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    H. N. Strong v. The Grand Trunk R. R. Co.

      Common Carrier: When inteimediaie consignee liable for .deduction of freight. In an action by a carrier against an intermediate consignee for a deduction of freight, by virtue of an alleged custom permitting shortage to be deducted when it did not arise from the fault of the prior carrier: Hdd^ that the action was properly brought, if the deduction was made undér protest, and the carrier had not accounted with the owner of the cargo when suit was commenced.

      Mercantile custom, when void. .A custom that an intermediate carrier who received property subject to charges may deduct from the freight earned by a prior carrier the value of any deficiency between the quantity delivered and that stated in the bill of lading, and that the prior carrier shall not be allowed to show that an error occurred in stating the amount in the bill of lading, is not such a valid custom as the courts will enforce.

      Heard October 24th 1866.

      Decided January 14th.

    Case made for review from Wayne Circuit.
    This was an action of assumpsit, brought by the plaintiff as owner of the schooner Swallow, to recover a balance of freight due upon a cargo of corn carried in plaintiff’s vessel from Chicago to Sarnia, and delivered to defendants as intermediate consignees. The object of the suit was to test the right of an intermediate consignee to deduct shortage, when it does not arise from the fault of the prior carrier.

      The declaration consisted of three special counts, averring in as many different forms, an indebtedness of the defendants for freight, due upon the transportation of a certain cargo of corn, in plaintiff’s schooner Swallow, from Chicago to Sarnia, and the delivery thereof to the defendants at that place. To these were added the common counts.
    The plea was the general issue, with notice of special matter.
    The facts are stated in the opinion.
    The case was tried without a jury, and judgment was rendered for the defendants.

      H. J3. Brown, for plaintiff.
    1. This action is properly brought against the defendants as intermediate consignees.
    The vessel undoubtedly had a lien upon the cargo for freight, but the defendants also had a right to an examination of its condition and quantity before payment could be required. — 3 Kent's Com. 214; 1 Ah. Adm. 209 ; 21 How. 527; 1 JBosw. 177.
    By the custom of the lake ports this could only be done by delivering the cargo into defendant’s elevator, where it was mixed with other grain of the same kind and quality and its identity lost. The defendants took the' cargo with notice in the bill of lading that the master would look to them for freight, and in so taking it and depriving the vessel of its lien became obligated to pay. — 1 Pars. Mar. Law, 220, 221 ; 1 Iredell, 236.
    This rule that any party receiving goods' under a bill of lading conditioned upon payment of freight is liable therefor, is well stated in Canfield v. Northern B. B. Co. 18 Barb. 586, the leading case upon this point; and see 24 NY. 317.
    It is also shown and admitted to be the custom for carriers receiving cargoes from other carriers to pay all back charges and to retain their lien for them at the place of destination. This custom has been expressly-recognized by the courts. — 37 Barb. 236 ; 8 Gray, 266 ; 6 Alim, 246 ; Hill and Benio, 163; 1 X. and 8. 157; 5 X. and W. 502.
    This may now be considered the settled law of the land.
    2. As between the owner and consignee of the cargo (or his agent) and the vessel, the bill of lading may be explained by showing a mistake in the amount or condition of the cargo.
    A bill of lading is both a receipt and a contract; so far as it is a contract, it can not be explained; so far as it is a receipt, it follows the ordinary rules relative to such instruments and may be shown to have been signed ignorantly or through mistake. — Abbott on tShipping, 324 ; 1 Bars, on Xar. Baw, 137; 8ee 1 Xoody and By. 106; 7 A. and E. 29; 3 Saund. 7, 399; 12 12 Barb. 99; 1 Abbot Adm. 115, 188, 212, 397 ; 5 8eld. 529 ; 16 III. 408.
    In the present case there can be no doubt as to the cause of the deficiency. The measurement in defendants’ elevator is admitted to have been correct; it is also shown that the vessel put to sea with her hatches battened down, and that no loss or damage occuz’red upon the voyage. Hence there must have been a mistake in the measurement at Chicago — probably an error of one tally, as the corn was weighed in hoppers of 200 bushels — nearly the amount of the shortage.
    3. Defendants had no authority to deduct the value of the shortage in this case.

      a. They would not have had this authority even if the cargo had suffered loss by an act for which the vessel was responsible.
    The claim of defendants is in the nature of a set-off or recoupment, and might be made the . foundation of a separate action. Indeed, at common law, and in England, the rule is well settled that the shipper can not, in an action brought against him for freight, set up in defense that the goods were damaged by the negligence of the carrier, but is obliged to resort to a cross action.— 1 Pars. Mar. Law, p. 172, note 2, and cases cited.

    Hence, the defendants can have no greater rights than they would have had if they had paid the entire freight and brought an action against the carrier. Now, the general rule is perfectly well established that actions against carriers for loss or damage must be brought in the name of the person whose legal right has been affected.— Angelí on Carriers, §491; 1 Pars, on Mar. Law, 212-219.
    In general the owner is the only proper party to sue, and the only case in which a mere carrier can bring suit concerning the goods is where damage is done them while in his qiossession — an action arising solely from his possessory interest. — Angelí on Carriers, § 348; Story on Pailm. § 93-95.
    Cases of this kind usually relate to the question as to whether the consignor or consignee is the proper party to sue, and it has been repeatedly held that neither of them, as such, is entitled to bring the action; Angelí on Carriers, §495 ; 15 Wend. 474; 4 JBlackf. (Bid.) 364. And it usually turns upon the question as to which has the right of property in the goods. — 1 Ld. Pay. 271; 3 P. and Ad. 283.
    In the present case the defendants had not the slightest interest in the cargo until it came into their possession. Their adjustment of shortage would not be binding upon the owner unless subsequently ratified by him (Trams v. Thompson, 37 Barb. 236,) nor would payment of the deficit to defendants exonerate the vessel from liability, unless the owners had actually received the amount from them.

      b. But conceding for the sake of the argument that an intermediate consignee is authorized to deduct shortage where it is occasioned by the admitted fault of the the vessel, no case holds that an intermediate consignee-is authorized to deduct shortage where it arises from a cause for which the carrier is not responsible.
    The books are full ■ of cases holding that when the consignee is sued for freight and sets off damage or deficiency of the cargo, the plaintiff may show a' mistake in the bill of lading. — 33 Barb. 532; 28 JST. IT. 590; 3 Alim, 103; Abbott's Adm. 115, 212; 1 A. and BJ. 29; 3 Sand/. 7, 399 ; 12 Barb. 99, 112; 5 Seld. 529; 16 III. 408; 7 Mass. 297; 1 Gal. 417; 34 Me. 554; 4 Ohio, 334; 5 Ala. 430; 8 Gray, 287; 7 Allen, 456.
    This case is peculiarly strong in that the Bank of Montreal is both the consignor and consignee of the cargo, and as against them there is no question but that we should have the right of explaining the mistake.
    4. The only defense to this action is based upon an alleged custom for common carriers in receiving grain from other carriers to deduct the value of the shortage as shown by their own measurement, regardless of the fact whether the same originated from the default of the carrier.

      a. Evidence of this should be rejected because the custom is wholly unreasonable. It puts the owners and masters of vessels completely at the mercy of railroads and elevators by depriving them of their lien upon the cargo, and without giving them an opportunity to defend themselves, or even explain the deficiency; extorting such shortage as they may choose to demand, regardless of the master’s protest and the fact that the vessel is in no wise at fault. “A custom which is contrary to the public good or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason.” — Broom's Legal Maxims, 826.

      b. The custom has not been acquiesced in, but has been the subject of constant dispute.
    The multitude of cases cited in this brief also show it to have been a constant subject of litigation. The truth seems to be that vessels are willing to pay one-tenth of one per cent, for unavoidable wastage, or when the shortage is their own fault; and that peaceable men will generally submit to extortion rather than a law suit. '
    In fine we contend that the established principles of law should not be set aside, and we be compelled to submit- to this forced deduction without some guaranty: that the measurement of the receiving carrier and the price charged per bushel is correct: that defendants’
    adjustment will be ratified by the owner: and that in a suit against him this adjustment will be recognized by the courts.
    And we certainly should not be held responsible where the vessel clearly exonerates herself from fault.
    Maynard, Meddaugh and Swift, for defendants.
    1. The defendants claim that there has existed for many years,, among carriers of grain shipped in bulk, a custom, whereby one receiving grain from another, deducts from the freight, to which the latter is entitled, the shortage, if any there be, to be determined by comparing the quantity actually delivered with the quantity specified in the bill of lading.
    That the custom is proved will not be denied. But it is claimed to be void because it is unreasonable.
    2. When goods are transported by a single carrier, there is no doubt Of the right of the consignee to deduct from the freight the value of any portion of the goods which may have been lost in their transportation.— 8 Mich. 281.

      But when goods are transported over a long route, by several successive carriers, and each carrier who receives the goods pays all the back charges, — whether the consignee shall have the right to deduct from the whole amount of freight, damages which he has sustained by reason of a loss during the transportation, is a different question.
    If the loss occurred solely through the fault of the last carrier, the right of recoupment would undoubtedly still remain. But if he was guilty of no fault, and the loss occurred through the neglect or misfeasance of some previous carrier, the right to recoup damages will depend upon circumstances.
    As against any carrier, through whose fault an injury has happened to the goods, the consignee has a right to recoupment.
    And when a carrier receives goods from a previous carrier, on the same route, through whose gross carelessness or willful misfeasance, it is admitted or is clear that a loss has occurred, it would be paying a premium for neglect of duty’ to allow the former to pay full freight, and then recover the same sum of the consignee. In such a case there would seem to be no doubt that the carrier receiving the goods ought to adjust the lo’ss with the previous carrier, or that the consignee would have a right of recoupment.— 24 JST. Y. 31T; 6 Gray, 539.
    But when the goods received by the second carrier, though they have, in fact, been' damaged in the transportation, are in apparent good order, and he, in good faith, pays full freight, without any deduction, it may be right that he should recover of the consignee the sum thus paid. To adopt any different rule would compel each carrier to open packages and make a minute examination of each item, and thus cause great delay and expense, and subject the goods to the risk of additional njury in • the handling and examining them.

