author: Grant, J.

text:
    RANSON v. WESTON.
    i. Real-Estate Agents — Right to Commission — Sale by Principal.
    An agent for the sale of lands is entitled to his commission if he secures a purchaser therefor, although the 'principal, who completes the sale, includes therein lands which the agent had no authority to dispose of.
    2. Appeal — Misstatement in Charge — Objections.
    Where the attention of the trial court is not called to an alleged misstatement of fact in its instructions to the jury, an assignment of error based thereon will not be considered.
    3. SAme — Assignments of Error — Sufficiency.
    An assignment of error upon the admission of correspondence in relation to specified transactions will be disregarded, where a large number of letters were introduced, and those to which reference is had are not pointed out in the briefs of counsel.
    4. Same — Evidence—Sufficiency of Objections.
    An objection to the admission of certain correspondence as “ incompetent and immaterial,” and a subsequent motion to strike all letters concerning certain negotiations from the record, without pointing out what portions of such letters are objectionable, are too general for consideration on appeal.
    Error to Wayne; Donovan, J.
    Submitted June 17, 1896.
    Decided July 21, 1896.

      Assumpsit by David J. Ranson against Abijah Weston for commissions on the sale of real estate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      In 1893 the defendant owned several tracts of pine land in Luce county, in townships 46 and 47, range 11 west, and in 46 and 47, range 12 west, comprising in all about 20,000 acres. October 2d, plaintiff, aland looker, and agent for the sale of lands on commission, wrote to defendant, soliciting the power to sell these lands upon a commission of 5 per cent. After considerable correspondence, defendant wrote plaintiff, authorizing him to sell the land in towns 46 and 47, range 11 west, for $100,000. All the negotiations were by letter, except one interview with defendant’s agent, Mr. Fox, to whom defendant referred plaintiff as having authority to act for him in his absence. Among the parties to whom plaintiff was trying to sell these lands was the Danaher & Melendy Company. This company desired to purchase all the defendant’s lands, but did not ‘desire to purchase a part. About the middle of November, plaintiff had employed one Gibson to work up a sale to this company. On December 23d, defendant wrote plaintiff, “I have left the business with A. J. Fox, No. 63 Alfred St., Detroit, while I am gone.” December 28th, plaintiff went to Detroit to see Mr. Fox. The situation and the commission were discussed. Plaintiff testified that Mr. Fox told him that this company would not buy unless it bought the whole tract; that it was his opinion to sell the whole tract to it, —and told plaintiff to do the best he could, and he should advise Mr. Weston to sell it. Plaintiff continued his negotiations with this company until January 16th, when he received a telegram from Mr. Fox, stating that he had sold the entire tract of Weston lands. On January 5, 1894, Mr. Fox wrote Danaher
    “If I could see you a little while, I might, perhaps, bring about a trade for you with Mr. Weston. * * * Mr. Weston has a cash offer for the eastern portion of the land, which he is inclined to accept; but I have suggested to him that, if the whole tract is to be sold at all, it would be better to let it go to you in a lump. * * * You need pay no attention to letters from land agents about this property.”
    Mr. Fox admitted that the land agents referred to were plaintiff and Mr. Gibson. In reply to this letter, Mr. Danaher went to Detroit, and purchased the entire tract. This suit was instituted to recover 5 per cent, commission on $100,000, upon the land which plaintiff was authorized to sell. He recovered verdict and judgment.

      C. A. Kent, for appellant.

      E. S. B. Button (Moores & Goff, of counsel), for appellee.
   Grant, J.

(after stating the facts). The learned - counsel for the defendant insists that the court should have directed a verdict for the defendant, for the reason that plaintiff had not effected a sale, and that there was no evidence that he secured the purchaser, the Danaher & Melendy Company. Defendant took the advantage and received the benefit of the plaintiff’s examination and estimate of the value of his lands. On December 21st his agent, Mr. Fox, wrote Danaher, who represented the company, as follows:

“He [Weston] has had them carefully examined and estimated recently by Mr. D. J. Ranson. Mr. Ranson can give you full information in regard to them, if you care to correspond with him.”

Defendant knew that plaintiff was negotiating with these parties. He did not withdraw the authority which he had given the plaintiff to negotiate the sale, until he himself had made the sale. The case is within the rule of Heaton v. Edwards, 90 Mich. 500, unless the fact that the other lands, which plaintiff was not authorized to sell, were included in the sale, takes this case without the rule of that case. There was evidence from which, it may fairly be inferred that the efforts of plaintiff influenced the sale. Mr. Fox, whose acts bind the defendant, must certainly have understood that plaintiff was negotiating with the Danaher Company; and the conclusion was reasonable that the purpose of that letter was to prevent plaintiff from receiving his commission, by negotiating the sale himself for Mr. Weston. There is evidence, also, from which it can be inferred that the lands which plaintiff had for sale were of the value of $100,000, and that they were therefore included in the sale at that amount. We think the question was properly left to the jury"to decide, whether the plaintiff was instrumental in procuring the purchase, and that the defendant could not avoid liability by including other lands in the sale to the purchaser with whom plaintiff was negotiating.

Complaint is made of the charge of the court that “‘there is no dispute about the commission, if you come to that matter, for the commission is agreed upon to be 5 per cent, on the $100,000.” This statement was not challenged by the defendant at the time. If it was error, it was the duty of the counsel to then call the attention Of the court to it. Farmers’ Mut. Fire Ins. Co. v. Gargett, 42 Mich. 295.

Error is also alleged in the admission of the correspondence as to negotiations with other parties than the final purchaser. Counsel has not pointed out in his brief those portions of the correspondence to which he refers, and' we do not feel called upon to perform that labor. The letters are 40 in number, and the bill of exceptions states that they were received in evidence “subject, in each case, to objection for incompetency and immateriality ; ” that, at the close of the evidence, counsel made a motion to strike from the record all letters introduced by plaintiff concerning negotiations with other parties than the Danaher & Melendy Company, and that the motion was denied. The objection to their admission was not sufficiently specific. It was the duty of counsel, in making the motion, to point out what portions of the letters were objectionable.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PEOPLE v. GERMAN.
    1. Information for Perjury — Innuendo—Question for Jury.
    An information for perjury, alleging that it became material, on a trial for larceny, to know whether or not certain moneys were paid to the accused therein by the respondent on Sei> tember 11, 1894, and that the respondent testified upon such trial that he “paid it on the 11th of September,” at the accused’s place, and obtained a receipt, may properly set forth, by innuendo, that by such testimony the respondent meant that he paid a specified amount of money on September 11, 1894, it being for the jury to say whether such was in fact the meaning intended to be conveyed.
    3. Same.
    The information in such case need not allege that the person accused of larceny owned or had a place, to support proof that the statement that the money was paid by respondent at the former’s “place” was false.
    8. Criminal Law — Perjury—Issue—Instructions.
    Where, in a prosecution for perjury alleged to have been committed On the trial of a criminal cause, the fact that the testimony was given as charged, and that it was false, is undisputed, an instruction to the jury that the only question for their determination is whether the respondent testified honestly, in the belief of the truth of his statement, as by him contended, and that, if the jury have a reasonable doubt that he willfully testified to a falsehood, they should acquit, is sufficiently favorable to the respondent.
    4. Trial — Remarks of Counsel.
    The trial court has ampile power and a large discretion in relation to remarks of counsel.

      Exceptions before judgment from Mecosta; Palmer, J.
    Submitted June 18, 1896.
    Decided July 21, 1896.
    Louis German was convicted of perjury.
    Affirmed.

      Frank Dumon, for appellant.

      A. B. Cogger, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of perjury, in support of an alibi, in a case where Randall, Trumpower, and Reese were on trial for larceny. The information included the following averments, viz.:

“Whereupon it then and there became and was a material inquiry upon the trial of said issue so joined between the people of the State of-Michigan and the said Fred Randall, Fred Trumpower, and Charles Reese, as aforesaid, whether he, the said Ered Randall, was on his, said Ered Randall’s, place, in the township of Mill-brook, in the county of' Mecosta, and State of Michigan, oh the 11th day of September, A. D. 1894, and whether he, the said Louis German, saw him, the said Fred Randall, on his said place, in the township of Millbrook, on said 11th day of September, A. D. 1894, and whether he, the said Louis German, paid him, the said Fred Randall, twelve dollars in money, on said 11th day of September, A. D. 1894, on his, said Fred Randall’s, place, in the township of Millbrook. And he, the said Louis German, being so sworn, as aforesaid, wickedly contriving and intending to cause the said Fred Randall, Fred Trumpower, and Charles Reese unjustly to be acquitted of said felony charged against them, the said Fred Randall, Fred Trumpower, and Charles Reese, in said information, as aforesaid, did then and there knowingly, falsely, corruptly, willfully, feloniously, and wickedly, before the said jury so sworn, as aforesaid, and the said circuit judge, as aforesaid, say, depose, swear, and give in evidence, upon his direct examination, amongst other things, in substance and to the effect following; that is to say: ‘Yes, sir. I paid it on the 11th of September. I got a receipt for it. Tuesday, I believe. Yes, sir. I think I have it, anyway. Back on his place. There was Mr. Randall and Mr. Clark and the boy that stays there at Randall’s; I don’t know his name. Then there was another gentleman there. I did not know who he was.’ Meaning that he, the said Louis German, paid him, the said Fred Randall, twelve dollars in money, on the 11th day of September, A. D. 1894, and took a receipt for it' on the place of him, the said Fred Randall, in the township of Millbrook, in the county of Mecosta. And he, the said Louis German, did further depose, say, swear, and give in evidence, upon his cross-examination upon said trial, amongst other things, in substance and to the effect following; that is to say: ‘A half an hour, along in the afternoon. I should think it might be two, or three, or four o’clock. I could not say exactly. I should think between three and four o’clock; along there.’ Meaning that it was between three and four o’clock in the afternoon of the 11th day of September, A. D. 1894, when he, the said Louis German, paid him, the said Fred Randall, said twelve dollars in money, on his, said Randall’s, place, in the township of Millbrook.”

