v. OSGOOD.
    Cancellation of Instruments — Fraud—Equity.
    A decree canceling a deed of real property, executed by complainant’s deceased husband, is denied on review of conflicting evidence, claimed by her to prove fraud.
    Appeal from Benzie; Lamb, J.
    Submitted March 2, 1911.
    (Docket No. 145.)
    Decided May 8, 1911.
    Bill by Cynthia M. Osgood against Tillie M. Osgood to cancel a deed. From a decree dismissing her bill, complainant appeals.
    Affirmed.

      Gaffney & Miltner, for complainant.

      D. G. F. Warner, for defendant.
   Ostrander, C. J.

Complainant charges in her bill that her deceased husband, whose sole devisee she is, and she herself, were overreached, deceived, and defrauded when they joined, during the lifetime of the husband, in executing and delivering a deed of real estate for a valuable, but it is claimed an inadequate, consideration. She prays for a decree canceling the said conveyance and the record thereof, and requiring defendant to reconvey to complainant. Incidentally the construction of a last will is asked for, and an accounting for the rents and profits of the said land. If complainant and her husband were defrauded, then the other questions become material. Whether they were defrauded, as charged, is a question of fact. It will profit no one to set out or to analyze the testimony. We are of opinion that the fraud alleged is not made out, and agree with the court below that the bill of complaint should be dismissed. The decree is affirmed, with costs to appellee.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    CONKLIN v. CONKLIN.
    1. Descent and Distribution — Estates op Decedents — Next op Kin — Statutes.
    Children of a deceased first cousin of an intestate are not entitled to share in the estate with the first cousins, who are next of kin in equal degree, under the statutes of distribution.
    2. Wills — Estates op Decedents — Undue Inpluenoe- Fiduciary Relations.
    The relation of a confidential agent and physician having custody of a will and being present at the execution thereof and a legatee thereunder, raises a presumption of undue influence on his part.
    3. Compromise and Settlement — Estates op Decedents — Wills.
    Legatees under a will, and persons having such an interest in the estate as to entitle them to contest the instrument, may make valid agreements to forbear a contest, and such contracts are favored by the law when made in good faith.
    4. Same — Wills—Public Policy.
    But an attorney at law, having no interest in an estate, may not join with other relatives not next of kin in an agreement with beneficiaries under the will of decedent to withdraw all objections to it, to discourage any contest and allow the instrument to be probated, and to use their best efforts and testimony, if need be, to secure its admission to probate, having good reason to believe taht it was invalid.
    5. Same.
    It is the tendency of such contracts, not what is done towards carrying them out, that the courts consider in determining whether they are opposed to public policy.
    Appeal from Washtenaw; Kinne, J.
    Submitted March 2, 1911.
    (Docket No. 162.)
    Decided May 8, 1911.
    Bill by Amariah B. Conklin, Mary L. Bailey, and Amariah F. Freeman against Ebenezer M. Conklin, personally and as executor of the estate of Mary A. Hitchcock, deceased, for specific performance of a written contract. From a decree for complainants, defendants appeal.
    Reversed, and bill dismissed.

      Robert E. Bunker and Arthur Brown, for complainants.

      Thomas E. Barkworth and A. J. Waters, for defendants.
   Blair, J.

Mary A. Hitchcock died on the 18th day of March, 1909, aged 70 years, leaving a paper purporting to be her last will and testament, whereby she disposed of her estate, consisting entirely of personal property, aggregating in value about $21,000. The will was executed September 13, 1907, and bequeathed to complainant Amariah Benjamin Conklin and seven other legatees $1,000 each; to two other legatees $500 each; to charitable and beneficent institutions $500; to defendant Ebenezer M. Conklin $7,000 and all the residue of her estate, appointing him executor of the will. A prior will was executed November 22, 1906, which differed from the second will in including three legacies omitted from the second; in specifying larger amounts as to two of the legacies; and in the residuary clause, which was for the benefit of “all the legatees above mentioned and to be divided in proportion to the amount of their respective legacies.”

Both wills contained a clause revoking all former wills. Neither complainant Freeman nor his sister, complainant Mary L. Bailey, were mentioned in either will, and were not on friendly terms with the testatrix. Complainants and defendant Conklin were second cousins of testatrix, who left surviving her 12 first cousins, all of whom lived outside of this State, except two.

On March 24, 1909, defendant Conklin deposited the will in the probate court, petitioned for its probate, and April 20th was appointed by the court for hearing on the petition. Complainant Freeman testified that he and complainant Conklin, on or about March 30, 1909—

“Had a conference, and Mr. M. J. Cavanaugh was sent for to act as attorney for us: Mr. Cavanaugh came over to my office in response to a telephone from me, and the result of that conference was that special administration was taken upon the estate, and that Mr. Cavanaugh was to go to Manchester to talk with Dr. E. M. Conklin, the defendant, and see if some adjustment could not be made respecting having Dr. E. M. Conklin give up some portions of his legacy to us as members of the Conklin family, so-called.
“Q. Some talk along the line of what subsequently appeared in this contract?
.“A. Yes.”

The negotiations begun by Mr. Cavanaugh were after-wards carried on by complainant Freeman in behalf of complainants, and proceeded throughout upon the express understanding that complainants were heirs at law of the testatrix, and as such were entitled to and, unless their demands were complied with, would contest the will, upon the ground that it was obtained by undue influence exerted by defendant Conklin. Complainant Freeman and defendant Conklin discussed the matter on April 6th, when Freeman made a proposition that he should have $1,000 for himself and $1,000 apiece for his two children; complainant Conklin should have $2,000 in addition to the $1,000 in the will; complainant Bailey should have $2,000 and an additional $1,000 for legatee'Julia M. Conklin. This ^proposition was declined and further consideration postponed.

The negotiations proceeded from time to time; complainant Freeman insisting: “ * * * There has got to be something done; * * * we must get together before the hearing day;” that the will could easily be broken; that the outside heirs were writing him and pressing him to take their case, and, unless the agreement went through, he should do so.

Defendant Conklin testified that complainant Freeman said: -

“ If I made this agrément, he thought he could prevent a contest being brought; he was in communication with some of the Winchesters, who were first cousins; had such relations with them that he thought they would do about what he advised in the matter, and thought he could control the Winchesters, and did not think very much about the cousins so far away as New York State, where some of them lived, or Pennsylvania; that there would be very much done on their part, and did not think there could be very much doubt but that he could suppress and discourage any one from bringing a contest, provided I agreed to the terms asked by him; we would work together to sustain the will. * * * He was urging me to hurry up, if I was going to do anything, and do it; if I was not, he wanted to get in on the other side.”