      But in this class of cases he must see that the goods are in apparent good order, as described in the previous bill of lading, or if not, use reasonable exertions to ascertain how they became damaged, and the party liable therefor. — 16 III. 408.
    3. In a case like the present, where, upon comparing the actual quantity delivered, with the quantity specified in the bill of lading, there is an apparent deficiency, this custom comes in and puts an end to the difficulty. It makes the bill of lading conclusive upon the carrier who first receives the goods, and requires him, in case t of mistake, to look to the party from whom he received them. It does no injustice to him. For he might have protected himself, either by requiring payment of freight in advance, or by making sure that the quantity of goods delivered to him corresponded with the quantity mentioned in the bill of lading, or by insisting upon an agreement that, for any discrepancy in quantity between the goods, as measured anywhere on the route, and as stated in the bill of lading, he should settle with the consignee alone. Such a custom fixes an invariable rule; compels the persons to whom it properly belongs to adjust any loss; prevents disputes among successive carriers; relieves the carrier who receives the goods from all embarrassment, and expedites the carriage, of the goods.
    A custom, justified by so many reasons and adopted by the practical wisdom of experienced men to meet the necessities of their business, and so long maintained, is surely a reasonable one.

      4. But though the custom is not a valid one as to all persons, the rights of those who have acted upon it are to be governed by it. So far as the plaintiff is concerned, the presumption, from his having been so long engaged in the business of carrying grain, together with other circumstances, is that he knew it.

      5. But, assuming that we mistake the facts, and that the master denied the right to make any deduction for shortage, on what grounds are the defendants liable for the balance of freight due the plaintiff? If the corn had belonged to them, or been carried for their benefit or at ► . their request, there might be some ground for implying an agreement to pay for such freight. But they were under no more obligation to pay it than any other person, unless, upon receiving the goods, they, either expressly or by implication, promised to pay for it. So far from that, they expressly refused to pay any more than they did pay, and the plaintiff, by his agent, received the sum they offered. If the mutual assent of the parties is essential to a contract, then here was no contract. In order to maintain this action, the plaintiff should show — what he had failed to do — that the master informed the defendants he should still hold them liable for the balance of the freight, and gave them an opportunity to return the corn. By consenting to their keeping the corn, and receiving the money, he waived all right to any further claim upon the defendants. — 24 N. ~T. 31V.
   Cooley J.

This case presents questions regarding the proof and validity of a mercantile custom, by which an intermediate consignee is authorized to deduct from the back freight earned, any deficiency in. the cargo, as shown by a comparison of the bill of lading with the measurement of the carrier receiving it.

It appears that the plaintiff’s vessel, the schooner Swallow, took- on board a quantity of corn at Chicago, consigned to the Bank of Montreal, Coburg, and stated in the bill of lading to be 20,034-f$- bushels. This was the measurement of the elevator at Chicago, and was supposed at the time to be correct. On the delivery of the cargo to the defendants as intermediate consignees, at Sarnia, a deficiency of 205-f$ bushels was discovered, and the defendants, thereupon, refused to pay the freight upon the amount actually delivered, except subject to a deduction of the value of this deficiency; justifying their refusal upon the custom mentioned. The evidence of the master of the vessel, if trustworthy, would show very clearly that the apparent deficiency was in consequence of erroneous measurement at Chicago; and as the supposed custom makes no exception of the case where the master is not in fault, we must consider its validity on the assumption that the facts are as claimed by the plaintiff.

It may be well to see at the outset what the rights of the parties would be in the absence of any such custom, and what the changes are which it proposes to make in the law.

There can be no doubt that although the bill of lading specifies the ' amount received, it is, notwithstanding, like other receipts, open to explanation, and the carrier is at liberty to show that the actual amount which came to his hands is different from that stated: Wolfe v. Myers, 3 Sandf S. C. 7; Ward v. Whitney, Id. 399; Dickerson v. Seelye, 12 Barb. 99; Backus v. Schooner Marengo, 6 McLean, 487; Blanchard v. Page, 8 Gray, 287. And see Bilis v. Willard, 9 N. Y. 529. The qualification of this rule is where third persons have acquired rights by purchase or advance of money, based upon the statement contained in the bill of lading, and relying upon its accuracy: the extent of which qualification, and when and against whom applicable, it does not become important to discuss here, inasmuch as it is not claimed that any such rights have intervened.

Although the consignee of property is authorized to recoup from the freight earned any losses properly chargeable to the carrier, it is well settled, and indeed follows logically from the rule before stated, that he is not entitled to deduct as deficiencies any difference between the amount delivered to Mm, and that receipted by the bill of lading, where the carrier can show an error in the bill, and that he actually delivered all that he received. Bissell v. Price, 16 Ill. 408; Ryder v. Hall, 7 Allen, 456; Meyer v. Peala, 33 Part: 532; S. C. 28 N. Y 590; Sears v. Wingate, 3 Allen, 103. See for the same principle Bowman v. Silton, 11 Ohio, 303; Lee v. Salter, Palor, 163. That the carrier has a lien upon the cargo for the freight earned is not disputed; 3 Sent, 214; Clvitty on Carriers, 220; Pars. Merc. P. 212; and an intermediate consignee by whom the property is received subject to the charges, is liable to an action therefor in case of neglect or refusal to make payment. — Abbott on Shipping, 421; Canfield v. Northern R. R. Co. 18 Parb. 586.

The custom alleged, if valid, changes the .settled law in several important particulars. Firstly: It precludes the carrier, as between himself and the intermediate consignee, from explaining the bill of lading and showing any error that may have occurred in stating the quantity; and this without regard to the question of intervening equities. Secondly: It gives to the intermediate consignee the right not only to deduct the deficiencies chargeable to the carrier, but also all such discrepancies between the bill of lading and the actual amount delivered by the latter, as have resulted from erroneous measure or count, and consequently are not deficiencies in any proper or legal sense, and could not, in a suit between the carrier and the ultimate consignee, be recouped at all. Thirdly: As to any amount thus deducted, and not properly chargeable to the carrier, he is deprived of his lien upon the cargo, and if he has any remedy for it, he is obliged to resort to the personal responsibility of the party liable to him, in lieu of the security which he took into his own hands when the cargo was received. Meantime the value of the supposed deficiency is paid over to the ultimate consignee, who has no claim to it whatever if, in fact, he receives all that was consigned to him.

Before proceeding to discuss the custom upon principle, we shall examine the cases cited upon the argument, and which are supposed to have some hearing upon the question of its validity. There are several cases where it has been held to be the duty of an intermediate carrier to protect the interests of the consignee in the property carried, and where certain powers for the adjustment of damages actually sustained have been recognized as vested in him. In Bissell v. Price, 16 Ill. 414, it is said that, “While the warehouseman or carrier is authorized to advance for, and on account of the consignee, previous charges upon the goods, he is bound to act in good faith towards, and to carefully watch the interests of the owner, whoever he may be. He is bound to do this to the same extent that a prudent man would were he present, and acting for himself. He must see that the goods are in apparent good order, as described in the previous bill of lading, or, if not, use reasonable exertions to ascertain how they became damaged, and the party liable therefor. So, also, to the same extent he must see that the previous charges are reasonable before he is authorized to pay them.”

There is nothing in this indicating that an intermediate carrier is or may be vested with greater powers than those possessed by the owner himself; or that the prior carrier, in dealing with him, can be subjected to demands against which he would have a complete defense as between himself and the ultimate consignee. On the contrary the court hold the intermediate carrier to be vested, as respects the property carried, only with certain powers of the owner, and bound on his behalf to exercise them with diligence and good faith.

The facts in The Fitchburg and Worcester R. R. Co. v. Hanna, 6 Gray, 539, were, that several carriers, whose operations constituted one continuous line of transportation from Fitchburg to New York, and who, by mutual agreement divided between them, in certain specified proportions, the freight earned upon the whole route, had carried property for the defendant, and in a suit brought by one of them to recover the charges, the defendant sought to recoup damages to the property, occurring somewhere on the route, but not shown to have occurred, upon that portion over which the operations of the plaintiff extended. The court held the recoupment allowable, but at the same time said:■ “If this service had been performed, and no special agreement had been made in relation to the terms upon which it should be done, each of the several parties who contributed towards it would have been entitled to a reasonable compensation, in proportion to the service which they respectively rendered, and would have been liable only for such failures and delinquencies as occurred on their own portions of the line.” It is obvious that the facts as stated have no analogy to those now before us, while the general rule stated by the court, in the absence of any joint undertaking, is the one which the defendants in this case seek to avoid by proof of the custom.

