text:
    LANDSBERGER v. JOYCE.
    , 1. Contracts — Subsequent Agreement — Consideration.
    In an action for the purchase price of goods sold and delivered, the fact that defendants paid the freight, when it should have been paid by plaintiff, could not aSeet the question as to whether a new arrangement was made whereby defendants were to pay a certain amount of the purchase price, the freight to be deducted, and plaintiff to receive the goods back.
    2. Same — Acceptance—Appeal and Error.
    A finding of the court below that defendants did not accept the terms of plaintiff’s offer to receive the goods back, held, sustained by the evidence and not opposed to the great weight of the evidence.

      Error to Kent; Perkins, J.
    Submitted June 7, 1918.
    (Docket No. 73.)
    Decided September 27, 1918.
    Assumpsit by Albert H. Landsberger against Albert L. Joyce and Albert É. Joyce, doing business as A. L. Joyce & Son, for goods sold and delivered. Judgment for plaintiff. Defendants bring error.
    Affirmed.
    C. G. Turner, for appellants.

      Eastman & Eastman, for appellee.
   Ostrander, C. J.

The suit is brought to recover the purchase price of certain goods sold and delivered to defendants by plaintiff. One shipment was made in November, 1914, $82.50, the other in August, 1915, $481.25. That the goods were originally sold to, delivered, and received by defendants “is not disputed. That they had not been paid for when suit was begun is not disputed. There is no contest about quality, quantity or price. There is no controversy whatever over the November item. The declaration is upon the common counts in assumpsit, the plea the general issue. With the plea defendants gave notice that they would show, in defense of the action,—

“that said goods mentioned in the declaration in said cause were ordered by said defendants for fall delivery with an understanding that said goods should not be delivered until the latter part of November, 1915, and that said defendants should have thirty days and sixty days after delivery at that time. That • said goods were shipped by said plaintiff in the summer time of 1915, when said plaintiff knew that said goods could not be used by said defendants as they were winter goods, and that said defendants could not use them at that time and so notified said plaintiff.
“Said defendants will also give in evidence and insist in their defense that just before the 1st of the year of 1916, the said plaintiff had another agreement with said defendants at the city of Grand Rapids, Michigan, in which said plaintiff agreed that said defendants need not pay for the goods, and that said plaintiff would take the same back and notify said defendants where to ship them.
“That said defendants held said goods as per last arrangement with said plaintiff subject to the order of said plaintiff, and still have the same subject to their order according to said agreement.
“That at the time said plaintiff took the amount of freight bills and other things connected with expenditures made by said defendants in relation thereto, and acquainted himself with all the circumstances in the matter, and agreed as above stated.”

The cause was tried by the court without a jury. At the conclusion of the trial the court rendered,' orally, an opinion, concluding with an order for judgment for the plaintiff. The attorney for defendants said :

“A stay of twenty days and findings of facts and law I would like to have made by the court.”

And the court replied:

“Well, that is all right. I will file what I have said here. I will look that over, and if it is enough, in my judgment, I will file it as findings of fact and law.”

Later, this opinion was filed as “findings of fact and law”; this in February, 1917. Still later, May 17, 1917, formal findings were filed, and in June, 1917, defendants filed exceptions thereto, one of. which is that the court filed two findings, both of them against the law and evidence. It does not appear that the exceptions, as such, were ever brought on to be heard. Some of them are embodied in the reasons asserted on the motion for a new trial. The record shows the following as the formal findings:

“This cause having come on to be heard before the court without a jury, the court does hereby find the facts to be as follows:
“1. That in the year 1914, and for some years prior thereto, the plaintiff was engaged in business in the city of San Francisco, in the State of California, as a merchandise broker and manufacturer of food products.
“2. That; the defendants in the year 1914, and for some time prior thereto, had been engaged and were engaged in the retail business, having a store in the city of Grand Rapids, and one store in Traverse City, both in the State of Michigan.
“3. That on the 2d day of February, 1914, the defendants signed a written contract for the purchase from plaintiff of 50 cases' of tomato nectar and 50 cases of individual clam bouillon, amounting to $481.00. That these goods were to be shipped ‘on or about the fall of 1915,’ and were to be paid for one-half 30 days and the balance 60 days from date of invoice.
“4. That on the 3d day of November, 1914, the defendants ordered from plaintiff ten cases of clam bouillon for immediate shipment, and on the 5th day of November, 1914, defendants made additional order from plaintiff of ten cases of clam bouillon, amounting in all to $82.50, and that these goods were shipped to the defendants on the 14th and 23d days of November, 1914, and terms of payment 30 days from date of invoice.
“5. I further find that the goods called for by the order of February 2, 1914, arrived and were accepted by the defendants at Grand Rapids, Michigan, the latter part of August, 1915.
“6.‘ I further find that defendants made some com- . plaint, because these goods arrived too early and that the plaintiff, to meet this objection, agreed to extend the date of the invoice from August 17th to October 17th, thus extending the time of payment 60 days beyond the original agreement.
“7. I further find that during the year of 1915 the plaintiff made persistent and repeated efforts to secure from the defendants payments of the invoice of the goods shipped November, 1914, of $82.50, and after November 17, 1915, plaintiff made repeated efforts to secure payment of the goods shipped in August, 1915. And I further find that defendants made no payments on any of the goods shipped.
“8. I further find that on the 2d and 3d days of December, 1915, the plaintiff was in the city and called upon the defendants for the purpose of securing payment of his bills and, in order to reach an immediate settlement or adjustment, offered to take back one-half of the goods shipped in August, 1915, provided that the defendants would immediately pay the balance of the goods shipped August, 1915, and also the bill of $82.50 for goods shipped November, 1914. Defendants refused to accept this offer. I further find that this was the only arrangement or agreement or understanding that the plaintiff had with the defendants on this occasion.
“Conclusions op Law.
“1. I therefore conclude, as a matter of law, that the defendants are indebted to the plaintiff, and that the plaintiff is entitled to recover from the defendants the sum of five hundred seventy-nine and .06-100 dollars, and that judgment be entered in favor of said plaintiff against said defendants for that amount, with costs of this suit to be taxed.”

As plaintiff also asked for formal findings and these formal findings were made, they must be considered as the findings of the court. Judgment was entered, and a motion for a new trial was denied.

There are 18 assignments of error. In the brief for appellants, it is said:

“The only question involved in this suit is whether or not the agreement entered into on the 3d day of December, 1915, as testified to by Mr. Joyce and his bookkeeper, Mr. Cherwenka, was a binding agreement; and whether or not there was any consideration for the same.”