The testimony given by the stenographer who took defendant’s testimony upon the larceny trial was in substantial harmony with the allegation of such testimony. The direct examination did not show that defendant gave the year, or stated that he paid $12 in money, but the cross-examination showed that he went there that day to pay him “that money,” and other testimony tended to prove that the transaction was in 1894. This warranted the submission to the jury of what the defendant meant to be understood by his statements in regard to these matters. The prosecution could not safely allege that he said that he paid money, or that it occurred September 11, 1894, because he omitted both the year and the word “money.” But the information alleged that upon the larceny trial it became material to know whether the occurrence was upon September 11, 1894, or not. The statements that it occurred on September 11th, and that payment was made, were susceptible of two meanings; hence it was proper to state the meanings in the innuendo, and leave to the jury what the defendant intended by his language. 2 Bish. Cr. Proc. §§ 785, 793, 794, 917. In Rex v. Aylett, 1 Term R. 69, Lord Mansfield says: “If there be any doubt on the words of the ohth, which can be made more clear and precise by a reference to former matter, that may be supplied by an innuendo.” Bex v. Taylor, 1 Camp. 404, is a case upon all fours as to the question of time. See, also, Reg. v. Virrier, 12 Adol. & E. 317.

The contention that the information should have contained an averment that Randall owned or had a place, to support proof that defendant falsely stated that he made payment there, is not sound. The prosecution were not necessarily claiming that Randall had a place. Defendant’s statement could be false in either event. If defendant’s position were sound,- it might require the statement of a falsehood in the information to support the charge.

The court informed the jury that there was but one question of fact in the case, and that was whether the defendant testified honestly, in the belief of the truth of his statement; that, if the jury had a reasonable doubt that he testified willfully to a falsehood,, they should acquit. Under the facts conclusively proved, and stated by the judge to have been admitted, this was sufficient instruction, and the requests of the defendant’s counsel would have added nothing to the question submitted.

The remaining questions mostly relate to the language of counsel for the people in his closing argument. Counsel for the defendant requested the stenographer to take this argument, and that he might assign error upon it without objection or interruption, which was agreed to. We think there was nothing in the argument that calls for a reversal of the case. We have frequently held that the trial court has ample power and a large discretion in relation to the remarks of counsel.

We find no error in the record, and the court is directed to proceed to judgment.

■ The other Justices concurred.


author: Long, C. J.

text:
    PEOPLE v. WELMER.
    Criminal Law — Joint Dependants — Peremptory Challenges.
    . Where persons jointly charged with a misdemeanor are tried together, each is entitled to the same number of peremptory challenges he would have had if separately tried.
    Exceptions before judgment from Hillsdale; Lane, J.
    Submitted June 18, 1896.
    Decided July 21, 1896.
    Fred Welmer and Warren Briggs were convicted of violating the local option law.
    Beversed.

      F. H. Stone and Frankhcmser Bros., for appellants.

      Giiy M. Chester, Prosecuting Attorney, for the people.
   Long, C. J.

This case comes to this court from the Hillsdale circuit' on exceptions before sentence. The respondents were charged with the violation of the local option law of that county, and, on a trial before a jury, were convicted. The only point we need consider is the refusal of the court to allow to each respondent the number pf peremptory challenges to jurors each would be entitled to if tried separately. After the defense had challenged five of the jurors peremptorily, and such jurors had been excused by the court, they then challenged one more juror peremptorily, and sought to excuse him from sitting in the case. This was overruled by the court, and the juror thus challenged was permitted to sit in the case. The parties were jointly charged.

The statute provides that—

“In all civil cases each party may challenge peremptorily four jurors; and in all prosecutions in the name of the people of this State, not otherwise especially provided for, the attorney appearing for the people may challenge four jurors peremptorily, and the defendant may challenge five persons peremptorily.” 2 How. Stat. § 7607.

The rule in criminal cases is welh settled in this State as to the number of peremptory challenges to which of right each respondent is entitled. In Stroh v. Hinchman, 37 Mich. 490, Mr. Justice Cooley, after speaking of the rule in civil cases, quotes from Soclousky v. McGee, 4 J. J. Marsh. 267, as follows:

“In criminal cases, if several persons be tried on a joint indictment by the same jury, each has a separate and independent right to his challenges, whether peremptory or for cause, because, although the trial is joint in form, it is in substance and effect several. The verdict must be several. Each must be punished according to his own guilt, and not according to that of another; and the punishment is individual and several, not joint. There can be no contribution, no substitution.”

Section 228365, 3 How. Stat., being section 16 of the local option law, provides for a minimum and maximum punishment. It is to be, for the first offense, a fine of not less than $50 nor more than $200 and costs of prosecution, or imprisonment in the county jail not less than 20 days nor more than 6 months, in the discretion of the court. By this section the offense is made a misdemeanor. The offense being made a misdemeanor by this section of the statute, the parties could not have separate trials, except by order of the court, under the provisions of section 9573, 2 How. Stat., as in all cases except felony the right of separate trial to the respondents is left in the discretion of the court. ' The court Ayas in error in refusing to each respondent the number of peremptory challenges he would have been entitled to if separately tried. Bixbe v. State, 6 Ohio, 86; Mahan v. State, 10 Ohio, 233; State v. Durein, 29 Kan. 688.

-The verdict must be set aside, and a new trial ordered.

■The other Justices concurred.


text:
    PEOPLE v. IMES.
    1. Adultery — Foreign Marriage — Evidence.
    In a prosecution for adultery, the testimony of the clergyman and others who participated in a marriage ceremony in a foreign country between conuplainant and respondent, although insufficient, in the absence of proof as to the laws of such country, to prove a valid marriage, is admissible to show that a ceremony was in fact performed, which, if followed by cohabitation, would establish the marital relation.
    2. Same — Admissions—Cohabitation.
    Evidence that respondent admitted having cohabited with the complainant for some time after the ceremony is admissible on such trial.
    3 Same — Letters.
    Letters written by a respondent charged with adultery to the complainant, in-which she is addressed as his wife, are admissible to prove their marriage.
    ■ 4. Same — Husband and Wipe — Competency as Witnesses.
    A wife who is the complainant in the prosecution of her husband for adultery cannot testify to their marriage and cohabitation.
    5. Criminal Law — Marriage—Evidence.
    A foreign certificate of marriage is inadmissible in a criminal case.
    6. Adultery — Evidence—Admissions op Paramour.
    Evidence that the person with whom respondent is charged to have committed adultery stated in respondent’s absence that respondent had had sexual intercourse with her is inadmissible as hearsay.
    Error to recorder’s court of Detroit; Chambers, J.
    Submitted June 19, 1896.
    Decided July 21, 1896.
    George W. Imes was convicted of adultery, and sentenced to imprisonment in the Detroit House of Correction for one year.
    Reversed.

      Frank IT. Dohany (Frank C. Moriarty, of counsel), for appellant.

      Allan IT. Frazer, Prosecuting Attorney, and William H. Turner, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of the offense of adultery with one Edith Doe. The record contains all of the evidence taken upon the trial, and shows that no testimony was offered in behalf of the defendant.

To prove the marriage of the defendant, the following evidence was introduced:

1. The testimony of the clergyman and others participating in the marriage ceremony in Ontario, who fully identified the parties.
2. Admissions of the defendant that he cohabited for four weeks with his wife, the complainant.
3. His letter to complainant, in which he addressed her as wife.

This testimony was all admissible. In addition, complainant testified to the marriage and cohabitation, and the marriage certificate was offered in evidence. The testimony of complainant was inadmissible. See People v. Isham, 109 Mich. 72. It was not objected to, however, and no error is assigned upon its introduction. The marriage certificate, which was received, was made by the clergyman, who testified to the facts that it'stated, viz., that he performed a marriage ceremony between these parties, who were identified. In the absence of proof of the law of Ontario, this testimony was not sufficient to show a marriage ceremony in accordance with the law of that place, but the testimony of the witnesses was admissible to prove the fact of a marriage ceremony between the parties, which, if followed by cohabitation as husband and wife, would establish that relation. People v. McQuaid, 85 Mich. 127; Hemmings v. Smith, 4 Doug. 33; People v. Colder, 30 Mich. 85; Hutchins v. Kimmell, 31 Mich. 126; 3 Rice, Ev. 800-805; People v. Lambert, 5 Mich. 367 (72 Am. Dec. 49). The admission of the foreign certificate of marriage was erroneous, being hearsay. People v. Lambert, 5 Mich. 364 (72 Am. Dec. 49). 2 How. Stat. § 6222, authorizes the introduction of domestic certificates of marriage, which are held admissible in criminal cases. See People v. Isham, supra. But foreign certificates stand upon a different footing. They have not the force of a church registry, which is admissible upon questions of legitimacy, date of birth, marriage, etc. See People v. Lambert, 5 Mich. 364 (72 Am. Dec. 49). There is much conflict of authority upon the subject of proof of marriage in criminal cases. For a general discussion of the subject, see 3 Rice, Ev. pp. 800-811; Bish. Stat. Crimes, § 610; Taylor v. State, 2 Hawley, Am. Cr. Rep. 17, and note.