The case of Davis v. Pattison, 24 N. Y. 317, which was supposed on the argument to be most directly in point, does not seem to us, on careful' examination, to be even analogous. It appeax-s that one Davis received at Oswego three thousand seven hundred bushels of wheat to be carried by canal and delivered to the defendant as intermediate consignee at Troy. He delivered all but thirty bushels, which he either converted to his own use, or lost. The defendant offered to pay the freight if Davis would deduct the value of this deficiency; but he refused to do so, and action was brought to recover the whole amount. The court held that the defendant had a right to make the deduction. Now it is quite evident that that ease differs from the present iix all its legal bearings. It was not claimed there that any custom had changed the law of carriers applicable to the case, but tbe defense was rested upon general principles. It does not appear from the report that Davis disputed the deficiency being properly chargeable to him, and it was, therefore, clearly a case where the deduction could have been made, by way of recoupment, had the action been brought against the owner himself. And it was not held or intimated in that ease that the carrier was liable to have deduction made for deficiencies for which, as carrier, he was not insurer against, or that the intermediate carrier had greater privileges in respect to deductions than were possessed by the owner. On the contrary, the whole reasoning of the case shows that the court considered the intermediate consignee as standing, in respect to the suit, in the place of the owner; bound to protect his interest, and entitled to all his defenses, but no more. In short, this case decides that a carrier suing to recover freight may collect the amount earned by him, less any loss occurring to the property while in his hands and properly chargeable to him as carrier; and the question whether, by custom, he might be charged with other losses, or with supposed deficiencies, not existing in fact, was not before the court, and there was no expression of opinion upon it.

The case of Canfield v. The Northern R. R. Co. 18 Barb. 586, is more nearly like the present in its facts than any other which has been reported, and it was there held that the intermediate carrier had no right to deduct from the freight earned, the amount of a discrepancy between the bill of lading and the amount delivered to him, where it was shown that the discrepancy occurred by mistake in stating the amount in the bill of lading. But as the defense there was not rested on evidence of usage, the case can not be considered an authority on the point now involved, and we have been unable to find any other that bears very directly upon it. We must, therefore, consider the custom in question upon general principles, and see whether it is capable of being sustained by them.

There are many customs which, to a certain extent, are convenient, but to which the law does not allow a compulsory force, either because they have never been generally acquiesced in, or because, to give them general application, would in some cases violate fundamental principles and rights. The law has established certain rules which are to test the legal validity of a custom; and we shall now examine the one alleged, in the light of the standard thus afforded.

1. Before any custom can be admitted into the law, it must appear that the usage has been general and uniform, the custom peaceably acquiesced in, and not subject to contention and dispute. — Broom's Legal Maxims, (5 Am. Ed.) 828 ; see Oelricks v. Ford, 28 How. 49. It is not very clear that the evidence in this case establishes any such custom. The testimony of witnesses shows that the questipn of shortage is frequently the subject of dispute. Capt. JLlsie says: “The custom is sometimes acquiesced in by the captains of vessels, and sometimes disputed. If the shortage is small, they generally pay it; if it is large, they generally dispute it, and leave it to be settled by the owners.” Mr. Stephenson, the general freight agent of the defendants, says: “ I have known captains refuse to pay the shortage, but we always have the freight in our own hands before we settle. We invariably refuse to pay the captains until the two principals are agreed.” Capt. Montgomery, after testifying that the custom is universal, says: “ I have known the question of shortage disputed at least a hundred times.” Several other witnesses give evidence that the custom is general, but the impression which the whole evidence leaves upon our minds is, that the deduction of shortage is submitted to when the carrier concedes that it is his fault, or where the amount is not beyond what is usual and incident to transportation ; but that it is disputed in other cases. A custom varying the common law must be clearly proved; but we do not find clear evidence in this case that ship owners concede their liability to have deductions made from freight earned, for the value of property receipted for by mistake. That the railway companies assert the right, is fully shewn; but it must be generally assented to, as well as asserted, before the custom can be established.

2. Another essential to a good custom is, that it be certain. The evidence of usage in this case does not inform us whether, under it, the carrier is to have any remedy for the freight deducted, and if he is, whether that remedy is left to common law rules, or is provided for by the custom itself. We will not assume that the carrier is to be deprived of all remedy, for that would be so manifestly unjust and unreasonable that it could not be seriously urged that the law should sanction it. And if he has any remedy, it must be either, 1. Against the consignor; or, 2. Against the intermediate consignee; or, 8. Against the owner or ultimate consignee. And it may be well to examine the grounds upon which either of the three may be held liable, as well as the reasonableness of remitting the carrier to a remedy against one, rather than the others.

If the consignor was not himself the owner of the property, and had made no express contract with the carrier either for the payment of freight, or for the delivery of any specific quantity, and that which was delivered was, by the bill of lading, deliverable to the consignee on payment of charges, the consignor could not be liable over to the carrier in a case like the present, except by the application of some rule unknown to the common laws — Pars. Merc. L. 352 and note; Chitty on Carriers, 208; Barker v. Havens, 17 Johns. 234; Drew v. Bird, M. and M. 156. It might perhaps be suggested that the consignor, having undertaken to ship a certain quantity to the consignee, any payment to the latter for deficiencies may be recovered for, as a payment made to the use of the former; but any. liability upon this theory must fall to the ground, if, in fact, the consignor was under no contract obligation to forward a specific quantity to the consignee, or if, being under such obligation, he would still be in time under his contract to forward the balance afterwards. And while the consignor is still entitled to fulfill his contract, by delivery of the grain instead of paying its value, we do not perceive how any third party can be authorized, in correcting an error in part performance, to compel the consignee, who is entitled to grain, to accept, instead, its price at a distant point. Such a case would require ratification by both the consignor and the consignee before the former could be made liable to the carrier; and in the absence of ratification, the latter must seek his remedy elsewhere.

That the consignee or owner would be liable, where the amount deducted from the freight by the intermediate carrier had been forwarded to and received, by him, there can be no doubt. If he receives all the property shipped to him, a sum of money paid in addition, for a supposed deficiency not existing in fact, is paid without any consideration, and he can have no claim to retain it. But if this alleged custom is legal and compulsory, and the carrier is remitted to the owner of the property for his remedy, we shall have heie, perhaps, the first instance in' the law where a person is required, by legal compulsion, to make a payment, or submit to an exaction, and then empowered immediately to sue and recover it back from the very person to whose use he has paid it.

But while the owner would be liable, in *such a case, after the money has been paid to him, it is equally clear that, at t.he common law, the intermediate consignee would, also be liable, at least until he had paid over the money, or in some manner changed his legal position relative to the owner, with respect to the money, after making the deduction. His position would be that of an agent to whom money had been paid for a principal not entitled to it; and that an action is maintainable against 'the agent under such circumstances is well settled. — Parker v. Bristol & Exeter Railway, 7 E. L. & E. 528; Snowden v. Davis, 1 Taunt. 359; Edwards v. Hodding, 5 Id. 815; Hearsey v. Pruyn, 7 Johns. 179; La Farge v. Kneeland, 7 Cow. 456; 1 Pars, on Cont. 79; Smith's Mer. L. B. 1, C. 5, § 7. And treating this custom as perfectly valid, we do not see why this action is not properly brought against these defendants, if the deduction was made under protest, and they had not accounted with the owner of the corn when suit was commenced. Customs of this description are to be strictly construed, and we are not to assume that they change the common law beyond what expressly appears. — Broom's Legal Maxims, 5 Am. Ed. 829. Assuming that defendants had the right to make the deduction at the outset, but that this does not deprive the plaintiff of all remedy, we have only to see against whom the common law would give that remedy; and we can not doubt that these defendants would be liable, either as consignees who had received property subject to charges, or as agents who had exacted money for a principal who has no right to retain it. The anomaly of allowing them to make the deduction, and then have it recovered back from them, is no greater than to allow a similar recovery from the ultimate consignee on whose behalf the deduction is made.

But we do not propose to place our judgment upon this ground exclusively, as we are clearly satisfied the custom itself can not be enforced in the law.

3. All customs must be reasonable. If the one in question were confined to vesting in the intermediate consignee the same power to refuse to pay freight in cases in which the owner would be justified in doing so, it would not exceed the reasonable province of a mercantile usage. But it goes very much further when it makes the bill of lading conclusive in favor of the intermediate carrier, and allows him to make deductions for supposed deficiencies, not in fact existing, which the owner himself would not be permitted to make. And it is specially unreasonable if it deprives the carrier of his lien, and remits him to a personal responsibility which he never relied upon, whether he is given a remedy in all cases against the consignor, or required to follow the money to the hands of the owner, who will usually reside at a point distant from the place where the exaction was made, and frequently in a foreign country. That such a custom may be convenient, and operate justly in most cases, is very true, but it can only rest for its observance on the consent of parties.

The courts are frequently required to hold a custom unreasonable and void, notwithstanding strong reasons urged in favor of it, as a rule of convenience, by the class by whom it has been adopted, and where the hardships in any case would not be greater than in this. The case of Leuckhart v. Cooper, 3 Bing. N. C. 99, is an illustration of such cases. The usage given in evidence there was, for public warehousemen in London to have a general lien on all goods from time to time housed with them for and in the name of the merchants or other persons by whom they were employed, for all moneys or balances due from such merchants or persons for expenses incurred about goods consigned from abroad, and irrespective of the ownership of the goods upon which the lien was claimed. In Bryant v. Commonwealth Ins. Co. 6 Pick. 131, a custom for the master of a vessel stranded, to sell the cargo without necessity, was held void. In Bowen v. Stoddard, 10 Met. 380, a custom among merchants of New Bedford and Fair-haven, engaged in the whaling trade,' to accept the bills of their masters, drawn for supplies furnished abroad, failed to receive the sanction of the court, on the ground that a usage could not be reasonable which put at hazard the property of the owner at the pleasure of the master. And see Jordan v. Meredith, 3 Yates, 318; and Spear v. Newell, referred to in 23 Vt. 159. Some of the cases cited were more liable to work injustice generally, than the present; but as a custom, if good at all, is compulsory on all cases falling within it (1 Bl. Com. 78), we are not at liberty to regard it exclusively in the light of its effects in the majority of cases. Special customs are so liable to create confusion of legal rules in directions not contemplated in their adoption, that they are admitted into the law with great reluctance; and it is not often a hardship to parties to reject a custom, so long as they are left free to make their own bargains, and can incorporate it in their contracts if they see fit to do so.