This must be referred to the 8th finding of fact and both to the 13th and the 18th, and perhaps to other, assignments of error.

If the contention of appellants is apprehended, it rests upon a ruling made by the court, and stated in the opinion delivered by the court, to the effect that whichever way the fact might be found as to the claimed rescission of the contract of the parties, and whether plaintiff did or did not agree that defendants need not pay for the goods shipped in August, 1915, and that plaintiff would take them back, there was no valid consideration for any such new promise and agreement. Defendants contend there was a valid consideration, which was this: The order, the printed form, called for a shipment in August, 1915, of goods f. o. b. San Francisco. The order printed in the record and exhibited to this court at the argument shows the words “San Francisco” crossed by a line and above San Francisco is written in “G. Rapids.” The freight was $17, and was in fact paid by defendants. They say, therefore, that the court was in error in saying that the obligation rested upon defendants to pay the freight; that when the alleged agreement was made to take back the goods plaintiff had $17, the freight money, which belonged to defendants, and, the alleged agreement being to take back the goods at Grand Rapids and to leave them in defendants’ storage until shipping directions should be given, there was legal consideration for the promise. Plaintiff’s attorney, in the brief and at the hearing, insisted that, as produced in the trial court, the order called for goods to be shipped f. o. b. San Francisco, saying that it would have been a very easy matter to have settled this question beyond any doubt if such a claim had been made at the time of the trial and intimating that the erasure and interlineation now shown upon the face of the order would have been observed at the trial if it had then appeared on the order. It is not at all likely that any one connected with this case altered the form of the order. Its form may have been overlooked. The significance of an order f. o. b. Grand Rapids may have escaped proper notice. But the fact has no possible significance-as affecting the proper conclusion. Suppose defendants paid $17 as freight when freight should have been paid by plaintiff. One of two things resulted: Either it was a payment on account, or it created a right of action for its recovery. It did not and cannot affect the question of whether a new agreement was made to take back the goods, because the defendants’ testimony is that in the alleged new agreement plaintiff advised defendants _that the freight would be allowed, to be deducted when defendants paid the account of $82.50. Beyond this, there is the 8th finding of fact, and it is not contended there was not some evidence to sustain 'the finding. Nor is the finding opposed to the great weight of evidence.

Assuming, therefore, that the defendants are right in the contention that the original order called for a shipment f. o. b. Grand Rapids, no error appears, and the judgment must be affirmed.

A motion to strike the brief of appellee from the files because of unwarranted allusions to the form of the order for the goods, and because of insinuations contained therein that the order as it now appears is in form different from the order produced in the trial court, is in form denied, although the court is of opinion' that there is no evidence warranting the conclusion that the order has been altered. It has already been suggested that more important things than this have been overlooked in writings by both counsel and courts. It is not improper to suggest that when a matter may be reasonably explained and probably accounted for without impugning motive it. is at least not gracious to charge, or insinuate, that bad motives and improper conduct are indicated.

' Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    NEWCOMBE v. NEWCOMBE.
    Divorce — Ahmoht—Decree—Modification.
    On appeal in divorce proceedings, the decree of the court below sustaining the validity of a separation agreement disposing of the property interests of the parties, but deducting $70 advanced to the wife by order of the court, will be modified by awarding her the .full amount of the agreed settlement, and giving fier a lien on plaintiffs farm to secure performance.
    Appeal from Allegan; Cross, J.
    Submitted July 18, 1918.
    (Docket No. 108.)
    Decided September 27, 1918.
    Bill by Christopher Newcombe against Catherine Newcombe for a divorce. From a decree for plaintiff, defendant appeals.
    Modified and affirmed.

      Perle L. Foueh (Charles Thew, of counsel), for plaintiff.

      Clare E. Hoffman, for defendant.
   Ostrander, C. J.

The parties were married October 26, 1914, and lived together until March 12, 1917. The bill was filed March 19, 1917, and it is charged therein that plaintiff is 70 years of age and that the defendant claims to be 47 years old. No children were born of the marriage, there is very little property. Plaintiff charges that the defendant has been guilty of extreme cruelty in bestowing epithets, in the failure to perform the duties of a housewife, in threatening him with personal violence. Defendant, in her answer, professes affection for plaintiff and says that the interference of others is responsible for the breach in a domestic life which has been, and otherwise would have continued to be, reasonably comfortable. She denies the charge of cruelty, and asks that the bill be dismissed and a certain agreement of the parties, purporting to have been made for a separation and a division of property, be set aside as fraudulent.

Before his marriage to defendant, plaintiff was a bachelor, living on a 40-acre farm inherited from his father, possessing some, but not much, personal property, and owing a small debt secured by mortgage on the realty. Little appears about his antecedents, but he seems not to have gone far in bettering his fortune, and if the parties could contentedly live together there is- reason for believing that he would live longer and fare better with defendant than he will without her and her assistance. Defendant was for more than three years before her marriage to plaintiff his housekeeper. She brought with her one son by a former marriage. She has sometimes done a man’s work on the farm, and has managed, more or less, the disposition of the proceeds of the farm. That she has ever misappropriated plaintiff’s money is not proven. The testimony given by the parties is conflicting, and that supplied by friends and neighbors does not tend very strongly to support the charges made in the bill. Plaintiff professes to be afraid of defendant — afraid of personal harm. He left her and his home March 12, 1917, complaining that she had threatened to kill him. .In some way the prosecuting attorney and a deputy sheriff were informed that an attempt had been made by her to do him personal injury. The prosecuting attorney, upon investigation, found no occasion for official action and seems to have been at once engaged as counsel for plaintiff, for whom he was also a witness at the hearing.

On the 13th day of March, 1917, the parties executed a writing which in terms recites that they have separated and intend to live separate and are desirous of settling property affairs. The defendant, in consideration of $450 and some other personal property, releases her right of alimony, dower rights, and claims to certain other specified personal property. It is probable that if carried out defendant will receive about $500 of value by this arrangement. She says it was procured by fraud, and by this she means, as her testimony is understood, that she was intimidated when she made the agreement by the prosecuting attorney, then her husband’s solicitor, and was coerced into making it.

Testimony was given in open court, and the learned trial court found that plaintiff had sustained the material allegations in the bill and that defendant had been guilty of extreme cruelty. It was found that the aforementioned property settlement was a fair one and was not procured by fraud or duress, and that it ought to stand as a full settlement of property rights. A sum of money, $70, advanced to defendant by order of the court, is ordered to stand as a payment upon the $450 which, by the settlement, the plaintiff was to give to defendant.