On May 5th defendant Burtless purchased an undivided one-half interest in all gifts, legacies, and devises to E. M. Conklin, his wife, and son. On the 8th day of May the parties came to an agreement, which was executed on May 10th, which contained, among other things, the following :

“That each of said named Conklin brothers and sisters are cousins of said Hitchcock, and, if no will were made, by nature, are equally entitled to the bounty or estate of said Hitchcock; she having at death no nearer relation, or heirs at law, than cousins, as next of kin.
“That Mary L. Bailey (née Freeman) and Amariah F. Freeman are sister and brother and cousins to said Conklin brothers and sisters, and also cousins to said Hitchcock, and, if no will were made, by nature, are equally entitled to the bounty or estate of said Hitchcock as are said Conklin brothers and sisters, said Bailey having a living son, Arthur Bailey, and said Freeman, a living son, Frank S. Freeman, and a living daughter, Emma L. Freeman, to neither of whom, nor their said children, is given any legacy by the terms of said will.
“That said A. Benjamin Conklin, said Mary L. Bailey, and said Amariah F. Freeman were about to enter contest and oppose the probate of said will of said Hitchcock, claiming that same is not in fact or law her will, and that it is rumored others, as her heirs at law or next of kin, also propose entering like contest, the claim also being put forth, in this connection, by said A. Benjamin Conklin, said Bailey, and said Freeman, that the distribution of the estate and property of said Hitchcock, as provided by said alleged will, is neither equitable nor fair to them, nor is such disposition regardful of the relation existing by natural ties between said Conklin brothers and sisters, and between said Bailey and said Freeman, especially viewing the said amounts which will arise or belong to said E. M. Conklin by the terms of said will, if same shall be probated. * * *
That said E. M. Conklin and said Freeman, representing said A. Benjamin Conklin,' said Mary L. Bailey, and himself, have had several and extended conferences respecting the affairs of said estate and said will; that the respective situations have been thoroughly canvassed and the respective claims declared, discussed, and considered; and that, in consideration of all the relations here set forth and of all the matters known to them surrounding the said estate of said Hitchcock, that for the peace and good feeling in friendly family relation, that to avoid litigation and contest over the matter here referred to and to save the cost incident thereto, and that for compromise and settlement and by reason of the mutual agreements of the parties hereto, said E. M. Conklin, said A. Benjamin Conklin, said Bailey, and said Freeman have reached and entered into the following memoranda of agreement, as follows, viz.:
“Thatsaid A. Benjamin Conklin, said Bailey, and said Freeman shall withdraw all objection and withhold all proposed contest to the terms of said will and testament of said Hitchcock, and, so far as they are concerned, suffer and allow the same to be probated as and for the last will and testamentof said Hitchcock, whereby, by the permit of court, said E. M. Conklin shall be and become the executor thereof, and whereby, likewise, the property of said estate shall pass to his possession and control, as to an ordinary general executor in such cases provided. And that they will also use their best influence, assistance, energy, and endeavor, and testimony, if need be, which may be thought competent or important, so far as they may truthfully be able to give this, in the support of said will and to discourage all contest respecting same, to the end that same be duly probated, as sought; and that this shall be without charge or compensation on their part, except as to said Freeman, as attorney, or one of them representing said estate of said E. M. -Conklin as executor or legatee of said will, as hereinafter particularly set forth.
That said E. M. Conklin shall pay to said A. Benjamin Conklin the sum of $2,000, over and above the amount bequeathed to him by the terms of said will; that he shall also pay to said Mary L. Bailey the like sum of $2,000; and that he shall also pay to said Amariah F. Freeman the like sum of $2,000, or to their heirs, representatives and assigns, provided said will shall be duly probated by the courts invoked for that purpose; and that said respective sums shall become due and payable at any time after said will shall be duly and finally probated, and after the claims and accounts, if any, are lawfully established against said estate, or, if none are presented, then after the time allowed by law when such claims and accounts, if there were such, should be presented and allowed.”

Objections were filed to the probate of the will by Henry Hitchcock and three others, which were disallowed, and an order entered, admitting the will to probate September 3, 1909. From the order admitting the will to probate, an appeal was taken to the circuit court on the 27th day of October, 1909, by Charles H. Winchester—

“As next of kin and one of the heirs at law of said deceased, and your petitioner further appealing shows that he is attorney in fact for S. Edward Hitchcock, Mary Kuder, Charles Hitchcock, and George Hitchcock, administrator, who are also interested in said estate, and also in behalf of all the other heirs of said deceased.”

This appeal was later discontinued upon payment to Winchester of $3,000 by defendants. On August 3,1909, defendant Conklin served notice that he repudiated the agreement. In January, 1910, complainants filed this bill of complaint for a specific performance of the agreement.

Complainants made the basis of their demand for a share of defendants’ legacies the claim that there was no valid reason why the testatrix should have discriminated between the defendant Conklin and them, and, except for the undue influence exercised by Dr. Conklin, they would have shared equally with him. The circuit court made a decree in favor of complainants, from which defendants have appealed to this court.

The appellants contend that there is no valid consideration to support the contract, and it is therefore invalid and unenforceable for the following reasons:

First. The subject-matter of the contract, namely, the right of complainants to contest the will, did not exist, and there is no contract where there turns out to be no subject-matter.

Second. Part of the consideration in the instrument is clearly illegal.

Third. Part of the consideration being illegal, the contract fails.

Fourth. The entire agreement is’ against public policy.

Fifth. The agreement was champertous.

Complainants contend:

(lj That defendants’ laches estop them from their defense.

(2) That the common belief that the parties were heirs at law was a mistake of law and furnishes no basis for relief, in accordance with the maxim, “Ignorantia legis neminem excusat.”

(3) That the interest of complainant Conklin under the first will referred to entitled him to make a contest, which inured to the benefit of .his co-complainants; that the agreement to pay the expenses of the special administration and to pay one-half of the claim of one O’Neil, if allowed, and for the “services of the law firm of A. F. & P. M. Preeman in Conklin’s attempt to probate this will,” the compromise of opposing claims made in good faith, and other agreements set forth in the contract, furnished an abundant consideration for the contract; that the contract is not against public policy, but, on the contrary, “if there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice.” L. R. 19, Equity Cases, p. 462.

We first consider the objection that the agreement was in contravention of public policy. This question is to be determined in the light of the relations of the parties to the subject-matter, and the circumstances surrounding and leading up to the execution of the contract. The • complainant Freeman, who was the active representative of the complainants in negotiating the agreement, took nothing, if the will was sustained; neither did his sister. If the will was set aside and the estate distributed as intestate estate, each of the complainants, as well as the defendant Conklin, would' take not to exceed $500, provided they were entitled to share in her estate under the statutes of distribution, as they all believed they were.