We have not deemed it necessary to consider how far, if the custom were certain and valid, an adjustment between the two carriers for an actual loss or conversion could be binding on the owner in the absence of ratification by him; or how far a similar adjustment for a supposed deficiency which did not exist at all, could bind either the consignor or the consignee. It is sufficient that there are in the usage elements which prevent its being accepted in the law as a compulsory custom. We think the circuit judge erred in holding it valid, and the judgment. must be reversed, and judgment entered for the plaintiff in this court for the amount claimed, with interest.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    Theodore J. Campau v. Joseph E. Shaw and another.

      Idease by Guardian: Batijication. The special guardian —Laws, 1862, p. 11 — of a non compos made a lease of lauds for a term of years, and a portion of the rent was paid in advance. The ward died soon after. The lessees thereupon applied to the heirs to execute an instrument confirming the lease — this they declined to do, but were silent as to expressing any intention to disaffirm the lease.
    In an action by the lessees to recover from the estate the rent paid for the unexpired portion of the term for which it was paid: Held,

    1. That the special guardian had power to execute such lease; but had no power to create a term which should remain valid by virtue of the lease alone, beyond the life time of the ward; and further, that he was accountable for the rent in his official capacity at the time it was received.
    2. That the lessees might treat the conduct of the heirs as a refusal to ratify, and that they might recover from the estate the rent paid for the unexpired portion of the term for which they had paid, as money paid without consideration. \

      Heard- October 24th, 1866.

      Decided January 14th.

    Error to Wayne Circuit.
    This case came from the Probate Court into the Circuit Court, by way of an appeal from the decision of commissioners ajipointed to audit claims against the estate of Joseph Campau. The Circuit Court allowed the claim of defendants in error, and the case was removed to this court by writ of error and bill of exceptions.
    The person and estate of the late Joseph Campau were under a special guardianship on account of his mental incapacity. His special guardian entered into a lease with Shaw and Botsford, for fifteen years, of a piece of land in Saginaw; and eighteen months rent was paid in advance. Before the eighteen months had elapsed, Mr. Campau died, and Shaw and Botsford claimed the right to recover back the ppopoi-tion ^of rent thus paid, which would accrue betwéon 'the tinae of his death and the expiration of the eighteen months, on fhe ground that, if the lease was not void cib initio, it was at least void after the death of said Campau.

      Levi JBishop, for plaintiffs.
    1. The lease appears by its terms, and also by its signature, to have been the instrument of Joseph Campau, entered into by his guardians duly appointed and qualified. The lease was in law, therefore, the act of Campau, performed through another, duly authorized; and it, therefore, bound him the same, as it would if he had executed it himself, in the full possession of his faculties. It had the same effect as acts done by a principal through his agent or attorney. — University v. Tí M. Society, 12 Mich. 138.
    2. The powers of a special guardian are the same, for the time being, as those of a general guardian. — Laws, 1862, p. 11; 2 C. L. 3313, 3305 and 3306, subdivisions 2 and 3.
    The general rule is that a guardian not only may, but must, lease the lands of his ward, if he can do so to advantage.— 2 Mentís Coni. 255 and notes; Taylor’s L. and T. §135; 4 Cruise’s Dig. 129; 2 Wilson, 129, 135; 10 Mast, 491; 5 Johns. 66; 10 Terger, 160, 8, 9; 5 JUalst. 133; 1 Johns. Ch. 561; 7 Id. 154; McClellan’s M&ecutoi'’s Guide, 122.
    It is difficult to see what possible objection can be urged against this rule. The guardian is bound to make the best bargain he can for his ward; and he is presumed in law so to do if he makes a lease. It is presumed that he does his duty. Such a bargain will be presumed to remain for the benefit of the ward and his representatives during its continuance. It is for the interest of all parties, and it is absolutely necessary to a good bargain, that the idea of permanence should enter into the transaction, I insist that the doctrine, for which I contend, is- The ofily reasonable one on the subject.

      It is said that the guardian of an infant shall not lease for a term beyond the majority of the ward. — McClellan’s Executor’s Guide, 123; 2 Kent’s Com. 255.
    The reason of this -rule is, that the age of the infant and, by consequence, the time when the wardship and incapacity of the infant will terminate, are well known. There is no such certainty in the case of a wardship, which can only be determined by the death of the ward.
    It was said arguendo in the court below, that a guardian might sell the property of his ward, but could not lease it. In reply to this it may be said in brief, that the larger includes the less. A lease is but the sale of a term less than the fee. In the language of the books it is a particular estate carved out of the general estate. If the whole estate or interest could be sold, any interest less than the whole estate could be sold, or leased, which is the same thing.
    3. The court below charged the jury that if the ward, during his life, had recovered his faculties, that he might have affirmed or disaffirmed the lease entered into by his guardian. This was erroneous* Most certainly the ward was bound by the lease during his life. The rule here laid down by the court would render the property of a ward worthless, even during the time of his incapacity. No reasonable man would accept a lease of a guardian, if the lease might be terminated by the ward at any moment. Such a doctrine takes from the property of a ward its whole or a great part of its value. The charge was more than the claimants asked, and its tendency was to prejudice the case against the administrators in the minds of the
    4. This lease was not absolutely void, either before or after the death of Campau. The most that can be said against it is that it was voidable. As I have argued, it was not voidable by him, even though he had recovered his faculties. It was not voidable by the lessees, who entered into it as competent persons, and with their eyes open. If voidable at all, it was so only at the instance of the heirs of Campau after his death. This is shown by the authorities already cited. — 5 Salst. 183; 1 Washb. 304-7.
    If the lease was voidable by the heirs, they should be held to act on the subject promptly and unequivocally, on the death of Campau. Delay alone should be held an affirmance; for it is laid down that slight acts, and even inaction itself, even in the case of infants, will be evidence of a ratification. — 1 Washb. 804.
    We proved that there had been no act of disaffirmance whatever by the heirs; while on the other hand the administrators, who are also heirs, had repeatedly affirmed the lease, so far as their official action could go, by demanding the payment of rent.
    5. There is good sense in holding the acts of an infant voidable at his option, on his arrival at maturity, because the law presumes that there may be improvidence in the acts of an infant. The presumption is not that there is improvidence, and, therefore, that the acts are void; but that there may be improvidence, and, therefore, that the acts are voidable.
    The reason of the rule does not hold at all in the case of an adult under guardianship. The guardian is a judicious person selected by the probate court. He is presumed in law to make such bargains only as are beneficial to his ward. No theory of improvidence enters into the transaction. The provident acts of the guardian are, in contemplation of law, the acts of the ward. The law presumes that all is done for the best interest of all persons interested. It is difficult to see upon what principle such a transaction can be held either void or voidable.
    There was nothing unreasonable about this lease. If there had been, it was for the court of probate to control it, as he controls the guardian. It appears that the judge of probate expressly approved this lease.

      6. If this lease was absolutely void after the death of Campau, then the wrong person is sued here. If the lease Avas thus void, then all the acts of the guardian relating to the time of the lease, which might run after Campau’s death, were also void. Nothing which the guardian could do with reference to that time could bind the estate. Of course, the rent in question was not paid to Joseph Campau. It went into the hands of the special guardian. But the lease being void, the receipt of money by the special guardian for the rent, which was to accrue from the death of Campau to the expiration of the eighteen months, was not an official, but was an individual act of the special guardian. If the lease for that time was void, the receipt of the rent must have been also void for the same time. That receipt could not bind the estate, or render it liable. The whole transaction must stand or fall together. If, therefore, these claimants have a just demand at all, it is not against the estate, for the void acts of the special guardian; but it must be against Mr. Daniel J. Campau individually for money had and received to the use of the the claimants.
    In any view of the case, therefore, upon authority and upon principle, the claimants were not entitled to judgment, and it should be reversed with costs.

      S. T. Douglass, for defendants.
   Christiancy J.

The late Joseph Campau having, from old age, be-* come mentally incapable of managing his affairs, Henry C. Knight, Esq., was duly appointed by the Probate Court as his guardian.

An appeal having been taken from this appointment to the Circuit Court, Daniel J. Campau was, on the tAventythird day of January, 1862, duly appointed and qualified as special guardian of the ward, pending the appeal, as provided by the act of January 17, 1862. — Sess. L. pp. 11 and 12.

As such special guardian, he had (so far as is material to the present case), during his continuance in office, the same rights and powers as a general guardian, over the ward and his estate. — See acts above cited also Comp. L. §§ 3313, 3305 and 3306, sub. 1 2.

On the first day of May, 1863, the special guardian executed in due form, under seal, a lease to Shaw & Botsford, the defendants in error, of' a. lot of land in Saginaw county “for the purpose of erecting a steam saw mill and other improvements” thereon, for the term of fifteen years, for the rent (for the first five years, all that is necessary to notice here) of four hundred and fifty dollars per annum, payable semi-annually in advance, which Shaw & Botsford thereby covenanted to pay.

Immediately upon the execution of the lease, Shaw & Botsford, who were then only bound to pay the first semi-annual installment, paid to the special guardian six hundred and seventy-five dollars as the rent for eighteen months in advance.

Joseph Campau, the ward, died on the twenty-third day of July, 1863 ; the special guardian remaining in office up to that time, and the defendants in error having soon after applied to some of the heirs for a confirmation of the lease, which they declined to execute, presented to the commissioners appointed by the Probate Court for examination and adjustment of claims against the estate, their claim for five hundred and seventy-one fijfr dollars (and interest) being the balance of the six hundred and seventy-five paid, after deducting the proportion which had accrued as rent, at the time of Joseph Campau’s death, on the ground that the lease ceased to be valid after that event. This claim was disallowed by the ■commissioners, from whose decision an appeal was taken to the circuit court, where the claimants obtained a judgment for the amount of their claim, and the administrators have brought the 'cause into this court by writ of error, alleging ■exceptions. The only questions we deem it necessary to consider upon the exceptions are those we proceed to consider.

We see no reason to doubt the power of the special guardian to lease the real estate of his ward, which might otherwise be rendered useless. Whether this power has any other limitation in a case like this we are not called upon to decide, -but we think it very clear the power in this case did not extend to the creation of a ^erm which should remain valid (by virtue of the lease alone) beyond the life time of the ward; and that the lease, though good up to the time of his death, became by that event invalid as against his heirs, and probably (though the point does not arise here), as against his administrators.

But we do not think the lease was so absolutely ■void for the remainder of the term as to be incapable of confirmation by the heirs and other parties claiming under the ward. They might treat it as void at their option; but if they chose to confirm it, it would be binding both upon them and the lessees. But the lessees would not be bound to accept a confirmation by a part of the heirs or other persons who had a right to disaffirm it, without the whole; nor to accept a term in an undivided interest in the land; nor for a period less than. the whole remainder of the term.' The record discloses no evidence tending to show any confirmation or ratification by any of the heirs. There was some evidence tending to show that the administrators treated it as a subsisting lease after the death of the intestate, by calling upon the lessees for payment of rent and taxes according to its terms; but this action of the administrators did not bind the heirs.

It was strenuously urged by the counsel for plaintiffs in error that the mere silence of the heirs, in not expressly objecting to the validity of the lease, and their failure to take any affirmative action for annuliug it, operated of itself, as an affirmance or confirmation of the lease; and that the lessees were not at liberty to treat it as void until the heirs had indicated their intention to disaffirm it. However this might have been, had none of the heirs been called upon to confirm it, is a question which does not arise in the present case. Nor — if the matter had been allowed to run along in silence, the lessees, with the knowledge of the heirs, making the expensive improvements contemplated and paying rents and taxes — are we called upon to determine whether the acquiescence of the heirs might not grow into an equitable estoppel or even a legal confirmation; nor at what time or under what circumstances such effects might take place. Immediately upon the death of the ward, the lessees, who, as the evidence shows, had already commenced expensive and .permanent improvements, were entitled to know, before they should proceed further with their expenditures and improvements, whether the heirs intended to confirm the lease, and to have that confirmation in due and proper form so as to render it valid and effectual in law under the statute of frauds; and they could not be expected to go on with their expenditures, or to rest quietly upon so precarious a title as might or might not accrue to them from an acquiescence of the heirs in such expenditures and use of the property, while it was entirely uncertain whether they would acquiesce or not; whether they would confirm the lease or disaffirm it, and compel the lessees to lose the money they might expend in trying an experiment which could be tried only by running the risk of the loss. The condition of the lessees might, perhaps, be rendered safe enough after the acquiescence of the heirs should have grown into an estoppel or confirmation; but how were they to know there would be any such acquiescence ? and until then, their condition would be one of great risk — a risk which they could' not be legally, or even honestly, asked to assume.

The lessees, as the evidence shows, within a week after the death of Joseph Campau, like fair and prudent men, applied to two of the heirs, and requested them to execute an instrument confirming the lease, and also to obtain the execution of such an instrument by the other heirs. These requests were renewed from time to time afterwards, but were refused. It does not appear that they said, anything expressly declaring an intention to disaffirm the lease, but merely declined the requests to confirm, and remained silent. And it is seriously and strenuously urged by their counsel that they had a right to take this course, and yet hold the lessees bound by the lease. But this attempt to reserve to themselves, under these circumstances, the power at any future day to affirm or disaffirm the lease, as future developments and the improvements of the lessees might, in their opinion, render most for their interests, is difficult to be reconciled with- good faith and fair dealing. It was calculated to put the lessees upon their guard against incurring further risks; and, in our view, fully justified them in treating the refusal as a disaffirmance, or at least an intention to disaffirm, and left the lessees at liberty to treat it as invalid from the death of Joseph Campau.

But it is urged that if the lease is to be treated as void after Joseph Campau’s death, then so much of the money paid as was applicable to that portion of the rent thereafter to accrue, was not received by the special guardian in his official, but in his individual capacity; that the. estate is not, therefore, liable to the lessees, but that their right of action, if any, is against the special guardian in his individual capacity.

. The evidence does not show whether the special guardian in fact accounted for or paid over the amount to the estate; and the right of the lessees to call upon the estate for the amount must, therefore, depend upon the question whether the guardian, immediately upon the receipt of the money, was legally accountable for it as the money of the ward or his estate —as for money coming to his hands by virtue of his guardianship; or whether he had a right, if then called upon to account in the Probate Court, to retain it as his own, as against the ward or his estate.

At the time -of the execution of the lease and receipt of the money, it was entirely uncertain when the death of the ward might occur. He might live for the whole fifteen years, and then the lease would be valid for the whole term as against all parties. He might die the next day after the execution of the lease; and if the guardian could, the next moment after the money was received, have refused to account for any part of it, or hold any part of it in his individual capacity, he could, with equal right and upon the same ground, have retained the whole, and refused to account for any of it; for it was uncertain whether the ward would live through that single day. If, therefore, his accountability should depend upon the time when the ward should actually die, he could not, at the time when it was received, have been held accountable at all. But in legal contemplation, the ward might have recovered his capacity the next week or the next month, or the appointment of the general guardian, from which the appeal was taken, might be affirmed, and the special guardian in either case called to an account; and the lease in either case would continue valid for the whole term, or so much of it as the ward should continue to live. And the Probate Court might probably, of its own motion, call upon the special guardian at any time to account, for the purpose of seeing that he was properly managing the estate, and properly applying the money. For these, among other reasons, I can not doubt that the special guardian was accountable for this money in his official capacity, at the time it was received, and being so liable, he and his bail must continue so until paid. In fact, so far as this case is concerned, I think we are bound to presume he has accounted for it to the estate. Though he had no right to demand, he had a right to receive this money when paid to Mm, as rent in advance; and if he did, as the case shows, receive it as rent in advance, he received it in his capacity as guardian. There is no pretence that it was understood to be paid to, or received by him in any other capacity, or that it would have been paid to Mm otherwise. He, as guardian, had no right to treat the lease as void, even after the death of the ward; for with that event Ms guardianship ceased, and until that event it was valid as to all parties. After that event, the heirs (or the heirs and representatives) had the right to confirm it and hold the lessees upon it, or to disaffirm it, and thereby release them. But in either case, the guardian, as such, was accountable for the money at the time it was received. The payment to him operated as payment to the ward or Ms estate, and the lessees are entitled to recover the amount from the estate as so much paid upon a consideration which has failed, upon a principle analogous to that which authorizes the recovery of money paid upon a contract which has been rescinded. Raymond et al. v. Bearnard, 12 Johns. 274; Gillett v. Maynard, 5 Id. 82; Rice v. Peet, 15 Id. 503; Wheeler et al. v. Board, 12 Id. 363 ; Burr v. Veeder, 3 Wend. 412.

Had the covenant been to pay a gross sum down for a lease executed by the guardian for the fifteen years, there might have been some plausible ground for saying that the lessees took upon themselves the risk of the ward’s living for that length of time. But here the payments were semi-annual, and the whole transaction shows that neither party expected the rent to be paid for any period for which the lessees should not be allowed to enjoy the premises.

There is no error in the record, and the judgment must be affirmed, with costs to the defendants in error.

The other Justices concurred.


text:
    Wm. Comstock v. John. W. Howd.

      Declaration in assumpsit: Cause of action. Justice’s Court. In an action to recover the amount of a subscription to provide for a public dinner, the declaration filed in the justice court alleged that the u defendant, with others, desiring to serve a free dinner to the soldiers, and desiring to raise money therefor, did designate plaintiff as a proper person to raise said money by subscription, and to disburse the same; all which was agreed to and accepted by said defendant; and that defendant, for the carrying on of said purpose, became indebted to plaintiff, and promised to pay,” etc., referring to the subscription on file. Held, that under the rules of pleading in justice’s courts, a substantial cause of action was set forth.

      Yoluntaiy subscription: Consideration: Parties. A subscription, by which several persons promise to pay the sums set opposite their names, to provide such free dinner is legally binding, notwithstanding no promisee is named; and it may be collected in the name of one of the number, who is selected by the rest to collect and disburse the money. Held, also, that the object being a meritorious one, and the subscription by defendant being an inducement to others to subscribe and pay their money, both constituted a valid consideration.

      Heard January 10th.

      Decided January 14th.

    Case made from Gratiot Circuit.
    The case was commenced in a Justice’s court. The declaration was as follows:
    “William W. Comstock, plaintiff, complains of John W. Howd, defendant, who has been summoned to answer him in a plea of assumpsit, and says that about the middle of June last, the said John W. Iiowd, William W. Comstock, and divers other persons, desiring to celebrate the fourth day of July, a. d. 1865, and also on that day to serve a free dinner to the soldiers and their families, of Gratiot county, and also desiring to raise a sum of money for the said purpose, did designate the said William W. Comstock as a proper person to raise such a sum of money, by subscription, as would be necessary to defray the expense of said celebration, and make all necessary disbursements; all of which was agreed to by said persons, and accepted by the said William W. Comstock.
    And the said William W. Comstock further says that the said John W. Iiowd, for the carrying on of said purpose, became indebted to the said William W. Comstock in the sum of ten dollars, and promised to pay the same when requested, which will more fully appear from the instrument in writing, jfiled herewith. Tet the said John W. Howd has utterly refused to perform his said promise, though often requested so to do, to the damage of the said plaintiff, fifty dollars, and of this he brings suit.”
    The paper referred to in said declaration, and filed therewith, is as follows:
    “We, the undersigned, citizens of Ithaca and vicinity, agree to pay the several sums set opposite our x-espective names, for the purpose of furnishing a free dinner on the 4th of' July to the returned soldiers and their families; also, to the widows and orphans of deceased soldiers of Gratiot county.”
    This was signed by the plaintiff, defendant, and twenty-five others. The amount opposite defendant’s name was ten dollars.
    After judgment, the defendant appealed to the circxxit court, where he pleaded the general issue, axxd gave notice that he would give in evidence axxd prove that he signed said subscription with the express understanding that the said public dinner referred to therein should be given and served in the village of Ithaca, and that the same was not so given; and that he gave notieé, before any expense had been incurred, that he would not pay his subscription unless said dinner was given in- the village of Ithaca.
    The objections to the evidence on the trial, and the facts, are stated in the opinion.
    Judgment was rendered for plaintiff.

      JET. 'Walbridge, for plaintiff.
    1. It is not necessary that a person should be named as payee in the said subscription paper. By the popular plan adopted by the citizens of Ithaca, of whom the defendant was one, it was understood and agreed that the plaintiff should raise, collect and disburse the funds.
    The defendant’s liability arose at the time of signing the subscription paper, subject only to his withdrawal of the same; and giving notice prior to any liability incurred by plaintiff, in the furtherance of the contemplated object.
    Defendant’s promise was not in consideration that, if plaintiff, by himself or with others, would get up and serve a free dinner to “returned soldiers,” etc., he would pay, etc., but was in consideration of the object of the subscription, and in the other subscriptions, and was founded on a sufficient consideration. —12 Mich. 73.
    Defendant promised and agreed to pay the amount of his subscription, for the purpose of furnishing so much in defraying the expenses of a free dinner, etc.
    The plaintiff’s right of action accrued and was as perfect against the defendant on the 24-th day of June, 1865, and after the agreement with Burgess & Kinkerter (who provided the dinner), as at any subsequent time.
    Suppose Burgess & Kinkerter had refused to accept and look to plaintiff for pay, and some other person had become personally liable, how could that affect the defendant’s liability to the plaintiff,• and the plaintiff’s right of action?

      The plaintiff, in his declaration, clearly alleges the undertaking and promise of the defendant, the object, purpose and the consideration for the same; the relation of plaintiff to the object contemplated and agreed upon, and also the relation of the subscribers to him as the payee and disburser of the subscription fund; and that for the purpose of carrying on and accomplishing the object in view, the defendant “ became and was indebted ” to him, plaintiff, etc.
    The declaration contains all the material facts, in point of law, necessary to sustain this action.
    But defendant having by his plea and notice -waived his right to demur, can not now question the sufficiency of plaintiff’s declaration.
    This court have always held the rules of pleading to be extremely liberal when applied to justice’s courts. — 8 Mich. 42Y.
    It is true that no precise day was agreed upon when defendant should pay his subscription, yet the facts clearly show, and it must have been understood by all the subscribers, including- defendant, that the payment of the subscriptions must precede the getting up and serving of the dinner: That the payment was a pre-requisite.
    The acceptance of the duties and trust by the plaintiff was, in law, entering upon their discharge.
    2. The evidence offered by plaintiff, showing that a dinner was provided and partaken of, as contemplated, and that plaintiff had expended money in procuring said dinner, was admissible and proper.

      H. Striclcland, for defendant.
    1. There is no payee named in the said subscription; ■ therefore, no promise in law.
    The purpose for which the money was proposed to be given, or paid, was the furnishing of a free dinner fur the returned soldiers, etc., of Gratiot county. The plaintiff has not in Lis declaration alleged that such a dinner was provided or partaken of by the parties named, viz: the returned soldiers, etc.; nor that the plaintiff had expended any money for such purpose, or become liable to pay any money for the same.
    These papers do not show any consideration for the alleged or assumed promise; and without a good and valid consideration, no binding obligation can be incurred.
    The declaration must contain all the material facts necessary in point of law to sustain the action. — 1 Pan’ll Frac. 235-6; Graham’s Frac. 2d ed. 195 to 215; 1 Chitty’s Plead. 255.
    The evidence offered by plaintiff, to show that a dinner was provided and partaken of by the returned soldiers, etc., and that the plaintiff had expended money in procuring said dinner, was not admissible, there being no allegations in the said declaration to which said evidence can apply, or go to establish.
    The objection made by defendant to the admissibility of said evidence was well taken, and should have been sustained by the court.
    The question is here raised directly, on the trial, at the earliest opportunity.
    This case is not analogous to the cases where the sufficiency of the declaration is raised collaterally, after judgment. In such cases it has been held that judgments could be sustained when defects were apparent in the declaration. Here the question is as to the admissibility of the evidence, when the objection is taken at the trial.
    The words “because” and “was indebted,” as used in the said declaration, can only relate to the statements that precede them in the said declaration, and can not by construction be taken as equivalent to necessary allegations, not expressed therein.
    The question of the admissibility of the said evidence, in this case, is directly presented to this court; and if the said evidence is not admissible, the judgment of the court below should be set aside.
   Christiancy J.

This was an action brought to recover the amount of a subscription of the defendant, which was in the following words: “We, the undersigned, citizens of Ithaca and vicinity, agree to pay the several sums set opposite our respective names, for the purpose of furnishing a free dinner on the 4th of July to the returned soldiers and their families; also to the widows and orphans of deceased soldiers of Gratiot County.” This was signed by the plaintiff and defendant and twenty-five other persons, with an amount in figures opposite the name of each; the amount opposite that of the defendant being ten dollars.

The defendant objected to the introduction of the subscription, because, I: No cause of action is alleged in the declaration, and, 2: That no payee is named in the subscription. This objection was overruled and the evidence admitted. Plaintiff was also allowed to prove, against defendant’s objection, that said celebration was held, the dinner provided and partaken of by the returned soldiers and their families, and by the widows and orphans of the deceased soldiers; and that plaintiff, at a meeting held (June 19th) for the purpose of raising the funds for the above purposes, was elected a treasurer to receive and disburse the funds raised for the purpose, and that he was made the chairman of a committee to raise funds for those purposes by subscription, and had paid for the dinner.

It is claimed by defendant’s counsel that the only ground upon which the plaintiff could recover, must be that he had, in reliance upon the subscription, incurred and paid the expenses; that his declaration which is special, not containing the common counts, does not place his right of action upon this gi’ound, but merely upon the liability created by the subscription itself and, therefore, that it shows no right of action, and that all the evidence of payment by plaintiff, as well as his appointment to raise, receive and disburse the funds, was inadmissible.

It may be admitted that the evidence of the plaintiff having paid the expenses of the dinner, or become liable to pay, was mere surplusage. We think such was the fact.

The declaration does not alleg'e such payment or the incurring of any liability by the plaintiff, but bases his right of action upon the subscription, and the facts that defendant and divers other persons had designated him “as a proper person to raise such sum of money by subscription, and make all necessary disbursements,” all which was agreed to by such persons and accepted by said plaintiff; that defendant, for the carrying on of said purpose, became indebted to the plaintiff in the sum of ten dollars and promised to pay when requested; foi*which he refers to the subscription on file as a part of his declaration.

Under the liberal rules of pleading in justices’ courts we think the declaration sets forth substantially all the facts necessary to a good cause of action, and that it was fully sustained by the proof, as found by the judge.

The subscription itself, together with the appointment of plaintiff to raise the money by subscription, to make all necessary disbursements, and his acceptance of the position constituted a valid contract between the defendant and the plaintiff. The designation of the plaintiff, as the person to raise and disburse the funds, places the subscription on the same ground as if his name had been inserted in it as the payee. It was held in Thomas v. Dodge, 8 Mich. 51; and Nevius v. Bank of Lansingburg, 10 Id. 547, that the guaranty of a promiábory note need not name the promisee, and that it becomes definite and fixed when any one takes it upon the guarantor’s credit. This is a very usual mode of drawing up a subscription, and we must suppose the subscribers expected and intended to pay to some party appointed for the purpose of receiving it: and in legal effect the promise, we think, is to pay to the person who shall be thus appointed.

We see no difficulty upon the question of a consideration. The object was a meritorious one, for which people generally are willing to expend money, and which, therefore, “must be regarded as worth money when it is promised.” (Underwood v. Waldron, 12 Mich. 90.) Beyond this also the subscription of the defendant must be looked upon as an inducement to others to subscribe and pay their money, in reliance upon the payment to be made by each of the other subscribers; none of whom would be so likely to subscribe or pay, but for this reliance, as without it they would not expect the attainment of the common object.

Thé* judgment of the court below must, therefore, be affirmed, with costs to the plaintiff.

Campbell and Cooley JJ. concurred.

Martin Ch. J. did not sit.


author: Campbell J.

text:
    John M. Brackett v. William S. Sears and others.

      Mortgage, when, security for advances. Commissions: Accounts current. Professional services, where several suits depend upon trial of one: Equitable set off. S. made a mortgage to 3. S. and W. P. L. for $18,000, for which they gave their receipt which concluded as follows: “from which we are to deduct our account with him, and to pan him the balance, or to be returned to him at our option.” That account was a balance due upon mutual accommodation discounts and acceptances, or indorsements? The parties subsequently pursued a similar course of business accommodations; the balance of advances being always against S. but never equalling the face of the mortgage and interest.

      Held, that the mortgage should be considered as security for all such dealings and advances.

      Held, further that no commissions coulcl be allowed to the mortgagees on their discounts or advances so long as the account in their favor did not suffice to pay the amount of the mortgage; and that the security could only cover the sums actually remaining due, excluding such commissions.
    Held, further, that from the nature of the dealings between the parties and the course of their accounts their mutual dealings were evidently considered as dependent, and, therefore, the professional charges of S. should be regarded as equitable set-offs in the accounting on the mortgage; and that where it was assigned to secure a sum less than the whole amount due, with a residuary interest in the mortgagees, such services subsequent to the assignment might also be set-off upon such residuary interest. But accounts for services rendered, not to the firm, but to the individual partners or to third persons could not be set-off against the firm unless by some valid agreement the firm had made itself liable for them. .
    Professional charges will not be rejected merely for want of success in the litigation, where there is no clear proof of mismanagement. But where several suits were made to depend on the argument of one, the charges should not be multiplied at the full rate as if there had boon separate hearings in each, but should be confined to such services as were actually rendered.

      Heard November 3d, 1866.

      Decided January 14th, 1867.
    Appeal in Chancery from Wayne Circuit.
    The bill in this case was filed to foreclose a mortgage made by William Sears and wife to James S. and William Libby, and by them assigned to the complainant to secure a debt.
    The cause was heard on pleadings and proofs, and a decree was entered for the sale of the mortgaged premises in default of the payment of $15,168.25 and costs of suit.
    The defendant, William S., appealed from said decree. The facts are stated in the opinion.

      JR. JP. Toms, for complainant.

      T. JRomeyn, for Wm. S. and C. E. Sears.

      I). O. JHolbrooh, for J. S. and W. P. Libby.
   Campbell J.

This is a bill to foreclose a mortgage given by William S. Sears and wife to James S. Libby and William P. Libby, and by them assigned to complainant to secure a debt. The mortgage was dated August 17th, 1858, and was given ■to secure a bond for $15,000 in tbe penalty of $30,000. At the time these securities were given no money was advanced, and Sears owed the Libbys a much smaller sum. Upon delivering them to the mortgagees, the latter gave back a receipt for the papers, which described them and then concluded as follows: “From which we are to deduct our account with him, and to pay him the balance, or to be returned to him at our option.”

There had been many previous dealing's by way of mutual accommodation by indorsements and discounts and money advances, which had been settled by striking a balance and taking notes from Sears in November, IBS'!. Between that time and the date of the securities further dealings had enlarged the balance against Sears, and there was some outstanding paper of his on which the mortgagees were liable, but not enough, with the debt, to reach the sum secured by mortgage. These dealings continued, and in March, 1861, when the papers were assigned to complainant to secure a debt of about $11,000, the balance was much larger than this last sum, unless reduced by some claims now in dispute. There is- some conflict of testimony as to whether Sears was immediately informed of this assignment. The question does not become very material, but we are inclined to think he was so notified or informed.

The contest in this case arises on several points which will be noticed in their proper order.

First, it is claimed that the papers were made for the sole purpose of being discounted, and that the mortgagees could not hold them for any other purpose, or to secure future advances.

It is further claimed that set-offs due Sears have been disallowed, and that claims have been allowed in favor of the mortgagees which were not proper charges.

It is very evident from the testimony that it was expected that the mortgagees would get it cashed if possible, and pay over the balance to Sears after retaining what was due themselves; and we think this the real reason why the bond was originally designed to bear ten per cent, interest — the correction to seven per cent, being out of doubt as to the legality of the larger rate. But the receipt does not make the delivery conditional. If authorizes the mortgagees to return the papers at their option, but its purport is to make them the property of the mortgagees, who were to pay for them, whether discounted or not, after deducting their account. No time was fixed for this payment, and no doubt Sears could after any reasonable time have tendered the balance of account, and demanded back the mortgage. But instead of doing this he obtained further discounts and advances, which would certainly be applicable as far they went, in reduction of the purchase money. And, as such a mortgage could only be enforced to the extent of money actually advanced, or indebtedness actually existing, the effect of the entire transaction was in law substantially the same as if the mortgage had been given in fact to secure future and present liability.

We are, therefore, to determine what was the state of the accounts between the parties. The advances and payments made by the Libbys are not in any way put in doubt, but the chief conflict arises upon the rejection of certain items claimed by Sears. The dealings of the parties were evidently based on a reliance that all of their accounts should be connected and dependent. We have no doubt that their dealings, pecuniary and professional, are within the laws applicable to equitable set-off. And we are compelled, therefore, to adjust the accounts on this basis.

Sears produces several checks, which he claims were made by way of advances to the Libbys, but which they have not credited him. The checks themselves are no evidence, one way or the other, of the fact that they were given, for or without an immediate equivalent. If given in exchange for cash or other securities they would not of course be credited. But if lent, then they should be credited on account as advances. The mortgagees produce in turn a large amount of paper, which would apparently be chargeable against Sears, but which they do not claim to be due; and they say that these checks and the paper in their hands were exchange items, so far as they ever had them, and never went into account, .because received and given for an immediate equivalent. Upon a careful consideration of the whole case we think the accounts kept by the Libbys are correct. Sears has not produced any satisfactory proofs to counterbalance the circumstances against him, and upon the documents alone, without the admissions of complainant and the Libbys, the balance against him would be much larger. We, therefore, reject these disputed items — regarding the finding in the Circuit Court as correct.

The next set of items embrace the professional account of Sears. He claims payment for his services as counsel in several suits before and since the settlement of November, 1857. The previous services were not rendered to the firm of J. S. and W. P. Libby, but a part to J. S. Libby, and a part to Joshua F. Bridge and Samuel J. Bridge. We find no sufficient proof of any agreement by the firm to pay these claims, if they were not — as seems probable — ■ included in the settlement. Nothing but a distinct agreement, upon a valid consideration, could raise a legal liability to pay such debts. The same remarks will apply to the charges for services subsequently rendered, not to the firm, but to individual partners or to other persons. And as there is no sufficient and clear proof of any such liability — while the mutual relations of the parties may have given some reason for expecting such allowance, we can not create a debt out of such premises.

From a computation it would appear that the commissioner allowed all of complainant’s charges against the firm at the sums claimed, except in relation to seven foreclosure suits in favor of David Gould, and three suits in ejectment. It appears that in both of these instances the cases were dependent by agreement upon one hearing. This being so there was no propriety in allowing each to be charged for as a separate suit fully argued. If each suit argued was worth $300, as charged, we think the extra sum of $50 for completing the business in the other cases dependent on it was, so far as the testimony shows, a sufficient compensation. In the absence of proof that the business involved extra trouble, we are not disposed to change the allowance. We do not consider the testimony concerning the alleged mismanagement of the suits, as the counsel employed — who were better acquainted with them than the parties — have not shown any plain case of misconduct or unmistakable fault.

The Libbys, who appeal from the decree allowing these items, insist not only on their being excessive, but also that they refer to services subsequent to the assignment of the mortgage. As the assignment was by way of security, and the allowance of these claims leaves enough to pay the complainant in full, we think the balance in his hands as trustee for the Libbys or their assigns was properly subject to these set-offs, which are within the rule of equitable set-offs, and should be governed by the principles applicable thereto. The Libbys were equitable owners of the surplus interest in the mortgage after, as well as before, the assignment, and it should be subject to these accounts which do not seem to have changed their character as mutual dealings.

The only remaining question is concerning the allowance of a commission of one thousand dollars to the Libbys for their trouble.

The charge of such a commission can not be maintained unless uj>on some understanding between the- parties, as it is very clear that this is not a case of ordinary brokerage. Each party was in the habit of freely endorsing for the other, and of exchanging paper. And in relation to a very large portion — if not all — of the charges for money, the Libbys appear to have been lenders and not brokers.

Sears swears positively that there was no agreement or understanding of the kind. The only one set up was in relation to the specific sum of §1,000, which William P. Libby swears he proposed to Sears soon after the settlement in 185V, which he says Sears thought rather high but not unreasonable. It is somewhat difficult to understand how this can be possible. At that time there had been no considerable amount of business since the settlement. If it related to business done before, then it is very singular it was not mentioned during that settlement. But Libby swears that all previous services were settled by Sears giving up his accounts against the Bridges and Libbys for anterior professional services. It could not have related to the future, because the business could not be calculated, and indeed they claim full additional commissions at the rate of five per cent. This sum was never entered upon the books, which contain none of the charges for commissions, and no account was ever rendered to Sears containing any such items. Whether proper or improper, we can not but regard this charge as an afterthought. Nor do we think it admissible.. The balance of advances between Sears and the Libbys never approached the amount of the • bond and mortgage. Under the terms of their receipt they had bound themselves to pay for the mortgage unless they saw fit to return it, and could not charge for such moneys; and we can not believe that it could have been supposed by any of the parties occupying these very peculiar mutual relations that such a one-sided arrangement existed as is now relied on. We think the commissions charged and allowed in favor of the Libbys should be struck out. The decree in other respects should be affirmed. As the contest in this respect does not concern the complainant individually, the costs of this court should be taxed against the Libbys in favor of Sears, and deducted from the balance due after satisfying the debt to secure which the mortgage was assigned to complainant.

' The decree of this court will be entered on these principles.

The other Justices concurred.


text:
    Adam W. Pattridge v. Chauncey Lott.

      Justice's Court: Judgment of nonsuit: Appeal: Statute of limitations. Where a cause was adjourned in a justice’s court, by consent of parties, before any pleadings were made, and the justice on the adjourned day refused to proceed with the cause, it was held that such refusal might be treated as a judgment of nonsuit, and that an appeal would lie therefrom.
    And where such appeal was dismissed by the Circuit Court, it was farther held that it must be regarded as an avoidance of the action for matter of form, and that the time for further suit ran from such dismissal.

      Heard January 10th.

      Decided January 14th.

    Case made from Clinton Circuit.
    This was an action on a promissory note. The defense was the statute of limitations.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinion.

      JR. Striclcland, for plaintiff.

      8. Hoyt, for defendant.
   Campbell J.

Plaintiff sued upon a promissory note dated August 25th, 1857, and. maturing on the 4th of March, 1864. Defendant set up in defense the statute of limitations. Plaintiff sets up in avoidance of this that he brought suit within the six years, which was avoided and defeated for matter of form, and that the present suit was begun within a year after such avoidance. Defendant, on the other hand, claims that he did not sue within a year after his former suit was rendered nugatory.

The facts show that a suit was brought before a justice of the peace on the last day allowed by law, and, defendant being duly served, both parties appeared at the return day, when, on account of a death in plaintiff’s family, the case was adjourned over for several days by consent. Upon the adjourned day, the justice refused to take any further steps whatever, or to call on the case, alleging, that, inasmuch as there was no pleading before the adjournment, and it was not granted by himself for cause shown, he ceased to have jurisdiction. Plaintiff then appealed the cause to the circuit, where, after about a year, it was dismissed for want of jurisdiction, on the ground that no judgment had been rendered by the justice, from which an appeal would lie. It is now claimed by the defendant that the appeal was void, and that the year of grace ran from the time when the suit before the justice became defective.

We think there is no foundation for this pretense. The action of the justice in refusing to allow plaintiff to proceed with his case was equivalent to a judgment of nonsuit, and must be so regarded. It was entirely unjustifiable, as a continuance by consent under the circumstances meant a continuance of the cause in its then condition, and the parties consenting, could not afterwards revoke such consent. Such consent is clearly sufficient cause within the statute, and the justice could not disregard it. The fact that nothing was said expressly about postponing the time for pleading amounts to nothing, as the continuance must necessarily leave it in statu quo, without some agreement to the contrary. The case was, therefore, regularly in court on the adjourned day, and the refusal of the justice to proceed was a plain denial of right.

The action of the justice being in effect a nonsuit, the appeal was regular and ought not to have been dismissed. Its dismissal must be regarded as an avoidance of the action for matter of form, and the time for further suit ran from such dismissal.

The action, therefore, is properly brought, and the judgment of the Circuit Court in favor of plaintiff must be affirmed, with costs.

Cooley and Christiancy JJ. concurred.

Martin Ch. J. did not sit.


author: Cooley J.

text:
    Silas Ireland v. John Woolman and others.

      Chancery practice: Affidavit of regularity: Recital in order, effect of: Subsequent purchaser, when to pay costs: The affidavit of regularity required by chancery rule 92, previous to the taking of a bill as confessed, is for the con venience of the judge only; the rule only requiring that evidence in that form, or some other, should be furnished of the regularity of the proceedings on taking the bill as confessed.
    When a recital in a chancery order is not essential to its validity, it may be treated as surplusage.
    When a subsequent purchaser is made a party to a foreclosure bill, and contests the amount due upon the mortgage, a decree for costs may be rendered against him, if the mortgaged premises prove insufficient.

      ilm'tgage premises, in what ordet' sold: Notice of foreclosure sale: Practice in computing amount due. WThere there is nothing on the record to show the propriety of any other disposition, a sale of premises in the inverse order of alienation is proper.
    The decree in this case directed that notice of the foreclosure sale be given “according to the course and practice of the court.” Held, that the practice in this state had become so uniform as to make this direction sufficiently clear to be valid.
    The court may dispense with a reference to compute the amount due on a mortgage, and make its own computation, if it sees fit.

      Heard January 9th.

      Decided January 14th.

      Appeal in Chancery from Cass Circuit.
    This was a bill to foreclose a mortgage. The case was heard on the pleadings and proofs, and a decree was made in favor of complainant.
    The defendants appealed.
    The objections to the decree are stated in the opinion.

      F. Muzzy, for complainant.

      J. Hollister and J. Sullivan, for defendants.
    The decree is erroneous.
    1. Because complainant furnished no affidavit of regularity of proceedings. That there is none returned is certain.
    The recital in the decree that such an affidavit was furnished, is no proof of the fact. —10 Mich. 265; 6 Id. 401.
    The decree can not be sustained without such an affidavit.— Chancery Rules, 92.
    2. No subp<Bna was ever served on Woolman, nor was any affidavit furnished of his non-residence, nor any order of publication made in the cause. No such affidavit or order is returned.
    The recital in the decree or in any interlocutory orders, either of personal service or notice by publication, does not establish the fact. —10 Mich. 265.
    Personal service or affidavit of non-residence and proof of order of publication, and compliance with such order, are necessary to confer jurisdiction. —10 Mich. 265.
    No decree could properly be made against any of the parties, much less against Woolman, until it was legally taken as confessed by Woolman. — Harring. (Ch. ) 265; 2 Paige, 512; 4 Id. 122.
    If Woolman were an unnecessary party, the cause could not properly be heard until it was either taken as confessed, as to him, or the bill dismissed by order of the court. —2 Paige, 585; 1 Id. 548, 559; 5 Id. 638.
    S. It requires Bilderback, who was merely a grantee under Woolman, to pay the costs of the foreclosure.
    4. It contains no directions as to the mode or term of ^publication, but orders that the Circuit Court Commissioner give public notice of time and place of sale, according to the course and practice of this court.
    Such a decree is a nullity, since the court has furnished no rules as to the mode of publishing notice of mortgage sales, or the term of such notice.
    The form was probably borrowed from the New York forms, where the statute or rules prescribed ¡the time and place of sale, and the mode and term of notice. — 1 Bari. Ch. Pr. 526.
    5. No order of reference was made to the Circuit Court Commissioner to compute the amount due on such mortgage.
   Cooley J.

Several objections are taken by the appellants to the decree in this cause, but none of them, we think, well founded.

1. It is objected that no affidavit of the regularity of the proceedings as to the defaulted defendants was presented at the hearing. It is always proper that such an affidavit should be presented, and the rule — Chancery Rule, 92 — requires that either in that form, or some other, evidence should be furnished of the regularity of the steps to take the bill as confessed; but this is for the convenience of the judge only, and while the affidavit could not make the proceedings regular if, in fact, they were not, neither does its absence invalidate them, if correct.

2. The default as to Woolman is claimed to be irregular. An inspection of the record furnishes no ground for this objection except that the recital in the order for default states that he was personally served with subpoena, whereas, in fact, he was brought in by publication as a non-resident. But this error was merely clerical, and as no recital of the kind was essential to the validity of the order, the mis-recital must be treated as surplusage..-

3. It is said that the decree for costs against Bilderback was erroneous. Bilderback was a subsequent purchaser from the mortgagor. The mortgagor himself was a nonresident, and did not appear; but Bilderback contested the amount due upon the mortgage, and it was clearly proper that the court should decree costs against him. if the mortgaged premises proved insufficient.

4. The decree directs the various parcels of land covered by the mortgage to be sold in the inverse order of their alienation by the mortgagor, whereas it is claimed that one of them is taken out of the operation of the general rule which would require this order of sale, by being specially charged with the payment of the mortgage by the mortgagor’s deed conveying it. Without inquiring whether there is anything in the testimony to show this fact, it is sufficient to say that the point is not in any way presented by answer, and wap not, therefore, properly before the court below.

5. The decree is objected to, because it directs notice of sale to be given “according to the course and practice of the court;” and it is said that neither the statute nor the rules prescribe the length of such notice. The practice in this state has always been to give-notice for the same time and in the same manner as required by sheriffs before sale of real estate on execution; and this is so well understood, that it is not uncommon for decrees to be made in this form. We are not disposed to question the validity of such decrees.

6. It is lastly objected that no reference was made to a Circuit Court Commissioner to compute the amount due on -the mortgage, but tbe Circuit Judge computed it himself. A reference in such case is for the relief of the Circuit Judge, and he can dispense with it if he see fit.

The decree must be affirmed, with eosts against the appellants.

Christiancy and Campbell JJ. concurred.

Martin Ch. J. did not sit.