Upon a review of the testimony, which it would profit no one to set out here, I agree with the conclusions that the divorce should be granted and that the property settlement ought to be approved. If she is to be believed, the effort to intimidate her and to force the settlement which was made is clearly made out. Independent of this, the action of the prosecuting attorney, counsel for her husband, was of a nature calculated to intimidate a weaker woman. I am not satisfied that it had this effect with the defendant. I find no reason for concluding that the sum advanced to defendant, pending the divorce suit, ought to be returned to plaintiff. Spouses may agree to live separate and apart from each other and may settle their property interests with that in view, but an agreement to separate is not an agreement that either has cause for a divorce. An allowance in this case was proper to enable the defendant to live and to present in court her reasons why a divorce ought not to be granted to her husband.

The decree should be amended so as to allow to the defendant the benefit of the agreed settlement without diminution and so as. to provide, if the sum of $450 has not been paid to defendant, that she have a lien, upon plaintiff’s farm to secure performance of the decree. In other respects, the decree is affirmed, without costs.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    WATERS v. LAKEWOOD UTILITIES CO.
    1. Contracts — Construction—Question of Law.
    Where a written contract provided that the receivers of a railroad company were to furnish the material for a side track, of which they were to remain the owners, and defendant was to pay the cost of construction, held, that the finding of the court below that the contract was not ambiguous, and that defendant was to pay only for the labor of constructing said side track, was not erroneous.
    2. Words and Phrases — “Construction”—Definition.
    “Construction” means the process or act of constructing, the act of building; erection; the act of devising and forming; fabrication; composition.
    3. Appeal and Error — Inconsistent Claims.
    Where plaintiffs claimed upon the trial that the contract was unambiguous and should be interpreted by the court, which, view was accepted by the court, they refused the benefit of any admission of defendant in its answer that evidence should be admitted to explain the writing, which evidence it is now claimed would have, shown that the cost of construction was much more than that allowed by the trial judge.
    4. Same — Exceptions—Assignments oe Error — Set-ofe—Demurrage.
    A claim that under the holdings of the Federal courts, in an action for freight charges, the shipper cannot maintain set-off for damage claims, the court below was in error in allowing set-off for cost of constructing side track against demurrage charges, will not be considered by the Supreme Court, on error, where there is no exception referred to which raises the point, and no specific assignment of error.
    Error to Muskegon; Sullivan, J.
    Submitted June 11, 1918.
    (Docket No. 87.)
    Decided September 27, 1918.
    Assumpsit by Dudley E. Waters and another, receivers of the Pere Marquette Railroad Company, against the Lakewood Utilities, Company for the construction of a side track and for demurrage charges. Judgment for defendant on a directed verdict. .Plaintiffs bring error.
    Affirmed.

      Charles B. Cross and Wallace Foote (Parker, Shields & Brown, of counsel), for appellants.

      Alex. Sutherland, for appellee.
    In so far as the terms of a certain contract executed by the parties are of importance here, they are as follows:
    “Agreement, made this, 7th day of February, A. D. 1914, between Lakewood Utilities Company, a corporation of the State of Maine, hereinafter for convenience called ‘the first party/ and the Pere Marquette Railroad Company (for itself and all companies which now or shall hereafter use its tracks), hereinafter called ‘the second party,’ and Frank W. Blair, Dudley E. Waters and S. M. Felton, receiver's of the property and business of the said company, hereinafter called ‘the receivers.’
    “The first party has requested the second party and the receivers to construct one side track to be located at Lakewood, Michigan, connecting with second party’s main line 431 feet north of location stake 3,500, and extend in a southeasterly direction 280 feet, for the convenience of the first party in receiving and shipping freight. In consideration of the.representations, promises and undertakings of the first party and upon the conditions and with the reservations hereinafter stated, the second party and the receivers hereby agree to comply with such request as soon as practicable after the execution of this agreement.
    “Wherefore, this writing witnesseth:
    _ “1. Said side track shall be constructed, substantially according to the plan hereto attached ...... feet, or thereabouts, thereof being upon land owned or controlled by the first party, and two hundred eighty (280) feet, or thereabouts, being upon land owned or controlled by the second party and the receivers. The first_ party hereby represents that it has lawful authority to permit the second party, the receivers, and other companies using their tracks to construct and use said side track according to said plan and the terms of this agreement, beyond the limits of the second party’s and the receivers’ premises; and the first party hereby grants to the second party, the receivers, and such other companies, the right to construct and use said side track in accordance with the terms thereof, and hereby agrees to indemnify and save the second party, the receivers, and such other companies, harmless of and from all damages, costs and expenses that may be suffered or incurred by either on account of any claim of trespass or other claim by any third party or parties, arising from the construction or use of said side track.
    “2. The material for the construction of said side track shall be furnished by the second party and the receivers. First party agrees to pay to the second party and the receivers, in advance of the construction of said side track, the sum of $565.91, the estimated cost thereof, and in case the actual cost shall exceed said sum, it will on demand pay the balance of such cost to second party and the receivers. Second party and the receivers agree that in case the actual cost shall be less than said sum, they will refund the difference to the first party. The said side track, including ties, rails, switches and crossing material, if any, shall be and remain the property of the second party, the receivers and its or their assigns, and under its or their exclusive control, except as herein otherwise stated; and the second party, the receivers and such other companies, shall have the right to use the whole or any part of said side track for other business than that of the first party, when it will not interfere with the first party’s business, without any allowance therefor to the first party and without restriction except as herein stated.”
    The contract in other respects is calculated to secure to the plaintiffs the carriage, of freight, in and out, for defendant, the use by plaintiffs of the side track. Defendant paid the amount of the estimated cost. The side track was in fact constructed before the written agreement was executed. The actual cost, including materials, was $619.52. The actual cost for labor was $128.70. To recover the difference between the total cost and the sum paid, and to recover certain items of demurrage, about which there is now no dispute, this action was begun.
    Defendant, regarding the contract as ambiguous in meaning, gave notice with the plea that it would prove and insist in its defense that it was understood and agreed that the sum advanced by it to pay for the construction was to be used to pay for the actual cost of the labor and ties and other material of a temporary and perishable character only, and that accordingly it would show that the actual cost of construction was $335.63. Plaintiffs, with whom the court agreed, maintained that the contract was not ambiguous, and its meaning was for the court. Upon the subject the learned trial judge said:

      “Now, there is the agreement. The- material was to be furnished by the railroad company. And the further provision in this agreement that provides that the material shall remain the property of the Pere Marquette Railroad Company, and the actual cost of construction would be what the expense would be of putting this side track down, and, as the court construes it, it only means the labor of putting the side track in, and that is what the contract speaks for itself and that is what the court construes the contract tol)e.
    “Now, there was paid, according to this agreement, $565.91, and the cost of the labor with the interest is $141.57, so that there would be left, according to the contract, a difference to be paid to the defendant of that item of $424.34, with interest from the time that the money was paid, and that interest is $91.93, according to the computation, making the whole amount- due to the defendants at this time, $516:27,. if that was all there was to this lawsuit, but besides that the plaintiff claims demurrage amounting to $128, and against that there was no off-set. The de'murrage with the interest from the date it was due is $26.60, making $154.60 to be deducted from $526.27. We are settling this lawsuit, and there is due from— there is due to the defendant, the sum of $361.67, so" your verdict should be for the defendants, you find that there is due to the defendants the sum of $361.67, and you do that by direction of the court.”
    A verdict and judgment for defendant followed.
    Plaintiffs, appellants, contend here (1) that by the terms of the contract the entire cost of the side track is chargeable to defendant, (2) that, in any event, there can be no set-off to its demand for demurrage.
   Ostrander, C. J.

(after stating the facts). Admitting appellants’ contention that the contract is not ambiguous, is not open to explanation by evidence, and that its meaning is to be found by the court, the construction placed upon it by the court may be sustained. The writing recites a request made by the defendant “to construct one side track,” the agreement is that it "shall be constructed, that the materials for construction shall be furnished by the plaintiffs, and shall be and remain the property of the plaintiffs. To construct is to bring together, to put together, the constituent parts of something in their proper place and order; to build; to form; to make; as, to construct an edifice. Synonyms are, to build; to erect; form; compile; make; fabricate. Construction means the process or act of constructing, the act of building; erection; the act of devising and forming; fabrication; composition. Vide Webster’s Inter. Diet. If nothing had been said about materials, it would have been open to question by whom they were to be furnished, and perhaps the necessary inference would be that defendant was not to furnish them. But the agreement is that plaintiffs are to furnish the materials for construction and to be and remain owner of them. To furnish is not, necessarily, to give, nor, necessarily, to receive pay for what is furnished. To furnish is to supply with anything necessary, useful or appropriate ; to provide; to equip; to fit out; to fit up; adorn. A secondary meaning is to give something. Vide supra. A thing useful to both parties was to be constructed, materials to be furnished by the plaintiffs, who remained owners of them, construction to be paid for by defendant. The single provision which may seem to negative the idea that only cost of construction was to be charged to defendant is the one fixing the estimated cost. But if we exclude evidence of what in fact the cost of labor, and the cost of materials, was, the apparent difficulty is obviated, because, if the estimated cost was too much a refund was provided for. Upon plaintiffs’, appellants’, theory then, it does not appear that error was committed upon this branch of the case.

Plaintiffs’ general and main contention, too, negatives any idea of accepting and using for their benefit the statement in the notice given by defendant that no more than $335.63 was the sum to be paid for the side track. They refused the benefit of the fact (assuming that it is an admission) upon the trial. In substance, the portion of the notice referred to asserts that extrinsic evidence ought to be received to explain the writing, and, being received, it would appear that the construction as agreed upon cost no more than $335.63, a position which plaintiffs at the trial denied and here deny. They insisted that the contract was to be interpreted by the court, according to its terms. They cannot maintain both positions.

The effect of the action of the trial court was to allow defendant to pay a claim ’for demurrage by setting off its cross-demand against plaintiffs. The Federal courts have held that in an action for freight charges the shipper cannot maintain a set-off for damages but must bring an independent action. Illinois Cent. R. Co. v. Hoopes & Sons, 233 Fed. 135; Johnson-Brown Co. v. Railroad, 239 Fed. 590; Chicago, etc., R. Co. v. Stein Co., 233 Fed. 716. The reason for the rule of the Federal courts is based upon the laws forbidding rebates and discriminations and the facility With which, under the guise of a claim for damages, a rebate of freight charges might be secured. Appellants discuss this point, contending that in principle no distinction can be made between a demand for freight and a demand for demurrage, but there is no exception referred to which raises the point and no specific assignment of error. Therefore, it will not be considered.

The judgment must be affirmed, and in this view the court below was right in awarding costs to defendant.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    DROPPERS v. MARSHALL.
    1. Homesteads — Contract to Convey — Validity—Land Contracts —Vendor and Purchaser — Default.
    A contract to convey a farm consisting in part of the homestead, signed by the husband alone, is binding upon him; and his default in failing to perform may be made the basis of an action for damages. Ostrander, C. J., and Moore, J., dissenting.
    2. Vendor and Purchaser — Breach of Contract — Measure of Damages.
    In an action for damages for the breach of a contract to convey land, the plaintiff is entitled to recover the difference between the price fixed by the contract and the market value thereof.
    3. Variance — Trial—Pleading—Instructions.
    Where the case was submitted to the jury upon a theory wholly at variance with the theory of the declaration, the judgment of the court below will be reversed.
    Error to Kent; McDonald, J.
    Submitted June 18, 1918.
    (Docket No. 46.)
    Decided September 27, 1918.
    Assumpsit by Anthony C. Droppers against Ernest W. Marshall for breach of a land contract. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Hatch, McAlUster & Raymond, for appellant.

      Herman & Johnson, for appellee.

      See note in 8 L. R. A. (N. S.) 748.

   Ostrander, C. J.

(dissenting). The defendant owned 119 acres of land. Under date December 5, 1916, he and plaintiff executed a writing, by the terms of which he was to sell and plaintiff to buy the land and some personal property for $16,000, vupon certain terms. The terms of payment were $500 December 5, 1916, and this was paid; $500 on or before March 1, 1917, when a note and mortgage for the balance was to be given, to draw interest at the rate of 5 per cent, per annum, to be paid, $100, plus interest, annually, with the privilege of paying more than $100. The land is described in the writing as being in the township of Byron, Kent county, Michigan, and consisting of the east half of southeast quarter and southeast quarter of northeast quarter, less one acre. No section is given in the contract, and none is mentioned in the briefs, but in the testimony it appears that the land is on section 8. The three forties abut upon a highway, the middle forty acres is a homestead occupied as such by defendant and his wife. The wife did not sign the writing. Defendant refused to perform, in his testimony he assigns as a reason that by the terms of the contract the payments might continue for 150 years and that he asked the vendee, who refused to do so, to amend the contract in this respect. Plaintiff sued to recover his damages, declaring upon the contract and setting up the breach by defendant. With the plea defendant gave notice that at the time the contract was executed he was a married man, living with his wife on the land, that the land includes his homestead, and that he would insist that the contract is void because not executed by his wife. The cause coming on to be heard, the attorney for the plaintiff made an opening statement to the jury in which no intimation is given of a theory of recovery other than that the contract as made has been breached by defendant and that damages were claimed for the difference between the value of the farm and the contract price.

