text:
    KRZYSZKE v. KAMIN.
    1. Malicious Prosecution — Injunction — Civil Action — Averments op Bill op Complaint.
    Malicious prosecution lies for the wrongful issuanoe of an injunction to restrain a, defendant from disposing of his personal property, upon averments of a judgment creditor’s bill making him a party, praying for an injunction against other defendants, not including him; the issuance of the process being unsupported by the necessary averments in complainant’s bill, which failed to show probable cause for the restraining writ.
    8. Same — Damages—Evidence.
    A liberal rule should be applied in admitting evidence of damages in such action, and all the facts and circumstances having any tendency to show damages or their probable amount, should, in view of the difficulty of arriving at a result, be placed before the jury.
    3. Same — Directing Verdict — Evidence—Presumptions.
    It was not error to leave to the jury only the question of damages, where a want of probable cause appeared, and the presumption of malice thereby arose, and the presumption was not rebutted by any evidence.
    4. Costs — Statutes—Justices op the Peace.
    A judgment of §100, in an action of malicious prosecution, warrants the award of costs in favor of plaintiff under 3 Comp. Laws, § 11257, since justices of the peace have no jurisdiction of that form of action.
    Error to Wayne; Rohnert, J.
    Submitted October 12, 1910.
    (Docket No. 45.)
    Decided November 11, 1910.
    Case by Ludwig Krzyszke against Gustave Kamin, for the malicious prosecution of a civil action. Judgment for plaintiff, and. defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Ghiy A. Miller, for appellee.
   Stone, J.

This is an action on the case for damages for an alleged malicious prosecution by the issuance of an unauthorized injunction against the plaintiff. The declaration was inartificially drawn, but, not having been demurred to, is, we think, sufficient to support a recovery. It avers that, to wit, on March 1, 1908, the plaintiff was a resident of the township of Huron, in the county of Wayne, and was there the owner and in p.ossession of certain personal property, to wit, a quantity of potatoes and hay, of the value of $500; that he had advertised an auction sale of said property to be held on said day; that said sale had been advertised extensively, and that, to wit, 300 persons assembled upon plaintiff’s premises to attend said sale, and bid upon and purchase said personal property; that it was the duty of defendant to refrain from interfering with the possession and enjoyment by said plaintiff of said property, and from selling said personal property; and that it was the duty of defendant to refrain from taking any wrongful action of any nature, particularly the unlawful, wrongful, or malicious issuance of the writ of injunction and service thereof upon plaintiff, the result of which would be to hinder, interrupt, or disturb plaintiff in the use, enjoyment, or sale of said farm produce. But plaintiff avers that said defendant did wrongfully, unlawfully, and maliciously cause the issuance of a certain writ of injunction out of the circuit court of Wayne county, which writ was directed against this plaintiff and others, and plaintiff avers that there was no lawful cause whatever for the issuance of said writ of injunction; that said writ was issued without the authority or direction of any of the judges of said court, and was caused to be issued by said defendant through his attorney; that said injunction was thereafter served upon this plaintiff. Plaintiff avers that by reason of the unlawful issuance and service of said injunction he lost the sale of said personal property, and was put to great expense and damage in connection therewith, and lost the profit in said sale, to plaintiff’s damage in the sum of $500. The plea was the general issue.

Upon the trial of the case, the plaintiff offered in evidence the bill of complaint in the cause in which the injunction was issued, as well as the writ of injunction and the return thereon indorsed. Said bill of complaint was a creditor’s bill in which this defendant, Gustave Kamin, was complainant, and Charles Kamin, Julius Kamin, with their wives, and this plaintiff were defendants. After setting forth and describing two certain judgments which the complainant therein had obtained against said Charles Kamin and Julius Kamin, and the issuance and return of executions thereon unsatisfied, and that said judgments were still in force and unsatisfied, said bill contained the following averment:

“And your orator further shows that he has been informed and believes it to be true that the said Charles Kamin and Julius Kamin have a considerable amount of money and of legal and equitable debts, claims, and demands due them from different persons whose names are unknown to your orator, and that one Ludwig Krzyszké is their debtor in the sum of about $600, and for other sums of money and other personal property either in possession or held in trust for them (except such trust as has been created by, or the funds held in trust has proceeded from, some person other than the said Charles Kamin and Julius Kamin), the situation, value, and particulars of which are unknown to your orator. And your orator is fearful that the said Charles Kamin and Julius Kamin will make way with or place the same beyond the control of this court, or a court of law.”

The above contains the only reference there is in said bill to the said Ludwig Krzyszke, except as hereinafter stated. There was no prayer for relief or for injunction as against him. The bill did pray that said Charles Kamin and Julius Kamin, and their attorneys, agents, etc., be enjoined from collecting, receiving, selling, transferring, assigning, delivering, or in any manner using, controlling, interfering, meddling with, or disposing of any debts or demands due to them, or any real or personal estate, goods, wares, merchandise, account books, bills, checks, promissory notes, bonds, mortgages, judgments, or other securities, things in action, property, or effects, whether in their own names or hands, or in the names or hands of, or held by, any other person or persons for them, and for their use or benefit, or in trust for them, express or implied, except where such trust has been created by, or the funds held in trust has proceeded from, some person other than the said Charles Kamin and Julius Kamin, until the further order of the court. The only other place in said bill in which the said Ludwig Krzyszke was named was in the prayer for process, which read as follows:

“ May it please this court to grant unto your orator the writs of subpoena and injunction issuing out of and under the seal of this honorable court to be directed to the said Charles Kamin, Julius Kamin, Caroline Kamin, Elizabeth’ Kamin, Ludwig Krzyszke, commanding them at a certain day and under a certain penalty, therein to be inserted, personally to be and appear before this honorable court, then and there to answer,” etc.

Upon this bill was the following indorsement: “Let an injunction issue as prayed” — signed by the circuit judge.

The writ of injunction was issued against the said Ludwig Krzyszke and the other defendants named in said bill, in the usual form, commanding him and them to absolutely desist and refrain from incumbering his or their property in any way until the further order of the court. Said injunction was served upon this plaintiff on the morning, and at the place, of the proposed sale, and after a large number of persons had assembled, as the plaintiff claims, to bid upon said property; and he gave evidence tending to show that such service of injunction resulted in breaking up the sale, and prevented him from making an advantageous disposition of his said personal property, and especially the hay, which he claims amounted in quantity to about 30 tons. It is undisputed that said injunction was dissolved and dismissed as against this plaintiff, by consent of complainant’s solicitor in said chancery cause, on the day after it was served, and the suit later dismissed.

Upon the trial of the case, the plaintiff gave evidence tending to show the value of the hay on the day of the proposed sale, and the offers he had received for it; that persons were there ready to purchase, and the circumstances of the occasion; that by reason of the distance from a shipping point, and the bad roads which immediately followed, and notwithstanding his best efforts to sell, he suffered damage in a large sum by being obliged to accept a greatly reduced price for said hay. The jury gave the plaintiff a part only of his claimed damages. The defendant has brought the case here upon writ of error, and the record contains 40 assignments of error. It will not be necessary to consider these assignments separately. __ They may be classified as follows: •

(1) That the court erred in submitting the case to the jury, because plaintiff made no case by his evidence, and the action of malicious prosecution will not lie in such a case.
(3) Alleged errors in the admission of evidence.
(3) Errors alleged in the charge.

Upon the trial of the case in the circuit court, and upon the argument in this court, defendant’s attorney claimed that the bill of complaint, by its averments, entitled the complainant therein to an injunction such as was issued against the plaintiff herein, and that the only error was a clerical one, of omitting to name the plaintiff in the prayer for injunction in the body of the bill. In this claim we cannot agree with counsel. An examination of the bill discloses that it did not contain any substantive averment entitling the complainant therein to an injunction restraining the said Ludwig Krzyszke from incumbering his property. The writ of injunction was therefore unauthorized, as to him. This want of authority, however, did not appear upon the face of the writ, and the conduct of this plaintiff in obeying its mandate was commendable. It must be held, however, that there was no probable cause for the issuance of the writ. That it was issued at the instance of this defendant, acting by his solicitor, is not denied, and clearly appears. This brings us to the consideration of the first point raised by defendant.

The right to maintain this action was recently discussed by this' court in Powers v. Houghton, 159 Mich. 372 (123 N. W. 1108). After referring to the English rule and stating that it has been somewhat modified in this country, the opinion quotes from 1 Cooley on Torts (3d Ed.), at page 345, as follows:

“In some cases an action maybe maintained for the malicious institution of a civil suit, but the authorities are not entirely agreed what cases are embraced within the rule.”

Justice Brooke says:

“Among those malicious civil suits giving a right of action he (Cooley) enumerates arrest, attachment, garnishment, insanity cases, injunctions, receivers, and other suits that interfere with person or property. Under the last class of cases, he says (page 348):
“ ‘So a suit for malicious prosecution will lie where the plaintiff’s property or business has been interfered with, by the appointment of a receiver, the granting of an injunction, or by writ of replevin. -» # *
“ In our own State, the case of Brand v. Hinchman, 68 Mich. 590 (36 N. W. 664, 13 Am. St. Rep. 362), is to some extent applicable. There, an attachment was sworn out by defendant, ’Hinchman, and placed in the sheriff’s hands for service. A deputy visited Brand’s store, but made no actual levy, the subject-matter of the suit being adjusted. The court found, however, that there was at least a technical taking and possession of Brand’s property, and the proofs showed that damage resulted to his business as a result of the swearing out of the writ (without probable cause). The case of Antcliff v. June, 81 Mich. 477 (45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533), is authority for the proposition that a gross and fraudulent abuse of the process of the court, resulting in damage, gives a right of action to the person sustaining the damage.”

We need not quote authority to the effect that want of probable cause raises a presumption of malice, in an action for malicious prosecution.

We might properly dismiss this subject here, but there is such an abundance of authority, to the like effect, outside of Michigan, that we refer to some text-writers and decisions. 33 Cyc. p. 1061; 16 Am. & Eng. Enc. Law (2d Ed.), p. 440, and cases cited. In 2 High on Injunctions (4th Ed.), § 1648, the author says:

“Some conflict of authority exists as to whether a defendant in an injunction suit may, by an action on the case, recover damages for having been enjoined without cause, and the rule has been broadly stated that no such right of action exists, and that his only remedy is by suit upon the injunction bond. The better doctrine, however, seems to be that defendant’s right of action at common law is not merged in the remedy upon-the bond, and that an action on the case will lie. Cox v. Taylor’s Adm’r, 10 B. Mon. ( 49 Ky.) 17; Mitchell v. Railroad, 75 Ga. 398. But to support such action, the plaintiff’s pleadings must clearly negative the existence of probable cause for the injunction. It will not suffice to allege that the writ was unjustly and wrongfully sued out, but there must be distinct allegations of malice or a want of probable cause” —citing many cases. Mark v. Hyatt, 135 N. Y. 306 (31. N. E. 1099, 18 L. R. A. 275); Short v. Spragins, 104 Ga. 628 (30 S. E. 810); Asevado v. Orr, 100 Cal. 293 (34 Pac. 777).

The last above case holds that an action on the case for damages will not lie for improperly suing out an injunction, unless complainant charges an abuse of a process, of the court through malice and without probable cause. If the act complained of is destitute of these ingredients, the only remedy of the party is an action upon the injunction bond.

In 1 Joyce on Injunctions, § 175, it is said:

“ Where a party in good faith and on a fair representation of the facts procures a writ or order of injunction, he is not liable in an action for the damages which the injunction has caused to the person enjoined, unless he has given a bond or other security for the payment of such damages. In other words, in the absence of such security, the defendant has no remedy for any damages he may sustain from the issuing of the injunction, unless the conduct of the plaintiff has been such as to give ground for an action of malicious prosecution” — citing in the note Cayuga Bridge Co. v. Magee, 2 Paige (N. Y.), 116-122.
“Where a party in good faith, and on a fair presentation of the facts to a court, or to a judicial officer, procures a writ or order of injunction, he is not liable in an action for the damages which the injunction has caused to the person enjoined. Such is the rule as to any process or order in the nature of process thus procured. Where process sued out by a party is afterwards set aside for error, the party is not liable in an action for damages; where it has been set aside for irregularity or bad faith in obtaining it, he may be.” Palmer v. Foley, 71 N. Y. 106— citing Williams v. Smith, 108 Eng. Com. Law Rep. (14 Com. Bench [N. S.], 596) 594.

See, also, Miller v. Adams, 52 N. Y. 409; Carl v. Ayers, 53 N. Y. 14.

In Miller v. Adams, supra, which was an action for false imprisonment, it was held that one who applies to a judge to issue an attachment for the arrest of another, and who receives and delivers it to the sheriff for service, is liable for the arrest in case the attachment is void for want of jurisdiction in the judge, or for any other cause. Grover, J., said:

“Plaintiff claims that the judge had not acquired jurisdiction of the subject-matter, and had no authority to issue the attachment, and that, therefore, his arrest and detention thereon was wrongful, for the redress of which he can maintain this action. If he is right in the premises, he clearly is in the conclusion, both upon principle and authority. The question is whether the judge had jurisdiction to issue the attachment. Before examining this question, it may be well to consider the point made by the defendant’s counsel that, conceding that the judge had no jurisdiction to issue the attachment, still the defendant is not liable for the arrest of the plaintiff thereon, upon the ground that a party applying to a court, or judicial officer, having jurisdiction of the subject-matter presenting his .case to such court, or officer, is not responsible for the action taken thereon by such court, or officer. Counsel cites Von Latham, v. Libby, 38 Barb. [N. Y.] 339, to sustain this position. The principle upon which that case was decided has no application to the facts of the present case. There, all that was done by the defendant was to present the case for the action of the magistrate. Here, the attorney of the defendant applied to the judge to issue the attachment, and delivered it to the sheriff for service. This clearly made the defendant liable in case the attachment was void for want of jurisdiction in the judge, or for any other cause.”

In Mark v. Hyatt, 135 N. Y. 306 (31 N. E. 1099, 18 L. R. A. 275), the court said:

“No action of trespass will lie to recover the damages unless the, prosecution is alleged and proved to have been malicious and without probable cause. We have held that doctrine quite firmly and clearly, in cases of injunctions, declaring in substance that, although the restraining order ought not to have been granted, and was set aside for that reason, yet the damages incurred where the proceedings have been regular, cannot be recovered in the absence of an undertaking, except upon the basis of malicious prosecution” — citing Lawton v. Green, 64 N. Y. 326; Palmer v. Foley, 71 N. Y. 106.

In Cox v. Taylor’s Adm’r, 10 B. Mon. (Ky.) 17, the court says, at page 20:

“And the principle is the same, whether the malicious proceeding be a criminal prosecution or a civil suit. In either case the wrong consists not merely in the falsity and consequent injustice of the charge or claim, but in its being made by legal proceeding without probable cause, and, therefore, as the law decides, from malicious motives alone. This want of probable cause, being the essential ground of the action, must be alleged and proved in order to sustain it. If there be probable cause, though the charge or claim be false, and therefore unjust or wrongful, the most express malice will not be sufficient. Therefore the allegation that the party had maliciously, or falsely, or unjustly, or wrongfully, instituted the former proceeding, will not supply the want of the allegation that he did it without probable cause; which, although it need not be stated in these express words, must be stated in some form of substantive averments, or must at least be shown clearly in the declaration.”

Newark Coal Co. v. Upson, 40 Ohio St. 17. The Newark Coal Company, a corporation, with malice, and without probable cause, sued one Upson and others in a civil action, and, by the order of injunction made on its ex parte application, prevented Upson and others from entering upon and enjoying their property, and also from prosecuting a profitable business. After a year had passed the Newark Coal Company dismissed its action. Upson and others thereupon sued the company claiming damages for said malicious prosecution.

(1) It was held that they could maintain the action.

(2) That the measure of damages is the value of the right of Upson and others to possess their property and prosecute their business during said period of ouster and suspension, i. e., the value of the use of the property in the business, during that time.

Granger, C. J., said:

“ It may now be considered the approved doctrine that an action for the malicious prosecution of a civil suit may be maintained, whenever, by virtue of any order, or writ, issued in the malicious suit, the defendant in that suit has been deprived of his personal liberty, or of the possession, use, or enjoyment, of property of value. The name or form of the writ or process is immaterial. It may be an order of arrest, or of attachment, or of injunction. The malicious prosecutor cannot shield himself behind the interlocutory order of the judge, based upon his own malicious ex parte application and affidavit.” Newark Coal Co. v. Upson, supra.

See, also, Mitchell v. Railroad, 75 Ga. 398.

We have carefully examined the assignments of error relating to the admission of evidence. Bearing in mind the nature of the case and the difficulty in arriving at the exact amount of damages suffered, all the facts and circumstances of the case, having any tendency to show damages, or their probable amount, should be placed before the jury, so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit. Allison v. Chandler, 11 Mich. 542. Note the liberal rule adopted in the admission of testimony in Brand v. Hinchman, supra. We find no error of which defendant should complain in the rulings of the circuit court in the admission or rejection of testimony.

Was there error in the charge of the court? Bearing in mind that there was entire want of probable cause in the issuance and service of the writ of injunction, and the correlative rule that want of probable cause, in itself, raises a presumption of malice, under the law, and that there was no evidence to rebut that presumption, we do not think there was error in charging the jury that the only question to be considered was one of damages. The following excerpt from the charge indicates its tenor:

“ It appears that this injunction was served upon him (the plaintiff) and prevented him from selling the property. There is nothing in the bill of complaint which warranted any injunction against this plaintiff, such as this injunction purports to be, and for that reason I say to you that the only question is: Did the plaintiff suffer damages by reason of the service of this injunction, and, if so, what was the damage ? The burden is upon the plaintiff to show by a preponderance of the evidence that he suffered damage. If he fails to show that he suffered damage, he is only entitled to a nominal verdict at your hands of six cents. If he has established that he has suffered damages, it is your duty to assess the damages, and find a verdict in his behalf for the amount you assess. Now, gentlemen of the jury, the measure of damages is the difference between what he was able to obtain for the goods which he was prevented from selling, at the time and place of this sale of March 25, 1908 — the difference between what he was able to realize on that sale at the time and place, and what he could have acquired for that stuff by the exercise of reasonable diligence on his part, after the injunction was dissolved. This injunction was served on him on the morning of March 25, 1908, and the next day in the afternoon, after the close of court, or thereabouts, or at the close of court’s business, by mutual agreement, the injunction was dissolved, and he was relieved from the restraint upon his power to sell the property. The property involved is hay in the mow as disclosed by the testimony, and the potatoes.”

Complaint is made because the court here referred to the potatoes as being involved in the suit. There is no evidence of any damage as to the potatoes. They were included in the declaration, and there was some evidence as to the quantity. In the entire remainder of the charge the jury’s attention is directed solely to the claimed damages on the hay. We do not think that the jury were misled by this reference, and we find no error in the charge.

Some claim was made that there was error in awarding costs to the plaintiff; but as the recovery was $100 damages, and as a justice of the peace has no jurisdiction in a case of malicious prosecution, and in view of section 11257, 3 Comp. Laws, we do not discuss the claim.

The judgment of the circuit court is affirmed.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    VOLLRATH v. VOLLRATH.
    Divorce — Extreme Cruelty — Appeal—Presumption.
    A decree of divorce in favor of a husband for extreme cruelty of his wife, who was charged with improper conduct with other men and with threatening to kill the complainant, will be affirmed on appeal where the testimony, considered in the light of the presumption arising from the opportunity of the trial court to see and hear the witnesses, supports his conclusion.

      Appeal from Wayne; Rohnert, J.
    Submitted October 13, 1910.
    (Docket No. 54.)
    Decided November 11, 1910.
    Bill by Charles Vollrath against Magdalena Vollrath for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Frank D. Andrus, for appellant.

      Henry G-. Nieol, for appellee.
   Stone, J.

The bill for divorce was filed by the husband in this case, charging extreme cruelty on the part of the wife. The specific acts charged were that defendant had on many occasions entertained men at complainant’s house in his absence, and that defendant had stated to acquaintances of hers that she had received money from the men so entertained; that defendant had been seen drinking with men in at least two cafés in the city of Detroit, and that she had there been kissed and embraced by men; that, when complainant was sick on one occasion, she had said that she wished he would die, and that his life insurance would be worth more than he was; that defendant had telephoned to complainant’s employers on two occasions falsely charging that he was carousing about evenings, getting drunk, and spending money on other women, and that he was at home in the afternoon sleeping, when he should have been at work, the result of such false charges being that complainant lost his positions ; that on one occasion when complainant was sick at home the defendant stated to an acquaintance that she was going to put complainant to sleep, and that, if he died, it would appear that he died of heart failure. The defendant answered these charges by a general denial of them. The cause being at issue, the testimony was taken in open court, and a decree was granted to complainant. Defendant appeals.

The complainant’s testimony was taken and was corroborated in a greater or less degree by four other witnesses. The defendant was sworn, and while she denies many of the charges, and seeks to justify her conduct as to her association with men, we are not impressed with the truthfulness of her explanations, nor with her candor in a number of instances. In addition to her testimony, the defendant examined two witnesses, both of whom were women acquaintances and whose testimony was of the most general character. There was testimony which, if believed by the circuit judge, warranted him in granting a decree to complainant. A careful reading of the record shows that there was a clear preponderance of the affirmative evidence in favor of the complainant. The questions involved are purely questions of fact, the discussion of which would not profit any one. The trial court had the advantage of having seen and heard the witnesses testify. In some matters charged there is a sharp conflict in the testimony which cannot be harmonized. As was said by Justice Moore in Donaldson v. Donaldson, 134 Mich. 291 (96 N. W. 449):

“ There are many aids possessed by the judge who hears the oral testimony in deciding who of the witnesses are truthful that do not get upon the printed page.”

While it is the duty of this court to exercise its independent judgment in such cases, yet where our conclusion accords with that of the circuit judge, and in view of the presumption favoring his conclusion on a question of fact, where he has had the opportunity above referred to, which is denied us on appeal, we think that we should treat the complainant’s case as made out by the proofs in this case. Kirkland v. Kirkland, 111 Mich. 166 (69 N. W. 233); Bailey v. Bailey, 121 Mich. 236 (80 N. W. 32); Karreman v. Karreman, 122 Mich. 654 (81 N. W. 576); Donaldson v. Donaldson, supra.

There are no children nor money considerations involved in the case, and we think that the decree below should be affirmed, but without costs.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


author: Moore, J.

text:
    CUMMINGS v. DETROIT UNITED RAILWAY.
    1. Witnesses — Cross-Examination—Parties.
    The latitude to be given in cross-examining the plaintiff is within the discretion of the trial oourt.

      2. Carriers — Negligence — Alighting from Car — Starting Street Car.
    Under plaintiff’s claim that she was thrown and injured by the premature movement of the street car from which she was alighting, the subject of negligence was properly presented to the jury by instructions that if the car started while she was in a position of danger, where the starting of the car would have a natural tendency to throw her, negligence was shown; but if she slipped while the car was at a full stop, she "could not recover; that if her version was correct, she was entitled to recover; if the defendant’s version was true, she was not entitled to recover.
    Error to Wayne; Murfin, J.
    Submitted October 18, 1910.
    (Docket No. 83.)
    Decided November 11, 1910.
    Case by Sarah J. Cummings against the Detroit United Railway for personal injuries. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Clarence P. Milligan, for appellant.
    Corliss, Leete & Joslyn (A. B. Hall, of counsel), for appellee.
   Moore, J.

This is a suit for damages for personal injuries sustained by plaintiff while alighting from a car of the defendant company on Congress street east, in the city of Detroit, after the car had come to a regular passenger stop at the corner of Hastings street, on the evening of January 7, 1909. The case is brought here by writ of error, because of the improper cross-examination of the plaintiff. It is also claimed that the judge did not properly charge the jury

There were but two witnesses sworn who knew anything about the accident, the plaintiff and the conductor. They do not agree about what occurred. The plaintiff testified that she boarded the car at Brush street; that she was hurt at half past 8 o’clock in the evening, as she was alighting from the car, because it was started while she was alighting; and that it was four months before she could resume her work. The conductor testified that she got on the car at Randolph street; that the accident occurred at 5 minutes before 11 o’clock at night; that the car was not started, after it was stopped, until after plaintiff was hurt; and that the foot of the plaintiff caught upon something as she was alighting. Part of the cross-examination, to which exceptions are taken, related to where and for whom plaintiff worked, and part of it to an occurrence in which she was a participant, two months after the accident, while she had testified that she could not resume her work for four months. The latitude given to the cross-examination was within the discretion of the judge. See Ritchie v. Stenius, 73 Mich. 563 (41 N. W. 687); Georgia v. Bond, 114 Mich. 196 (72 N. W. 232).

It is said the judge did not sufficiently charge the jury upon the question of negligence. The only negligence claimed was the starting of the car while plaintiff was alighting from it. The court charged the jury among other things:

“Well, gentlemen of the jury, as I have had occasion to say to most of you before on this panel, in cases of this description, the primary inquiry on your part is the question as to whether the defendant company was negligent, and then follows the question as to whether or not the plaintiff herself was free from contributory negligence. I don’t think, in a case of this description, that it is either essential or of a great deal of assistance to you to define with any great amount of accuracy or detail the meaning of the term ‘negligence.’ In general, you know what it is. For the purpose of this controversy, I say to you, gentlemen, this: That if this car was started up after it came to a full stop, while the plaintiff was in the position of danger, from which position the starting up of the car would have a natural tendency to throw her off the car and injure her, that would be negligence. If, on the other hand, the theory of the defendant is correct, and the plaintiff simply slipped as she was getting off the car, while the car was at a full stop, then there is no negligence on behalf of the company, and she cannot recover. Now, you have heard this short case. You have heard the conflicting claims of the complainant and the defendant. If the plaintiff’s version of this accident is true, she is entitled to recover. If the defendant’s version of the accident is true, she is not entitled to recover.”

We think this covered the subject of negligence as presented by this record very fully.

Judgment is affirmed.

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


author: Blair, J.

text:
    CONLEY v. SINCLAIR.
    1. Abatement and Revival — Ejectment—Real Property — Descent.
    Upon the death of a defendant in ejectment, the suit abates as to the deceased, whose rights thereupon descend to his heirs, and a new cause of action arises as to them, which must be enforced by instituting a new action under 3 Comp. Laws, § 9733, within a year.
    3. Same — Quieting Title — Action Pending — Demurrer.
    A bill to quiet title to real property, showing the fact of a previous action in ejectment, to obtain possession of the complainant’s land, a judgment for plaintiff that was affirmed on error and the granting of a second trial under the statute, pending which the defendants died, and the action remained not prosecuted or revived against the heirs of either defendant for upwards of 15 years after their death, is not demurrable on the ground that the action of ejectment is still pending.
    Appeal from Huron; Beach, J.
    Submitted October 10, 1910.
    (Docket No. 18.)
    Decided November 11, 1910.
    Bill by James Conley against Mary Sinclair and others to quiet title and remove a cloud from lands claimed by and in the possession of complainant. From a decree sustaining a demurrer to the bill, complainant appeals.
    Reversed.

      James H. Hall {Frank W. Atkinson, of counsel), for appellants.

      Charles D. Thompson {Flbridge F. Bacon, of counsel), for appellee.
   Blair, J.

The bill of complaint in this case was filed for the purpose of removing a cloud upon, and quieting the title of complainant to, certain premises in Hume township, Huron county, Mich. Defendants demurred to this bill of complaint for the reason that, prior to the commencement of this suit, an action of ejectment was commenced in the circuit court for the county of Huron by Thomas Sinclair, in his lifetime, against Charles G. Learned, now deceased, and Jonas R. Learned, and alleging that said ejectment suit is now pending in the circuit court for Huron county, and that complainant has in said suit an adequate remedy at law.

It appears from the bill of complaint that the land in question was patented May 1, 1860, by the United States to one Charles N. Babbitt; that subsequently Babbitt gave a mortgage on said land to Frederick S. Ayres, which mortgage was subsequently foreclosed and the property bid in by the mortgagee, and a sheriff’s deed executed May 30, 1866, to the said Frederick S. Ayres, mortgagee, conveying the land in question; that on the 5th day of August, 1875, Frederick S. Ayres conveyed said land by warranty deed to Charles G. Learned, one of the defendants in the ejectment suit; that on the 23d day of February, 1891, defendant Charles G. Learned departed this life, and on December 4, 1895, the probate court for the county of Huron adjudged that Jonas R. Learned was the sole heir of Charles G. Learned, deceased; that subsequently said Jonas R. Learned and his wife conveyed the land in question to the complainant by warranty deed; that, under these several conveyances, the complainant is now the owner of the original title of this land, and is now in possession of said land, claiming title thereto, and that the complainant and his grantors have been in actu al possession of said land, claiming title thereto, for more than 40 years; that Thomas Sinclair, under whom defendants claim, purchased the said land for taxes of 1861 and 1862, and obtained deeds therefor; that he also obtained a quitclaim deed for this land from Charles N. Babbitt, the original locator, which deed was dated April 13, 1880; that November 16, 1881, Thomas Sinclair, commenced a suit in ejectment against Charles G. Learned and Jonas R. Learned to recover this land; that Jonas R. Learned was made defendant in the suit as the owner of a tax title on said land for the taxes of 1874; that Jonas R. Learned at the time of the commencement of such suit had no title to or interest in said land except such tax title; that issue was joined in this case, and on January 4, 1883, a judgment was rendered in favor of the defendants; that February 26, 1883, Thomas Sinclair, the plaintiff, sued out a writ of error to review this judgment and on October 4, 1883, the Supreme Court affirmed the judgment of the circuit court, the case being reported in 51 Mich. 335 (16 N. W. 672); that June 7, 1884, on motion of Thomas Sinclair, the plaintiff «therein, a new trial under the statute was granted in said cause, and, although more than 25 years have elapsed, no further proceedings have been taken in said cause by said Thomas Sinclair, his heirs or representatives, since that date; that the defendant Charles Gr. Learned died intestate on the 23d day of February, 1891, and although more than 18 years have elapsed since the death of said Charles G. Learned, no new action has been brought against the heirs of Charles Gr. Learned, nor has the ejectment suit been revived against the surviving defendant, Jonas R. Learned; that Thomas Sinclair, the plaintiff in the ejectment suit, died January 24,1894, and, although more than 15 years have elapsed since his death no proceedings have been taken to revive said suit by his heirs or representatives.

The death of the defendant Charles G. Learned abated the suit as to him, and his rights descended to his sole heir, Jonas R. Learned, against whom a new cause ofr action arose. Hoffman v. St. Clair Circuit Judge, 40 Mich. 351. The tas title, which constituted the sole claim of title on the part of Jonas R. Learned at the time the ejectment suit was instituted and down to the time of the death of Charles, was held by this court to be void for. reasons which a subsequent trial could not obviate. Sinclair v. Learned, supra. The only title, therefore, which Jonas could rely upon on a second trial of the ejectment suit, was that which he inherited from Charles, and as to this title there was no suit pending; it having abated as above stated.

Upon the abatement of the suit against Charles, under the circumstances of this case, the only remedy of the plaintiff in ejectment was provided by 3 Comp. Laws, § 9723. McKenzie v. A. P. Cook Co., 113 Mich. 452 (71 N. W. 868). The sole ground of the demurrer is:

“That said ejectment suit is now pending in the said circuit court for Huron county, and the question of the right to the possession of said property is involved in said ejectment suit, and said complainant has in said suit a complete, full, and adequate remedy at law for the enforcement of his rights in said property.”

The demurrer was not well founded, and the order overruling it is affirmed.

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


text:
    HULAN v. SHANNON.
    Specific Performance — Oral Agreement — Equity—Enjoining Action at Law.
    Under a bill oí complaint for specific performance, averring and supported by proof that complainant entered into an oral agreement to care for her father and live with him, in consideration that he transfer to her at his death the premises on which the parties resided; that he conveyed the premises to the other defendants, in breach of said contract, which was known to them; that they commenced summary proceedings against complainant to recover possession of the property and obtained a judgment of ouster; that complainant was precluded from setting up her equitable defense in the action at law; praying that an injunction issue restraining the enforcement of the judgment, and for general relief, the court should not dismiss the suit at the dose of complainant’s testimony which was prima facie sufficient to entitle her to some form of relief; and the cause, on appeal, should be remanded to permit the defendants to present their proofs.
    Appeal from Wayne; Murfin, J.
    Submitted October 10, 1910.
    (Docket No. 30.)
    Decided November 11, 1910.
    Bill by Anna S. Huían against William H. Shannon, Matilda Shannon, and John Huían for the specific enforcement of an oral agreement to convey land to complainant. From a decree dismissing the bill entered without requiring defendants to introduce evidence to sustain their defense, complainant appeals.
    Reversed, and remanded for further proofs.

      E. A. Eink, for appellant.

      Robert M. Brownson and Denton Guinness, for appellees.
   Blair, J.

This is an appeal from a decree and proceedings in the circuit court for the county of "Wayne, in chancery. Complainant, in her bill of complaint, among other things, alleges that, together with her father, one of the defendants, she was in possession of the premises described in said bill of complaint, under and by virtue, and in part performance, of a parol agreement made with her father, whereby she should keep house for her father upon the said premises as long as he should live, and, as compensation for such service, should have the premises as her own at the death of her father, he being an old man upwards of 81 years of age; that under said agreement and in reliance thereon, she had also made certain improvements upon said premises; that, after she had lived with her father for several years under said agreement, and made such improvements, William H. Shannon and Matilda Shannon, his wife, the other defendants in said bill of complaint, with full knowledge of such agreement and the conditions of complainant’s occupancy of' said premises, induced her father to convey the said premises to them, and at once, upon procuring such conveyance, commenced summary proceedings against her and eventually obtained a judgment for possession of the said premises against her; that said judgment was on direction of the court, because she, in that form of action, was precluded from interposing as a defense thereto her equitable rights and interest in said premises and her right of possession thereof under said parol agreement; that such action of the said defendants was in fraud of her rights; that said judgment was, and is, wholly unjust and inequitable, and if permitted to stand would result in irreparable loss and injury to her, and would deprive her of her rights and interest in said premises without remuneration or compensation therefor. The said bill, among other things, prays that said judgment at law may be vacated and set aside and held for naught; that said deed of conveyance from her father to the said Shannons may also be vacated and set aside and decreed to be null and void; that a temporary injunction might issue restraining the defendants from taking out a writ of possession under said judgment and from taking any steps whatever in disturbing the complainant in her possession of said premises; that said injunction upon the hearing be made perpetual; and that complainant’s interests and rights of possession of the said premises under her said agreement be made secure and permanent to her, and concluding with a prayer for general relief.

A motion to impanel a jury to try the issues of fact having been granted, the cause accordingly proceeded to hearing before the court and a jury. At the conclusion of complainant’s testimony, and when she had rested her case, the trial judge, of his own motion, announced that, in his opinion, the complainant had not made out a case to entitle her to relief, and thereupon he discharged the said jury from further consideration of said case and ordered that a decree dismissing the bill of complaint and dissolving the injunction be taken.

We are of the opinion that, upon this record, as it now stands, the complainant made a case entitling her to some kind of relief. We do not think, however, that we ought to determine the case without affording an opportunity to defendants to present their proofs. The decree will, therefore, be vacated, and the record remanded for further proofs, with the usual solictor’s fee and court costs of the appeal to complainant; other costs to abide the final result.

Bird, C. J., and Ostrander, Brooke and Stone» JJ., concurred.


text:
    PEARCE v. ALWARD.
    , 1. Contracts — Anticipatory Breach — Rescission—Sales.
    A contract for the furnishing of 2,500 grapevines to be set out on the farm of defendant, to be cultivated and tended by him for half the fruit, stipulating that the plaintiff should replace any vines which might die within two years, and that at any time within three years defendant might pur. chase plaintiff’s interest in the grapevines at a specified price, does not warrant a demand for interest on the price named in the agreement, and such demand, accompanied by a refusal to replace, at the time stated in the agreement, the vines which might die, unless defendant should pay the interest, constituted a breach of the contract, and justified defendant in rescinding.
    2. Same — Covenant—Warranty.
    The agreement to replace dead vines was a dependent and concurrent agreement, not an independent condition going to but part of the consideration.
    3. Same — Breach—Subsequent Offer of Performance.
    Offers of the plaintiff to perform the condition, after he had committed a breach thereof, were ineffectual to restore his rights under the contract.
    4. Same — Rescission—Replacing Party in Statu Quo.
    That defendant could not place plaintiff in statu quo did not affect his remedy of rescission.
    Error to Kent; McDonald, J.
    Submitted October 13, 1910.
    (Docket No. 53.)
    Decided November 11, 1910.
    Assumpsit in justice’s court by Peter D. Pearce against Herbert Alward upon a special contract. Defendant obtained a judgment of' no cause of action, from which 'plaintiff appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Taggart & Taggart, for appellant.

      Benn M. Corwin, for appellee.
   Blair, J.

This action was commenced in justice’s court for breach of the conditions of a contract under which defendant received certain grapevines. The contract, made September 5, 1904, provided, among other things, for delivery to defendant at Grand Rapids of 2,500 grapevines; that, in consideration thereof, defendant should receive and properly set them out upon his farm and give them such care and cultivation as was necessary to keep them in proper condition; that the fruit grown and produced therefrom was to belong to and be owned in undivided one-half equal parts to each party. It was further provided that plaintiff should replace any vines dying within two years from the date of the first delivery at, Grand Rapids, and that at any time within three years from the date of the first delivery defendant could buy the undivided one-half interest of plaintiff in the vines for $250, and at any time thereafter by paying five cents per vine additional and 6 per cent, interest from the date of delivery. Defendant received and receipted for the vines in good condition at Grand Rapids October 27,1904. He heeled them in for the winter, set them out the following spring, and took care of them under the contract, and fully performed the contract on his part until March 4, 1907, on which date he received a circular letter from plaintiff. Prior to the receipt of the letter of March 4, 1907, defendant had received several letters demanding interest at 6 per cent, on $250 from the date of the contract. In July, 1906, he received the following letter:

“We have written you several times regarding the interest on your grapevine contract, but as yet have not been favored, with the amount. You, as a business man, must realize that the interest is a part of the consideration, and if you fail to take care of your part of the agreement, as regards paying the interest, you have broken your part of the contract and the whole amount becomes due.”

The letter of March 4, 1907, was as follows:

“Part of the consideration of our contract with you was that the interest should be paid the first of each October. Last October we notified you of the amount of the interest due, but as yet we have not been favored with a remittance. You undoubtedly will want what trees are necessary to replace the dead ones next spring which we expect and intend to send you, but not unless we receive the amount of the interest due $15.00.
“Trusting that you will attend to this at once, we are,” etc.

Upon receipt of the letter of March 4, 190?, defendant “considered that the contract was dead,” and abandoned further performance of it.

In this suit plaintiff claims his share of the value of the crop of 1908, less cost of picking, and damage to .his share of 2,000 vines for failure to properly care for them under the contract; no claim being based on the 500 vines which died. Defendant filed plea of general issue and gave notice of recoupment for value of use of land, care of vines, etc. The circuit judge charged the jury that by demanding interest in the letter of March 4, 190?, as a condition of replacing trees, the plaintiff imposed a burden not contemplated by the contract upon the defendant, and the defendant would have a right to consider the contract as rescinded, and, “the failure of plaintiff to carry out his part of the contract being undisputed, there is no question for you to pass upon,” directing a verdict for the defendant.

The questions involved, as stated by counsel for plaintiff, are as follows:

“(1) Whether, in view of plaintiff’s repeated offers to replace any dead trees and defendant’s failure to ever count (until immediately prior to the suit) the vines that had died, or to make demand upon plaintiff to replace or accept replacement when offered, plaintiff had defaulted in a condition of the contract.
“(2) Effect of breach of a subsequent independent condition or agreement to be performed in the future and going to but part of the consideration. Whether it deprives plaintiff of all remedy or goes only to reduce damages.
“(3) Defendant’s right to rescind without putting plaintiff in statu quo and without notification.
“(4) Admissibility of evidence of the wholesale price of the vines for cash when the price was specifically fixed by contract entered into and not for cash and with special warranty.”

If the letter of March 4, 1907, authorized the defendant to treat the contract as rescinded by the plaintiff, any offer to replace the vines made afterwards would be ineffective. Both parties treated the contract as requiring delivery in the spring of 1907, the time for planting the vines; at least, plaintiff recognized the right of defendant to demand them at that time and even long afterward. While the right to demand the vines was still open, plaintiff wrote the letter of March 4th, which obviated the necessity for any further demand under defendant’s construction of its effect. We think there was a clear breach of the contract on plaintiff’s part.

This is the important question in the case. Plaintiff contends that the agreement to replace constituted an independent agreement analogous to a warranty, going to only part of the consideration, which did not authorize rescission, but only the recoupment of damages. We are unable to take this view of the agreement. The number of vines was an essential element or feature of the contract, affecting the amount of land to be prepared for them, the amount of labor, and the profits to be derived. The parties contemplated working a vineyard containing 2,500 vines, not one containing 2,000 vines, or 1,500 of 1,000 vines, and, if plaintiff had tendered 2,000 vines at the outset, defendant would have been entitled to refuse to receive them. Defendant was bound to plant, cultivate, and care for the vines, and manifestly he could not do this until the vines were furnished, so that the furnishing of the vines at the beginning and the keeping of the delivery good by replacing the dead vines after the expiration of two years must precede the performance of the agreement on the defendant’s part. It was admitted by plaintiff that defendant had performed the contract on his part in every particular up to the time of receiving the letter of March 4, 1907, and based his refusal to proceed further with it upon plaintiff’s unlawful demand of interest in that letter. We are of the opinion that the agreement to replace was a dependent and concurrent agreement, and that the unjustifiable refusal of the plaintiff to perform his part of the agreement, and which, indeed, was substantially the only agreement on his part, authorized the defendant to treat the contract as rescinded by the plaintiff.

Plaintiff had a duplicate copy of the contract. He had put it on record. The plaintiff’s claim of interest was wholly unsupported by the agreement, as well as his claim that defendant had bought the vines outright. Defendant had a right to believe that plaintiff fully understood his contract, and it is difficult to understand how he could have misunderstood it. The defendant was without fault, and the plaintiff was wholly at fault in breaking the contract. He first rescinded the contract, knowing that defendant could not place him in statu quo, and must suffer the consequences of his unjustifiable act.

The trial judge did not err in instructing a verdict for defendant, and the judgment is affirmed.

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


text:
    CUNNINGHAM v. HAWKINS.
    1. Bonds — Contracts—Execution—Signature.
    A bond signed on the back by principal and surety, not in the usual place for signing, and after the justification, is valid.

      2. Same — Pleading and Practice — Execution of Written Instrument.
    The failure of the defendants to deny, under oath, the execution of a bond counted on in the declaration, admits its legal execution.
    3. Same — General Issue — Notice of Defense.
    Averments contained in a notice of defense, in an action on a bond, stating that the bond was given to secure the purchase price of certain goods, and that the principal sent in orders for goods'for which the suit was brought, were admissions that the instrument was given to secure the price of goods thereafter to be purchased. (Oircuit Court Rule 7 e.)
    4. Same — Construction—Sales.
    A bond to pay all money due for fencing and supplies within 60 days from receipt, created an obligation of the surety to pay for goods subsequently purchased by the principal in the bond.
    Error to Grand Traverse; Mayne, J.
    Submitted October 11, 1910.
    (Docket No. 41.)
    Decided November 11, 1910.
    Assumpsit by Francis 0. Cunningham, Charles Christianson, Ellsworth S. Ellis and William M. Thomas, co-partners as the Nickel Plate Fence Company, against Otis Hawkins and Jane Hawkins on a bond. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      Smurthwaite & Alway, for appellants.

      John W. Patchin, for appellees.
   Blair, J.

This is an action upon a written instrument set out in full in the declaration as follows:

“For that, whereas, the defendant Otis Hawkins, heretofore, to wit, April 10, 1908, desired to act as agent for the Nickel Plate Fence Company of Manistee, Mich., a corporation organized under the laws of this State, and to that end purchased of and from the said Nickel Plate Fence Company such of its fencing and supplies as he would need or require for sale or use, at wholesale rates, and on credit for short periods on each order for such products sent in to said corporation by him, and the said corporation declined to extend such credit to said Otis Hawkins unless the payment for such products so ordered by and delivered to him was secured by bond or otherwise. And thereupon, the said defendants on, to wit, the 10th day of April, A. D. 1908, did make, execute, and deliver to the said Nickel Plate Fence Company, a corporation as aforesaid, their bond or writing obligatory, in the words and figures following, namely:
“ ‘ Know all men by these presents that Otis Hawkins and Jane E. Hawkins are held and firmly bound unto the Nickel Plate Fence Co., a corporation, in the sum of five hundred dollars lawful money of the United States of America, to be paid to the said Nickel Plate Fence Co., a corporation, or to its certain attorney, successors or assigns, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, and each and every one of them, firmly by these presents.
‘“Sealed with our seals, dated the 10th day of April one thousand nine hundred and eight.
“ ‘The condition of this obligation is suoh, that if the said Otis Hawkins shall pay the'said Nickel Plate Fence Company any and all money due said company for fencing and supplies, within sixty days from receipts of' said fencing and supplies, then this bond shall become null and void, otherwise to remain in full force and effect.
“ ‘ In the presence of
“ ‘ Julius Core. [L. S.]
“‘M. G. Ellis. [L. S.]
“ ‘ State oe Michigan, ) . “ ‘ County of Leelanau. )
“ ‘Jane E. Hawkins, surety on the within bond of Otis Hawkins, being duly sworn, deposes and says that she is worth in the aggregate in unencumbered property, not exempt from execution under the laws of this State, the penal sum of this bond, after payment of all just debts, claims and liabilities, to wit.
“ ‘The said Jane E. Hawkins says she is worth $500.00 and upwards.
“ ‘ The said....................says he is worth $........
“ ‘ Jane E. Hawkins.
“ ‘Otis Hawkins.
“ ‘Subscribed and sworn before me this 10th day of April, 1908.
“ ‘ Julius E. Core, Justice of the Peace.
“ ‘ My commission expires on the 4th day of July, 1909.’ ”

To this declaration defendants pleaded the general issue with notice of recoupment. The notice of recoupment, among other things, contained the following:

“That said defendant Otis Hawkins, relying on the promises, undertakings, and agreements of said corporation, went to work under' the same, to wit, in the month of August, 1907, and faithfully worked for said corporation for a period of eight months or thereabouts, taking large orders for said corporation under said agreement. That during that time and, to wit, in the month of April, 1908, said defendant Otis Hawkins sent in to said corporation his orders for a large portion of the goods, wares, and merchandise for the recovery of the purchase price of which this suit is brought. * * * That at the time of the assignment of the property of said corporation to said plaintiffs, and of the assignment of the claims of the said corporation against defendant Otis Hawkins to the plaintiffs, the said defendant Otis Hawkins was entitled to recoup against the claims of the said corporation the said several sums hereinbefore set forth, which were then and there due from said corporation to the said defendant, Otis Hawkins, as hereinbefore specified and that the said defendant Otis Hawkins is still entitled to recoup his said claims against the claims of the plaintiffs in this case. That the said bond, being given to secure the purchase price of said goods, is subject to be recouped against by said claims of said defendant Otis Hawkins, and the said defendants hereby give notice that on the trial of said cause they will recoup,” etc.

After plaintiffs had put in their evidence, the trial judge directed a verdict for the following reasons:

“As between Otis Hawkins and the Nickel Plate Pence Co., I think the case that I read to counsel, Fowler v. Hoffman, 31 Mich. 215, would govern that the term ‘ due ’ would mean, not alone matters then due, presently due, but that thereafter might become due. I think, gentlemen — I have some doubt about this — I shall make the record just as short as I can for the Supreme Court. I shall hold that the surety is not bound under this bond. That this does not create a liability for subsequent dealings between the parties as running accounts such as has been proved in this case. That under the entire testimony and objections made there to the form of the bond, its method of execution, that the bond is so defective that it cannot be considered as a binding obligation upon Jane E. Hawkins. That will cover all the questions and the case can be taken, up, made up upon this bond, and taken up.”

We are of the opinion that the court erred in directing a verdict for defendants. The law deals with the substance of things, and not with their ephemeral surroundings, and the fact that the obligors in the bond indorsed it on the back and under the form of a property justification does not alter the essential character of their undertaking. Furthermore, the failure of the defendants to deny the execution of the bond under oath admitted a legal execution of the bond and cast upon them whatever liability the terms of the bond imposed. The statements of the notice under the general issue above quoted constituted admissions on the part of both defendants that the bond was given to secure the purchase price of goods thereafter to become due. Circuit Court Rule 1e; Comstock v. Taggart, 156 Mich. 47 (120 N. W. 29). Jane E. Hawkins is the mother of Otis Hawkins.

Independent of admissions, we think that a fair construction of the terms of the bond leads to the same result. Fowler v. Hoffman, supra.

The judgment is reversed, and a new trial granted.

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


author: McAlvay, J.

text:
    JOHNSON v. MORRISON.
    1. Frauds, Statute oe — Part Payment — Requirements.
    A sale of personal property, of the value of §50 or more, is invalid unless there is a delivery, a part payment, or a writing signed by the party to be charged. 3 Oomp. Laws, § 9516.
    2. Same — Payment.
    Part payment may be made in money or anything of value.
    3. Same — Logs and Logging — Sales.
    But delivering to the owner of logs, an order on the clerks of the purchaser, for the payment of a portion of the price, did not constitute a sufficient part payment to bind the contract, where the owner, a Finn, was unable to read it, took it to an interpreter, and, on learning the contents, returned it to the buyer, and sold the logs to plaintiff.
    Error to Houghton; Streeter, J.
    Submitted October 17, 1910.
    (Docket No. 66.)
    Decided November 11, 1910.
    Trover and case by Andrew Johnson against Charles J. Morrison for the conversion of logs. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      P. H. O’Brien, for appellant.

      Allen F. Bees, for appellee.
   McAlvay, J.

This is an action in trover brought by plaintiff against defendant’s decedent for the value of certain saw logs claimed to have been wrongfully converted by him. The trial resulted in a verdict instructed by the court for defendant. Plaintiff has removed the case to this court for review, asking a reversal of the judgment entered in accordance with such verdict, alleging error, upon such action of the court. The logs in question were originally the property of a man named Matt Sturback, and were by him cut and hauled to the railroad, at or near Arnheim, in Baraga county. Sturback is a Finn who cannot read, write, or speak the English language, and all communications with him by persons unable to speak Finnish must be by interpreter. The plaintiff and defendant both claim title to this property by purchase from Sturback.

On or about April 11, 1906, Sturback, with his stepson as interpreter, went to Ewen McDonald, who was buying logs at Arnheim as agent for defendant’s decedent, and entered into negotiations with him to sell the logs in question. After looking over the logs together, McDonald made an offer of a price per foot, conditioned upon Sturback loading the logs, and made a rough estimate of the quantity of the logs. Sturback insists that he refused to agree to load the logs upon the cars at his own expense. McDonald would not agree to stand the expense of loading the logs and referred him to Mr. Morrison. It was understood that an immediate payment was to be made to apply on the purchase. Sturback says that he asked for $275, which was refused by McDonald, who offered a payment of $260. McDonald testifies that he offered $250. McDonald then went to his house and wrote the following letter to his employer:

“Arnheim, Baraga County, Mich.
“April 11, 1906.
“Mr. J. S. Morrison,
“Dear Sir:
I bought the logs from Matt Sturback, Kinnenin’s neighbor, at 7c per ft. from 8 ft. to 18 ft., from 18 to 24, 8c, from 24 up, 9c a foot on the car. You may explain to him about the loading part too. He is wanting money now. I gave rough estimate on the logs; but I kept back enough to load the logs if he fails to do it himself and more too. So as if you are agreed with the way I made the bargain you need not be afraid of giving him the amount which I give you here I figured up myself. I think it safe enough to give him two hundred and thirty dollars, $230.
“ Yours truly,
“Ewbn McDonald.”

He inclosed it with another letter to Morrison, on other business, in an envelope which, we infer from the testimony, was sealed, and gave it to Sturback, who delivered it to Morrison. The contents of the second letter are not given because not material. Some conversation was had with Sturback about the purchasing and loading of the logs; the stepson acting as interpreter. There is a dispute as to what was said, or whether an agreement was entered into. Testimony is in the record tending to show that Sturback refused to load the logs, and on the part of defendant that Morrison agreed to load them. Morrison took one of the letters and wrote on it to the clerks in his office the following order:

“April 11, 1907.
“ Mr. Robert M. Allen or
“ Miss Jean Allen :
“You will please pay the bearer, Matt Sturback, two hundred and thirty ($230.00) dollars, on account of logs.
“ J. S. Morrison.”
He handed this to Sturback, who took the letters and order to Hancock to Charles Ossila (who acted as interpreter on the trial) to translate for him. When he learned the contents of these papers, he at once returned them to Mr. McDonald and informed him that the transaction was ended. McDonald sent the papers to Morrison. Later Mr. Morrison sent a letter to Sturback as follows:
“Calumet, Mich., April 18, 1907. “Mr. Matt Sturback,
“ Jacobsville, Mich.
“Dear Sir: I am going to take away those logs I bought from you at Arnheim. We will begin to load them on cars very soon. We will measure, count and scale the logs as we load them. If you would like to have a man there to scale, or see the logs scaled send him at once. “Yours truly,
“ J. S. Morrison.”

As soon as he received this letter, he procured an interpreter, and with him went to Morrison and handed him the letter, telling him, through the interpreter who translated for both of them, to leave the logs there and not to load them. This interpreter testifies that Morrison then asked him if he would sell the logs to him if he would give him the same price as Johnson offered; that Sturback answered that he could not; that he had already-sold them to Johnson. Afterwards Morrison loaded these logs, removed them by rail, and sold them to the Calumet & Hecla Company. When plaintiff bought the logs from Sturback he paid $275, and has since paid him enough to make $660. The court directed a verdict for defendant, and the forogoing statement of facts is therefore made with reference to the evidence offered by plaintiff, under the rule that in such cases plaintiff’s evidence must be taken as true.

The claim of plaintiff is that the court was in error iff holding that the minds of Sturback and Morrison met at time the letter from McDonald was presented and thé matter was talked over and Morrison wrote the order to' his clerks, and that the order to Morrison’s clerks received by Sturback amounted to a part payment for the logs.

To make a sale of personal property of the value of $50 or more valid, one of the three requirements of the statute of frauds must be fulfilled: There must be a delivery, a part payment, or a writing signed by the party to be charged. We agree with the contention of plaintiff that no contract was made with McDonald, and therefore a delivery must have been made to Morrison. The record does not show, nor does counsel for defendant claim, that a delivery was made to him; nor does it appear that any writing was signed by Sturback.

Was part payment made by this order to Morrison’s clerks? If it was not, no valid sale was made to Morrison,, and by the sale subsequently made by Sturback to the plantiff these logs became plantiff’s property. Part payment may be made in money or in anything of value. Whether this order was a thing of value must be determined from the instrument itself. It is not a check, nor is it a promise to pay. If it may be treated as of equal binding force as a check — which we do not determine— we find that the authorities go no further than to say that “a check given by the buyer, when it is accepted in payment and is actually paid, satisfies the statutes.” 39 Am. & Eng. Enc. Law (3d Ed.), p. 970, and authorities cited. Except the taking of the paper by Sturback, there is no proof that it was accepted in payment and the inference from what Sturback immediately did is that it was taken to ascertain what these writings were. The evidence is uncontradicted that he went at once to one who could translate for him, and, ascertaining what they were, immediately returned them to Mr. McDonald, the log buyer, stating that he would have nothing further to do with the transaction. The order was never paid. The check cases therefore do not cover this case.

There is some dispute between counsel as to whether the order in question was written by Morrison on the letter McDonald wrote for Sturback to take to him, or on the other letter which McDonald inclosed with it in the same envelope. The record is somewhat confusing, but it was probably written on the other letter. It is of no consequence, for the reason that both of these letters were in the same envelope. They were delivered to Morrison at the same time. He wrote the order on one of them at the railroad siding or switch, then put both of them back into the envelope, and gave them to Sturback. McDonald testifies that both papers were sent by him to Morrison, and both were produced in court by defendant. What Sturback did with these papers in returning them to McDonald, and not the words he spoke in the Finnish language, indicates his intention. Notice of what Sturback had done was thus brought home to Morrison at the time, and also later by Sturback when he returned the registered letter to Morrison telling him not to move the logs and that he had sold them to plaintiff. Our conclusion is that there was no acceptance of this order by Sturback, and no part payment was made upon this property, and therefore that no valid contract of sale was made. The court was in error in instructing a verdict for defendant.

Other questions presented require, under the circumstances, no discussion.

The judgment is reversed, and a new trial ordered.

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


author: Bird, C. J.

text:
    RILEY v. DETROIT UNITED RAILWAY.
    1. Appeal and Error — Return to Writ — Time.
    The court will not dismiss a writ of error for failure of the clerk to make the return in time, on a motion filed after the return has been actually made.
    2. Same — Time oe Issuance — Statutes.
    The Supreme Court acquires no jurisdiction of a cause in which a writ of error issues more than 18 months after judgment in the court below.
    Case by Etta Riley against the Detroit United Railway. Judgment for defendant and plaintiff brings error: On motion to dismiss the writ of error.
    Submitted October 18, 1910.
    (Calendar No. 24,178.)
    Granted November 11, 1910.

      Brennan Donnelly & Van De Mark, for the motion.

      Browse T. Prentis, contra.

   Bird, C. J.

The defendant has filed a motion in this cause to dismiss the writ of error issued therein for the reasons:

First, that the return to the writ was not filed until after the return day;, second, the writ was not issued within one year after the rendition of the judgment.

The affidavit filed in support of the motion shows that a judgment was rendered for the defendant in the Wayne circuit court on the 16th day of February, 1909, and that a writ of error was not issued out of this court until August 17, 1910. The writ was made returnable on September 26th, but the return thereto was not filed until October 6, 1910.

While the record shows that the return to the writ was not filed for 10 days after the return day, it also shows that the motion to dismiss was not made for 10 days after the return was filed. Under these circumstances, the court will not dismiss the writ. Babcock v. Twist, 16 Mich. 281.

The statute prescribing the time in which writs of error may issue is as follows:

“All writs of error upon any judgment or final determination, rendered in any cause, in any court of law and of record in this State, shall be brought within one year after the rendering of such judgment or final determination made and not after, except in cases specified in the next two sections: Provided, the time in which writs of error may be taken out may be extended not exceeding six months by the Supreme Court or by one of the Supreme Court justices at chambers, when any party has been prevented from taking out the same by circumstances not under his control. Such extension shall only be made on special motion and after a proper showing.” 3 Comp. Laws, § 10492.

It will be noted that under the foregoing provision the whole time allowed by the statute is one year and six months. This entire period had elapsed before the writ was applied for. Plaintiff’s counsel insists that defendant has waived its right to have the case dismissed, because it did not move more promptly to have the writ dismissed, after notice to it of the issuance thereof. We cannot agree with counsel in this contention. The statute fixes the time in which the writ shall issue, and provides that it shall not issue after that time (save in certain specified cases which have no application here). We think the question is one of jurisdiction under the statute, and anything that defendant might do, or fail to do, would not confer jurisdiction on this court after the statutory time had expired. Teller v. Willis, 12 Mich. 268, 384; People v. Van Wagner, 51 Mich. 171 (16 N. W. 326).

We feel compelled to grant the motion to dismiss the writ, but without costs to either party.

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


author: Blaie, J.

text:
    PEOPLE v. PARSONS.
    1. Criminal Law — Justices of the Peace — Adjournments — Consent of Respondent.
    Although 1 Comp. Laws, § 1021, requires, in criminal prosecutions before justices of the peace, that the cause be tried within 30 days, in order that the accused may have a speedy trial, an adjournment for more than 30 days, on the application of the respondent and upon a sufficient showing, does not oust the justice of jurisdiction, whether or not the prosecuting attorney consents.
    2. Same — Criminal Slander — Words Imputing Want of Chastity.
    To charge that the employer of an unmarried woman got himself into a scrape by borrowing instruments of a physician and committing an abortion on her, imputes a want of chastity to her.

      8. Same — Information—Averments.
    A statement of such language in the information sufficiently charges an offense, without negativing the possibility that she might have been recently divorced, and the averment that she was an unmarried woman was sufficient to negative the idea that she became lawfully pregnant. 8 Gomp. Laws, § 11762.
    4. Same — Trial—Falsity of Slander.
    It was immaterial that no evidence of the falsity of the slanderous words was introduced on the first trial before a justice’s jury, which disagreed, where the prosecutor offered sufficient evidence of the untruth of the words upon a second trial before the justice without a jury.
    8. Same — Justices of the Peace — Docket Entries.
    Irregularities in the docket entries of a justice of the peace, in a prosecution for slander, not affecting the merits of the case and consisting of an omission to note an adjournment in the justice’s docket, to enter the plea of the accused, and to enter the offense charged by the complaint, do not justify discharging the respondent on certiorari, where the defects are supplied by averments of the application for certiorari and the respondent had a fair trial and was justly convicted.
    6. Same — Sentence.
    A judgment of the justice that respondent “should pay a fine of $50 and costs,” sufficiently requires payment forthwith.
    Error to Eaton; Smith, J.
    Submitted October 21, 1910.
    (Docket No. 150.)
    Decided November 11, 1910.
    Rehearing denied February 1, 1911.
    Romeyn 0. Parsons was convicted before a justice of the peace of criminal slander. The conviction was affirmed on certiorari to the circuit court.
    Affirmed.

      Lawton T. Hemans (Tuttle, McArthur & Dunnebacke, of counsel), for appellant.

      B. B. McPeek, Prosecuting Attorney, and Franz C. ,Kuhn, Attorney General, for the people.
   Blaie, J.

On February 12, 1909, complaint was made by a young woman before a justice of the peace charging respondent with imputing to her a want of chastity. A warrant was issued, .respondent brought before the magistrate, an examination demanded, and the cause adjourned to March 13th; the justice treating the case as not within his jurisdiction to try. On March 13th the respondent was discharged upon the complaint of February 12, 1909, and a new complaint and warrant was issued and the respondent brought before the court, whereupon an adjournment of the case was taken to April 1, 1909. Respondent was required to, and did, furnish bail in the sum of $1,000 for his subsequent appearance. On April 1, 1909, respondent appeared in person and by attorney, and made and filed a written motion asking an adjournment of the case to enable him to procure witnesses and to obtain the assistance of counsel to try the case. The case was thereupon adjourned to April 2d. On April 2, 1909, respondent made and filed a further showing for a continuance, and in his second motion asked:

“ That the above-entitled cause may be adjourned for a period of four days or thereabouts, or such other time as shall enable him to prepare for the defense of said cause, for the reasons set forth in the affidavit hereto annexed.”

The case was adjourned to April 29th; respondent and his counsel stating in response to an inquiry from the justice that such adjournment was satisfactory to them. The case was tried by a jury, who finally disagreed. Before the jury was sworn, respondent filed a motion asking for his discharge, upon numerous grounds, among which were that the complaint and warrant charged no offense known to the laws of this State, and that the court had lost jurisdiction to proceed with the case because the case had been illegally adjourned. This motion was overruled.

At the beginning of the trial, respondent’s counsel objected to the introduction of evidence in the case for the reason that the court had no jurisdiction to proceed with the trial because of such illegal adjournment. At the conclusion of the trial, a motion to discharge respondent for the reason that no offense was charged against him, and that the court had lost jurisdiction by reason of the illegal adjournment, was made and overruled. The jury having disagreed upon the first trial, the respondent again appeared in court on April 30, 1909,' and filed another motion asking for his discharge upon the grounds, among others, that the complaint and warrant charged no offense and that the court had lost jurisdiction by reason of such illegal adjournment. Respondent was thereupon again placed upon trial, whereupon he filed a written waiver of jury, and asked that the case be tried before ■the justice. The case was thereupon tried before the court, the respondent submitting no proofs in his defense; whereupon the court found respondent guilty, and adjourned the case to May 5, 1909, at which time respondent was required to appear for sentence. On May 5, 1909, respondent appeared, and sentence was imposed upon him by the justice in the following language:

“The court did thereupon adjudge and determine that the said respondent should pay a fine of $50 and costs of prosecution, taxed at $24.50.”

The cause was thereupon removed to the circuit court for the county of Eaton, by certiorari. The circuit judge affirmed the judgment of the justice and entered an order, mandatory in form, that the respondent pay to the clerk of the circuit court for the county of Eaton the sum specified in the sentence of the court below, namely, a fine of $50 and costs of prosecution, taxed at $24.50. The circuit judge having affirmed the judgment of the justice, the case was brought to this court upon writ of error.

Respondent asks that the judgment be reversed, and that he be discharged, for the reasons:

(1) That the justice lost jurisdiction in adjourning the case more than 30 days.
(2) The complaint and warrant charge no offense known to the law.
(3) 'That there was no evidence submitted upon either the first or second trials before the justice that the things alleged to have been said by respondent were false in fact.
(4) The insufficiency of the justice’s docket.
(5) The sentence imposed is uncertain and indefinite.

Section 1021, 1 Comp. Laws, provides as follows:

“ On the return of the warrant, with the accused, the said justice shall proceed to hear, try and determine the cause within one week after the return of the same, unless the absence of witnesses from the county without the fault or connivance of the party seeking such continuance shall render such continuance necessary, or unless the sickness of witnesses or of the accused shall render a continuance of such cause necessary; in which case it shall and may be competent for the justice to adjourn or continue, the same for such time as may be necessary to secure the ends of justice, not exceeding thirty days in all: Provided, that in case of the absence of witnesses the party seeking to obtain a continuance for that cause shall further show to the satisfaction of the court that he has used due diligence to obtain the testimony of such witness.”

A strict construction of this section would require that the accused be tried within one week unless one of the grounds for continuance specified in the statute were shown, and the case could no more be continued beyond one week without the statutory showing than it could be continued beyond 30 days in all with the statutory showing. Nevertheless, this court held, in People v. Shufelt, 61 Mich. 237 (28 N. W. 79), that the case might be continued beyond the week upon a showing of the sickness of the prosecuting attorney, which is not a statutory ground for continuance. In People v. Hux, 68 Mich. 477 (36 N. W. 229), it was held that an adjournment for more than one week, upon the application of the respondent, and with the consent of the prosecuting attorney, did not oust the justice of jurisdiction. To the same effect, see People v. Weeks, 99 Mich. 86 (57 N. W. 1091). It is said, obiter, in People v. Hux, supra:

“The respondent will not be heard to complain where the adjournment is for a less period than 30 days, for what could have been done on motion and showing can always be done by consent.”

See, also, Troy v. Rodgers, 162 Mich. 28 (127 N. W. 31). The decisions cited show clearly that this court has not applied a strict construction to this statute, but has construed it to authorize adjournments, against the objection of the accused, where such adjournments, like those specified in the statute, were necessary to promote the interests of justice. This statute was enacted to secure to accused persons that right to a speedy trial which is guaranteed to them by the Constitution, and it would be a harsh construction which should turn this shield for their protection into a sword for their destruction. We arejsatisfied that a proper construction of this section permits'of adjournments beyond 30 days, where such adjournments are granted upon application of the accused upon a sufficient showing, whether with or without the consent of the prosecuting attorney. See, for a discussion of this subject, the note to In re Begerow, 133 Cal. 349 (65 Pac. 828, 85 Am. St. Rep. 187).

The complaint charges that respondent imputed a want of chastity to the complaining witness, an unmarried woman, by charging that her employer had got himself into a nice scrape; that he had borrowed a doctor’s instruments and committed abortion on her; and that she demanded $15,000, and his wife had kicked him out of doors, etc. A statement of the charge obviates the necessity for discussion. The language is to be construed as those to whom it was spoken would naturally understand it, and clearly imputed a want of chastity. We are not inclined to indulge in sophistical conjectures that the complaining witness might have been a recently divorced woman. The averment that she was an unmarried woman negatived the idea that she had become lawfully pregnant.

What was proved on the trial before the jury is of no consequence, since the jury disagreed, and on the trial before the justice there was proof of the falsity of the charge by the testimony of the complaining witness to that effect.

The docket is quite irregular, and some of the things which should have been entered there were not, in fact, recorded until after the affidavit for the writ was served. It appears, however, from the affidavit for the writ of certiorari and from the return, that the proceedings required by law to authorize a conviction were actually had, and that respondent was regularly and legally convicted; the only flaw in the proceedings is the failure of the magistrate to properly minute all of the proceedings in his docket. The question before us then is: Shall a person who has been regularly convicted of crime be discharged and justice be cheated of her dues because, forsooth, the magistrate has failed in some particulars to properly record the details of the proceedings ? Although the docket showed no plea by respondent, it is clear that there was a plea of not guilty, and he went to trial before the jury and the justice without objection on this ground. In the same; way, one of the adjournments was not noted, but it was actually ordered, and respondent appeared on the adjourned day. Also, the docket described the offense by referring to the complaint, when, perhaps, it should have been entered briefly upon the docket. The omissions and defects complained of in no way affected the merits of the case, nor did they interfere in any way with the defendant’s rights. He had a fair and impartial trial, and the evidence was conclusive of his guilt. Under such circumstances, we regard it as our duty, enjoined by statute, “to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice which did not affect the merits.”

We think the judgment was sufficient and required the payment of the fine and costs forthwith. There was no substantial difference between this and the judgment entered in the circuit court.

The judgment is affirmed.

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


text:
    PEOPLE v. FREELMAME.
    Criminal Law — Burglary—Burglars’ Tools.
    In a prosecution for burglary, evidence was properly admitted showing that burglars’ tools and implements were found on three other persons with whom respondent was arrested on the night of the alleged crime, of which the three had been previously convicted.
    Error to Hillsdale; Chester, J.
    Submitted October 20, 1910.
    (Docket No. 121.)
    Decided November 11, 1910.
    James Freelmame was convicted of the crime of burglary.
    Affirmed.

      Frank M. Hall and G-. F. Lewis, for appellant.

      Paul W. Chase, Prosecuting Attorney, and John F. Bird, Attorney General, for the people.
   Moore, J.

An information was filed charging the respondent, James E. Burke, Charles Hadley, and William Miley with the offense of burglary. The three last-named respondents were tried together, and convicted. This case was appealed to this court, and the conviction affirmed. The case is reported in People v. Burke, 161 Mich. 397 (126 N. W. 446). A reference to the opinion in that case will save the necessity of going over the facts there stated again.

This respondent elected to have a separate trial. He was convicted. Error is assigned upon the admission of testimony as to the purpose for which certain tools which were found upon the persons of the other respondents were used. Under the facts disclosed by the record, we think the testimony admissible. See People v. Cleveland, 107 Mich. 367 (65 N. W. 216). A careful examination of the record does not disclose any question other or different than those passed upon in People v. Burke, supra. That case is controlling as to this case.

The conviction is affirmed.

Hooker, MoAlvay, Brooke, and Blair, JJ., concurred.


text:
    BROWN v. BROWN.
    1. Equity — Practice—Amending Decree.
    After the entry of a final decree in a suit for specific performance, and after discovering that the description of land affected by the proceedings was incorrect, a second order permitting the complainant to open the decree and insert an amended description as it might be determined by a survey, obviates the objection that the final order contained an incorrect description.
    2. Specific Performance — Oral Contracts.
    The decree of the circuit court granting specific performance of a contract, not in writing, to convey real property, is sustained as warranted by sufficient although conflicting evidence.
    Appeal from Huron; Beach, J.
    Submitted October 20, 1910.
    (Docket No. 90.)
    Decided November 11, 1910.
    Bill by Matilda O. Brown against Harriet Brown and Levi Brown for specific performance. From a decree for complainant defendants appeal.
    Affirmed.

      John F. Murphy and Charles D. Thompson, for complainant.

      George W. Bates and George M. Clark, for defendants.
   Moore, J.

The bill is filed by Matilda C. Brown, widow and administratrix of the estate of Harvey H. Brown, deceased, for the specific performance of an oral contract alleged to have been made by Levi Brown and Harriet Brown, his wife, with their late son, Harvey H. Brown, just prior to his marriage, October 12, 1897. By this contract it is alleged that they were to sell to him a certain house and lot in Harbor Beach, Mich., and that under it he took possession of the place as his homestead, paid the consideration, made various improvements and repairs thereon, and remained in possession of same until his death by drowning, April 28, 1907.

On the part of defendants it is claimed that no such contract was ever made with the said Harvey H. Brown; that at the date of the alleged contract Levi Brown had no interest in the premises, which were then owned solely by his wife, Harriet Brown; that she never made any such contract with Harvey Brown, but there was an understanding between the said Harvey H. Brown and his mother that at the time of his marriage, October 12, 1897, he would be allowed to occupy the premises in question as his homestead without rent; and that, if he made any improvements or repairs, the same were to, be made at his expense and left there, if he should afterwards leave the place; but that at no time did Harvey Brown pay Harriet Brown or Levi Brown any money for these premises. The court below rendered a decree in favor of the complainant for specific performance as prayed in the bill of complaint. The case is brought here by appeal.

A preliminary question presents itself at the outset. It is urged on the part of the appellants that the premises are not sufficiently described in the bill of complaint to warrant a decree, and the decree is fatal because of the description therein. There was a full hearing in the court below upon the merits. Subsequent to the making of the first decree the following order was entered:

“ At a session of said court held at the courthouse in the city of Bad Ase upon the 5th day of April, A. D. 1910.
“Present: Honorable Watson Beach, Circuit Judge.
“ It being made to appear to the court that the recital of the description of the property awarded to the complainants in this cause, made and entered, is defective and cannot be applied to the property, it is ordered, adjudged, and decreed that the said decree be opened so far as the description aforesaid is concerned, and that Paul Praschan make a survey of the proper boundaries of said homestead lot, and report such survey and proper description to this court, that the court may amend its decree in that respect. This decree shall in no wise affect the proceedings of defendants towards settling a case for review in the Supreme Court. When the amended decree is made, it may be treated as of the date of the former decree, so far as appeal is concerned.”

After this order was made, the appellants proceeded to perfect their appeal. The record and full briefs are here, and the case has been argued at length orally. We do not think the appellants can be heard to say there cannot now be made a final disposition of the case.

The hearing was had in open court. The oral testimony was very conflicting. On the part of the complainant, testimony was produced to the effect that both of defendants stated that the son, Harvey Brown, had purchased the premises for the sum of $250, and had made full payment for it. The judge of probate testified that, after the death of Harvey Brown—

“I went over to Harbor Beach in May, 1907, to get a deed from the old lady. I supposed the property belonged to Levi. I found that the property was all in the old lady, Harriet Brown. She said Harvey had paid for the place, and he ought to have a deed; ‘ but I will never sign another deed.’ The place was the little homestead.”

All of these witnesses were contradicted by the defendants. The case presents a striking illustration of the advantage, in determining the credibility of witnesses, of hearing their testimony and of seeing them while they are giving it.

There is testimony that, from the time Harvey Brown and his young wife moved upon the premises in 1897 until the time of his death 10 years later, he claimed to own the premises. He was about 21 years of age at the time of his marriage. The record shows he was an industrious, frugal man, of good habits. He commenced at once to make improvements upon the place, and during his occupancy put a cellar under the house, constructed and equipped a bathroom, and added a second story to the house, all of which was done by his labor or at his expense. What was done by him and his family is not likely to have been different from what it would have ’been if he was possessed of the record title to the premises. See Taft v. Taft, 73 Mich. 502 (41 N. W. 481), Pike v. Pike, 121 Mich. 170 (80 N. W. 5, 80 Am. St. Rep. 488), and the many cases cited therein. His two children, one seven and the other four years of age at his death, were born in the house so improved by him. It is not reasonable to believe that this young man of limited means would have made these liberal expenditures, had he not believed he was creating a home for himself and his little family.

The decree of the court below is affirmed, with costs.

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