To prove the alleged adulterous intercourse, testimony was offered showing the relations between the defendant and Edith Doe; and one Mrs. Garrison was permitted to testify that .Edith Doe told her, in the absence of defendant, that they had sexual intercourse. This Mrs. Garrison was a witness called by the prosecution, and this testimony was obtained on her redirect examination. Counsel seek to justify it on the ground that it was a part of a conversation drawn out on cross-examination. On direct, she had testified that she had met them together often at Edith’s place and elsewhere. On cross-examination, counsel for the defendant sought to show that Edith claimed to be his wife. She said she had no personal knowledge of their having sexual intercourse. On redirect, the question was asked directly, “ Did she say anything about their having had sexual intercourse ? ” which question was answered in the affirmative. This question and answer, if admissible at all, was because the statement occurred during a conversation about the provisions for housekeeping, which Edith said she was making in anticipation of defendant’s arrival. If it had any natural connection with the subject, and was admissible at all, it was because of the statements of Edith, elicited on cross-examination of the witness, which, had they been objected to, should have been excluded as hearsay. It was not competent proof of the existence of the marriage relation, and counsel should not have sought to elicit it. We think the statement was one prejudicial to the defendant, and possibly the turning point of the case.

The conviction should be set aside, and a new trial ordered. It is therefore so ordered.

The other Justices concurred.


text:
    LILLY v. TOWNSEND.
    Estoppel — Wills—Receipt by Beneficiary.
    A beneficiary under a will, who, with an, intent to abide by its provisions, has accepted her share of the property thereunder, and has receipted to the executor therefor, is estopped to set up its invalidity, after the latter, in reliance upon her action, has made like settlements with other beneficiaries.
    Error to Cass; Coolidge, J.
    Submitted June 10, 1896.
    Decided July 21, 1896.
    Thomas J. Lilly presented for probate the will of- David Lilly, deceased. From an order probating the will, Florence L. Townsend appealed to the circuit, where the will .was again sustained. Contestant brings error.
    Affirmed.
    Osborn, Mills & Master, for appellant.

      M. L. Howell and'Coy W. Henclryx, for appellee.
   Long, C. J.

This is a contest over the will of David Lilly, who died March 18, 1894, aged 79 years. The will was executed January 26, 1894. At his death he left surviving him a widow, and several children and grandchildren. The will was contested on the ground of incompetency of the testator to make a will, and, as claimed by counsel for contestant, also upon the ground that the will as drawn did not express the intent of the testator in the disposition of his property. The testator was a man of considerable means.

The will was drawn by Henry Michael, a justice of the peace, and gives, first, to his wife, Sarah Lilly, the use, income, and occupation of the home farm during her natural life, and also the interest and income of $50,-000 during her natural life. -At the death of his wife, the home farm was given to a granddaughter, and another portion of land was given to a grandson, Edward Townsend, when he arrived at the age of 25 years, and after the death of testator’s wife. Testator also gave to his son Thomas and daughter Matilda certain portions of land, and certain notes were also given to Matilda. The daughter Florence (the contestant here) was given several portions of land and some notes and mortgages. To three grandchildren he gave $8,000 each; and provided in the eighth clause of the will that after the death of his wife, and the payment of his debts and funeral charges and the legacies, all the rest and residue of his estate, both real and personal, should be given to his five grandchildren, to be divided equally among.them. By the ninth clause he appointed Byron Fiero his executor. The will was presented for probate by his son, Thomas J. Lilly.

The proponent produced the parties who were witnesses to the will, who testified to its execution, and that the testator was competent to make it. The will was then offered in evidence, and proponent rested. The contestant produced witnesses who gave evidence tending to show that, at the time of the execution of the instrument purporting to be the will, David Lilly was not competent to make and execute it. Contestant than called Mrs. Sarah Lilly, the wife of testator, who testified that she and her husband had lived together for 50 years; that she remembered the making of the will. She was then ■asked:

‘ ‘ I will ask you this question: If, after your husband’s death, the various parties in interest in the estate agreed that the will was not an expression of your husband’s wishes, and agreed among themselves to take under the law, instead of under the will ? ”

This was objected to as incompetent, and for the reason that it could not bind the minors, and the executor never assented to it.

“By the Court: The expression that the will was not an expression of the deceased, I do not think ought to be used. You can reframe your question.
‘ ‘ Q. Did you and all the others in interest sign a paper by which you all agreed — grandchildren, children, and widow — not to take under the will, but to divide the property among yourselves ? ”

This was objected to upon the same ground, and the •court then suggested: “You can ask this witness if the parties signed a paper relating to the will.” To this question the witness answered, “Yes, sir;” and the court remarked: “It is possible it may be relevant hereafter. As the case now stands, I doubt whether this testimony is relevant.” This ruling of the court was excepted to by contestant. The witness was then asked: “In your opinion, was your husband competent to make an intelligent disposition of his property ? ” Counsel for proponent objected to this question as incompetent, and upon the further ground that the witness was disqualified by reason of her relationship to the deceased, and that no foundation had been or could be laid for the question. The court sustained the objection, and counsel for contestant excepted.

The contestant thereupon rested, and the proponent thereafter introduced several witnesses, who testified that the testator was competent to make the will. Among other things, they testified that they had had business transactions with him, some before and some after the execution of the will; that they were acquainted with him, and when they did business with him he acted rationally, and, in their opinion, he was competent to make the will. The executor of the will was then called, who testified substantially that the total of the property inventoried April 0, 1894, footed up to $137,405.37, the personal property amounting to $87,205.37; that certain of the property was turned over to the legatees; that $7,072.45 in notes and mortgages were held by the daughter Matilda, and that she gave him a receipt for such notes and mortgages. It further appears from his testimony that he turned over to Thomas Lilly certain of the property, and took his receipt; to some grandchildren, money and property, and took their receipts; that among those who received property turned over, and receipted for it, was Florence L. Townsend, the contestant in the present suit; that she received from the executor notes and mortgages which were given her by the will, and valued at $1,119.66; that she also receipted to the executor for the lands willed to her, valued at $16,200. The executor testified that she is now in possession of the lands, that he thereafter transferred to the widow the farm willed to her, and that several of the grandchildren have not yet received their legacies.

The executor was asked if the contestant knew that he was paying out these legacies to the heirs, and answered:

“ Well, I don’t know as to that. She didn’t say anything to me about it at any time. She had taken hers, and had possession of the notes and mortgages when we appraised them. I think she knew Mrs. Charles had hers. I think she found out shortly that Gertrude Charles had hers. Florence gave the first receipts, and was the first one settled with under the will. ' This receipt for the notes and mortgages was given me April 9th. There was no intimation made to me by her — that is, Mrs. Townsend — that she intended to contest the will, until after I had paid Mrs. Charles and her daughter.”

On cross-examination the witness testified:

“I think Mrs. Townsend and Mrs. Charles both commenced a contest of the will. [Mrs. Townsend is the only one now contesting.] * * * The payments were made before the notice of appeal. I had turned over the property to Thomas Lilly himself then. I had turned over to Thomas Lilly’s children no money.”

Mrs. David Lilly testified that she knew her daughter Mrs. Townsend intended to contest the will; that she was with the contestant when Mr. Fiero came to have her sign the receipts, and that the contestant then told him she “ did not want to sign the receipts, because she calculated to break the will if she could. He said to sign them; it wouldn’t hinder.” The contestant also testified to the same statement made by her to the executor, and that she signed the receipts with that understanding. Her testimony also shows that she was in possession of some of the real estate when she gave the receipts, and had been for many years; but some of the notes and mortgages were turned over to her that day. The executor was recalled, and gave evidence tending to contradict contestant’s testimony, and testified he did not tell her if she signed the receipts it would not interfere with her contest; and another witness also testified that on this occasion nothing was said by the contestant to Mr. Fiero that she was going to make a contest of the will, and that no reference was made to it.

The contention of the proponent was that contestant, under these circumstances, is estopped from contesting the will. Contestant, however, insists that there was no evidence in the case which would warrant the court in even submitting that question to the jury. The court submitted the question of estoppel, as follows:

“The receipts do not contain an acknowledgment, in express terms, of the satisfaction of her claims under the will; but, as they embrace all the property devised to her by the will, and were given to the executor, they are prima facie — that is, in themselves, without any further explanation or testimony — evidence of accepting the terms of the will. This is liable, however, to be explained or modified by testimony as to the intent and object with which they were signed. If the contestant would not have signed the receipts at the time if she had known the effect and intent of them, and if she did not intend an acceptance of the provisions of the will as to her, and did not notify the executor to the contrary, then she is not estopped from contesting the will. I do not think that an estoppel conclusively follows in this case from the signing of the receipts, if the,contestant did not sign them knowingly, intelligently, and designedly, with intent to accept and receive under the terms of the will and according to its provisions, and if she so notified the executor. But if she signed these receipts because she was then satisfied with the will, or because she had made up her mind to accept its provisions, then she is estopped from contesting the will; or, if she signed without knowing that the executor and the heirs would regard it as an acceptance, with a mental reservation and secret intent to contest the will in the future, knowing she had no right to take this property and receipt for it to the executor under the will if she proposed to contest it, then she is estopped.”

We think there was some evidence in the case which warranted the court in submitting the question of estoppel to the jury. It is shown that, after the will was presented to the probate court, the executor made settlements with some of the heirs by turning over to them the property specifically bequeathed to them, and paying to one granddaughter an amount of money which, with certain notes and mortgages, made up the amount given her by the will. The contestant was the first one settled with. She took and receipted for all the notes and mortgages which were willed to her, and also for the farm willed to her. After this the executor made settlements with most of the other heirs by delivering up the mortgages and notes and real estate. The contestant knew that some of the other heirs were being settled with. The others might not have settled, but for the fact that the contestant received and receipted for her share of the property. If, under these circumstances, she could appeal from the allowance of the will, and finally succeed in setting the will aside, the executor would be placed in a position where he must account for the estate that came into his hands. He has parted with the most of it in apparent good faith, turning over mortgages and notes and paying out money. He might find it quite difficult to recover the entire estate, and yet be compelled to account for it. Nnder the charge the jury evidently found that the contestant, when she took her share, intended to abide by the will. She has placed the executor in a position he would not have been placed in if she had not chosen to abide by the will, and to his disadvantage, and possible loss; and in this way he has been misled to his injury. It is the well-settled rule in regard to estoppels in jmis that the conduct complained of must have induced another to act to his disadvantage, and that his situation in consequence thereof must have changed. Maxwell v. Bridge Co., 46 Mich. 282. We think the court, under the circumstances, properly submitted that question to the jury.

The question of the competency of the testator to make the will was fairly submitted to the jury.

The court was not in. error in rejecting the testimony of Mrs Lilly, as no foundation had been laid upon which to base an opinion of her husband’s competency.

The judgment must be affirmed.

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


text:
    STAFFON v. LYON.
    Limitation of Actions—Contract for Public Building — Failure to Require Bond op Contractor — Liability to Material Men.
    Tlie statute of limitations begins to run in favor of school officers who, by reason of their failure to require the statutory bond of a contractor for the erection of a school building, have become personally liable to material men, as to each installment of material furnished, immediately upon payment becoming due from the contractor for such installment, and his default in such payment.
    Error to Mason; McMahon, J.
    Submitted June 20, 1896.
    Decided July 21, 1896.
    Case by Jacob Station against Thomas R. Lyon and others for failure to require the statutory bond of a contractor for the construction of a school-house. From a judgment in his favor for less than the amount claimed, plaintiff brings error.
    Affirmed.
    The facts in this case are stated in 104 Mich. 249, and need not be here repeated. Upon the second trial the court instructed the jury that, if they found for the plaintiff, they could only find for such portions of the claim as were not barred by the statute of limitations. The court held that the negligence consisted in not taking the bond when the contract was made between the school board and Briggs, viz., November 10, 1885, but that no right of action accrued so as to make the statute of limitations applicable until plaintiff had furnished goods under his contract with Briggs, and payments had become due thereunder. This action was brought July 12, 1892. By the terms of the contract, 80 per cent, of the brick furnished by the plaintiff to Briggs before July 12, 1886, became due before that date, and had, therefore, been due more than six years before this suit was brought. Plaintiff insists that his right of action did not accrue until August 10, 1886, when he filed notice of lien, and notified the board of his claim..

      D. W. Reardon (John Galloway, of counsel), for appellant.

      M. B. Danaher, for appellees.
   Grant, J.

(after stating the facts). The instruction was correct. His right of action against defendants accrued immediately upon default in payment by Briggs in accordance with the terms of his contract with Briggs, which were the same as the contract between Briggs and the school board, so far as payments were concerned. This action is based upon tort, not upon contract. Usually, in tort, the damage immediately follows the act, and the right of action accrues at once. But in this case the negligence and the damage were not simultaneous, and there could be no right of action until the damage resulted. The case is not like a running account, where the date of the last item controls. Plaintiff could have sued Briggs for these installments immediately. Briggs was then insolvent. The elements of plaintiff’s cause of action were: Briggs’ insolvency, the failure to take the bond, and the delivery of the brick. All these took place more than six years before suit was brought as to those installments which were excluded. Neither notice nor demand was essential to the plaintiff’s right of action. Laborers and material men may, under the statute, sue these officers at any time when a debt is due from the contractor to them. These rights do not depend upon the terms of the contract between the builder and the official board. The liability.of the defendants became fixed as each installment became due, and the statute of limitations then began to run.

Judgment affirmed.

The other Justices concurred.


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    GRENELL v. FERRY.
    1. Creditor’s Bill — When Maintainable.
    A judgment creditor’s bill, brought before the issuance of execution and its return unsatisfied, is premature.
    2. Same — Jurisdiction—Supplemental Bill.
    The defect in such case, being jurisdictional, is not remedied by the issuance of an alias execution after the filing of the bill, and the return of the same unsatisfied, and the filing of a supplemental bill setting up such facts.
    3. Same — Proceedings Against Corporations.
    A bill in the nature of a judgment creditor’s bill against the officers of a corporation, alleging a fraudulent transfer of corporate property, cannot be sustained, if brought before the issuance of execution and its return unsatisfied, under the provisions of the general statute relative to proceedings against corporations in chancery (2 How. Stat. chap. 281), since the issuance and return of execution in such cases is expressly required by section 6 of such statute.
    Appeal from Wayne; Peck, J., presiding.
    Submitted June 18, 1896.
    Decided July 21, 1896.
    Judgment creditor’s bill by Inez B. Grenell .against Dexter M. Ferry and others. From an order overruling demurrers to the original and supplemental bills, defendants appeal.
    Reversed and bill s dismissed.
    The complainant recovered a judgment against the Michigan Gas Company, June 28, 1895, for $2,092.25. On September 11, 1895, she filed this bill against the defendants, in which she alleged that the sale and transfer of the property and franchises of the Michigan Gas Company to the Detroit Gas Company were fraudulent as against the creditors of the former company, and praying that they be decreed to pay her judgment, and that they make a discovery as to the assets, etc., which were transferred by the Michigan Gas Company to the Detroit Gas Company. The bill is in form a judgment credit- or’s bill. The defendants Ferry, Byrne, and O’Brien demurred to the bill, the ground of the demurrer being that no execution had been issued and returned unsatisfied prior to the filing of the bill. Without bringing the case to hearing upon the demurrer, the complainant took out an alias execution, had it returned unsatisfied, and then filed a supplemental bill, alleging these facts. To this the same defendants interposed a second demurrer. Both demurrers were overruled, and the defendants appeal.

      Fraser & Gates, for complainant.

      Brennan, Donnelly & Van De Mark, for defendants.
   Grant, J.

( after stating the facts). It is the established rule that, before a court of equity can entertain jurisdiction to enforce a judgment at law by a creditor’s bill, an execution must be issued and returned unsatisfied. The legal remedy must first be exhausted. First Nat. Bank v. Dwight, 83 Mich. 189; National Tube-Works Co. v. Ballou, 146 U. S. 517; Hollins v. Iron Co., 150 U. S. 371. The court therefore obtained no jurisdiction by the original bill, if it be held to be a judgment creditor’s bill.

It is, however, insisted that the supplemental bill, setting forth the issue of an alias execution after suit brought and its return unsatisfied, gave the court jurisdiction. We cannot so hold. The original bill avers no ground for the interposition of a court of equity. The suit must be controlled by the situation at the time the bill was filed. Subsequent acts cannot confer jurisdiction. Putney v. Whitmire, 66 Fed. 385; Bernard v. Toplitz, 160 Mass. 162 (39 Am. St. Rep. 465).

It is also urged that the original bill can be sustained under chapter 281, 2 How. Stat. We hold otherwise. The complainant is proceeding as a judgment creditor, and section 8153 of chapter 281 requires that such creditor, before he can invoke the action of a court of equity, must obtain a judgment at law, and cause an execution to be issued and returned unsatisfied.

The learned counsel for the complainant, in support of their contention, cite the following cases: Hibernia Ins. Co. v. St. Louis & N. O. Transp. Co., 13 Fed. 516; Brum v. Insurance Co., 16 Fed. 140; Blair v. Railroad Co., 22 Fed. 36, 24 Fed. 148; San Francisco, etc., R. Co. v. Bee, 48 Cal. 398; Berry v. Railroad Co., 52 Kan. 774 (39 Am. St. Rep. 381); Louisville, etc., R. Co. v. Boney, 117 Ind. 501; National Bank of Jefferson v. Texas Inv. Co., 74 Tex. 421; Vance v. Coke Co., 92 Tenn. 47; Turnbull v. Lumber Co., 55 Mich. 387. An examination of these cases discloses the fact that the question now presented was not raised in any of them. Besides, in California, Kansas, Indiana, Texas, and Tennessee the statutes authorize judgment creditors’ bills without issuing an execution. The authorities above cited are, therefore, not in point, and do not conflict with the decisions of this court. If the complainant had issued execution, the case made by her bill would have been directly within these authorities.

The decree must be reversed, and the bill dismissed, with the costs of both courts, but without prejudice.

The other Justices concurred.


author: Montgomery, J.

text:
    McKORMICK v. CITY OF WEST BAY CITY.
    1. Personal Injuries — Pleading—Due Care — Sufficiency op Declaration.
    A declaration relating to a single transaction, — the falling of plaintiff into a hole in a sidewalk, and her attempt to extricate herself, — alleging that this occurred notwithstanding she then and there exercised all due care and caution, and was not guilty of negligence, sufficiently shows, in the absence of a demurrer, that she used such care and caution in the attempt to extricate herself.
    2. Same — Trial—Remarks op Counsel.
    Reference by counsel for plaintiff in his opening statement in an action for personal injuries to the fact that plaintiff has been a widow for a number of years, with several children dej>endent upon her for support, whom she has succeeded in keeping in school, is improper.
    3. Same — Pleadings and Proops.
    A declaration in an action against a municipality for injuries sustained by reason of a defective sidewalk, alleging that plaintiff was, prior to the accident, healthy, active, and able-bodied, but that, by reason of the injuries, she has become permanently disabled, and totally incapacitated from doing any work, and will always be dependent upon others for support and maintenance, is sufficient to admit of proof of her inability to perform ordinary work, and of what she could •have earned by ordinary labor.
    4. Same.
    Evidence that the plaintiff in such action had kept a boarding house, and had done all the cooking and manual labor about the house, before the accident, is admissible for the purpose of showing her former physical condition, although the declaration admits of no recovery for loss of the profits of such business.
    5. Same — Nature op Injuries.
    Plaintiff’s testimohy as to the existence of pain in her head is within the averments of the declaration that, by reason of the injuries, her back and spine were wounded, wrenched, and strained, and she was otherwise greatly and seriously injured, and was, and still is, subjected to great pain and suffering.

      6. Municipal Corporations — Defective Sidewalk — Notice to Authorities — Instructions.
    Where it appeared, in an action against a municipality for injuries sustained by reason of a defective sidewalk, that one of the city councilmen, at noon of the day of the accident, discovered a sound plank out of the walk at the place where the accident subsequently occurred, and replaced it without nailing it, and upon the evening of the same day notified the street commissioner, it was error to permit the jury to base a finding of negligence upon the failure of such official so.oner to notify the' commissioner.
    7. Personal Injuries —Evidence—Exclamations of Pain — Witnesses.
    A physician, called to examine the plaintiff in an action impersonal injuries, for the express purpose of giving testimony, is incompetent to testify to voluntary exclamations made by her, and to the fact that she seemed unable to walk without aid.
    Error to Bay; Maxwell, J.
    Submitted June 19, 1896,
    Decided July 21, 1896.
    Case by Mary McKormick against the city of West Bay City for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Gr. H. Francis (McDonell & Hall, of counsel), for appellant.

      Hatch & Cooley, for appellee.
   Montgomery, J.

Plaintiff recovered a judgment of $2,000 on account of injuries sustained by a fall through a hole in a sidewalk. Defendant brings error, and has assigned error upon a large number of rulings occurring on the trial, — in the admission of testimony, and on refusals of requests to charge preferred by defendant.

We think the contention that the proofs do not correspond to the allegations contained in the declaration as to the manner of the injury cannot be sustained. Nor do we think that there is force in the contention that, under the plea of the general issue, the allegation of due care and caution on the 'part of the plaintiff, as to her acts in attempting to extricate herself, was insufficient. The declaration was not demurred to, and relates to a single transaction, — the falling into the hole in question, and the attempt-of the plaintiff to extricate herself, — and alleges that this occurred, notwithstanding the fact that the said plaintiff then and there-exercised all due care and caution, and was in no way guilty of negligence. We think this allegation of diligence on her part must have been understood as relating to the entire transaction.

Criticism was made of the opening statement of counsel, in which it was stated that the plaintiff was left a widow 17 years ago, with six children on her hands; that most of them were dependent upon her, and that she succeeded in keeping these children in school; that plaintiff was engaged in the business of keeping a boarding house, and did all the cooking and manual labor about the house; and that by reason of the injury she was incapacitated from carrying on the business, and unable to perform household work, or do anything of that nature. It is said that, as the plaintiff had not counted on the loss of profits of running a boarding house, this must have prejudiced the jury against the defendant. The reference to the family of the plaintiff was unnecessary and improper, but the testimony of the» plaintiff as to what her business had been, and what her ability to do work had been, was competent. Plaintiff’s counsel expressly stated that it was offered for the purpose of showing that the plaintiff was physically able to do work for a large number of men, and as describing the kind of person she was, and what she could do. The court permitted the testimony for this purpose, but distinctly stated that nothing could be recovered for the loss of that business under the declaration. We think this testimony was admissible for this purpose.

The declaration alleged that prior to the accident the plaintiff was healthy, active, and able-bodied; that by reason of the injuries she was, and still is, subjected to great' pain and suffering, and has been totally incapacitated from doing any work, or exercising in any manner; and that said plaintiff has become permanently disabled, and is not, and will not again be, able to work or exercise, and will always be crippled, and dependent upon others for her support and maintenance. We think these allegations sufficient to admit of proof of her inability to perform ordinary work, and of proof of what she could have earned by ordinary labor. Kinney v. Folkerts, 78 Mich. 687. The testimony as' to the existence of pain in the head, we think, was sufficiently within the averments of the declaration. Montgomery v. Railway Co., 103 Mich. 46.

The defendant called as a witness one Reynolds, who was an alderman of the city, and a member of the committee on streets, and he testified that on the day of the accident, on returning home to his dinner, he passed the place where the accident afterwards occurred in the evening; that he discovered that there was a plank out of the walk, and laid in the ditch; that he replaced the plank, and notified the street commissioner that evening; and that the defect was repaired the next morning. The defendant asked the court to instruct the jury as follows:

“There was no duty imposed on the witness Reynolds to repair the walk when he discovered it, on the 14th, and the plaintiff cannot recover on his failure to do so.”

The court read this request to the jury, and added:

‘ ‘ There was no actual duty on the part of Reynolds to repair that walk, but there was a duty on him to give notice to the proper city authorities, whose duty it was to repair it with reasonable promptness.”

And in his general charge the court said:

“I charge you that notice to this member of the committee was notice to the city, and from that time after-wards — from the time he knew it — the city was liable, as having actual notice of the defective condition of this walk or plank; and it was bound to repair it within a reasonable time, * * * considering the circumstances and the place and the danger.”

It is contended that, as matter of law, it should be said that there was no unreasonable delay in the repair of this walk after notice to the city. We are of the opinion that there was no evidence of unreasonable neglect after the discovery of this condition of the walk by Mr. Reynolds, in view of the measures which he took at the time. His testimony is that he placed the plank, which was intact, in its former position, without nailing, and went about his usual business during the afternoon, and at the first opportunity, when he had leisure, notified the street commissioner of the defect. Hnless we are to hold that he should have abandoned his work, and sought out the street commissioner during the afternoon, he availed himself of the very first opportunity to notify him. We think it would be unreasonable, in view of the condition in which he left the walk, — the planks being all intact,- — to require that he should abandon his usual employment for the purpose of seeking the commissioner, to notify him. We do not think this question should have been submitted to the jury. We do not lose sight of the fact that there is a sharp conflict in the testimony as to whether the walk was in the condition stated by the witness Reynolds, but the charge upon this point was based upon his testimony. On the other hand, the plaintiff’s witnesses claimed that for some months prior to the accident a much more serious defect in the walk had existed at the place where the injury occurred, and this question was fairly submitted to the jury. But we are not able to say whether the jury acted upon the showing made by the plaintiff, or, on the other hand, was controlled by the instruction relative to the notice to Mr. Reynolds.

One other ruling is deserving of notice. The plaintiff called as a witness a Dr. Stevenson, who testified that two days before the trial he had examined the plaintiff in company with one Dr. Mactavish, and he further testified :

“We found that she could stand but poorly; in fact, that ■ she could not take a step without leaning upon something •solid.”

Defendant’s counsel then objected to this testimony, ■stating his objection clearly, as follows:

“Where a patient is examined by a physician with a view to giving testimony in a case, her conduct and her acts and her expressions and exclamations are incompetent. * * * When she calls in a physician with a view of making him a witness, whatever she does or says for the purpose of impressing the witness or the physician with her condition, if it is not something he deduces from her natural condition, it is incompetent, as manufactured testimony.”

The court said, “I won’t say it is incompetent, but it is to be very closely scrutinized.” An exception was taken to this ruling, and the witness then proceeded:

“We asked her to walk, and she apparently could not walk without aid.”

This was objected to, the objection overruled, and an exception taken. The witness further testified to exclamations of pain by the plaintiff while undergoing examination.

So far as expressions or acts of the plaintiff such as could be voluntarily made or simulated were testified to, the testimony was incompetent. We do not mean to hold that a physician cannot in any case testify to the physical conditions which he finds, whether in the •course of treatment., or on an examination made with the express purpose-of giving testimony; nor are we prepared to say that it may not be shown, in some instances, that there may be such a thing as an involuntary or mere physical cringing or shrinking from touch, such as the witness .testified occurred in this -ease, on pressure along the course of plaintiff’s spine. But in such case the proof that the flinching is involuntary should be clear, and naturally such exclamations or such acts are subject to be carefully scrutinized, and are open to suspicion. But in no case is it competent to call physicians, any more than laymen, to testify that a party indulged in exclamations not involuntary, or that, from mere appearances, she was unable to go through with certain physical motions. The general rule is well recognized that exclamations of pain, or statements of present suffering, made by a sick person ■while undergoing such pain and suffering, are admissible, on the ground that they are the ordinary accompaniments and expressions of suffering. Such exclamations are regarded as acts, rather than declarations, and admitted from necessity. Lacas v. Railway Co., 92 Mich. 416; Will v. Village of Mendon, 108 Mich. 251, and cases cited. But this rule has been strictly limited, and it has been uniformly held that statements relating to past suffering, or of the causes of suffering, are not admissible; and it is just as firmly established that physicians or others, called to examine or confer with the injured party with reference to the trial of a pending case, are not permitted to testify to the exclamations made at the time, as far as they are voluntary exclamations. See Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 544 (31 Am. Rep. 321); Jones v. Village of Portland, 88 Mich. 598; Laughlin v. Railway Co., 80 Mich. 154. It is suggested that Jones v. Village of Portland rested upon a distinction between cases where the injury was direct, and cases of negligence, and that in this respect it has been overruled by Will v. Village of Mendon, supra. There is language in the opinion in Jones v. Village of Portland which is possibly susceptible of that construction, but we can hardly conceive that the decision rested upon sucli a' distinction. On the contrary,- we think it is apparent that it did not, as the court bases its ruling upon the case of Grand Rapids, etc., R. Co. v. Huntley, supra, which was a case of negligence, and it is impossible to conceive bow the question of the manner in which the injuries were received could determine the character of the proof requisite to show the extent of the injuries. We are constrained to hold that there was error in the admission of this testimony.

The other questions are not of sufficient importance to require extended discussion.

For the errors pointed out, the judgment will be reversed, with costs, and a new trial ordered.

The other Justices concurred.


text:
    DAUER v. HILDEBRANDT.
    Boundaries — Estoppel—Fraud.
    A., the owner of a parcel of land supposed to contain 40 acres, conveyed to B. and G. each 12£ acres of the north 25 acres, and to D. the south 15 acres of such parcel. It subsequently developed that the parcel did not contain full 40 acres. A boundary dispute arose between C. and D./and in a suit in ejectment brought by the latter, wherein defendant claimed that plaintiff had agreed to a line as established by a certain surveyor engaged by defendant, it appeared that the surveyor, without the knowledge of plaintiff, had divided the land by giving to B. and C. the full amount described in their deeds, reducing plaintiff’s parcel to the extent of the shortage. The evidence tended to show that B. and G. were parties to such arrangement. Held, that there was at least a question of fraud for the jury. ,
    Error to Saginaw; Wilber, J.
    Submitted June 20, 1896.
    Decided July 21, 1896.
    Ejectment by Margaret Dauer against Joseph Hildebrandt. From a judgment for defendant, plaintiff brings error.
    Reversed.

      J. H. Davitt and H. E. Naegely, for appellant.

      Ferdinand Brucker, for appellee.
   Hooker, J.

The plaintiff and defendant were adjoining landowners upon a 40-acre lot, and together with one Haas, who owned a parcel to the north of the defendant, upon the same 40, derived their respective titles from the same source. The several deeds purported to convey land as follows, viz.: To Haas, the north 12-1- acres of the north 25 acres of the 40; to the defendant, the south 12£ of said 25 acres; to the plaintiff, the south 15 acres of the 40. These deeds, in terms, purport to convey 40 acres of land; but, as a fact, the 40 was not full, but fractional. We discover nothing in the record that indicates that there was any uncertainty about the boundaries of the 40, and the several parcels were susceptible of easy ascertainment under legal rules, by a mere computation and measurement. The defendant took possession of his parcel, and built a fence upon or near his south line; a portion of it being rail fence, an'd the remainder brush. Subsequently the plaintiff entered, and replaced the brush fence by a wire fence, on a line not exactly in conformity to that occupied by the rail fence. Neither party professed to know just where the line was, and there was testimony offered tending to show that there was talk about having a surveyor. The strongest evidence of an agreement between the parties is found in the testimony of the defendant, who said:

“She said she did not know where the line was. She said she wanted to find out, and wanted to get a surveyor to survey it. So did Mr. Haas.”

The defendant thereupon obtained the surveyor, and the land was surveyed, and two or three days later the surveyor called upon the plaintiff for a portion of his pay, and obtained it. He told her that he had staked out the line, and that the defendant would show her where it was. This defendant did. He testifies that, before he showed her the stakes, he told her that she would get a strip of his land, and he would get a strip of hers.

“This talk was in the house, and then we went out in the field, and I showed her everything. We went to the line between her and me, — to the east and west line. We went the whole length of it. We started at the corner. I told her she would get a strip of mine, and I would get a strip of hers. I showed her where the posts were on the east line, on the east end of the line, and on the west end. She said she was satisfied that those fences should stay there; after awhile I might move it over on the line. She said the 55 rods of fence was on the line, and she was satisfied with it. The balance of the fence was the wire fence she had built. She said that when the fence was rotted down she would move it over, and I could use her piece of ground, and she could use mine; there was no difference in the land. That was on the west end between mine and hers. I owned 40 acres of land west of Mrs. Dauer’s. The survey that Leavenworth made in 1890 showed that her west line was on me. There was a wire fence and posts along there. Mrs. Dauer built it.
Q. State what should be done with the strip of land with the posts and wire fence on, running north and south. State the conversation you had with Mrs. Dauer with reference to it.
“A. Let it stand until it rotted off; then she would move it over to the east. It made no difference, she said; she was gaining as much as I was.
Q. The agreement, then, was that the fence that she had built — the wire fence — was to remain there until the posts rotted off ?
“A. Yes.
Q. And the rail fence that you had built — the 55 rods — was on the line between you and her ?
“ A. Yes; she said the land on the south side of the wire fence was hers. ■
_“ Q. What did she say, — that she was satisfied that the rail fence was on the line, and that should be the line between you and her, if anything ?
‘ ‘ A. That could remain there, she said. ”

Defendant’s wife testified about the transaction as fol - lows:

“I remember when the survey was made by Leavenworth between Mrs. Dauer’s and my husband’s land. I saw Mrs. Dauer not long after that. She came to my house, and I asked if she was satisfied about the survey, .and.she said, ‘ Yes.’ My husband showed her the line, and she said the line, the way it stood, was her right line, and the line makes it kind of slanting, and if the posts are rotten she was going to replace with new ones. My husband went with her to show her the line. Mrs. Dauer came to the house and had a talk after they looked at the line. They were satisfied. I didn’t go with my husband and Mrs. Dauer to look at the line after it was measured. 1 went out of the house with my husband and Mrs. Dauer when they went to look at the line. I went as far as the middle pf the road, and watched them go to the rear end of the lot. When they came back Mrs. Dauer said she was satisfied, and the fence was on the right line; that is, the rail fence. My husband built the new barn after the talk with Mrs. Dauer.”

On cross-examination the defendant testified as follows:

Q. State what, if any, talk you had with Mrs. Dauer, before the commencement of this suit, about her moving that fence. We are talking about the wire fence.
“A. She came over to my house, and said the boys didn’t have nothing to do, and she would like to move her fence. That was in April. She didn’t say where she was going to move it. That is, the wire fence we have been speaking of, east and west. I told her she could move it any time where Leavenworth drove or measured it. She said she didn’t want to; she wanted another surveyor. I told her she could have ten, if she wanted to, but I wasn’t going to pay anything towards it any more; the line that Leavenworth gave us was good enough. That conversation was this spring.”

Not only does the evidence of the plaintiff fail to show that there was an agreement to leave the settlement of a disputed boundary to the arbitration of anybody, but it also shows that she took no part in the selection of the surveyor. She was ignorant of the fact that one was to be, or was, employed, unless it is to be inferred from the expression of a desire to have it surveyed to ascertain the line, which line was not in dispute. She denied that she ever assented that it should be the line when it was shown to her, and that the defendant supposed she had so consented is improbable, in the light of the testimony quoted from his cross-examination, which indicates that when she expressed dissatisfaction with the survey, and wanted another, he assented to it, but declined to help pay for it, because he was satisfied with the first survey. He after-wards tried to prevent its being made. At the time of the survey the surveyor made a plat of the premises, and gave a copy of it to Haas; and there is reason to suppose that the defendant saw it, if he did not have a similar one. Defendant’s brief appears to admit that he had one. From this plat it clearly appears that the land was divided by giving to Haas and the defendant each 12-| acres, being the full amount described in their deeds. The plaintiff’s parcel was reduced to the full extent of the shortage. This was not a lawful division, and we think that the defendant’s own testimony justifies the conclusion that he and Haas obtained an undue advantage over this plaintiff, who was- never shown a plat, or informed that the shortage was taken from her premises. We think, therefore, that it cannot be said that this boundary was settled in good faith, and acquiesced in, and that the court not only should have left the question of fraud to the jury, but that he should have instructed the jury to return a verdict for the plaintiff.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

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    LONGYEAR v. GREGORY.
    1. Judgment — Partnership—Joint Tort Feasors.
    A judgment may be rendered against joint tort feasors notwithstanding a failure to prove an allegation of a partnership as between them.
    2. Appeal — Instructions—Failure to Except.
    Failure to except to an instruction permitting the jury to include interest in the damages awarded precludes a consideration of the question on appeal.
    3. Trespass — Treble Damages.
    The fact that the vendor of a parcel of timber land pointed out an adjoining parcel to the vendee as the land sold will not relieve the latter from liability to the owner of the adjoining land in treble damages under 2 How. Stat. § 7957, for timber cut and removed therefrom, where it appears that the bill of sale correctly described the land sold, that the vendee cut the timber on both parcels, and that a part of the timber was removed by him from the land in question after he knew that it did not belong to him.
    Error to Dickinson; Stone, J.
    Submitted April 29, 1896.
    Decided July 21, 1896.
    Trespass by John. M. Longyear and others against Frank Gregory and Frederick J. Schliemann, copartners doing business under the firm name of the Amberg Cedar Company, to recover treble damages for cutting and removing timber from plaintiffs’ land. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Gook & Pelham, for appellants.

      Ball & Ball, for appellees.
   Moore, J.

In November, 1893, the Amberg Cedar Company, through the agency of one Whitney, purchased of the firm of Mann Bros, five 40’s of timber lands in Dickinson county. One of these 40’s was the S. E. ¿ of the N. E. i of section 8, town 42 north, of range 30 west. Whitney, as agent of the Mann Bros., took defendant Schliemann over the lands before the purchase, and pointed out the S. W. £ of the N. E. instead of the S. E. i of the N. E. i, of the above section, as a part of the lands. The said S. W. ¶ of the N. E. \ is the property of the plaintiffs. Defendants .located their lumber camps on this 40, and commenced operations. They also cut the timber on the S. E. of the N. E. i. On March 27, 1894, they had cut nearly all the timber from this 40. A few days after, they were notified by one Lewis, plaintiffs’ agent, that they were trespassers; that the S. W. ‡ of the N. E. ¿ of section 8 was the property of plaintiffs. At this time a good deal of the timber was yet on the ground, and a good portion of the balance was piled on the adjoining 40. Defendants shipped and sold all of the timber, posts, trees, etc., they cut from this land.

It was claimed that defendant’s firm consists of Schliemann and Florence R. Gregory, wife of Frank Gregory, and that Gregory acted as his wife’s agent, and did the clerical business of the firm, only. Testimony was introduced tending to show that Schliemann never saw the bill of sale of the lands, and consequently did not know the descriptions it contained; that Gregory read the bill of sale, but was inexperienced in the lumber business and the descriptions of lands; that Schliemann placed the camp on the land designated by Whitney as part of the lands for which Schliemann was negotiating; and that Gregory visited the camp occasionally, and paid the men. The record discloses that what was done was done by the direction of Schliemann and Frank Gregory, so far as the active operations resulting in the trespass were concerned.

The defendants having cut and removed the pine, cedar, hemlock, and tamarack in controversy, plaintiffs brought suit in an action of trespass, and sought to recover treble damages, under the provisions of section 7957, 2 How. Stat. The jury returned a verdict in favor of plaintiffs for $277.61 damages, and a member of the jury at the same time handed to the court a pencil memorandum containing several items.; among others, one for interest, $22.92, and with the footing $277.61. Defendants presented no requests to charge. -In his charge to the jury, the court instructed them as to the respective claims of the parties hearing upon the question of damages, and closed by saying: “ Now, there is quite a wide difference. You are to look over the evidence in this case, and say which is just, if either is just, and, if you say neither one of these figures is just, ascertain what is just, add interest to it for a year and a half, and report it to this court as your verdict.” No exception was taken to this or any portion of the charge by defendants. Upon the verdict as rendered by the jury, the court rendered judgment for $832.83 and costs.

A number of assignments of error are made, and all have had consideration. The only one that can be considered, upon the record as made, is, did the court err in rendering a judgment for three times the damages assessed by the jury? It is urged that $22.92 has been included in the verdict as interest, and that the judge could not treble this amount in rendering judgment. It is possible that interest was allowed by the jury in making up their verdict, though it is not conclusively shown by the record. They could have done so under the charge of the court, to which charge defendants took no exception. "We think it too late to criticise that feature of the case now.

The important question in the case is whether, under the facts shown by the record, judgment could be rendered for three times the amount of the damages assessed by the jury. The statute reads:

“Every person who shall cut down or carry off any wood, underwood, trees, or timber, or shall girdle or otherwise despoil or injure any trees on the land of any other person, without the leave of the owner thereof, or on the lands or commons of any city, township, village, or other corporation, without license therefor given, shall be liable to the owner of such land, or to such corporation, in three times the amount of damages which shall be assessed therefor in an action of trespass, by a jury, or by a justice of the peace in the cases provided by law. ” 2 How. Stat. § 7957.

The defendants did not ask the court to pass upon the question of whether the trespass was casual and involuntary, or whether defendants had probable cause to believe the land where the trespass was committed was theirs, nor did they except to the instruction of the court “that the single question in the case was the question of damages,” so that it is doubtful if that question is open for discussion; but we deem it best to consider and dispose of the case upon its merits.

It is urged that this case does not come within the spirit of the statute; that there is nothing to indicate willfulness, wantonness, or evil design in what they did; and that unless they committed a willful wrong the statute would not apply, — citing Wallace v. Finch, 24 Mich. 255; Russell v. Myers, 32 Mich. 523; Clark v. Field, 42 Mich. 342; Michigan Land & Iron Co. v. Deer Lake Co., 60 Mich. 143 (1 Am. St. Rep. 491). These cases undoubtedly do hold that the damages provided for in the statute are in their nature punitory, and are not designed to be inflicted in the absence of active misconduct. In the last-named case it was held that the burden of proof was upon the defendant to show that the trespass was casual and involuntary. "We do not think the record shows this was done in the case before us. The inference to be fairly drawn from the proof cannot be harmonized with the idea of good faith on the part of defendants. It' will be remembered that the statute applies, not only to those who cut down, but to those who carry away, timber, etc. Not only did the defendants cut the timber from the S. W. £ of the N. E. £, which belonged to the plaintiffs, but they also cut it from the S. E. ^ of the N. E. £. An inspection of their bill of sale would have indicated to them that they had no right to cut the timber from both, of these 40’s. Neither would it require a great amount of experience in the woods to indicate they had no right to cut over 80 acres of land when they had title to but 40 acres. The record also discloses that when Mr. Lewis, acting for the plaintiffs, visited them, a large quantity of posts cut from this land were still on the land; other portions of the timber were near by, on an adjoining description; and, after they knew the title to the lumber and timber was not in them, the defendants shipped it away, and appropriated the proceeds to their own use. It cannot be the law that no degree of care is required of one who goes on land to cut timber, or that he may recklessly, and without trying to ascertain the facts, cut and carry away timber, and then say that the owner, who may have wanted to keep his timber, must content himself by receiving as his damages only what the timber was worth on the land. It was to meet such cases as the one at issue that the statute was passed. See Cushing v. Dill, 3 Ill. 460; Loewenberg v. Rosenthal, 18 Or. 178.

The judgment of the court below is affirmed.

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


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    ZIEGAN v. STRICKER.
    Principal and Agent — Authority to Reoeiye Payment of Mortgage.
    A finding that a given person was authorized to receive the principal of a mortgage in the possession of the mortgagee is sustained by evidence that the latter placed moneys in the hands of such person from time to time, to loan when opportunity offered, and that he collected the interest and principal of loans so made, obtaining discharges of the mortgages as they were paid, crediting the amount to the mortgagee, and reinvesting the same for him.
    Appeal from Wayne; Frazer, J.
    Submitted June 5, 1896.
    Decided July 21, 1896.
    Bill by Oscar M. Ziegan and wife against Christian F. Strieker to compel the discharge of a mortgage. From a decree for complainants, defendant appeals.
    Affirmed.

      Maybury & Lucking and William E. Thompson, for complainants.

      Edward A. Strieker (Walter Barlow, of counsel), for defendant.
   Long, C. J.

This bill was filed to compel the discharge of a mortgage made by the complainants to the defendant on July 3, 1891, for the sum of $200, with interest payable semi-annually, the complainants asserting that they had paid the money into the hands of one Julius Stoll, “who was the agent, as claimed by them, of the defendant, and authorized by him to receive the money on the mortgage. The defendant filed a cross-bill, asking the foreclosure of the mortgage.

Ii appears that, for some years, Julius Stoll had received from the defendant various sums of money for investment on real-estate mortgages; that he had from time to time made such investments, collecting the principal and interest thereon. In receiving money from the defendant, Stoll credited the samé in a general account which he kept with defendant. In this particular transaction he had on hand moneys which defendant had turned over to him. The complainants, who resided at Cleveland, Ohio, made application for a loan to Stoll, who prepared the papers, and forwarded them to complainants, at Cleveland, for execution. They executed the papers there, and returned them to Stoll, who forwarded the money to them, and placed the mortgage on record, and then sent it with the accompanying note to defendant, at Brighton. Complainants paid the interest on the mortgage at all times when it became due, and on January 3, 1895, they forwarded to Stoll the full amount of principal and interest to that date. Stoll died January-14, 1895. No discharge of the mortgage was executed, when, on July 1, 1895, the complainants called upon the defendant, and presented a certificate of discharge of the mortgage to him for signature, which he refused to execute. Complainants’ claim is that Stoll was the general agent of the defendant in loaning the money upon the mortgage and receiving interest and principal thereon, and that payment to Stoll under the circumstances as shown by this record was payment to the defendant.

. It appears that defendant, in other transactions, had intrusted the loaning of money on mortgages to Stoll, and the collection of interest and principal by him. The manner in which the business was done was the placing of moneys in Stoll’s hands in small sums from time to time; Stoll making the loans when opportunity offered, and thereafter collecting the interest and principal, obtaining discharges from the defendant from time to time as the mortgages were paid, crediting the moneys to the defendant upon his books of account, and reinvesting them for the defendant. The defendant, in his testimony, says substantially that generally he did not authorize Stoll to collect the principal of mortgages without sending for the discharges first; but it is apparent from his own testimony that he did not wait to get the money into his own hands before executing the discharges, but left the matter of collection to Stoll; that, when Stoll wrote for discharges of mortgages, they were forwarded to him, the moneys thereafter collected, and credited to defendant’s account. ' In the present case, the moneys were sent to Stoll by the complainants, and entered on the account of the defendant upon Stoll’s books, as follows: “January 3. Christian F. Strieker, by cash, of Oscar M. Ziegan, in satisfaction of mortgage, $207.50, discharge.”

The court below, upon the facts shown, entered a decree in favor of the complainants, compelling the discharge of the mortgage, finding, upon the testimony, that Stoll was the general agent of the defendant to receive the money in discharge of the mortgage. We think in that the court was correct. The case falls within the rule of Wilson v. La Tour, 108 Mich. 547.

The decree of the court below will be affirmed.

The other Justices concurred.


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    GROVE v. YOUELL.
    1. Landlord and Tenant — Eviction—What Constitutes.
    A tenant is evicted from a room in. a'building, so as to constitute a breach of a bond securing the right to its occupancy, where the only mode of access to the room is denied to him • by the procurement of the obligor, in consequence of which the occupation is abandoned
    2. Same — Damages.
    The measure of damages for the eviction of a life tenant from the premises demised consists of the rental value of the premises from the date of eviction up to the commencement of the action, and the present worth of the rental value from that time forward during the tenant’s life expectancy.
    3. - Appeal — Instructions to Jury — Damages.
    An objection that the charge of the court was not sufficiently specific as to the method of computing damages will be disregarded on appeal, where no requests for instruction upon that subject were presented to the trial judge.
    Error to Kent; Adsit, J.
    Submitted June 10, 1896.
    Decided July 21, 1896.

      Assumpsit by Mary E. Grove against Azlena Youell upon a bond. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Lombard & Hughes, for appellant.

      Daniel E. Corbitt and Albert Crane, for appellee.
   Long, C. J.

This action is upon a bond given by the defendant to the plaintiff. The bond recites that the defendánt, being in debt to the plaintiff, for the purchase price of certain lots in the city of Grand Rapids, in the sum of $4,000, agrees to pay that sum, with interest at the rate of 7 per cent., payable semi-annually, within five years from the date of the bond. The-bond further cites:

“ It is further agreed that the said Grove may occupy any room in the house that is on said lots, or any room in ■any house that may be built on said lots to take the place ■of the one that is now on them, that she may select, during the remainder of her natural life. It is further agreed that the said Youell shall pay the said Grove the further ■sum of $50 every six months during the remainder of her natural life. Then this obligation shall be void; otherwise to remain in full force and effect.”

The breach of the conditions of the bond assigned is that the two half-yearly payments that fell due June 11 and December 11, 1894, were unpaid, together with the interest thereon. The further breach assigned is that, in pursuance of said agreement, the plaintiff selected a room in said house, of which the defendant had notice,—

“ And the said plaintiff entered into and took possession of said room, and occupied the same until on, to wit, the 1st day of October, 1893, at which time the said defendant evicted her therefrom; and afterwards, to wit, in the month of October, 1893, the said defendant rented the house that was on said lots to Hiram R. Ellis, who, with his family, entered into and took possession of said house, and still occupies the same; and the said defendant and her tenant aforesaid entered the room so selected as aforesaid by the said plaintiff, and evicted the said plaintiff, and deprived her of the use and benefit thereof, and compelled the said plaintiff to abandon the same.”

Upon the trial the plaintiff introduced testimony tending to support the allegations of her declaration. There was no denial on the part of the defendant of the amount due upon the agreement, and the court so directed the jury. The controversy was over the question whether the plaintiff had been evicted by the defendant, or with her knowledge. That fact was asserted by the plaintiff and denied by the defendant.

The court charged the jury upon this question, and upon the question of damages, as follows:

“To constitute an eviction of plaintiff from the room by defendant, an actual, physical expulsion was not nec-essary. Any act or acts of the defendant which deprived the plaintiff of the beneficial enjoyment of the room, to which she was entitled under the bond, would amount, in law, to an eviction. If, by the procurement of the defendant, the plaintiff was excluded from access to such room, with the intention and effect of depriving the plaintiff of enjoyment thereof, and the plaintiff yielded to such exclusion, and abandoned the occupation of such room, such exclusion, in law, would amount to an eviction. It is not necessary that you should be confined to any one of the several alleged acts testified to on the part of the plaintiff, from which to find whether or not an eviction has been established by the evidence. You have a right to take into consideration all.the facts and circumstances proved in the case, relating to the alleged breach, prior to the commencement of this action. It is for you to determine the credibility of the witnesses sworn in the case, and to give to the testimony of each such weight as you think it is entitled to. It was the duty of the defendant to provide the plaintiff with the facilities of ingress and egress, to the room in.question. If, as it is claimed by the plaintiff, the tenant of the defendant refused the plaintiff ingress to the room, which fact was communicated to the defendant, and she thereafter refused or neglected to provide plaintiff with facilities for ingress and egress to the room, with intent thereby to deprive plaintiff of th,e free use of said room, then such alleged facts, if you find them to be true, constituted an eviction by the defendant of the plaintiff from the room in question. It is for you to say whether it is true, or not, from the evidence in the case. Of course, if you find it was not true, it would not constitute an eviction, because there would be nothing to base it on, so far as that alleged fact is concerned.
“If you find that the assignment of the breach of the bond by the defendant, in evicting the plaintiff, is true, and that the plaintiff should recover damages therefor, then the plaintiff was not bound to renew the contract broken by the defendant, either by making any subsequent demand for the possession of the room, or by accepting possession of the room of the defendant after-wards, and you will assess the plaintiff’s damages for this breach. The damages sustained by the plaintiff under the breach of the bond assigning an eviction, if any, include damages for two different periods: First, damages from the date of the eviction to the commencement of this suit; and, second, damages from the date of the commencement of this suit to the time you determine that the plaintiff will probably live. Under these instructions it will be necessary for you to determine when the eviction occurred. The date of the commencement of this action is shown by the files in the case to have been the 19th day of March, 1895. The measure of damages from the date of eviction to the commencement of this suit will be the rental value of the room during that time, — the fair rental value of it; what it was actually worth. To determine the plaintiff’s damages, if any, subsequent to the commencement of this suit, you will find from all the evidence in this case, considering the plaintiff’s age, her health, her condition in life, her expectation of life, as shown by the table of mortality based on American experience, and the circumstances under which she is placed, how long she will probably live, and the annual rental value of the room during that time, and then determine the present worth of that rental value for one year, for two years, and so on, up to and including the expectation of life which you find, and add these sums together. The present worth of the annual rental value of the room may be obtained by dividing the annual rental value by one dollar plus the interest on one dollar at the rate of 6 per cent, per annum for one year, and for two years, and so on, ,up to and including the expectation of life which you find from all the evidence in the case. The present worth of the annual rental value of the room subsequent to the commencement of this suit, added to the damages found before the commencement of this suit, will be the amount of damages you should assess for the breach of the bond averring the eviction. If you do not find for the plaintiff on the breach assigning an eviction, then you will find in your verdict that the breach so assigned is not true, and that the plaintiff should not recover damages therefor.”

The court also instructed the jury as to what the form of the verdict might be upon either branch of the case. The jury found there was due upon the money part of the bond the sum of $107.50, and, as damages for the eviction of the plaintiff from her room in the house, the sum of $500.

The first assignment of error relates to the charge of the court; and the defendant asserts that the cause was tried upon the theory that, if plaintiff was evicted from the room selected by her by defendant’s tenant, Hiram E. Ellis, or by his wife, defendant would be liable for damages, regardless of defendant’s knowledge, consent, or authorization of such eviction; and it'is insisted that the court was in error in this charge. The case was not submitted to the jury upon that theory.. The portion of the charge relating thereto has been set out above. The evidence tended to show that there was an eviction by the procurement of the defendant. We need not set forth the evidence here. We think there was sufficient evidence upon which to base the charge of the court, as given.

Defendant’s requests from 1 to 6, inclusive, were properly overruled by the court. The seventh request was upon the theory that the lease which defendant gave to Ellis reserved to the plaintiff the room in question, with right of ingress and egress, and that it then and there became the duty of Ellis to recognize such right of occupancy and of ingress and egress to and from said room, and that the conduct of Mr. Ellis or his wife could not be considered, unless the jury were satisfied, by a preponderance of evidence in the case, that such action and conduct were at the request and by the direction of' the defendant. It is evident that the court below did not regard the lease as reserving the rights to which the plaintiff was entitled, but that Ellis and his wife, under the lease, and with the knowledge of the defendant, ejected the plaintiff from the premises. The lease from defendant to Mr. Ellis was for the period of three years, at the sum of $16 per month. So far as.*any rights of Mrs. Grove are recognized in the lease, they are stated as follows:

“Yielding and paying therefor * * * during the occupancy by Mrs. Dr. Grove of a portion of said dwelling house; and, when Mrs. Grove vacates said dwelling house, the sum of $18 per month is to be paid, in lieu of $16, as before stated.”

The lease then provides that, upon the keeping of the covenants and agreements by Ellis,. he is to have and hold, possess and enjoy, the premises, with the appurtenances, during the said term, without let or hindrance from the lessor, or any person claiming by or under her.

Plaintiff testified that, after the premises were rented to Ellis, defendant tried to induce her to surrender the room, and accept a room in the house where defendant was then living. This she refused to do. In a conversation afterwards, defendant said to plaintiff:

“ I have rented the house. * * * I can tell you in short order what I will' do about the room: I never will pay you a dollar for the room, and I will give you good notice it never shall be worth a dollar to you. When you leave it, you will never want to go into it again. I will fill the house with the dirtiest things I can find in Grand Rapids. I can do it if I have a mind to.”

Plaintiff responded: “I suppose you can. It is your own house,” — when defendant replied:

“ Well, when any one tries to be mean with me, I give them good notice, I make them sick. They don’t get the start of me.”

Defendant herself testified that she told Mrs. Ellis that she understood the plaintiff had moved all her things out that were of any value, and presumed the balance might be put into the attic, and she might use the room. The plaintiff made application to Mrs. Ellis to have her room, when she was told she could not go to her room, and that Mr. Ellis told her not to let Mrs. Grove go to the room. Judge Grove thereupon went to see the defendant in reference to this room, and asked if she would be allowed to occupy it. Defendant replied: ‘ ‘ Why, yes; she can have access to the room, if she can get to it without going through the house.” He then asked if there was an outside stairway, without going through the house, and defendant said, “No.”

We think, under the terms of the lease, and this testimony, that the charge of the court was correct as to what constituted an eviction. As was said in Royce v. Guggenheim, 106 Mass. 201:

“ Any act of a permanent character done by the landlord, or by his procurement, with the intention and effect of depriving the tenant of the enjoyment of the premises demised, or of a part thereof, to which he yields, and abandons possession, may be treated as an eviction.”

In Pridgeon v. Excelsior Boat Club, 66 Mich. 326, it was said by this court:

“A party should be held evicted when the act of the landlord is of such a character as to deprive the tenant, or has the effect of depriving him, of the beneficial use and enjoyment of the whole or any part of the demised property, to the extent he is thus deprived.” See, also, Hoeveler v. Fleming, 91 Pa. St. 322.

It is also contended that the court was in error in leaving to the jury the amount of damages, without any legal basis of computation. It will be noticed that the court, by its charge, fixed the date at which the computation should be commenced as the time when the suit was commenced, and the rental value of the room from that time forward, including the expectation of life of the plaintiff, based upon the mortality tables. This was the correct measure of damages. Balch v. Railroad Co., 67 Mich. 394; Kinney v. Folkerts, 84 Mich. 616. As was said in Kinney v. Folkerts, supra, “If the defendants desired fuller instructions, it was their duty to have asked them.”

The judgment must be affirmed.

The other Justices concurred.