The theory of plaintiff, according to which he was permitted to recover, is, that in negotiations which preceded the making of the writing defendant valued each forty acres, the middle forty — the homestead — ■ at about $10,000, the others, together with the personal property, at $7,000, and that, assuming the contract to be void as to the homestead, it was valid as to the remainder and he could recover so much as the property other than the homestead was worth over and above the price so put upon it by defendant. Over objection and exception, he introduced testimony upon this theory, his precise testimony on this point being, “He valued the buildings between $6,000 and' $7,000,” the forty the buildings were on “about $3,-000,” “with the personal property and the woods on the other 40’s, he valued that at $7,000.” He testified further:

“A. We talked about buying the entire 120 first, that is what he wanted to sell, and then I would rather only have 80 acres, and I asked him ‘what will you take for the 80 acres with the buildings on?’ ‘Well/ he says, T don’t care about selling 80 acres/ He says, T want $10,000 for the 40 with the buildings on.’
“Q. What did you say to that?
“A. I says, ‘that is all right.’ I says, ‘that 40 is worth $10,000 with the buildings on, but/ I says, ‘$6,000 for the other two 40’s is almost too much/ I says, T will have to go home and think that over again.’ That was on Saturday.
“Q. And when did you have your next conversation?
“A. That was on the next Tuesday when we went to draw up the contract.
“Q. And what was said then?.
‘‘A. Then we talked it over again and I said ‘the 40 with the building suited, for $10,000, suited me all right/ * * *
“Q. What was said about the personal property?
“A. Well, we dickered around for awhile. He had a young team of horses there and I wanted him to put in a young team of horses with the other two 40’s, and finally we dickered around and I got the two other horses, the roan and the bay mare. That was the team mentioned in the contract; and the rest of the personal property mentioned in the contract. ■
“Q. And what did you say when he offered to put those things in that are mentioned in the contract?
“A. I says, ‘if yon figure that then for $10,000 and the other two 40’s for $6,000, including the personal property, we will call it a bargain.
“Q. And did he agree to that?
“A. He agreed to that.
“Q. Then did you go down to have the papers drawn?
“A. Then we talked some about the terms, and— * * ❖
“Q. Well, as I understand then, when that proposition was made for $10,000 for the 40 with the buildings on and $6,000 for the others, including the personal property, did you say you would do that?
“A. Yes.
“Q. Did he say he would do that?
“A. Yes. Then we went down and had the contract drawn.”

Defendant denies putting a value upon separate parcels or any agreement to that effect. He asked $16,000 for the farm and, to make the deal, included the personal property described in the contract.

Upon this point, which involves the principal issue in the case, the court instructed the jury:

“The written instrument is silent as to the contract price of the separate 40’s, so you must determine the contract price from the oral testimony of the witnesses. As to this question, the plaintiff says that the contract price was $6,000 for the two 40’s. That is, the plaintiff says that before they entered into the written contract they had agreed that the price of the two 40’s was to-be $6,000; the price of the homestead was to be $10,000. The defendant says that, there was no agreement as to the contract price except the price mentioned in the written’ contract, that is, in the written contract, the price mentioned in the written contract for the farm as a whole, $16,-000; says that independent of that amount fixed in the contract, there was nothing said between him and the plaintiff as to what the 40’s separately were worth at that time.
“Now, under the circumstances of this case, the plaintiff cannot recover any damages other than that represented by the tender which has been made into court until he has convinced you by a fair preponderance of the evidence that a price was agreed upon for the two 40’s separate from the other 40, that is, from the homestead 40; I mean that a price^ was agreed upon before the written instrument was signed by the parties.
“It is a general rule of law that a written instrument cannot be — that oral testimony cannot be received to vary or alter or contradict the terms of a written instrument. That is based upon the presumption that when the agreement between the parties is reduced to writing, it contains all the agreement. But I have permitted the plaintiff in this case to explain what the consideration mentioned' in the written instrument was, how it was made up. If you find that the testimony that was given in that regard is not true, your verdict — he would not be entitled to any damages, and your verdict would be only for the amount which has been tendered into court, or if you find that there was no agreement separate from the written agreement as to the contract price of these two 40’s, the plaintiff cannot recover. If you_ find that there was such an agreement, still the plaintiff cannot recover unless it appears that the real value of the two 40’s was more than the contract price; that the real value of the two 40’s was more than the contract price. If you find that there was a contract price and the real value was more than the contract price, the plaintiff would be entitled to the difference between the contract price and the real value; that is the measure of his damages.”

The verdict returned was $1,260, which included $510, the tender made into court by defendant of the $500 paid to him on the purchase price, plus $10, and $750 damages. There was a motion for a judgment non obstante for $510, with costs to defendant, and, if this was refused, a motion for a new trial. These were denied, and a judgment was entered on the verdict.

Appellant has stated and argued the following propositions :

_ “1. Was not the written contract, which the parties had deliberately made controlling as to the terms of their agreement, and being entire and not sever-able, did not the fact' that it embraced defendant’s homestead and was not signed by his wife render it void so that it will not support an action for damages even as to the' excess of land over and above the homestead?
“2. Was it competent, under the pleadings and the opening statement of plaintiff’s counsel, for the circuit judge to allow a recovery upon a verbal agreement for the price of the two 40’s outside of the homestead?
“3. All question of competency under the pleadings aside, was it competent for the circuit judge to submit to the jury the question of whether or not there was 'a verbal agreement for the price of the two 40’s outside of the homestead?
“4. Could the contract for the sale of the land in question rest partly in parol?
“5.” Was not the consideration for the written contract contractual and so was not evidence of a parol agreement as to the price of the'two 40’s outside of the homestead incompetent, for the reason that such evidence would add to and vary the terms of the written contract?”

Appellee says these propositions evade the real issues, which are:

“1. If a contract for the sale of certain lands includes the homestead and is not signed by the vendor’s wife, can it be made the "basis of an action for damages by vendee, and if so, what is the measure of damages?
“2. Where the lands covered by contract of sale consist substantially of three 40’s, the center 40 comprising the homestead, and are described in the contract as the east one-half (%) of the southeast one-quarter (%) and the southeast one-quarter (%) of the northeast one-quarter (%), etc., and the consideration is expressed in a single or lump sum, can parol evidence be introduced to explain the consideration, that is, how it is made up?
“3. In the case at bar, could the above question be presented under pleadings and opening' statement of counsel for plaintiff?”

From the manner in which the case was presented in the trial court and is presented here, some pains must be taken to state, with precision, the rights and obligations of the parties. For the purpose of recovering damages by one of the parties thereto, there can be no breach of a void contract. The term “void” as applied to a contract for or a deed of a homestead, not joined in by both the husband and wife, has its full significance. It means a complete nullity, without qualifications. The term is often applied with a meaning different from this.

“The term ‘void’ is perhaps seldom, unless in a very clear case, to be regarded as implying a complete nullity; but is to be taken, in a legal sense, subject to large qualifications in view of all the circumstances calling for. its application and the rights and interests to be affected in a given case.” Brown v. Brown, 50 N. H. 538.

In Way v. Root, 174 Mich. 418, 424, it was said:

“It is contended in behalf of defendant that the contract was void from its inception, and therefore cannot be made the basis of a cause of action, for the reason that the land described in it was owned by defendant and his wife together as tenants by entirety, and she did not join in executing the instrument. That the contract is invalid in so far as it is powerless to affect her interests in, or the title to, the property it describes is undoubtedly true. Neither a husband nor wife can alone convey or incumber the estate vested in them as tenants by entirety. In that light and for such purpose such an instrument has been held void by this court. * * * There is no limit on the amount or value of the realty which husband and wife may hold as tenants by entirety as in case of a homestead, and they are not therefore analogous.”

In Lawrence v. Vinkemulder, 157 Mich. 294, the land contracted to be sold was a homestead, but of a value much greater than the homestead exemption. Chief Justice Blair said:

“It being settled that a contract to sell and convey the homestead, signed by the husband only, is a mere nullity, it logically follows that no rights whatever can be predicated upon it. Ex nihilo nihil. To this effect is the overwhelming weight of authority.”-

The constitutional provision (article 14, § 2) is—

“* * * alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of his wife to the same.”

This provision, as is pointed out in Gadsby v. Monroe, 115 Mich. 282, 285, deals with the land which constitutes a homestead, and not with any specific interest therein. See, further, Hall v. Loomis, 63 Mich. 709; Lott v. Lott, 146 Mich. 580 (8 L. R. A. [N. S.] 748). So a contract to convey land embracing a homestead was held. “utterly invalid as an alienation in equity of the homestead.” Phillips v. Stauch, 20 Mich. 369, 381, 382.

The decisions referred to, and many others made since the opinions in Dikeman v. Arnold, 71 Mich. 656, s. c. 78 Mich. 455, were handed down, are based upon reasoning which negatives the idea that with respect to a homestead an unperformed promise made by the husband to sell it may be made the foundation of an action for damages. It is obvious, therefore, that, when a mutual contract to sell and buy a homestead is attempted to be made, both parties are under obligations to see to it that what is done is not a nullity. No idea of a tort, a wrong, committed by the vendor can be entertained if the contract is not executed by the wife nor because the husband does not procure the homestead to be conveyed.

Undoubtedly, the deed of the husband, the defendant here, of the remainder of the land, would be good and would convey the fee, subject to the dower interest of the wife. But it is to the writing and all of its terms that we must look to determine what the agreement of the parties was. If the premises sold are a tract of pine timber, or land containing a deposit of ore, and, as to a fraction of it, the contract is void because a homestead is included, it may be assumed that the main purpose of making the contract was to dispose of the timber or ore. Here, the plain purpose was to buy and sell a farm, with buildings, etc., etc., and that purpose fails because it is not to be presumed, and does not appear, that plaintiff wanted to buy two, separated, 40-acre pieces of land without buildings. The reasonable inference is, rather, that, the agreement for the whole farm failing, the whole purpose of making the contract failed.

What has been said is an attempt to show, among other things, that plaintiff is relying, in fact, upon a breach of an agreement absolutely void; that, eliminating the idea of a breach of the promise to convey the homestead, there is no contract, no bargain, and no breach.

Assuming, however, but not deciding, that if plaintiff, the vendee in the contract, desired it, specific performance of the contract to convey the remainder might be enforced in equity, if the terms upon which enforcement should proceed could be gathered from the contract, it is evident that the contract itself affords no means of determining any agreed upon terms. No separate value is placed upon the three parcels of land or upon the personal property. Time and manner of payment of the purchase price of the farm and personal property are fixed, but there has been no agreement about the time and manner of payment of a much smaller sum, the value of two of the parcels.

Assuming that any valid contract was entered into, it is a contract' to sell and buy two 40-acre pieces of land and some personal property. There is no evidence of any demand by plaintiff for performance of such a contract, hone of a breach of it. It. is illogical to say that he has lost the profits of a bargain, sincé he has neither demanded, nor been refused, the actual bargain he made. Beyond this, is the contention urged by defendant, namely, that the purchase price of the two 40-acre parcels is not fixed in the contract. Not only is this so, but the terms of the contract afford no method for ascertaining either that separate prices were fixed or determining what they were. The objection should have been sustained. We .may go further and say there is no evidence, parol or other, of any agreement upon the price to be paid for the two 40-acre parcels. Giving plaintiff’s testimony its greatest probative value, in the light of the written agreement, it does not prove an agreement to sell and buy those parcels at any price. There was no proper issue to submit to a jury, and a verdict for defendant should have been directed.

The judgment is reversed, with costs, to defendant, appellant.

Moore, J., concurred with Ostrander, C. J.

Brooke, J. I am unable to agree with the conclusion reached by my Brother Ostrander in this case.

In the early case of Phillips v. Stauch, 20 Mich. 369, a suit identical with the one in the case at bar was presented to the court except that in that case the vendee under the written contract sought specific performance thereof while in the case at bar 'he seeks damages for its breach. After determining that a decree for the conveyance of the homestead cannot pass, the court says:

“The remaining inquiry is whether the record discloses a case in which the court ought to require the defendant to convey what he can, by deed executed by himself alone, and compel him to make compensation for deficiency.
“There are certain principles which govern the court in administering this equity.
“In proceeding to give a purchaser something different from that which the vendor contracted to sell, the court is enforcing a contract which the parties never in fact made, and the jurisdiction is therefore to be exercised under many restrictions. * * *
“The farm in question in this case contains a little over 92 acres, and is valued by complainant at a trifle over $6,340, and by the defendant at about $4,600. To give relief on the principle of compensation as contended for, would exempt from the conveyance the homestead right of the value of $1,500, and embracing the dwelling house, and would leave the balance of the premises subject to the contingent right of dower of defendant’s wife.
“This would necessarily exclude from the conveyance a very material part of the subject-matter of the contract, and almost certainly result in great pecuniary injury to all parties interested. The adjustment of the compensation would be quite difficult in a case like this, and especially that part of it founded on the contingent dower right. That is quite different from the case where the right is consummate. The interest of defendant’s wife would also be exposed to some detriment by partial alienation. These considerations, taken together, inspire the opinion that the case is not one in which the court ought to compel' the conveyance with compensation. The case appears to be a hard one for complainant, and we should be glad to relieve him if circumstances permitted.
“The decree below must be reversed, and one entered in this court dismissing the bill, but without prejudice to any proceeding at law the complainant may be advised to institute upon the bond for a deed mentioned in the pleadings.”

In Stevenson v. Jackson, 40 Mich. 702, specific performance was decreed under a contract signed by the husband alone, where after breach the husband and wife had joined in a deed of the property to a third person. Again, in Hall v. Loomis, 63 Mich. 709, the court declined to enforce specific performance but affirmed a decree dismissing the bill without prejudice to proceedings at law.

In principle the case at bar is upon all fours with the case of Dikeman v. Arnold, 78 Mich. 455. In that case as in this the defendant had entered into a contract for the sale (exchange) of a farm, part of which constituted his homestead. It was there said:

“We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in nowise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of the contract.”

In Lawrence v. Vinkemulder, 157 Mich. 294, the contract covered a house and lot, occupied by the defendant as a homestead, worth between eight and nine thousand dollars. Four of the judges of this court were of opinion that the facts of that case brought it within the reasoning of Dikeman v. Arnold, supra, while four others were of opinion that because the contract did not embrace lands in excess of a homestead, Dikeman v. Arnold did not control. Chief Justice Blair there said:

“The case of Dikeman v. Arnold, supra, is hot inconsistent with this conclusion. That case differs from this in that the contract covered lands not embraced within the homestead.”

While the case of Way v. Root, 174 Mich. 418, involved property held by the husband and wife by entireties and therefore is not exactly in point; the opinion distinctly recognizes the authority of Dikeman v. Arnold, quotes from that opinion with apparent approval, and says:

“An agreement to convey, though invalid to affect the title to real estate, in whole or in part, may yet be valid between the parties as a basis for the recovery of damages by reason of its breach.”

I have been unable to find that the law as announced in Dikeman v. Arnold has ever been overruled, nor is there any reason in equity and good conscience why it should be overruled. So long as the wife is not disturbed in her homestead rights why should not the contracting husband be made to answer for his default in failing to perform his contract?

I concur, however, in a reversal of the case upon the ground that the theory upon which- it was submitted to the jury was wholly at variance with the theory of the declaration. I am of opinion that the case should have gone to the jury under instructions as to the. measure of damages approved in Allen v. Atkinson, 21 Mich. 351.

The judgment should be reversed and a new trial ordered, with costs to appellant.

Bird, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Brooke, J.


text:
    LASKOWSKI v. PEOPLE’S ICE CO.
    1. Judgment — Negligence—Contributory Negligence — Husband and Wife — Personal Injuries to Wife.
    The determination in a suit by a wife for personal injuries that the defendant was negligent, and the plaintiff free from negligence, is not conclusive upon defendant in a suit brought by the husband against the same defendant, for damages arising out of the same circumstances.

    2. Same — Conclusive as to Parties Only.
    It is the general rule that judgments and decrees are conclusive evidence of facts only as between parties and privies to the litigation. ,
    3. ' Damages — Personal Injuries to Wife — Husband and Wife— Pecuniary Damages — Money Advanced by Wife.
    In an action by the husband for his pecuniary injuries as a result of personal injuries to his wife through the alleged negligence of defendant, he could recover money advanced by the wife upon his promise to reimburse her, paid for medical treatment and other expense in connection with her injuries; such expense not being incurred upon the credit of the wife, or included in her claim for damages against defendant.
    4. Same — Gratuitous Services.
    In such action defendant is not liable for gratuitous services rendered to plaintiff and his wife, nor for those rendered by a minor daughter, out of employment and living at home, at least in the absence of a contract to pay her.
    5. Same — Trial—Instructions—Future Damages.
    It was error for the court below to refuse to instruct the jury that the plaintiff could not recover for future loss or expense unless the same were proven to a reasonable certainty.
    Error to Wayne; Gage, J., presiding.
    Submitted June 6, 1918.
    (Docket No. 37.)
    Decided September 27, 1918.

      Case by John Laskowski against the People’s Ice Company for injuries to plaintiff’s wife. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Berger & Milburn, for appellant.

      Charles T. Wilkins and Edward R. Kehoe, for appellee.
    Anna Laskowski had judgment against the People’s Ice Company for personal injuries caused by a runaway horse owned and used by said People’s Ice Company. The judgment was affirmed on appeal. 190 Mich. 331. The plaintiff in the case at bar is the husband of Anna Laskowski, and he brought this action to recover from the People’s Ice Company damages for such pecuniary injuries as resulted to him from the injuries-to his wife. In his declaration he alleges the facts and circumstances attending the injuries his wife sustained and the resulting injury to himself. A traverse of the matters set up in the declaration puts in issue every fact necessary to be proved to sustain a recovery. The trial proceeded as though all material facts were in issue. The testimony elicited is not substantially different from that given upon the trial of the suit begun by the wife. The cause was submitted to a jury, a verdict for $2,300 was returned for plaintiff, for which sum a judgment was rendered. A new trial was denied. Plaintiff introduced in evidence, without objection, the files and record in the case of Anna Laskowski v. People’s Ice Company. It is stipulated by counsel:
    “that neither the files or records, nor copies thereof, in the case of Anna Laskowski v. Peoples lee Company introduced into evidence on the trial of this case need be returned with the bill of exceptions, or record, or printed in the printed record; that it appears from such files and records that the same accident was complained of in the said case of Anna Laskowski v. Peo

      ple’s Ice Company as in the present case of John Laskowski v. People’s Ice Company; that the plaintiff in the former case is the wife of the plaintiff in the latter case and that the defendant was the same in both cases; and that the pleadings and proofs in the case of Anna Laskowski v. People’s Ice Company appear fully in the printed record of the same to the Supreme Court of this State, being now there on file and being case No. 26,960 therein, which was decided March 80th, 1916, and is reported in Vol. 190, Michigan Reports, page 331.”
    Upon the subject of the negligence of defendant and contributory negligence of Anna LaskowsM, the jury was instructed that both points were settled in the suit brought by the wife, and they were told they—
    “must find that the defendant ice company was guilty of negligence as charged, and that the plaintiff’s wife, Anna Laskowski, was free from contributory negligence. The only questions, therefore, for your consideration, are whether or not the plaintiff has sustained damage, loss and damage, as a proximate result of the injuries to his wife, Anna Laskowski, sustained through the accident; and if you find that he has, then the only remaining question is for you to determine the amount of the damage.”
    Points raised and discussed are stated by appellant as follows:

      “First. In charging and instructing the jury that the judgment obtained by Anna Laskowski, the wife of the plaintiff, against this defendant, for her personal damages for injuries received by her in this same accident, was conclusive as to the question of the negligence of the defendant; and that the plaintiff's wife, Anna Laskowski, was free from contributory negligence; that that judgment could not be reviewed; and that the only question for the jury’s consideration was whether or not the plaintiff had sustained damage as the proximate result of the injuries to his wife, sustained through this accident, and, if he had, the amount of such damage.

      “Second. By admitting in evidence certain receipted bills for medicines and doctors’ services, without proof that they were paid by the plaintiff.

      “Third. In refusing to admit testimony that the bills for medicines and doctors’ services were paid by the wife of the plaintiff out of her personal funds.

      “Fourth. For refusing to strike out, on defendant’s motion, certain testimony as to an alleged agreement between the plaintiff and his wife, that the wife was to pay the expenses of her care, and that the plaintiff was to later reimburse her.

      “Fifth. By charging and instructing the jury that the plaintiff was liable for the expenses for the care of his wife, and entitled to recover therefor, whether paid by him or not, and refusing the defendant’s request in this regard.

      “Sixth. By refusing the defendant’s request to instruct the jury that the plaintiff could not recover for services gratuitously rendered him.

      “Seventh. By admitting certain testimony over the defendant’s objection, as to the value of the services rendered by the plaintiff’s daughter, and refusing the defendant’s request to instruct the jury that the plaintiff was not liable for the services rendered him by his minor daughter.

      “Eighth. In failing and refusing to charge and instruct the jury that the plaintiff could not recover for future loss or expense unless the same were proven to a reasonable certainty.

      “Ninth. Because the court erred in failing and refusing to grant the defendant’s motion for a new trial, because the verdict is against the great weight of evidence.

      “Tenth. Because the court erred in failing and refusing to grant the defendant’s motion for a new trial, because the verdict is grossly excessive.”

      See note in 10 L. R. A. (N. S.) 140.

   Ostrander, C. J.

(after stating the facts). More or less persuasive reasons have been before now advanced in support of the proposition that if a wife recovers a judgment for personal injuries, the determination in her suit that the defendant was negligent, and the plaintiff free from negligence, is conclusive upon defendant in a suit brought by the husband against the same defendant, for damages arising out of the same circumstances. In Anderson v. Railroad Co., 9 Daly (N. Y.), 487, it appeared that plaintiff’s infant son had received injuries, and his guardian brought an action for his damages, in which action it was determined, upon the merits, that the injuries arose from the negligence of the defendant. The father, in an action brought to recover for the loss of his son’s services on account of the injury, in his complaint set up the facts and circumstances of the injury, and, also, pleaded the action and recovery in behalf of the son. On motion to strike out the allegations as to the former recovery, the court, in denying the motion, said:

“If, in an action brought against the defendants for the son, by his guardian, it has been judicially determined, that the accident which caused the injury was not owing to any negligence oh the part of the son, but was due solely to the negligence of the defendants, there is no reason why that question should be tried over again in the action brought for the loss of the son’s services, as it would involve an inquiry which has been already made and settled, between the party to whom the accident happened and the defendants. In this action, the plaintiff is limited to the recovery only of such damages as. he may have sustained by the loss of his son’s services; and I can see no reason why, to establish his cause of action, he should be required to prove that the accident, which deprived him of his son’s services, was caused by the defendant’s negligence, when that fact has been judicially determined against the defendants in» the action brought for the benefit of the son.”

In Brown v. Railway Co., 96 Mo. App. 164 (70 S. W. 527), the action was brought by the husband for damages for- his injuries growing out of personal injuries to his wife. It appeared that the husband and wife, in a joint action, had recovered a final judgment’ against the defendant for personal injuries to the wife. Citing and approving Anderson v. Railroad Co., supra, and Lindsey v. Town of Danville, 46 Vt. 144, it was said:

“According to the principles to which we have alluded, the judgment in the joint action by the husband and wife against defendant, must be held to be conclusive in this action on every issue determined in that. It sufficiently appears from the record in that case, admitted in evidence, that the issues of negligence and contributory negligence were determined in favor of the plaintiffs. The injury to the wife, for which damages were claimed, was the same in both cases. The issues upon which the right to recover depended were exactly the same in both cases. The plaintiff was a party in that case, as well as this. The defendant was the same in both. Every question of fact that could arise in the present case was determined in that, except as to the kind and quantum of damages to which plaintiff was entitled, and the evidence given was ample to support the verdict for such damages. It follows that with the action of the trial court in permitting the plaintiff to introduce in evidence the record of the pleadings and judgment in the case of the plaintiff and his wife against defendant, and in refusing to permit the defendant to introduce any evidence tending to disprove the negligence alleged in the plaintiff’s petition and to prove that of plaintiff as alleged in its answer, we can find no fault.”

In Lindsey v. Town of Danville, supra, Judge Redfield delivered the opinion and it was said, among other things:

“The husband and wife, having received final judgment in a joint action against the defendant for personal injuries to the wife occasioned by the negligence of the defendant, the latter is estopped in an action by the husband to recover damages for the loss of the wife’s service, etc._, to deny the facts put in issue and found against it in the former action.”

There are decisions of equity courts, of which Harmon v. Auditor of Public Accounts, 123 Ill. 122 (13 N. E. 161, 5 Am. St. