author: Montgomery, J.

text:
    ZOLTOWSKI v. JUDGE OF RECORDER’S COURT.
    Condemnation Proceedings—New Trial.
    Under 3 How. Stat. § 3064k, providing that motions for a new trial in proceedings by cities and villages to condemn property for public use shall be made within two days after the rendition of the verdict, unless further time is allowed by the court, and that if no such motion is made, or, being made, is overruled, the court shall enter judgment confirming the verdict, and that such judgment, unless reversed by the Supreme Court, shall be final and conclusive, the power to grant a new trial is exhausted when a motion therefor has once been denied and the verdict confirmed.

      Mandamus by Peter Zoltowski and others to compel. Fitzwilliam H. Chambers, judge of the recorder’s court of Detroit, to vacate an order granting a new trial in condemnation proceedings.
    Submitted April 6, 1897.
    Writ granted April 27, 1897.

      John J. Speed, for relators.

      Charles D. Joslyn, for respondent.
   Montgomery, J.

This is an application for a mandamus to require respondent to set aside an order granting a new trial in a condemnation proceeding. The petition in recorder’s court was filed under Act No. 124 of the Public Acts of 1883, authorizing cities and villages to take private property for public use, on the 14th of June, 1893. August 30, 1893, the verdict of the jury was rendered, finding necessity for the improvement, and awarding relators $13,398 as compensation for the property taken. The time to move for a new trial was extended from time to time. On February 26, 1894, a motion was made by the city for a new trial, and that the verdict be set aside. This motion was, on the same day, overruled, and an order entered confirming the verdict of the jury. The bill of exceptions was filed, to remove the case to this court, but on the 9th of October, 1894, the appeal to this court was dismissed by consent. On the 18th of October, 1894, an order was entered in the recorder’s court directing its clerk to certify the verdict to the common council. On the 24th of October, 1894, the verdict was certified to the common council. On the 2d of December, 1896, petition was filed in the circuit court for mandamus to compel the common council to pay the award. On the 12th of January, 1897, the order for mandamus against the common council was granted by the circuit court. On February 10, 1897, the city entered a motion in the recorder’s court that the verdict a,rid order of confirmation be set aside, and a new trial granted. On the 8th of March, 1897, an order was made setting aside the judgment of confirmation, and ordering a new trial.

Section 11 (3 How. Stat. § 3064k) of the act under which the proceedings were taken reads as follows:

“Motions for a new trial or to arrest the proceedings shall be made within two days after the rendition of the verdict, unless further time is allowed by the court; and if no such motion is made, or, being made, is overruled, the court shall enter an order or judgment confirming the verdict of the jury; and such judgment of confirmation, unless reversed by the Supreme Court, shall be final and conclusive as to all persons interested therein.”

We think this section marks out the exclusive course of procedure after verdict, and that when the application has once been made for a new trial, and denied, and the verdict of the jury confirmed by the court, the power to grant a new trial is exhausted.

The writ should issue as prayed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PENINSULAR SAVINGS BANK v. HOSIE.

    1. Bills and Notes—Extensions—Release of Surety.
    The acceptance by the holder of a past-due promissory note of a new note for the amount of the old, with interest, payable “on demand after date,” with interest, is not such an extension of time as will release an indorser of the old note, since the new note is due and suable immediately.
    2. Same—Note Payable to Maker—Liability of Indorser.
    It is not necessary that the indorser of a note, who knows that it is drawn payable to the maker’s order, should have knowledge also that it is to be issued without the maker’s indorsement, in order that it may be valid against him under 1 How. Stat. § 1580, providing that notes made payable to the maker’s order shall, if negotiated by him, be of the same validity as against the maker, and ‘ ‘ all persons having knowledge of the facts,” as if payable to bearer.
    3. Same—Joint Makers.
    One who indorses a note payable to the maker’s order, at the time of its execution and before delivery, is liable as a joint maker of the note, even though his indorsement follows that of the payee.
    Error to Wayne; Lillibridge, J.
    Submitted November 12, 1896.
    Decided April 27, 1897.
    The Peninsular Savings Bank presented two promissory notes as a claim against the estate of J. Huff Jones, deceased. They were allowed by the commissioners, and the executors, Robert Hosie and another, took a separate appeal as to each of the notes to the circuit court. From a judgment for defendants on verdict directed by the court, claimant brings error.
    Reversed.

      De Forest Paine, for appellant.

      Walker & Spalding, for appellees.

       Rehearing denied July 16, 1897.

   Moore, J.

The Detroit Motor Company, a corporation, made and delivered to the Third National Bank of Detroit, in renewal of notes then held by said bank, its promissory notes, of the following tenor:

“$10,000.00. Detroit, Mich., Nov. 17, 1892.
“Two months after date the Detroit Motor Co. promise to pay to themselves or order ten thousand and no-100 dollars at the Third National Bank. Value received,—with interest at 7 per cent.
[Signed] “The Detroit Motor Company.
“F. A. Blades, Sec’y and Treas.”

Said note was indorsed on the back in the following order: “Detroit Motor Co., by F. A. Blades, Treas. Ellwood T. Hance. T. B. Rayl. J. Huff Jones. W. H. Ellis. W. C. Maybury. Chas. W. Casgrain. F. A. Blades.”

“$7,500.00. Detroit, Mich., Oct. 22, 1892.
“Three months after date the Detroit Motor Co. promise to pay to themselves or order seventy-five hundred dollars at the Third National Bank. Value received,—with interest at 7 per cent, per- annum.
[Signed] “ The Detroit Motor Company.
“F. A. Blades, Sec’y and Treas.”

Said note was indorsed on the back in the following order: “F. A. Blades. W. C. Maybury. J. Huff Jones. Chas. W. Casgrain. Ellwood T. Hance.”

The indorsements were procured before the delivery of the notes to the Third National Bank, and when the notes were received by said bank all the indorsers’ names now upon them were then upon them. The notes were delivered to said bank on the day of their dates, respectively. The notes were in renewal of paper which the Third National Bank had paid value for to the Detroit Motor Company. The indorsers were directors of the Detroit Motor Company, and its chief stockholders, and put their names upon the paper for the accommodation of the company. Before either of the notes fell due, and on the 16th day of December, 1892, J. Huff Jones died, leaving a will, which was filed in the probate court for Wayne county, with a petition for its probate, on December 28, 1892, and admitted to probate the 24th day of January, 1893. On the last-named day, Robert Hosie, who resides in Detroit, Mich., and Griffin D. G. Thurston, who resides in Sturgis, Mich., were appointed executors. On that day they filed their bonds, and letters testamentary were issued to them. Before the will was admitted to probate, and on the 20th day of January, 1893, the $10,000 note fell due, and was protested for nonpayment. The next day after the will was probated, and on the 25th day of January, 1893, the $7,500 note fell due, and was protested for nonpayment. The executor admits that he received, in due course of mail, notice of the dishonor of the $7,500 note, which notice he produced, but denies that he received notice of the dishonor of the $10,000 note.

Shortly after the death of Mr. Jones, and before the notes fell due, one of the indorsers, Mr. Hance, mentioned to the cashier of the Third National Bank the fact of the death of Jones. On the 21st day of April, 1893, the Third National Bank took from the maker its note of the following tenor:

“$18,070.31. Detroit, Mich., April 21, 1893.
“ On demand after date the Detroit Motor Co. promise to pay to themselves or order eighteen thousand seventy 31-100 dollars at the Third National Bank. Value received,—with interest at 7 per cent.
“Detroit Motor Co.,
“By F. A. Blades, Treas.”

Memorandum on face of note:

“Two notes, $10,000 and interest, $7,500 and interest, as collateral; indorsed J. Huff Jones and others.”

Indorsed on back:

“Detroit Motor Co., by F. A. Blades, Treas.”

Afterwards the Third National Bank transferred the $10,000 note and the $7,500 note to the Peninsular Savings Bank, the claimant, in payment of indebtedness of the Third National Bank to the Peninsular Savings Bank. The note of April 21, 1893, was delivered with the other two notes. By some accident or oversight, when the $7,500 note was delivered to the bank, Mr. Blades, who was the secretary and treasurer of the motor company, failed to indorse the name of the motor company upon the note. Mr. Blades prepared the notes sued upon, and procured the signatures of the indorsers to them. They are made payable to the order of “themselves,” which Mr. Blades says meant the corporation itself, and in indorsing the note of April 21, 1893, he so considered and treated it, as well as in indorsing the note of $10,000. The Peninsular Savings Bank presented to the commissioners on claims in the Jones estate the two notes sued upon, and the commissioners allowed the claim on the notes, one at the sum of $11,896/80, and one at the sum of $8,958.72. Thereupon the executors took separate appeals from the judgment of the commissioners, and in the circuit court a verdict was directed for the estate on each note. The Peninsular Savings Bank appeals.

It is claimed that the giving of the note of April 21, 1893, “payable on demand after date, with interest,” gave one day’s time to the motor company upon the notes sued upon, and, because of the extension of time, released Mr. Jones. The counsel for the estate have made an able argument in support of their contention, and have cited a number of authorities. We understand the rule to be:

“The statute of limitations begins to run from the very day the right of action accrues. Thus, upon a note payable so many days from the date, it begins to run from-the day of payment, and not from the day of date; but the day of maturity is excluded in the computation of time. If payable at sight, the statute runs from sight. If so many days after sight, or after certain events, then from the time named after sight, or after the events have happened. If the instrument be payable on demand, the statute begins t-o run immediately. ‘ On demand after date’ is the same as ‘on demand.’” 2 Daniel, Neg. Inst. § 1215.

In O’Neil v. Magner, 81 Cal. 631, it was held that a promissory note made payable on demand after date is an ordinary demand note, payable at once, on which an action can be brought immediately after it is given. To the same effect are Turner v. Mining Co., 74 Wis. 355; Hitchings v. Edmands, 132 Mass. 338; Fenno v. Gay, 146 Mass. 118. We cannot agree with counsel that the giving of this note was such an extension of time as to discharge Mr. Jones from liability.

The $7,500 note was made by the Detroit Motor Company, payable to itself or order, and was delivered to the Third National Bank without indorsement by the motor company. It is claimed by the counsel for the estate that this note was a nullity. Doubtless it would be at the common law, but we have a statute reading as follows:

“Such notes made payable to the order of the maker thereof, or to the order of a fictitious person, shall, if negotiated by the maker, have the same effect and be of the same validity, as against the maker and all persons having knowledge of the facts, as if payable to bearer.” 1 How. Stat. § 1580.

There can be no question, from the record, that all the parties to this instrument knew that it was made for the purpose of taking the place of a note then in the bank that was past due. It is claimed, however, that the “knowledge of the facts ” mentioned in the statute must embrace knowledge of the fact that it was to be put in the bank without the indorsement of the payee. We think such a construction is too narrow, and would defeat the purpose of the statute. A like statute has been construed in other States. See Plets v. Johnson, 3 Hill, 112. And it has been held, in construing such a statute, that “the facts of which a person must have knowledge in order to give the note efficacy as against him, as if payable to bearer, are simply that the note is payable to the order of the maker, or of a fictitious person.” Irving National Bank v. Alley, 79 N. Y. 536. See, also, Lowrie v. Zunkel, 49 Mo. App. 153. We think the note was not a nullity, but was a valid note, as to all the parties to it who had “knowledge of the facts.”

The inquiry naturally arises, What was the relation of Mr. Jones to this note? Was he a joint maker, or was he an indorser? We have already called attention to the provisions of section 1580, 1 How. Stat. Both of the notes were made to be discounted at the bank. The failure of the payee to indorse the $7,500 note was due to an inadvertence. The other note was indorsed by the payee at the time it was made, and it was the intention to indorse both notes. The names of the indorsers were put on the back of both notes before their delivery, and before they were discounted, for the purpose of enabling the Detroit Motor Company to discount them. We have already indicated what we think is the effect of the provisions of the statute upon the first note. It has been repeatedly held by this court that a third person indorsing a note at the time of its execution, and before delivery, is a maker, jointly with the drawer of the note. Wetherwax v. Paine, 2 Mich. 555; Rothschild v. Grix, 31 Mich. 150; Herbage v. McEntee, 40 Mich. 337; Moynahan v. Hanaford, 42 Mich. 329; Tredway v. Antisdel, 86 Mich. 82. We think J. Huff Jones was a joint maker of both notes. This view of the case makes it unnecessary to discuss the questions growing out of the protest of the notes, as protest was not necessary to make Mr. Jones liable. Tredway v. Antisdel, supra.6

Judgment in each case is reversed, and judgment is entered here in each case for the amount of the respective notes, with interest to this date.

Long, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


text:
    ALLURED v. VOLLER.
    Judgment—Collateral Attack.
    A judgment which on its face shows jurisdiction imports absolute verity when attacked collaterally, and cannot be impeached by parol testimony that the court had no jurisdiction of the party against whom it was rendered.
    Error to Osceola; McMahon, J.
    Submitted February 10, 1897.
    Decided April 27, 1897.
    Ejectment by Robert A. Allured against James H. Voller. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. Brown, for appellant.

      C. H. Rose, for appellee.
   Montgomery, J.

This case was once before the court, and is reported in 107 Mich. 476. On the former hearing, the question presented was whether the acceptance of service, accompanied by authority to the plaintiff to proceed as in case of actual service of the writ, conferred jurisdiction upon the circuit court of Osceola county, it appearing that the acceptance was made in another county. It was held that inasmuch as the writing was more than a mere acceptance of service, and contained an authorization to proceed with the case, it gave jurisdiction. On the second trial of the case defendant sought to show that this acceptance of service was not-in fact signed by the defendant in the original action brought by plaintiff against Pierson; and whether it was permissible to make this appear by parol testimony, in contradiction of the record, presents the sole question for consideration in the case.

The question is not novel, or, if it be determined on authority, uncertain, nor do we deem it a doubtful one on principle. If it were permitted, in a collateral action, to-impeach the validity of a judgment roll, by facts aliunde the record, a party relying upon such a judgment would never know how to shape his case for trial, or what multitude of issues he might be required to meet. Hence the rule that a judgment which oh its face shows jurisdiction imports absolute verity, when attacked collaterally. See 1 Freem. Judgm. § 124, and Van Fleet, Coll. Attack, § 468, in which place it is said:

“Oh principle, a judicial proceeding is never void because the proof of service is false in fact. Such proof is a necessary part of the record, and to permit its verity to be questioned collaterally overturns the very foundations of all judicial proceedings.”

See, also, the cases cited in the same section. And see Landon v. Comet, 62 Mich. 91; Somers v. Losey, 48 Mich. 294; Corbitt v. Timmerman, 95 Mich. 581.

Some reliance is placed by counsel upon the language of Mr. Justice Champlin in Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 495, as follows:

“ It is a well-settled principle of law that the judgment of a court which has jurisdiction of the person and subject-matter is binding until reversed, and cannot be attacked collaterally. No offer was made to show that the court had no jurisdiction over the person of defendant or subject-matter. On the contrary, the,record showed due service, and the court had jurisdiction of the subject-matter. The record therefore imported absolute verity, and could not be contradicted. But this rule applies only to parties and their privies. It does not apply to such third persons or strangers to the record as would be prejudiced in regard to some pre-existing right if the judgment were given full credit and effect.”

We discover, no holding in this case inconsistent with the general rule. The language does not even contain a dictum in favor of the contention of defendant. The most that can be said is that it is open to the-implication that, if an offer of proof to show that the court had no jurisdiction had been made, it might have been entertained. There is no indication of a purpose to overturn the settled rules of law upon this subject. It is true that in New York, and possibly in one or two other States, this rule has not always been adhered to; but the weight of authority is decidedly in favor of the contention of plaintiff in this case.

The learned circuit judge upheld the proceedings, and the judgment will be affirmed.

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    WOLFF v. SMITH.
    1. Slander—Evidence—Damages.
    The testimony of third persons, offered in mitigation of damages in an action for. slander, that they had heard a damaging report concerning plaintiff some years before, upon a repetition of which the action is based, is incompetent, where it appears that defendant’s information was acquired from an entirely different source.
    2. Same—Privilege.
    Privilege does not constitute a defense to an action for the,reiteration of an alleged slander after the occasion for the privilege has ceased.
    Error to Muskegon; Russell, J.
    Submitted November 19, 1896.
    Decided April 27, 1897.

      Case by Henry A. Wolff against William H. Smith for slander. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Nelson De Long, for appellant.

      Chamberlain & Cross, for appellee.
   Hooker, J.

This is an action of slander, based on language used by the defendant which is said to have amounted to a statement that the plaintiff was a criminal. The plaintiff was a candidate for the office of treasurer of the city of Muskegon, and among the causes of action alleged is a conversation which occurred after his defeat. The alleged slander consisted in statements that the defendant had been informed that the plaintiff was a safe-cracker, and had served time in a penitentiary for safe-blowing. The defendant’s counsel was allowed to show by Mr. Niskern that about three years before the alleged slander he heard one Bassett make a statement at one time that the plaintiff had served a term in the state’s prison. One Morris testified that two or three years before he heard that the plaintiff had been a safe-cracker. There was but one excuse for offering this testimony, inasmuch as it did not go to general reputation (see Newell, Defam. 890), and that was in mitigation of damages, and it was admissible, if at all, upon the theory that it was known and believed by the defendant, and “for the purpose of showing the guo animo of the defendant.” Farr v. Rasco, 9 Mich. 356; Huson v. Dale, 19 Mich. 34; Welch v. Ware, 32 Mich. 86; Proctor v. Houghtaling, 37 Mich. 41; Maclean v. Scripps, 52 Mich. 244. r In this case, not only was there no evidence to show that this statement of Bassett, or that made to Morris, was communicated to the defendant, but it appears that what he knew came from other sources. Hence it seems clear that this testimony was not properly admitted.

The judgment is reversed, and a new trial ordered.

Long, C. J., and Montgomery, J., concurred with Hooker, J.

Grant, J.

(dissenting). This is an action of slander, in which the verdict was for the defendant. The slanderous words complained of are stated in four counts. The first count charges the defendant with saying to, and in the presence and hearing of, one James C. McLaughlin:

“I don’t see how Collins can support Wolff [meaning the said plaintiff for the nomination for the office of city treasurer of the city of Muskegon in the then approaching city convention of the city of Muskegon]. Did Pete Nelson tell you what Collins told me ? Collins told me to watch him [meaning the said Wolff], for he was a safe-blower, and had done time for it; and now he is'supporting him for treasurer.”

The second count charges defendant with saying to one Schnorbach:

“Hawley and Collins told me when I first came into office under Hancock that Wolff was a professional safe-blower.”

The third count charges defendant with saying to one Rodgers:

“I don’t see how you folks can support Wolff. 'He is a safe-cracker, and has served time in the penitentiary. I learned it right after I came into office; right'after Hancock’s death. Go and ask Collins if that isn’t right.”

The fourth count charges that defendant said to one Clink and one Wilson:

“I heard that Wolff was a safe-cracker, and that he had done time for it. I heard that he was a safe-blower, and an accomplished burglar. Shortly after I came here, Hawley and Collins told me to keep an eye on Henry Wolff; that he was an accomplished safe-blower; that he was a safe-cracker. And they took me down in front of his store, and showed me Wolff as the man.”

The defendant, at the time of the alleged utterances, was under sheriff and acting sheriff of the county of Muskegon. Collins and Hawley were deputy sheriffs. Plaintiff was a candidate for the nomination of city treasurer on the Republican ticket. Plaintiff, defendant, and the other parties named were also Republicans. The alleged utterances in the first three counts were made shortly before the caucuses to choose delegates to the city convention. Each count closes with the allegation that the defendant, by the aforesaid utterances, charged him with the commission of crime, and with having been convicted and sentenced to prison therefor. Plaintiff secured, the nomination, but was defeated at the polls. No damage was claimed by reason of his defeat. Defendant opposed the nomination of plaintiff. The witnesses McLaughlin, Schnorbach, and Rodgers all testified that they asked defendant why he was opposing plaintiff’s nomination, and that he replied that Collins, or Collins and Hawley, had informed him, when he went into office, that plaintiff was a professional safe-blower, that he had done time for it, and to watch him. He referred them to Collins as his authority. Defendant positively denied that he had ever stated that plaintiff was guilty of the crime charged, or that he had been sentenced and imprisoned. His statement of what he said is as follows:

“McLaughlin asked me, I think, in this way,—something like this: ‘ What is the matter with you ? Why are you opposed to Wolff for the nomination for city treasurer ? ’ I replied in this way: I says, ‘ Is Bill Collins supporting Wolff ? ’ He says, ‘Yes.’ I says, ‘I don’t see how he could conscientiously do it, if there is anything in the talk, the story told me, when I first came down here, or shortly after I came down here and went into office,'—the sheriff’s office.’ He asked me what it was, and I told him. I told him that they told me that Wolff had been in the business of safe-cracking, and was a burglar, and had taken me down and pointed him out to me,—down on the street; and I told him, so far as I knew, I knew nothing of the facts of the matter, and in fact didn’t know Wolff only by sight; and I told him that I didn’t see how Collins could support him, if there was any truth in it. That is all there was of it.”

Mr. Collins, a witness for plaintiff, in rebuttal testified that he had so informed defendant, and told him that plaintiff “had done time for it.” Three errors are assigned, one upon the admission of testimony and two upon the charge of the court.

I deem it unnecessary to discuss the error alleged upon the admission of testimony. In my view of the case, the court should have directed a verdict for the defendant. Instead it was left to the jury to determine whether the defendant intended to and did charge plaintiff with -a crime, as alleged in the declaration by the innuendoes. The court gave' 11 of the 12 requests preferred by the plaintiff, which covered the entire theory of his case. One of these requests reads as follows:

“There is no more privilege attending the repetition of the false charges of crime than if the defendant made a charge upon his own responsibility, and I charge you that there is no proof in this case showing any privilege for the defendant ever to charge the plaintiff with crime, or in stating in the presence and hearing of others that he had been told the plaintiff was guilty of safe-cracking and safe-blowing, or that he is a professional safe-cracker or safe-blower, or that he had served or done time for the same in the penitentiary.”

The court also charged that plaintiff had not been guilty of any crime, and that to say of him that he was a professional safe-blower, and had served time in the penitentiary, was a slander; and that, if defendant had heard such report, he had no right to repeat it. The declaration asserted that defendant charged plaintiff with a crime. The court instructed the jury that such a charge was not privileged, yet plaintiff complains because the court refused his twelfth request, viz.:

“To hold that false charges of a defamatory character made against a candidate for an elective office, where he is falsely charged with a crime, are privileged as matters of law if made in good faith, and that the party making them is absolutely shielded against liability, would be a dangerous doctrine, and it is not allowed under the law.”

The language of this request was taken from the opinion of this court in Bronson v. Bruce, 59 Mich. 467. The request was properly refused. Thé argument of a court in its opinion is not always proper to be read to the jury. It may be, and often is, proper, where it gives a definition, or lays down a rule of law applicable to the case. The language of this request was wholly inapplicable to any issue presented to the jury, or to any fact to be determined by them.

The court, at the request of the defendant, gave the following instruction:

“That unless the defendant intended in some of the conversations he had with the persons named in the declaration, namely, J. C. McLaughlin, Philip Schnorbach, Lincoln Rodgers, or Steven H. Clink and William Wilson, to charge plaintiff with being a safe-cracker or a safe-blower, or with having done time in the penitentiary, or unless such a charge can be fairly inferred from the language used, and the language used was so understood by the persons to whom they were uttered, then the plaintiff has not maintained his action, and your verdict must be for the defendant. ”

The giving of this request is alleged as error. The instruction was correct, under the defendant’s version of the words uttered by him. He was asked why he was opposing the nomination of plaintiff. In reply he did not charge plaintiff with any crime, but, on being informed that Mr. Collins was supporting plaintiff, he replied that he did not see how Mr. Collins could do so in view of what he had said about him to defendant. This was not necessarily the utterance of a slander, under the doctrine of Ellis v. Whitehead, 95 Mich. 105. It might with at least equal propriety be found to be a reflection upon Mr. Collins for supporting a man about whom he had made such a statement. It was, under plaintiff’s theory, a question for the jury to determine what defendant meant by the words they found he uttered. If they found he did not intend to charge plaintiff with a crime, as alleged in the declaration, but either to charge Collins with inconsistency, or to truthfully and honestly state to those electors his reasons for opposing plaintiff’s nomination, the verdict should have been not guilty. The communication was privileged, and the court, if requested, should have so instructed the jury. Wieman v. Mabee, 45 Mich. 484; Bacon v. Railroad Co., 66 Mich. 166; Pollasky v. Minchener, 81 Mich. 280; Edwards v. Chandler, 14 Mich. 471. The subject is fully discussed, and authorities cited, in Bacon v. Railroad Co. It was not shown that the defendant made the alleged slanderous statements to any but those who asked him why he was opposing the nomination of plaintiff. These persons were electors, and, except Clink, members of the same political party with plaintiff and defendant, and were'interested in securing the nomination of a good man. There is nothing in the record to show any malice or ill will on the part of defendant towards plaintiff. Defendant made no direct charge, but in every instance stated what had been told him, and who told it. Every respectable elector is interested in securing the nomination for office of men of good character and reputation. When his reason for opposing a candidate is solicited by another elector, and he in good faith. states his reason, and truthfully gives the source of his information, the law protects him from an action of slander. In Wieman v. Mabee, supra, the defendants had by affidavit directed to the superintendent of schools, in order to prevent his granting a license to Wieman to teach school, charged him with being a man of bad moral character. The court said:

“In the present case the communication was fully privileged. It was made by persons interested in the school to the person qualified to receive and act on the petition, for an honest purpose, and with an honest belief in the justice of their action. In such cases no action can be maintained, even if the complaint is untrue, if not maliciously made.”

So in this case there is nothing to show any malice, or that the statement was not made for an honest purpose. Are not reputable electors as much interested in securing a man of good reputation and character for office as were the citizens defendants in the Wieman Case to secure the licensing of a moral man to teach school? If the communication in that case was privileged, for what reason can it be held that this was not ? Many authorities might be cited in support of this proposition. They can be found collected in 13 Am. & Eng. Enc. Law, 403; Ormsby v. Douglass, 37 N. Y. 477; Marks v. Baker, 28 Minn. 162; Briggs v. Garrett, 111 Pa. St. 404. In Briggs v. Garrett, the defendant, president of a committee of 100, had published a letter addressed to him, and reflecting upon the character of the plaintiff, who was a candidate for re-election to the office of associate judge of the court of common pleas. He read the letter to the committee, in the presence of reporters and others. The court assumed that the letter itself was actionable unless excused by circumstances attending its publication, held that the communication was privileged, and sustained the instruction of the court below directing a verdict for the defendant. Many cases are-there cited and commented upon. The court in that case used the following language:

“We have no concern with the knowledge or motive of the writer of the letter. Conceding, for the purpose of this case, that every word contained therein is false, and was known to be so by the writer; that it was sent out of pure malice, to injure and defame Judge Briggs,—no such knowledge was brought home to Mr. Grarrett, nor is there anything in the case from which it could be justly imputed to him. So far as he is concerned, it was a mistake; nothing more. The difference between an honest mistake, made in the pursuit of a proper object, and a willful falsehood, coined for the purpose of deception, is so palpable that we may well be excused from dwelling upon it at length. It is mistakes, not lies, that are protected under the doctrine of privilege. A communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. When so made, in good faith, the law does not imply malice from the communication itself, as in the ordinary case of libel. Actual malice must be proved before there can be a recovery. And whether a communication be privileged or not is a question for the court, not the jury.”

That case is precisely in point, and its facts are parallel to those in this case.

It is, however, suggested by my brethren that this rule -does not apply to the fourth count in the declaration, which refers to statements made by the defendant after the nomination and the election. A sufficient reply to this is that the plaintiff did not request the court to instruct the jury specifically upon this count. The language used was substantially the same in all the conversations. Plaintiff contended that they were all libelous. If the language used before the nomination was privileged, and that used after was not, it was his duty to request the court to so instruct; but, aside from this, the statement made to Mr. Clink was not, in my opinion, libelous. This conversation occurred the day after the election, and Mr. Clink’s testimony was as follows:

“I think I commenced to joke Mr. Smith about election in some way (I don’t know just how), and we talked a few minutes in that direction, and Billy Wilson made the remark that a good joke on somebody (and I have forgotten just who he said) was one that he heard the -other day. He proceeded to state what he heard. We, or one of us, asked him what it was, and he said he had Beard about an old-time Republican down on Pine street saying that he had voted the Republican ticket for a good many years, and never had made a scratch,—voted it •straight always; but he guessed that this year he would Rave.to scratch it some; have to scratch one name anyway; he couldn’t vote for Wolff, because Billy Smith had told him that Wolff was a very bad man,—a safe-blower ■and- something of that sort; served time in state’s prison. Smith turned around and stated that he had never said anything of that sort; denied having made, the statement, or having had any such conversation with any old gentleman on Pine street, or anywhere else,—sweeping in his denial of it; but he said all that he knew about it, or had ever heard about the subject, was what Wolff’s particular friend Collins had told him. Collins and Hawley, I think Be said, had pointed Wolff out to him when he first came here as an officer, as that kind of a man, describing him as such,—describing him as a safe-blower and a criminal. I think he said they took him down past Wolff’s place and pointed Wolff out. If I recollect right, he said that they told him then that, if any jobs of that sort were perpetrated in the city, they had better look—that he had better look—in this direction; something of that sort; that is all that he had known.. He said further that he did, up to the time of Wolff’s nomination, do all that he could do to prevent his nomination, but from the time of his nomination that he had said nothing to hurt him in his election. I believe that is what he said.”

In this conversation the defendant promptly denied having made any charge of crime against plaintiff. He naturally referred to his former statement, and told Mr. Clink what that was. Is the law so strict as to hold a person guilty of slander when, in reply to such a charge, he refers to what he had formerly said, which was privileged ? There is nothing in the record to indicate that any such position was taken upon the trial. In Briggs v. Garrett, supra, if Garrett had afterwards been told that he had charged Briggs with a crime, would he have been guilty of libel by stating to his informant that he had made this letter public before the election, and had referred to the letter ? To so hold appears to me contrary to reason.

The judgment should be affirmed.

Moore, J., concurred with Grant, J.


text:
    GARRITY v. DETROIT CITIZENS’ STREET RAILWAY CO.

    1. Street Railways—Fire Department—Right of Way—Collisions.
    Although the driver of a fire-department truck is by charter given the right of way when going to a fire, he is hound, upon approaching a street-car line on an intersecting street, to have his horses under such control as to permit of stopping in time to avoid a collision with any car that may be approaching, and his negligence in this respect, if actually contributing to his injury, will preclude a recovery therefor.
    2. Same—Negligence—When Contributory.
    The fact that the driver of a fire truck was guilty of negligence in failing to have his horses under control upon approaching a street-railway line is not conclusive against the company’s liability for his death from a collision with an electric car, where there is evidence that, had he had control, he would have been justified, owing to the distance of the car in question, in relying on the motorman’s ability to stop in time to avoid an accident. Grant, J., dissenting.
    3. Same—Crossings—Steam Railways—Distinction as to Care Required.
    While it is the duty of drivers and pedestrians in cities to employ, in crossing in front of an electric car, the degree of care required by the nature of the danger, they may properly rely to some extent upon the motorman’s using watchfulness and prudence in directing the speed of the car; the rules respecting steam railways not being in all respects applicable.

    4. Pleading—Allegation of Damages—Amendment.
    A declaration in an action by an administrator for the death of his intestate from defendant’s negligence may be amended so as to show that the next of kin have sustained damages by reason of the death. Walker v. Railway Co., 104 Mich. 617, followed.

      Error to Wayne; Lillibridge, J.
    Submitted January 6, 1897.
    Decided April 27, 1897.
    Case by John Garrity, administrator of the estate of Hugh Garrity, deceased, against the Detroit Citizens’ Street Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      T. A. E. & J. C. Weadock, for appellant.

      Brennan, Donnelly & Van De Mark and A. C. Angell, for appellee.

       Rehearing denied June 18, 1897.

       The decisions respecting injuries by street-car collisions with vehicles are collected in a note to Hicks v. Citizens’ R. Co., (Mo ) 25 L. R. A. 508.

   Hooker, J.

The plaintiff’s intestate was killed, while driving to a fire upon a truck of the Detroit fire department, in a collision with a street car at a crossing of streets. The circuit judge directed a verdict for the defendant, upon the ground of contributory negligence, it appearing that deceased, while driving three horses before a truck 69 feet long, came to the point where Montcalm street (upon which he was driving) intersected Woodward avenue, without having his horses under control, so that he could stop them in time to prevent a collision with an electric street car, should one be so near as to get in his way. The undisputed evidence shows that the car was heavily loaded, and was approaching upon a down grade, at a distance shown by differexxt witnesses to be from 30 to 150 feet or more from the place of the accident. The two car tracks upon Woodward avenue were near the center, and the track upon which this car ran was about 50 feet from the street line, and it seems not to have been visible or noticed until the driver (who must have sat 14 or 15 feet back of the end of the truck pole) passed the street line. At this time the horses were going at the rate of 8 miles an hour, and were within 35 feet of the track; and, as it was conclusively shown that it would require 100 feet in which to stop the truck, it is plain that the driver, when he discovered the car, had no alternative but to cross the track in front of the car. When the horses were on the track (which was probably as soon as he could do so after seeing the car), he drew his whip, and urged the horses, increasing their speed. The car, which weighed seven tons exclusive of passengers, was caught by the rear wheel of the truck, and turned around so that it stood across the track. The wheel of the truck was broken, and the driver was killed.

Error is assigned upon the charge, counsel for the plaintiff claiming that the case should have been submitted to the jury. It is contended that the truck had the right of way, under the city charter which authorizes it, and makes it a misdemeanor for any one to obstruct its passage, and that it was the duty of the motormen to stop their cars, and give the fire apparatus the opportunity of crossing without delay, and that it was unnecessary for the driver to have his team under control at street crossings, so as to be able to stop if necessary to avoid a collision with a car. It is manifest that a fire truck approaching a street upon which is a street railway is liable to find cars in any degree of proximity to its pathway, either with or without fault of the motormán, so close, indeed, that to stop may be impossible. A collision involves danger, to life and limb, to those upon the car, as well as to those upon the truck; and, while the exigency of a fire may well require dispatch, it is not so essential as to justify taking unnecessary chances of collision dangerous to life. Furthermore, collisions do not conduce to dispatch, but cause delay, and the public service is advanced by avoiding them. So, we think that both the preservation of life and expedition in getting to the fire require caution in approaching streets where cars are likely to be encountered. As an abstract proposition, then, we think that to approach a street-car line, which must be crossed, without having the horses under such control as to permit, of stopping, is negligence; and the proof shows that the driver was culpably negligent in approaching this street. Had the car been a little nearer, or responded less quickly to the efforts to stop it; the pole of the truck would have crashed into it, and the consequences of such an accident are frightful to contemplate.

Counsel cite several cases in support of this proposition, among them the following: Carson v. Railway Co., 147 Pa. St. 219 (15 L. R. A. 257); McGee v. Railway Co., 102 Mich. 107; Fritz v. Railway Co., 105 Mich. 50; Greenwood v. Railroad Co., 124 Pa. St. 572 (3 L. R. A. 44). This last-mentioned case applied the doctrine of contributory negligence to one who, going to a fire, drove a hose cart at a rapid rate across a railroa d, although the gates were up. See, also, People v. Little, 86 Mich. 125. The language of Chief Justice Champlin is apropos to this case, upon the contention that having the right of way by ordinance justified the intestate in not having his team under control when approaching the street crossing. If we can say that his negligence actually contributed to the accident, it must follow that we should approve the course taken by the trial judge, and affirm the judgment. This involves the question whether or not the car was so close to the intersection of the streets as to render an attempt to cross in front of it imprudent; for, manifestly, if the car was so far off as to justify the ordinarily prudent man in driving such a vehicle as this truck across in front of the approaching car, such act would not be made negligent by reason of an act which, though negligent in the abstract, was not negligent in relation to the particular car which was approaching. In other words, if it was not negligent to cross the track in front of the car, the driver cannot be said to be guilty of contributory negligence because (owing to his rapid approach) he had no alternative after discovering the car. But, on the other hand, we should perhaps emphasize the converse of this proposition, viz., that, if it is negligent to cross in front of a car as near as this one was, the driver cannot be relieved from the consequences of his attempt, by reason of the fact that he found himself in a position where he was compelled to cross, inasmuch as it was his own negligence that placed him there. If it were due to the negligence of the defendant that he was placed in jeopardy, he might not be required to exercise the best judgment in his effort to extricate himself. We are of the opinion that it should not be said that the evidence conclusively shows that it was imprudent—i. e., negligent—to drive this truck across the track.

While we do not wish to be understood as casting doubt upon the rule that one who intends to cross a street-car track should use his eyes and ears to ascertain whether it is safe to attempt it, especially in view of modern methods and increased speed of cars, yet we think that street railroads are not governed by the same rules in all respects that are applied to steam roads. Street cars are used in the common highway, and the part occupied by the track is put to a common use. In crowded thoroughfares, like Woodward avenue of Detroit, the ordinary vehicles and footmen are constantly crossing and recrossing these tracks between cars; and recognizing, as we do, the propriety and necessity of prudence, care, and caution in doing so, we must also admit that it is common practice for people to drive or walk upon tracks, relying to some extent upon the watchfulness and prudence of the motorman, and his ability to stop his car within a reasonable distance. In the case of steam roads it is expected that people will not rely on a reduction of speed under ordinary circumstances. Such cars are run upon private ground, as contradistinguished from a public highway, upon a roadway devoted to its exclusive, and not to a common, use. Again, the rate of speed, the weight of trains, and consequent momentum, are much greater on steam roads. All of these things go to show that an act that is clearly negligent where a steam road is involved may not be negligent in the case of street cars. The degree of care depends upon the nature of" the danger. Cable and electric cars may require greater care and caution than horse cars, and rapid transit may make dangerous an act which reduced speed might justify. There are cases where we are able to say from the undisputed testimony that negligence or contributory negligence is conclusively shown; but in a case like this, where there is testimony indicating that the car was at a distance within which a jury might legitimately find that it could have been stopped, and that the driver of the truck might, without being called imprudent, drive across, in the expectation that it would be stopped in view of his having the right of way, we cannot say that the case should have been taken from the jury. We do not lose sight of the many facts that may justify a belief that the car was too near to be stopped in time to avoid a collision, and that the driver could' not prudently drive upon the track; and, were we to pass upon the weight of evidence, we might so decide. But these facts are disputed. We cannot say that the car was nearer than 150 feet, or that it could not have been readily stopped in time to avoid the collision ; nor can we say that a driver could not prudently drive upon the track with this truck, under the circumstances.

Counsel for defendant call attention to the fact that neither the declaration nor the proof shows that Elizabeth Garrity or any other person suffered damage by reason of Hugh Garrity’s death. If the declaration was defective in this regard, it should be amended, under the decision in the case of Walker v. Railway Co., 104 Mich. 617. We do not feel justified in saying that the testimony upon this subject shows that she suffered no damage, and therefore cannot affirm the judgment.

The judgment is reversed, and a new trial ordered.

Long, C. J., Montgomery and Moore, JJ., concurred with Hooker, J.

Grant, J.

(dissenting). I think the learned circuit judge, in directing a verdict for the defendant, gave con-elusive reasons for so doing. He held that the deceased was guilty of contributory negligence. The undisputed facts are these: The deceased was driving,a vehicle 62 feet 7 inches long, weighing 7 tons, and drawn by three horses. He drove out of a narrow side street, at the rate of 8 miles an hour, at which speed he could not stop his vehicle within 100 feet, or not until it had crossed the entire distance of Woodward avenue, which is 90 feet wide. High buildings were constructed at the corner close to the street line, and prevented the driver from seeing any distance up the avenue until he was almost on a line with it. His team could not be stopped until it was across Woodward avenue, and the only course left him was to lash his team into as great speed as possible, which he evidently did. It is also evident that at the same time the motorman applied his brake with all the rapidity and force possible, and did it so quickly that some of the passengers were almost thrown over, and all instantly recognized the fact that something unusual had happened. He had brought his car almost to a standstill when the hind wheel of the truck caught it, and threw it at right angles across the track. The circuit judge correctly held that the charter giving fire vehicles precedence over other vehicles does not give them absolute preference, and the right to drive them without regard to consequences onto a crowded thoroughfare. The rights and lives of people traveling on street cars and in other vehicles are as much entitled to protection as is property which is in danger of being destroyed by fire. In approaching this crowded thoroughfare, it was the clear duty of those having charge of the truck to have it under control. Confessedly, they did not do so, but drove the ponderous vehicle out of a narrow street onto the crowded one at such a rate that they could not control it for 100 feet. Under this state of facts, is there any reason in permitting a jury to find that the motorman might have acted with greater celerity than he did to stop his car, and thus possibly have avoided the collision? Scarcely any perceptible time elapsed after the horses reached the line of Woodward avenue before the collision. The street car was running at a lawful rate of speed, and the motorman, upon seeing danger, was only required to do all in his power to stop the car. There is nothing in the record to indicate that he did not do so, except the estimates of the witnesses as to the distance of the car from the place of collision when the truck emerged from the side street. These vary neai’ly 100 feet. They are, at best, mere guesses, and are of little value in determining the fact.

Let it be granted, however, that the motorman did not act instantly, and that this was negligence. Is it not apparent that the driver of the truck was driving recklessly? If there is evidence to show that both were negligent, why should the plaintiff be allowed to recover'? Or why should the motorman, if injured, be entitled to recover against the city or the fire department ? This would establish the doctrine of comparative negligence, which has been uniformly repudiated by this court. I know of no better case than the present to illustrate the justice of the rule that he who contributes to his own injury cannot recover. I think the same principle which governs and controls this case is found in the following decisions: McGee v. Railway Co., 102 Mich. 107; Fritz v. Railway Co., 105 Mich. 50; People v. Little, 86 Mich. 125; Carson v. Railway Co., 147 Pa. St. 219.

I am for the affirmance of the judgment.


author: Hooker, J.

text:
    BEARDSLEE v. CITIZENS’ COMMERCIAL & SAVINGS BANK.
    1. Appeal—Receivers—Mortgage Foreclosure.
    Upon affirmance in the Supreme Court of a decree directing the sale of mortgaged premises and the payment of the mortgage debt, sufficient time having elapsed since the filing of the bill to permit of immediate advertisement and sale, the services of a receiver, appointed for the purpose in the court below, were dispensed with. ‘
    2. Partnership—Accounting—Parties.
    The adjustment of the partnership affairs of complainants in a suit to compel the discharge, of mortgages executed by the firm cannot be made in the suit, where the mortgagee is the only defendant.
    Cross appeals from Genesee; Smith (George W.), J., presiding.
    Submitted January 9, 1897.
    Decided April 27, 1897.
    Bill by Amzi Beardslee and others against the Citizens’ Commercial & Savings Bank to compel the discharge of certain mortgages. Defendant filed an answer in the nature of a cross-bill, praying foreclosure of its lien. From the decree rendered, all parties appeal.
    Reversed.

      Newton & Gold (Clinton Roberts, of counsel), for complainants.

      Ed. S. Lee (James S. Parker, of counsel), for defendant.
   Hooker, J.

The complainants are partners, and owners of a manufacturing plant and machinery and a quantity of personal property. At different times they gave to the defendant three real-estate mortgages upon the former and three chattel mortgages upon the latter. So far as the bill of complaint can be treated as a bill to compel. the discharge of these mortgages, we can agree with the circuit court in chancery that all except the last given real-estate mortgage are fully paid and satisfied, and should be discharged. Beyond-this we discover no equitable ground of relief against the defendant.

On the other hand, the testimony shows that the complainants are indebted upon the real-estate mortgage in the sum of $4,000, with interest at the rate of 7 per cent, from February 12, 1896, and that the same is due; that defendant also holds by assignment 40 shares of stock in the Capitol Investment, Building & Loan Association of Lansing, Mich., as additional security for said debt; and, while we cannot sustain the decree of the circuit court, which permits the receiver to sell and convey the interest of the defendant in the premises described, and the application of the proceeds to the payment of its debt, we are of the opinion that the cross-bill and evidence justify a decree that the defendant have foreclosure of said mortgage, and, in case the sale of said premises does not produce sufficient to pay said indebtedness and the costs and expenses attendant thereon, that the building and loan stock be subject to sale by the defendant according to the terms of its holding, to pay the deficiency arising from the sale of said real estate. This being the only relief that can be afforded as between the complainants and defendant, the adjustment of the partnership affairs cannot well be made in a suit where the bank is the only defendant. The partners being in entire harmony, we see no obstacle to their adjusting such matters without the intervention of a court.

While the decree of the circuit court appointing a receiver, and directing him to sell the mortgaged property, and pay the mortgage debt (which, we think, was the evident meaning of the decree), may have been justified by the bill filed by the complainants, if the defendant did not object, the lapse of time since filing the bill permits immediate advertisement and sale of the mortgaged premises, and renders the intervention of a receiver unnecessary, and of no benefit to either party.

We are of the opinion that the decree of the circuit court in chancery should be reversed, and a decree entered here in conformity to this opinion, the sale to be made upon the statutory advertisement after date of decree. The complainants will recover costs of both courts to the point of and including the entry of this. decree, the same to be deducted from the amount of the defendant’s claim as herein adjudicated. The defendant will be allowed to tax the costs and expenses of the sale and subsequent proceedings, the cause being remanded that the decree of foreclosure may be carried into effect.

The other Justices concurred.


text:
    BENNETT v. HICKEY.
    1. Land Contract—Right op Rescission—Laohes—Waiver.
    The right of a vendee of land to rescind a contract for its purchase because of a dispute as to the exact location of one of the boundaries, and because of the refusal of the vendor to consent to an assignment of the contract in accordance with its terms, is waived, where he continues for six months after knowledge of the facts to make payments upon the contract, and to exercise acts of ownership over the land, without asserting any intention to rescind.
    2. Same—Acreage—Settlement.
    Premises sold under a land contract were described as containing 23.03 acres, more or less; it being agreed that the exact dimensions should be subsequently ascertained. The owner of adjoining property asserted a claim to a strip claimed by the vendor. A survey showed 23.75 acres inclusive, and 23.43 acres exclusive, of the strip in controversy. The vendee was dissatisfied with this survey, but agreed that, if it should be verified by the county surveyor, he would abide by it. Such survey was made, and showed a still larger acreage. A settlement was subsequently effected between the vendor and the adjoining owner, whereby the latter relinquished his claim to the land in dispute. Held, that payment should be required on the basis of 23.75 acres.

      Cross appeals from Wayne; Carpenter, J.
    Submitted January 7, 1897.
    Decided April 27, 1897.
    Bill by William C. Bennett against Edward J. Hickey and others to rescind a land contract, and to recover the moneys paid thereon. Defendants filed an answer in the nature of a cross-bill, praying for a foreclosure of the contract. From the decree rendered, all parties appeal.
    Modified and affirmed.

      Fraser & Gates, for complainant.

      Keena & Lightner, for defendants.
   Moore, J.

The bill in this case was filed March 18, 1895, to obtain an accounting of the moneys paid by complainant to defendants Hickey, Tannahill, Caswell, and Kern under a land contract between them dated March 1, 1893, and to foreclose his vendee’s lien upon the premises in question. These defendants filed an answer in the nature of a cross-bill to foreclose the contract. A decree was made in favor of the defendants for the greater part of what they claimed. Both sides appealed.

March 1, 1893, complainant entered into a contract in writing with defendants Hickey, Tannahill, Caswell, and Kern, whereby they agreed to sell and convey to him land in the township of Greenfield, described as follows:

“Bounded on the west by the westerly line of the southeast quarter of section 10; on the south by the center line of the six-mile road; on the east by a line parallel with the westerly boundary of said property, and being the dividing line of the properties formerly known as the J. Stebbins and the H. Valentine farms, said eastern boundary line running northerly from the said six-mile road to the southern boundary line of the northeast quarter of said section 10; on the north by the southerly boundary line of the northeast quarter of said section 10,— containing twenty-three and 3-100ths (23.03) acres, more or less.”

It was agreed that the exact dimensions and extent of said land should be ascertained by a survey to be made at the expense of defendants. Complainant agreed to purchase and pay for the land at $750 per acre; $6,037.75 on the execution of the contract, and the balance April 8, 1895, with interest at 6 'per cent, per annum, payable semi-annually. The complainant was not to assign the contract without the consent of the defendants. They were to consent to the assignment of the contract if the assignees were of equal financial responsibility with complainant.

Mrs. Yemans was the owner of the 26 acres next east of the land described in the contract. Between the two pieces of land was a ditch. On the west bank of the ditch was a fence, leaving a small strip of land between the fence and the center of the ditch, that was occupied by Mrs. Yemans, but which the defendants claim they owned when the contract was made, and which they insist was included in the contract. The defendants caused the land to be surveyed by Mason L. Brown. He surveyed only that part west of the fence. According to his survey, there was 23.438 acres of land. Later he made a survey which embraced all the land west of the center of the ditch. This survey showed 23.755 acres. The complainant was not satisfied with this survey, and agreed that, if the county surveyor was employed, and his survey showed there was as much land as was shown by the last survey made by Mr. Brown, he would abide by Mr. Brown’s survey. The county surveyor was employed, and his survey showed there was 23.98 acres of land. The parties, however, failed to arrive at a settlement.

There was a controversy as to the ownership of the strip of land between the fence and the ditch. The defendants held their title through a contract running to them from John B. Moloney. On May 10, 1894, a written agreement was made between Mr. Moloney and Mrs. Yemans, in which the descriptions of land claimed by the respective parties were set out, and an agreement was made that, until the line of said ditch changes from the first direction to a more easterly or northeasterly course, the center of the ditch should be recognized “to be the line and actual line of division between their respective properties.” It was further provided that Mrs. Yemans, “her heirs, assigns, or administrators, have no right, title, interest, or claim of any kind, name, or nature in and to any part or portion of the land lying between the fence above described and the center of said ditch.” This instrument was signed, sealed, and acknowledged by the parties, and executed in duplicate, and one of them was tendered by the defendants to the complainant.

In the fall of 1894 the complainant assigned his contract to his sons, living in Muskegon. September 10, 1894, the contract, with the assignment, was presented to the defendants, with a request that they consent to the assignment. At the same time, and as a part of the transaction, a request was made of them to sign a receipt for “$336.37, being the interest due September 1, 1894, on a certain contract for 23.03 acres of land,” etc. They declined to sign the consent for an assignment on the basis of 23.03 acres, but signified their willingness to do so upon the basis of what acreage there actually was of the land. On September 24, 1894, the complainant made a payment on the land contract “of $336.37 on account of interest due September 1, 1894.” No attempt was ever made by complainant to rescind the contract on account of the disputed strip of land, - and no attempt was made to rescind it because of the refusal to consent to the assignment, until this bill was filed, March 18, 1895. The bill is filed for the purpose of rescinding the contract, and to recover for the payments made thereon and interest.

The defendants filed an answer in the nature of a cross-bill, and for a foreclosure of the contract for the payments remaining unpaid, and for a sale of the land. The circuit judge was of the opinion that, if the complainant had the right to rescind because of the condition of the disputed strip of land, notice of which came to complainant in the summer of 1893, or because of the refusal of the defendants, September 10, 1894, to consent to the assignment, it was his duty to act promptly. The judge held that, complainant’s having made a payment subsequent to the act of which he complains, and having continued to exercise acts of ownership over the land, were acts inconsistent with an election to rescind, and that his delay in indicating any intention to rescind the contract until March 18, 1895, when he brought this proceeding, precluded his right to do so now; citing Farrington v. Smith, 77 Mich. 550; Condon v. Hughes, 92 Mich. 367, 369; Bedier v. Reaume, 95 Mich. 518. The bill was dismissed, and a decree granted in favor of the defendants, “based upon an acreage of 23.438 acres.

We agree with the learned judge that, if complainant intended to rescind the contract because of the defendants’ refusal to perform its conditions, it was his duty to act promptly, and that he failed to do so. We cannot but conclude from the record that, had this land increased in value instead of depreciating, this bill would not have Been filed.

The defendants have appealed, and claim they should have been allowed to recover for the land between the fence and the ditch. An inspection of the record shows that the conveyance to Mrs. Yemans makes the line of the ditch her west line. The conveyance to Mr. Moloney makes the line of the. ditch his east line. The testimony also discloses that Mrs. Yemans has not, at any time, and does not now, make claim to any more than 26 acres of land. Whatever else may be the effect of the instrument executed by her and Mr. Moloney, May 10, 1894, we think it decided that the center of the ditch was the line between the land owned by Mrs. Yemans and the, land described in complainant’s contract. The Brown survey shows that, treating the center of the ditch as the division line, there is 23.755 acres of this land. As the complainant agreed to abide by this survey if the survey made by Mr. Goodell should show there was as much land as Mr. Brown’s survey showed, and, as the Goodell survey showed there was even more of the land than was shown by Mr. Brown’s survey, it is not inequitable to require payment on the basis of 23.755 acres. The decree will be modified in that respect, and affirmed, with costs.

The other Justices concurred.


author: Long, C. J.

text:
    WALKER v. WAYNE CIRCUIT JUDGE.
    Mortgages—Assignment or Decree.
    After decree in a mortgage foreclosure suit, one of the mortgagors applied to B. for §3,000 to purchase the decree. B. paid that amount to the mortgagee, and one of the mortgagors paid the necessary balance, and B. took from the mortgagee an assignment of the mortgage and decree. There was no agreement as to when the §3,000 should be repaid, or extending time before which sale should he made, or limiting the right of B. in any way to enforce the decree. Held, that this did not amount to the making of a new mortgage, so as to require a new decree before sale.

      Mandamus by Bryant Walker, administrator, etc., to compel Willard M. Lillibridge, circuit judge of Wayne county, to vacate an order restraining a foreclosure sale.
    Submitted April 6, 1897.
    Writ granted April 27, 1897.

      Walker & Spalding, for relator.

      S. W. Burroughs and Moore & Moore, for respondent.
   Long, C. J.

In 1886, George T. Burroughs executed and delivered to the People’s Savings Bank of Detroit a mortgage, upon certain real estate described therein, conditioned for the payment of $3,000 three years after date, with interest at 7 per cent., payable semi-annually. Default having been made, the mortgage was duly foreclosed in chancery, and a decree entered therein. The defendant, not being able to pay the decree, applied to Mrs. Caroline M. Beecher on March 24, 1892, for $3,000, to purchase said decree. Mrs. Beecher paid the $3,000 to the bank; Mrs. Lucie E. Burroughs, one of the defendants in the foreclosure, paying the balance to the bank of $707.65. Mrs. Beecher took from the bank an assignment of the mortgage and decree. No agreement was made as to the time when the $3,000 should be repaid, nor was any agreement made extending the time before which a sale should be made under said decree, or limiting the right of Mrs. Beecher in any way to enforce the decree, and no obligation whatever was taken from Mrs. Lucie E. Burroughs for the moneys so advanced. Subsequently Mrs. Beecher assigned the mortgage and decree to Mr. E. C. Walker, administrator, etc. On notice to the defendants in the decree, the cause was revived in the name of Mr. Walker. Subsequent to that time Mr. Walker died, and proceedings were duly taken, and the cause was revived in the name of the relator as administrator. Interest was paid from time to time upon the decree up to April 25, 1896. No interest since that date has been paid. There is no uncertainty about the amount due and unpaid upon the decree. On February 5, 1897, in pursuance of the terms of the decree, the relator commenced to advertise the sale of the lands described in the decree for the purpose of satisfying the amount of the decree and interest. On February 27th, Lucie E. Burroughs filed a petition in the cause for an order restraining the relator from selling under the decree, the claim being that the assignment of the decree and mortgage under the circumstances here stated amounted to the making of a new mortgage of $3,000, and that, therefore, a new proceeding for foreclosure must be had before sale. The relator answered the petition, and upon the petition and answer the court enjoined the sale. Application is made here for mandamus to compel the respondent to set aside that order, and allow the sale to proceed under the decree. We think the court below was in error in holding that a new foreclosure must be had before sale could be made. The assignment of the decree under the circumstances herein stated did not operate to discharge the decree, and make a new mortgage. The parties had had their day-in court under the foreclosure. The amount due on the mortgage had been adjudicated, and the mortgage was merged in the decree, which finally determined the amount of the defendant’s indebtedness. Wallace v. Field, 56 Mich. 3. The amount of the indebtedness was not changed by the assignment, and the payment upon the decree only lessened its amount. It did not change the character of the decree. If the moneys had been paid by Mrs. Burroughs to the bank, confessedly the bank could have sold for the balance due on the decree without another foreclosure. The assignment to Mrs. Beecher, and from her to Mr. Walker, and the transfer from him to the relator, put the relator in the same position that the bank stood, and with the same right to sell under the decree.

The writ must issue as prayed.

The other Justices concurred.


author: Grant, J.

text:
    HILL v. MALLORY.
    1. Assignments for Benefit of Creditors—Preferences.
    A transfer of all one’s property to a creditor in payment of liis claim, and in further consideration of his agreement to pay the claims of certain other creditors, who are not consulted with reference thereto, is in effect an assignment for the benefit of creditors, and, if any are excluded, is void for preferences.
    3. Partnership—Evidence.
    Evidence that a son used the words “we” and “our” in referring to the business which he carried von for and with his father, that he contemplated that he would eventually succeed to such business, and that he conducted it after it was transferred to him in the same way as before the transfer, is insufficient to prove that he was a partner, and therefore incapable of taking the property as against creditors.
    3. Fraudulent Conveyances—Notice.
    A transfer by an insolvent debtor is void as against a creditor, although it was made in payment of an honest debt of an amount equal to the fair value of the property, where the transferees knew that the debtor had made false statements in regard to, or had purposely concealed, his financial condition in order to obtain credit on purchases from such creditor, or knew that the purchases were made from the latter for the purpose of obtaining goods to secure their claims.
    Error to St. Clair; Vance, J.
    Submitted January 8, 1897.
    Decided April 27, 1897.
    Replevin by Michael Hill, Jr., and others, against George E. Mallory. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Avery Bros. & Walsh, for appellant.

      Chadwick & McIlwain, for appellees.
   Grant, J.

One Michael Hill had been for many years engaged in the business of buying and selling lumber at Port Huron. He had during this time purchased the most of his lumber from George N. Fletcher & Sons, of Alpena, usually upon credit, giving his notes, which were at times extended. His three sons, the plaintiffs in this case, were in his employ. March 12, 1895, Mr. Hill made a bill of sale to his sons of all his lumber, personal property, and accounts, and also assigned to them the contract for the land on which his lumber yard was situated. They executed articles of copartnership, took possession of the property, and entered into the same business as that carried on by their father. At the same time he conveyed to his daughters a house and lot worth $1,000. His daughters were unmarried, and lived at home as members of his family. For this conveyance there was no legal consideration as against creditors, for he owed them nothing. He thus transferred all his property except his homestead, of the value of which there is no evidence. Fletcher & Sons, upon being informed of these conveyances, commenced a suit in attachment, and levied upon the lumber and other property used in the business. Plaintiffs immediately brought this action of replevin against the defendant, the sheriff, claiming title by virtue of the sale to them. They recovered verdict and judgment.' The further statement of facts will be made in connection with the points raised.

The contentions of the defendant are as follows:

(1) The transfer to plaintiffs was, in effect, a common-law assignment of all Hill’s property, coupled with a trust and a preference, and therefore void.
“ (2) Mr. Hill could not make an agreement with his minor sons to pay them for services rendered during minority, which would be valid as against a creditor without notice.
“(3) The plaintiffs, knowing that the father was insolvent, and would be unable to pay his debts, at the time the indebtedness to Fletcher & Sons was created, they having been parties to the purchases, could not become bona fide holders of the stock so purchased from the Fletchers.
“(4) The boys, having put a certain amount of their wages into the business each week, having equal management and control with the father, expecting to make it their life business, made such a state of facts as constituted in law a partnership, notwithstanding the business was conducted in the name of Michael Hill. This being true, the sale from father to sons was void.
“(5) The October and November sales were made by Fletcher & Sons to Michael Hill, after representations as to his indebtedness and the condition of his business, which representations were false, and known to be by the plaintiffs. This being true, the sale by the father to the plaintiffs of the stock purchased of Fletcher & Sons was void and fraudulent.
“(6) If this sale was made with the intention or motive of defeating Fletcher & Sons, these plaintiffs could not become bona fide purchasers, and in this case it would be a fraud upon Fletcher & Sons even if made to pay a bona fide indebtedness.”

1. Plaintiffs’ testimony tended to show that they were employed by their father at a given price per day, that they were to pay a given price per week for their board, that they were given a certain amount per week for spending money, that they had lent their father certain amounts of money, and that he owed them about $5,000. They claim that in payment of this indebtedness the sale was made to them, and that at the same time they agreed to pay five other creditors, whose aggregate indebtedness was about $1,300. The claim of Fletcher & Sons was about $3,000. The father testified that the conveyance was made on condition- that the boys would pay these debts. His testimony on this point is as follows:

Q. You conveyed to the boys on condition that they would pay them ?
“A. Yes, sir.
‘ ‘ Q. That was the condition of your conveyance ?
“A. Yes, sir.
Q. And you intended this transfer to them to be for their benefit and those other creditors that you named ?
“A. Yes, sir.
Q. That was the purpose of the transfer?
“A. Yes,'sir.
“ Q. Was to take care of the boys’ indebtedness and the indebtedness to Lassen, Lanth, Bernatz, and the two small notes John and Michael Hill were on ?
“A. Yes, sir.
‘ ‘ Q. And that was its real purpose, was it not ?
“A. Yes, sir.”

The effect of this transaction was, of course, to prefer certain creditors, and was so intended by all the parties to it. A debtor may prefer a creditor by a mortgage on all his property, or by a transfer of all his property in payment, when the value of the property is not so in excess of the debt as to raise a presumption of fraud. This has been so often held that it is unnecessary to cite authorities. But that is not this case. The creditors whose claims plaintiffs agreed to pay were not parties to the transaction. It was not binding upon them. There was no novation. They could not sue the plaintiffs. If they should not see fit to substitute plaintiffs as their creditors for Mr. Hill, their only remedy would be by suit at law against him, or by bill in equity to enforce the trust. The transfer was not for the sole purpose of paying the plaintiffs’ claim, but also to secure the payment of five other creditors. Plaintiffs took the property burdened with these obligations. If this is not a transfer for the benefit of creditors, for what is it ? It did not operate as a payment to five creditors, because they did not agree to it. If this conveyance had been made to a stranger, and it covered all the property of the debtor, in consideration that the vendee should pay certain creditors to the exclusion of others, it would amount to an assignment for the benefit of creditors, and be void under the statute. The effect of such a transaction cannot be avoided by saying that it was not intended as a common-law assignment. Courts will look to the substance of the transaction, and not to the name which the parties see fit to give it. Is the character of the transaction changed by conveying to a creditor, who acknowledges satisfaction of his own debt, and agrees to pay certain others ? Suppose plaintiffs had agreed to pay all their father’s debts, and the transfer had embraced all his property, can there be any doubt that the transaction would have been an assignment for the benefit of creditors ? The character of the assignment is not changed by leaving out one creditor, as in this case, and securing others. One creditor has a right to secure payment of his own debt by a transfer of the property of his debtor; but when he takes it all, and agrees to pay certain creditors to the exclusion of others, he takes it burdened with a trust, and becomes an assignee for the benefit of creditors. We are not, of course, holding that these six creditors of Mr. Hill might not, by agreement, have taken from him all his property in payment of their debts. Were that the situation, there would probably be no difficulty in upholding the transaction. But five of these made no such agreement, and, if they have any claim against the plaintiffs, it is against them as trustees, and not as debtors, and because the property was transferred to them for the benefit of themselves and certain other creditors. We think this transaction is clearly within the principle established in the following cases: Kendall v. Bishop, 76 Mich. 634; Burnham v. Haskins, 79 Mich. 35; Pettibone v. Byrne, 97 Mich. 85.

The difficulty with the case is that the record fails to show that the transfer included all of Michael Hill’s property. The homestead may have been worth $5,000 or $10,000, and, if so, there would be no occasion for Fletcher & Sons to attack the conveyance as fraudulent. We express our views upon the point because it will probably arise on a new trial.

2. We think there was not sufficient evidence to justify a finding that the transaction was void because one of the plaintiffs was a minor at the time his contract for employment was made, or that the father and sons were in fact partners. They did not hold themselves out as partners, and the facts that the sons might have contemplated that they would eventually succeed to the business, that they used the words “we” and “our ” in connection with it, and that to all appearance the business was conducted in the same way after the transfer as before, are not sufficient to establish a partnership.

3. The evidence for defendant tended to show that plaintiffs knew all about the representations made by their father to Fletcher & Sons as to his financial condition ; that one of the plaintiffs wrote the letters; that the father’s books of account showed no indebtedness to any of his sons; that there was no writing showing any indebtedness; that the bills of October and November were purchased of Fletcher & Sons in contemplation of the transfer to the sons, and with their knowledge; that the transfer was in fact made for the purpose of preventing Fletcher & Sons from getting their pay; and that plaintiffs and their father had been talking the matter over for nearly a year. In view of this evidence, it was error to leave the subject to the jury under the following instruction:

If it is in payment of an honest debt, it will be sustained by the law, even though the effect of it may defeat all other creditors in the collection of their claims, and I may say to you that it would be good in law even if that was the intention of the transfer, so long as the indebtedness that it was turned over to satisfy was an honest, bona fide, and legal indebtedness. It would follow from this rule that if the indebtedness from Michael Hill to his sons was an honest, bona fide, and legal indebtedness, in such an amount as would be fair, just, and reasonable compensation for the amount of property that he turned over to them, the transfer would be valid in law, even though it defeated Fletcher & Sons, and even though it was intended to do so.”

They should have been instructed that, if these purchases were made with full knowledge by the plaintiffs, and with their assent, that their father had made false statements in regard to, or had purposely concealed, his financial condition in order to obtain the credit, or if the purchases were made for the purpose of obtaining the goods to secure plaintiffs their debts and to prevent Fletcher & Sons from securing theirs, and this was known to plaintiffs, then the sale was fraudulent. There may be cases to which the instruction of the learned circuit judge would apply. Usually the intent of the purchaser is an important element of fraud, and, though his debt may be an honest one, its honesty is not conclusive of the honesty of the subsequent transfer or sale. Be this as it may,- the instruction did not cover the case made by the defendant. See Gumberg v. Treusch, 103 Mich. 543.

For this reason the judgment must be reversed, and a new trial ordered.

Long, C. J., Montgomery and Moore, JJ., concurred with Grant, J. Hooker, J., concurred in the result.