As a matter of law, if the estate were to be settled as an intestate estate, none of the parties to this suit had any interest in it whatever; but the entire estate would have gone to the first cousins; they being “the next of kin in equal degree.” In re Klein’s Estate, 152 Mich. 420 (116 N. W. 394).

The complainants believed, and had good reason to believe, that the will was obtained by defendant Conklin by undue influence, and, in the language of the circuit judge,

“It is difficult to understand why the defendant Conklin made this contract, except upon the theory that' he doubted the validity of the will and feared the result of the contest.”

Defendant Conklin was the physician of testatrix, as well as a relative. In the course of the negotiations, he admitted to complainant Freeman that, while testatrix was not absolutely incompetent to make a will, her mind was weakened, so that she could be easily influenced; that one Keeler and one Hitchcock had so influenced her against them both, that “ she got wise after a while and fired Hitchcock,” and sent for defendant Conklin; that he had a power of attorney to do business for her.

"I said to Dr. Conklin, ‘ It is rumored about — it seems to be public property — that Mary has made several wills. ’ He said, ‘ Yes, I have heard about it, too; that she made some up at Sharon.’ I asked, ‘How many did she make here that you know of ? ’ ‘Why, she made two while she was in Manchester. A short time after she came down, she wanted to make a will and talked with me about it.’ He said another was made a short time after she came down. * * * I said, ‘ Doctor, how much have you got out of this estate, either by way of a gift from Mary Hitchcock, or by way of a loan from her which does not show up in the assets of the estate,'from the time that she came down to Manchester to the time of her death ? ’ He hesitated considerably. I said, ‘What have you to say ? ’ He said, ‘ I don’t have to answer.’ I said, ‘ I guess that is so.’ * * * I said to him, ‘ Now, what reason have you that Dr. Ben’s children should not have as much as Sophia and her children?’ He said, ‘If it had not been for me, they would not have had anything.’ I said, ‘What do you mean by that ? ’ He said, ‘ When Mary made up her mind how much she wanted to go into the will, and the persons, she did not have Dr. Ben named for anything, and I said to her that he was a member of the family and ought to have as much as Julia or Sophia.' Upon that he was put in.’ To that I replied, ‘Yes, indeed;’ I used that expression.”

Defendant Conklin testified that he was present when both wills were made; saw the memoranda made by her for the drafts thereof, before they were delivered to the draftsman; was the custodian of all of her property, and of the two wills, and retained the first will in his possession, and still had it. The relations of defendant Conklin to testatrix raised a presumption of influence which would call for explanation on his part. In re Bromley’s Estate, 113 Mich. 53 (71 N. W. 523); Cooper v. Harlow, 163 Mich. 210 (128 N. W. 259).

Upon the facts disclosed by this record, we think Mr. Freeman was well within the probabilities in representing to defendant Conklin that a successful contest of the will could be made upon the ground of undue influence. Throughout the negotiations and in the executed agreement, complainants based their right to contest the probate of the will upon their rights as next of kin, and Mr. Freeman, who represented them, fully understood that the defeat of the last will would naturally carry with it the defeat of the preceding will. Whatever may be the rule as between the parties, in determining whether this contract is against public policy, we think the court should consider the relations of the parties in their true legal aspect, regardless of mutual mistakes of law, and should be guided by the legal effect of their agreement.

The public policy of the State as to the descent and distribution of the estate of a deceased person is clearly defined by our statutes and the decisions of our courts. In case of a valid will, the law commands that the estate shall be distributed in accordance with its terms.

In case of an invalid will, because not the product of a free and disposing mind, but the result of undue influence, the law commands that the estate shall be disposed of as intestate estate. In either event the law considers primarily the rights of the testator, first, to dispose of his entire estate according to his own free will; second, to be protected in his weakness against fraud and undue influence.

We have no doubt that all of the parties in interest in the estate may dispose of the estate by agreement contrary to the terms of the will, and individual legatees may deal with their legacies as they see fit; and persons having interests in the estate, sufficient to entitle them to contest the will, may make valid agreements to forbear a contest. In fact, the law favors such contracts, when made in good faith. But in the case at bar the principal negotiator and his sister had no interest whatever in the estate upon any theory, and it was agreed among them that the settlement must include all three.

Complainant A. B. Conklin testified:

“ I don’t recall that I personally participated in the negotiations with Dr. E. M. Conklin at any timo. I learned of it through Mr. Freeman by word of mouth, I think. * * * I supposed that I was an heir of Mary Hitchcock at that time. I proceeded with the contract on the assumption that I had a claim against the estate as an heir at law. I was never during the entire negotiations advised differently. * * *
“Q. Did you discuss with Mr. Freeman the effect of breaking the will upon you yourself ? * * *
“A. In what way ?
“Q. As to whether you would gain or lose by breaking that will. * * *
“A. Yes, sir. According to my own figuring, I could figure that out; that I would not get as much by breaking the will, as under the will. I demanded $2,000 of Dr. Conklin as a matter of right. I explained it this way: I couldn’t get it through my head that because my brother lived at Manchester and lived nearer to her than I did, and did a few little things that I did not do, and by relationship was no nearer to her than I was, I did not — it did not satisfy me that that gave him a right in equity to receive from the estate of Mary A. Hitchcock $14,000 into his family and $1,000 into mine. * * *
“Q. So that you were endeavoring by your contract to secure a disposition of property which would cut off first cousins under the provisions of that will ?
“A. Yes.”

Having these things in mind, we turn to the consideration of the contract.

The complainants agreed therein to—

“ Withdraw all objection and withhold all proposed contest to the terms of said will, and * * * suffer and allow the same to be probated. * * * And that they will also use their best influence, assistance, energy, and endeavor, and testimony, if need be, which may bethought competent or important, so far as they may truthfully be able to give this in the support of said will, and to discourage all contest respecting same, to the end that same may be duly probated as sought.”

That said complainants should be paid $2,000 each, “provided said will shall be duly probated by the court invoked for that purpose; and that said respective sums shall become due and payable at any time after said will shall be duly and finally probated,” etc.

It is apparent that this is not a mere agreement to forbear to contest the will and to permit its allowance, but is a positive agreement to endeavor, by energetic efforts, to procure the probate of a will which they believed, and had good reason to believe, was not entitled to probate, in order to secure a disposition of property which would cut off first cousins. Furthermore, they not only agreed to actively assist in procuring the probate of- the will, but they agreed “to discourage all contest respecting same.” And upon the success of their efforts to probate the will and to discourage contests depended their compensation. The agreement to discourage contests related naturally to the next of kin, to whom the entire estate would descend in case of a successful contest, and was of the essence of the contract, so far as defendant. Conklin was concerned.

It is the tendency of such contracts, and not what is done towards carrying them out, that the courts consider in determining whether they are opposed to public policy. Viewed from this standpoint, this contract cannot stand. Its tendency was to defeat the ends of justice by furnishing one of the most powerful of human motives to suppress the truth, in so far as it tended to defeat the will; to exaggerate and color facts tending to support the will; to resort to deceit and misrepresentations to discourage contests; and, finally, to endeavor with all their might to induce the courts to determine a will to be valid which they believed to be invalid. Thomas v. Caulkett, 57 Mich. 392 (24 N. W. 154, 58 Am. Rep. 369); Sherman v. Burton, ante, 293 (130 N. W. 667).

In view of the foregoing, it becomes unnecessary to consider the other questions discussed in the briefs.

The decree is reversed, and the bill dismissed.

Ostrander, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.


text:
    MIKKOLA v. HOUGHTON CIRCUIT JUDGE.
    Appeal and Error — Mandamus—Justices op the Peace — Dilatory Appeal.
    Since error lies to review a caus8 in which the circuit court erroneously takes or retains jurisdiction, mandamus will not issue to vacate an order allowing a dilatory appeal from justice’s court, which, relator contends, was entered without jurisdiction.
    Mandamus by William Mikkola against Albert T. Streeter, circuit judge for the county of Houghton, to compel respondent to vacate an order granting a dilatory appeal from justice’s court.
    Submitted April 1, 1911.
    (Calendar No. 24,341.)
    Writ denied May 8, 1911.

      William A. Bateman, for relator.

      O’Brien & Le Gendre, for respondent.
   Hooker, J.

The relator asks a mandamus to compel the respondent, a circuit judge, to vacate an order allowing a dilatory appeal from a justice’s court.

We held, in the case of Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 272 (70 N. W. 582), that, in cases where a court erroneously takes or retains jurisdiction, mandamus should not issue, for the aggrieved party has a remedy by writ of error. This case has been followed repeatedly since. Mr. Justice Moore said, in St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 419 (72 N. W. 250):

“ If it was within the discretion of the circuit judge to allow the amendment to the declaration, his discretion should not be reviewed. If it was not within his discretion, because of want of power to make the order, or if his discretion was abused', as we have before seen, his action can be reviewed by writ of error.”

We denied a mandamus in the case of Reed v. St. Clair Circuit Judge, 122 Mich. 153 (80 N. W. 986); Mr. Justice Long saying:

“ If the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case, the writ of mandamus ought not to issue.”

See, also, for an application of this rule, Steel v. Clinton Circuit Judge, 133 Mich. 698 and 699 (95 N. W. 993), where many authorities are cited, and Cattermole v. Ionia Circuit Judge, 136 Mich. 276, 277 (99 N. W. 1), and cases cited.

In Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 197 (102 N. W. 652), Mr. Justice Ostrander said:

“Without entering into a discussion of the points relied upon by the relator, it seems sufficient to say that the court below asserts and retains jurisdiction, that the facts relied upon by relator are claimed to show a want of jurisdiction, and that the questions mooted can be determined upon a writ of error; and, following the decision in Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1); Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582); and Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355), the application of relator should be denied.”

In Roberts v. Lenawee Circuit Judge, 140 Mich. 116 (103 N. W. 512), Moore, C. J., said:

“The motion is, in effect, a motion to dismiss for want of jurisdiction. The trial judge, in overruling the matter, held he had jurisdiction. Under these circumstances, the order of the court cannot be reviewed by mandamus. Stevens v. Harris, 99 Mich. 233 (58 N. W. 230); Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N W. 582); Steel v. Clinton Circuit Judge, 133 Mich. 698 (95 N. W. 993).”

See, also, Sharp v. Montcalm Circuit Judge, 144 Mich. 328 (107 N. W. 874), where mandamus was asked to compel the vacation of an order denying a motion to diaroipp an appeal, and we said:

“ It is obvious that relator ( provided he does nothing that amounts to a waiver) may review the order complained of by writ of error after final judgment. It is settled by many recent decisions of this court (see Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 [70 N. W. 582]; Cattermole v. Ionia Circuit Judge, 136 Mich. 274 [99 N. W. 1]; Roberts v. Lenawee Circuit Judge, 140 Mich. 115 [103 N. W. 512]; Chatfield v. Lenawee Circuit Judge, 140 Mich. 636 [104 N. W. 45]) that he must content himself with that method of review, and is not entitled to a writ of mandamus.”

The practice is settled, and relator’s application has not conformed to it.

The writ is denied.

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


text:
      In re SULLIVAN’S ESTATE. STANISZEWSKI v. LANE.
    1. Estates of Decedents — Personal Injuries — Allowance oe Claims — Commissioners.
    Commissioners on claims in probate court have jurisdiction to hear and determine claims against decedents for personal injuries. 3 Comp. Laws, §§ 9378, 9381.
    2. Same — Pleading—Claims—Executors and Administrators.
    Notice to the executors or administrators of an estate of the filing of a claim, is not required by statute.
    3. Same.
    A sworn statement of the facts claimed by claimant filed with the commissioners on claims, setting forth the manner in which claimant was injured and his claim of negligence, is sufficient without a formal declaration.

      4. Negligence — Landlord and Tenant — Inspection.
    A landlord owes a duty to persons using his premises in a lawful manner, to inspect a board covering of an areaway over which such persons must pass in entering upon the premises from the street
    5. Same — Custom.
    An alleged custom prevailing in a city, to make inspection of board walks, floors, etc., at certain times and in certain ways shown by the testimony, may not be considered to increase or diminish the common-law duty of a landlord to inspect his premises.
    Error to Wayne; Murphy, J.
    Submitted April 5, 1911.
    (Docket No. 14.)
    Decided May 8, 1911.
    Valentine Staniszewski presented a claim of personal injuries against the estate of Ellen Sullivan, deceased. It was disallowed by the commissioners on claims and claimant appealed to the circuit court. Judgment for claimant. Defendant brings error.
    Reversed.

      William P. Lane, for appellant.

      Dohany & Dohany, for appellee.
   Hooker, J.

The claimant, a young .man, was injured by the giving way of a floor outside of the entrance door, but within the walls, of a building belonging to a woman who afterwards died. The place is called in the record and briefs an areaway, through which the various tenants of the owner passed when entering or leaving their respective premises. After the owner’s death a claim was filed before commissioners, a hearing was had, and the claim was disallowed. We understand that the claim was contested before the commissioners. The claimant appealed, and the cause was tried in the circuit court, where claimant obtained a verdict for $1,200, and the executor has now appealed.

Counsel for the defendant raise several questions:

First. That the claim is one which could not lawfully be prosecuted before commissioners.

Second. If wrong in this, it was necessary that written notice of the claim in the form of a declaration should have been given the representative of deceased.

Third. That, it appearing that the defect was latent, no duty of inspection existed, and a verdict should have been directed for the defendant. .

Fourth. That the court erred in allowing the jury to find a custom binding on the defendant as to inspection.

First. Probate Jurisdiction. This case is a plain claim for damages, based on alleged negligence of an intestate, and the probate court has jurisdiction, as is shown by the following sections of the Compiled Laws:

“ (9378) Sec. 12. The commissioners shall have power to try and decide upon all claims which by law survive against or in favor of executors and administrators, except claims for the possession or title of real estate; and may examine and allow all demands, at their then present value, which may be payable at a future day, including claims payable in specific articles, and may offset such demands in the same manner in favor of the estate.”
. “ (9381) Sec. 15. When commissioners shall be appointed, as provided in this chapter, for examining and allowing claims against any estate, no action shall be commenced against the executor or administrator, except actions of ejectment, or other actions to recover the seisin or possession of real estate, and actions of replevin, nor shall any attachment or execution be issued against the estate of the deceased, until the expiration of the time limited by the court for the payment of debts.”

See, also, Blickley v. Luce’s Estate, 148 Mich. 235 (111 N. W. 752); Armstrong v. Loomis, 97 Mich. 577 (56 N. W. 938).

Second. Pleading. The record shows a claim entitled in the probate court, sworn to on February 3, 1908. It contains a short, but plain, statement of the accident, injury, and consequent damage to claimant, and an obvious claim that the accident was due to decedent’s negligence. It does not appear when this was filed; but the claim of appeal states that such a claim was disallowed by the commissioners, as appears from their report filed in probate court, February 18, 1908. The statute does not appear to require notice to the executor of the filing of a claim, and if, as in this case, an appeal is taken from the action of commissioners, the claim stands as the declaration, in the absence of more formal pleadings. White v. Allen, 18 Mich. 194; Hillebrands v. Nibbelink, 40 Mich. 646; Patrick v. Howard, 47 Mich. 40 (10 N. W. 71); Kroll v. Ten Eyke Estate, 48 Mich. 230 (12 N. W. 164). This record contains a formal declaration, dated March 14, 1908. It is entitled “In probate court,” but the only evidence that it was ever filed anywhere is the fact that it is a part of the record. We think the original claim is sufficient for the case. Records should always show the dates of filing of papers. See Supreme Court Rule 35.

Third. Inspection. It is contended that the case of Thomas v. City of Flint, 123 Mich. 10 (81 N. W. 936), should rule this case, and that a landlord is under no obligation to inspect further than to discover patent defects. That case turned on the question of statutory notice, which we held could not be implied from a mere failure to inspect. It has no application to this case, which must turn on the common-law rule, under which there was a question for the jury.

Fourth. Custom. Counsel undertook to prove by a carpenter that there was a custom among landlords of such premises in Detroit to have such places as the one shown in this case examined for such latent defects as the one in this case once in three months, and tested by jumping up: on or trying the several boards, and the judge charged the jury:

“ The owner of premises, through which another has the right to pass to and fro, has upon him the duty of keeping the premises in a reasonable condition of repair; and, in order that the owner may ascertain whether or not that reasonable condition of repair is maintained, the owner likewise has the duty of making such a reasonable inspection of the premises as will discover whether the premises are in a condition of reasonable repair. That duty is imposed upon the owner of the premises through which another, such as the plaintiff, has the right to enter and leave.
‘ ‘ But there is a further claim made here, gentlemen of the jury, that in this community there existed a custom among the owners of premises as to the precise time and manner in which inspection was made. It is for you to say, under the plaintiff’s claim, whether or not any such custom as claimed has been proven. To amount to a custom, a practice must have been universally observed in the community. Not only must its observance have been universal, but it must have been so long-continued and uniform that the owners of all property will be presumed to know of the existence of the custom. Is any such custom as to time and manner of inspection established here ? If not, then you should dismiss that phase of the case from any consideration. For, if there were no customary inspection established by the proof here, clearly no duty would arise upon the part of the owner of the premises, based upon any custom. If, on the other hand, you should be satisfied from the evidence — and it is the evidence alone which may rightly satisfy you — that there had obtained in this community any settled practice, universally observed by the owners of property, uniform and long-continued in character, by which said owners are called upon or did from time to time make inspection of such premises as are here involved, then, if such a custom be proved, the owner of these premises would be chargeable with the observance of that custom.
“ Now, then, gentlemen, if the custom be established— and you will observe that that is, in the first instance, a question of fact for you — if the custom be established by the evidence here, the question arises, Would an inspection of these premises, conformable to that custom, have discovered this defect and enabled the owner to remedy it, before the time when the plaintiff claims to have been injured? If so, then and in that event the defendant would be liable. If not, then the defendant would not be liable. So much, then, for that phase of the case, resting upon the claim of the plaintiff that there was incumbent upon the owner of the premises a certain kind of inspection, conformable to a custom existing in this community. And, in approaching that phase of the case, you are first to ascertain whether any such custom is established, bearing in mind that, to bq binding upon the owner of the premises, it must be shown to have been established for such a long-continued period of time, and to have been so uniform and generally observed by the owners in this community, that the owner of these premises presumably knew of the existence of that custom. And, if that is not to be concluded from the testimony, then any claim, based upon the customary inspection, is to be eliminated. If custom be established, on the other hand, then the questions suggested for your consideration arise.
“ If you find that there was no custom existing at the time in question here, in reference to the inspection of such premises as these by the owners thereof, then I say, notwithstanding any such claim of custom which is made here, there would still exist the duty incumbent upon the owners of these premises to give what the law calls a reasonable inspection of the premises. Now, what would be a reasonable inspection of the premises by the owner of them ? That presents distinctly and solely a question of fact for your decision. Bearing in mind these premises, bearing in mind the place in which it is claimed that there was a defect in the flooring, bearing in mind all the attendant conditions and circumstances, you may rightly say that such an inspection was required from the owner of the premises as a reasonable person of ordinary care and prudence would make from time to time, to ascertain whether the premises were in a condition of reasonable repair. (3) That would be the sole measure of the duty of the owner with reference to any reasonable inspection of the premises.”

We are of the opinion that this was error. The'law fixes the obligations of landlords as to the duties due to persons who lawfully use their premises, and such duties are not to be increased or diminished by the precautions that other landlords may take or omit under similar circumstances. The instruction permitted the jury to go beyond the general rule that negligence implies the want of that care which may reasonably be expected from men of ordinary prudence, and allow them to set up another standard.

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    FROST v. FROST.
    Equity — Jurisdiction—Adequate Remedy at Law — Debtor and Creditor.
    Equity has jurisdiction to require an accounting as of a trust-fund of money received for the purchase price of land, which fund complainant, an aged woman, transferred to her son in trust, in consideration of the payment of interest during her life, and on complainant’s death to belong absolutely to the son, where she had previously intended to create a similar trust in the land, and the son had agreed to a sale of it, if she would turn over the. proceeds under said arrangement.
    Appeal from Isabella; Dodds, J.
    Submitted April 6, 1911.
    (Docket No. 24.)
    Decided May 8, 1911.
    .Bill by Nancy Frost against Edward Samuel Frost for an accounting. From a decree overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      F. H. Dusenbury (F. McNamara, of counsel), for complainant.

      Charles T. Russell and F. M. Burwash, for defendant.
   Moore, J.

The bill of, complaint, after the formal part, avers in substance that complainant was the owner of certain village real estate, and that it was her intention to bequeath said real estate to her son at her death, she to receive all of the rents and profits therefrom during her lifetime. That she informed her son, the defendant, of her intention, and that it had his approval; that later, at his solicitation, she sold said real estate for $500.

“All of which money, to wit, $500, she then and there delivered and turned over to defendant, Edward Samuel Frost, to be held, handled, and used by him during the lifetime of complainant under the following understanding and agreement, then and there made and agreed upon by and between complainant and defendant; that is to say: That if complainant, instead of waiting until her death to transfer and turn over to defendant said property, as was her expressed intention, would then and there sell said property for cash, and surrender and turn over such cash so received by complainant as purchase money to defendant, that in consideration therefor, and also in consideration of the loss to her of the rents and profits which would otherwise accrue to and be received by complainant from said property, he, the said Edward Samuel Frost, would pay or cause to be paid to complainant, interest upon said money so received from the sale of said place, to wit, $500, at the rate of 5 per cent, per annum during her life, and that at her death the said $500 would belong absolutely to defendant, Edward Samuel Frost.

‘' Fourth. Complainant shows and avers that by reason of the premises a trust was created in certain personal property, to wit, $500 money, and its interests and profits; that said defendant, Edward Samuel Frost, is the trustee under said agreement, and that he has since, to wit, May 9, A. D. 1908, and still does hold, the sum of $500 in a trust fund, the interest upon which fund so held, at 5 per cent per annum, complainant, as the cestui que trust, is now entitled to.

‘ ‘ Fifth. Complainant further shows that, notwithstanding the premises, and although she has repeatedly demanded that defendant carry out and execute the said trust in accordance with the terms, understanding, and agreement, whereby said trust was created, as stated in the premises, yet the defendant has, nevertheless, conspiring and intending to injure complainant and defraud her out of her rights under said trust and the property and profits covered thereby, utterly refused and still refuses to pay or cause to be paid to complainant the sum or sums of money, or any part thereof, now due and belonging to complainant by and under said trust agreement. Complainant shows that there is now due to her from said trustee, by reason of said trust, more than the sum of $100, as interest thereo n and also the sum of $500, as principal, under said trust.”

Forasmuch, therefore, as complainant is without remedy, save in a court of equity, she prayed for process, for an accounting, for a termination of said trust, and for general relief. The defendant demurred to the bill of complaint; the important reason being that complainant has a complete and adequate remedy at law. The demurrer was overruled. The case is brought here by appeal.

The instant case is unlike Price v. Dawson, 111 Mich. 279 (69 N. W. 650), where the court found, as a matter of fact, that the transaction was a loan.

In Leland v. Collver, 34 Mich. 418, Justice Campbell, speaking for the court, said in part:

‘ ‘ Cases are not rare in which tenants of lands have been compelled to perform their stipulations to leave certain live stock or other property on the estate at the end of their leases. And trusts in personal property are of everyday occurrence, in which the specific property is constantly changing, while the fund remains subject to the duties and burdens of the trust. * * *
“ If the mortgage had not authorized sales, and the property had been sold notwithstanding, a court of equity would find no difficulty in pursuing the trust fund, so long as it could be identified, into the property wherein it had become reinvested, and it pursues this course because the new property is regarded as belonging to the trust as effectually as the old. And this pursuit of trust funds is not confined in all cases to the possession of the original wrongdoer.”

In O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511), Justice McGrath, speaking for the court, said:

“It is insisted that the gift was incomplete, and that the existence of the bill of sale is inconsistent with an intention to create a trust. The creation of a trust does not depend upon the use of a particular form of words, but it may be inferred from the facts and circumstances of the case. Crissman v. Crissman, 23 Mich. 217; Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178); Miller v. Aldrich, 31 Mich. 408; Leland v. Collver, 34 Mich. 418; Huxley v. Rice, 40 Mich. 73; Cummings v. Corey, 58 Mich. 494 (25 N. W. 481); Chadwick v. Chadwick, 59 Mich. 87 (26 N. W. 288); Beaver v. Beaver, 117 N. Y. 421, 428 (22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531). In the last case cited, it is said:
“ ‘ To constitute a trust, there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.’
‘ The character of the transaction is to be determined, not alone from the bills of sale, but from all the facts and circumstances connected with the transaction. A bill of sale is not essential, as a declaration of trust is sufficient, of itself, to transfer the equitable title. Nor is its existence inconsistent with the intention to create a trust, where it appears to have been intended to operate as a conveyance of the legal title after full performance of the trust. A holding in trust involves possession, control, dominion, reinvestment, and the legal title. In order to create a trust in the donor, a mere intention or promise to give in futuro is insufficient. There must be an act, or series of acts, which divest the donor of the equitable ownership, and vest such ownership in the donee.”

In volume 8, Words and Phrases, at page 7120, the following language occurs:

Mr. Justice Swayne, in Seymour v. Freer, 75 U. S. (8 Wall.) 202, defined a trust as—
“‘Where there are rights, titles, and interests in property distinct from the legal ownership. In such cases the legal title, in the eye of the law, carries with it to the holder absolute dominion, but behind it lie beneficial rights and interests in the same property belonging to another. These rights, to the extent to which they exist, are a charge upon the property, and constitute an equity which a court of equity will protect and enforce, whenever its aid for that purpose is invoked.’
Crosby v. Cotton, 5 Tex. Civ. App. 583 (24 S. W. 343, 347).”

At page 7128 of the same volume, the following language appears:

“In the case of Kane v. Bloodgood, 7 Johns. Ch. [N. Y.] 90 (11 Am. Dec. 417), Chancellor Kent said:
“ ‘ Every person who receives money to be paid to another or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued, either at law for money had and received, or in equity as a trustee for a breach of trust.’
Brown v. Maplewood Cemetery Ass’n, 85 Minn. 498 (89 N. W. 872, 878) (citing Taylor v. Benham, 46 U. S. [5 How.] 233); Warner v. McMullin, 131 Pa. 370 (18 Atl. 1056, 1058); Brown v. Brown, 83 Hun (N. Y.), 160 (31 N. Y. Supp. 650, 652).”

The case of Bogie v. Bogie, 41 Wis. 209, is in point.

It goes without saying that the demurrer admits the truth of the averments of the bill of complaint. We think the bill states the creation of a trust fund, the existence of a trustee, and a failure on his part to properly administer the fund.

The decree is affirmed, with costs.,

Ostrander, C. J., and Bird, Hooker, and Mc-Alvay, JJ., concurred.


text:
    MOSES v. REO MOTOR CAR CO.
    1. Master and Servant — Lighting Premises — 'Watchman—Negligence.
    No duty rests on an employer to light steps leading to an alley between factory buildings, down which the night watchmen of the factory were required to pass, in going from one building to another.
    3. Same — Promise to Remedy Defects.
    Where no duty to furnish lights is imposed, the employer is not . liable for failure to provide them, notwithstanding the promise of one in authority to place lights in a dark alley at the request or instance of the injured employé.
    Error to Ingham; Wiest, J.
    Submitted April 6, 1911.
    (Docket No. 22.)
    Decided May 8, 1911.
    Case by Charles Moses against the Reo Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Bundy, Travis & Merrick (Tuttle, McArthur & Bunnehacke, of counsel), for appellant.

      Black & Hayden and 8. B. Roe (Be Vere Hall, of counsel), for appellee.
   Hooker, J.

The defendant is a manufacturing corporation. Its factory buildings are separated by an alley 27 feet wide; double doors opening from the two buildings into the alley opposite each other, one at grade, and the other at an elevation of three steps above the alley. The plaintiff is one of three watchmen. It is their duty to patrol the premises nights and guard the same. He has had general charge of the several watchmen, and general charge of the plant during the night, maintaining a general watch over it and superintending the watchmen in the performance of their duties, “which were to watch for fire, burglars, or anything that might happen.” He has been thoroughly familiar with the alley, steps, and premises, generally, for years. On the occasion of the accident upon which this action rests, he fell down the steps, or out of the door, and his arm was broken, and he has recovered a judgment for $3,175, from which the defendant has appealed.

Negligence. The undisputed evidence shows that the plaintiff approached the door from the inside of the storeroom. Admittedly he saw the doors and knew all about the steps and surroundings. He testified that the steps were not out of repair, and that the reason that he fell was that he made a misstep. He explained this by saying that when he reached the door (which he could see), he stepped out over the first step down, thinking he was stepping on the threshold, and fell, which he thought he would not have done, had there been a light in the alley.

We agree that it was not negligence on the part of defendant to leave this alley unlighted. These three steps consisted of a box or step made for the purpose, which constituted the first step up. The second step consisted of the brick wall, finished with concrete between the door jambs, while the third was the floor of the stockroom; there being no threshold upon it. These steps were not materially different from steps used at' the entrances of dwellings, and they are in most common use. There is no duty to light those or these for the use of servants, who, being familiar with the premises, take the chances of falling. If it is dark, the need of care in using them is greater. The defendant may have had cogent reasons for omitting to light the premises.

Promise to Light. Counsel for plaintiff allege that a promise was made to the plaintiff that an electric light should be put up between the doors in the alley, and the plaintiff testified that he made such arrequest to the assistant superintendent some days before the accident, and that he said that “he would see about it,” or “that he would have it done.” It was not done, and a few days later plaintiff fell, as stated.

The plaintiff relies on negligence in omitting to provide a light. We have held that it was not negligent to keep the place dark, and even if such a promise was made, the place was a reasonably safe one within that rule; no less safe by reason of the promise. As to the promise, it is denied by the assistant superintendent; but, were it not denied, if, upon reflection, the manager had thought best not to have a light there when the subject was brought to his attention, his failure to authorize the light would not make defendant liable for the omission, for the steps were already a safe place, upon the principle that:

“ Before the master can be held liable, as for failure to perform a promise to remove a specific danger, it is clearly necessary to show that the existing conditions were of such a nature that their maintenance implied culpability.” 1 Labatt on Master and Servant, p. 1194.

It was not culpable in defendant to ask its watchmen to • go down these steps in the dark.

In Leonard v. Herrmann, 195 Pa. 222 (45 Atl. 723), it was held:

“In an action by the operator of an elevator against his employer to recover damages for personal injuries which occurred in the operation of the elevator, there is no error in withdrawing the case from the jury, where the evidence showed that the elevator was not out of repair, that it was the kind in ordinary use, and that the plaintiff had operated it for at least one year. The fact that a week before the accident plaintiff had told the defendant’s superintendent that there should be guards at the sides of the elevator, and that the superintendent had promised to provide them, is immaterial, unless it appeared that there was in fact a defect, which it was the employer’s duty to remedy. This not appearing, no promise made by the superintendent could give rise to a duty not recognized by law.”

The court said:

“ The plaintiff’s main reliance was upon his testimony that a week before the accident he had told the superintendent that there should be guards at the sides of the elevators, and that the superintendent had promised to provide them. But this testimony could not help the plaintiff’s case, unless it appeared that there was in fact a defect, which it was the duty of the employer to remedy. This did not appear, and no promise made by the defendant’s superintendent could give rise to a duty not recognized by law.”

The same rule was applied in Higgins v. T. J. Fanning & Co., 195 Pa. 599 (46 Atl. 102). The court held that:

“ In the absence of proof of defects which added to the danger of the operation of a machine, a promise by the employer to fix it imposes no liability upon him.”

In Nealand v. Railroad Co., 173 Mass. 42 (53 N. E. 137), a workman set his ladder up against a boiler in the boiler room of a factory, resting it upon a brick floor that was uneven. It was held that:

“ X£, while the .plaintiff was working there, the defendant’s engineer in charge of the boilers led him to believe that a new floor would be put in, as the plaintiff contends, this does not affect the defendant’s liability. So far as appears, the engineer was not authorized to speak for the defendant, and if he had been, his offers under the circumstances testified to would have been without consideration or binding force.”

Furthermore, an implication that the plaintiff remained by reason of the promise, or that the assistant superintendent had any reason to understand that his remaining in his employment' depended upon it, is not to be found in the record," nor is a reasonable inference of such dedueible therefrom.

We think a discussion regarding the authority of the assistant to bind the master by a promise, and other questions raised in the case,- is unnecessary.

The judgment is reversed, and no new trial ordered.

Ostrander, C. J., and Bird, Moore, and McAlvay, Jj., concurred.


text:
    VILLAGE OF REED CITY v. REED CITY VENEER & PANEL WORKS.
    1. Municipal Corporations— Contracts— Ratification — Validity.
    A village that enters into an invalid contract to pay a bonus to a manufacturing concern executed by its finance committee in its name, without corporate action, is not bound by the agreement.
    2. .Same — Equity—Tracing Funds.
    A bill in equity lies to pursue funds of a municipal corporation unlawfully paid as a bonus to a manufacturing corporation, by the purchase of land and the gift of it and of money to the company, the complainant not seeking to enforce the contract or recover for its breach, but to follow the funds into the real property and into bank deposits created by payment of a fire insurance loss, on a part of the realty.
    3. Same — Equity—Clean Hands.
    Relief is not barred by the maxim that he who comes into equity must come with clean hands.
    Appeal from Osceola; Lamb, J., presiding.
    Submitted April 6, 1911.
    (Docket No. 30.)
    Decided May 8, 1911.
    Bill by the village of Reed City against the Reed City Veneer & Panel Works, Charles A. Withey, Fred S. Torrey, and the First National Bank of Reed City to enforce a resulting trust. From a decree overruling a demurrer to the bill of complaint, defendants appeal.
    Affirmed.

      B. N. Savidge, for complainant.

      Howard F. Withey, for defendants.
    It is charged in the bill of complaint that May 2i, 1907, L. G. Hammond and C. J. Fleischhauer, representing themselves as the finance committee of the village of Reed City, Mich., executed with the Reed City Veneer & Panel Works, the other party thereto, a contract in writing (the party of the first part in said contract being recited to be the village of Reed City, Mich.), by the terms of which the party of the first part agreed to purchase certain property in the village and erect buildings thereon in accordance with plans and specifications to be furnished by the second party, at an aggregate cost to said first party of fl0,000, and to‘execute a warranty deed of said property and deposit it with the First National Bank of Reed City, to be delivered to the second party upon the performance by it of certain covenants recited in the contract. The second party agreed to occupy the premises and the buildings thereon, and those to be erected, as a veneer and panel works, and to manufacture such work for five years, employing continuously not less than 40 ’laborers, exclusive of officers and stockholders, with an average pay roll of $20,000 a year. It was mutually agreed that, upon the full performance of its said covenants and agreements by said second party, the said deed should be delivered to it, and, if the said second party desired the deed before the full performance of its covenants, it was to be delivered upon the payment in cash to the first party of a sum of money computed at the rate of $2,000 per annum for whatever remained of the five-year period. The object of this contract was to give to the defendant, the party of the second part, $10,000 as a bonus without any legal consideration.
    The village purchased and acquired title to the real estate which it was contemplated it should purchase, and the title stands now in the village of Reed City. It does not appear whether a deed of the property was executed by the village to the defendant. The village paid for the real estate $4,000 out of the funds of the village. Subsequent to the making of said contract, the defendant concluded that it would need a larger and more expensive building than had been contemplated, and undertook to construct such a building, the city advancing to it $6,000 out of its funds for that purpose, which sum, and a further unknown sum contributed by the defendant, was actually expended in the construction of the building on said land. After the building was completed, boilers, engines, and machinery were set up therein and permanently attached. The defendant took possession, and for some six months, and until about February 8, 1909, used the same in its business.
    The defendant insured the property for $5,000, the policy providing that, in the event of loss or damage by fire, the loss should be payable to the complainant as its contract interest might appear. While this policy was in force, and on February 8, 1909, the main factory building was destroyed by fire and another building and the machinery damaged. The insurance company adjusted the loss at the sum of $4,563.58, and delivered a draft for that Bum to the defendant, payable to the order of the defendant and the complainant. The draft was deposited in the bank and an interest-bearing certificate of deposit issued in its place, payable as the draft had been payable. By direction of the common council, the president of the village and the village attorney demanded of the defendant the certificate of deposit, or the money represented by it, and possession of said premises, and these demands were refused. The defendant is insolvent, and has been for more than a year.
    It denies the right of the village to the proceeds of the insurance, or any part thereof. It has made no use of the premises for about a year, and has forfeited all rights under the contract, if the same was ever valid. It is prayed that the validity of the contract, the right of the complainant to the boilers, engines, etc., permanently attached to said real estate, and the buildings and additions thereon, and to the proceeds of the fire insurance policy, be determined, that the defendant be required to properly indorse the certificate of deposit and deliver the same to the complainant, and pay to it the. difference between the amount of said certificate and the sum of $6,000, with interest. A temporary injunction was prayed for and was issued. It is assumed, although the fact is not made very clear by the bill of complaint, that the Reed City Yeneer & Panel Works, a corporation, Charles A. Withey, Fred S. Torrey, and the First National Bank of Reed City, are made defendants. They demurred to the bill, and for grounds of demurrer say:
    “ (1) It appears from the allegations of said bill of complaint that the execution of the written contract, referred to in paragraph 1 of said bill, by the officers of the village therein described, the purchase of the property and moneys advanced for the construction of buildings thereon, described in paragraphs 2 and 3 of said bill, the procurement of insurance as set forth in said bill and all other dealings had by said village with said Eeed City Veneer & Panel Works in pursuance of Said contract, and matters in said bill stated, were ultra vires the powers of said village and the officers and representatives thereof, in direct violation of the law, and therefore null and void.
    “ (2) That whether said L. G. Hammond and C. J. Fleischhauer were officers of the complainant or authorized by it or not, said complainant adopted and»took advantage of what they did in the premises, and is estopped from denying their authority.”
    The demurrer was overruled, and the defendants have appealed.
   Ostrander, C. J.

(after stating the facts). In the brief for appellants, the contentions are stated as follows:

‘ ‘ First. The contract, from the effect of whose partial performance relief is sought, was ultra vires the general powers of the complainant, and therefore void for all purposes.
Second. The contract was malum in se, immoral in its purpose and tendencies, and a flagrant violation of the principles of public policy, and therefore void ab initio, entirely aside from and independent of the doctrine of ultra vires.
Third. The equitable maxim that ‘ he who comes into a court of equity must come with clean hands ’ constitutes a bar to the relief sought.”

The village upon this record is not a party to the contract. Therefore, no corporate action is involved.

It is agreed that it had no power to enter into such a contract. Therefore it could not be bound as by a ratification of it.

The argument for appellants appears to proceed according to the theory that complainant seeks in this proceeding to enforce — to rely upon — the contract, and perhaps a breach of it. No such thing is apparent from the bill of complaint. On the contrary, the theory of the bill appears to be that the village of Eeed City is entitled to pursue and reclaim money unlawfully taken from the treasury of the village and traced into the real estate described in the bill and into the bank deposit. We have no doubt that it may do this, and the jurisdiction of a court of equity in this behalf is not challenged.

The order overruling the demurrer is affirmed, with costs to appellee.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.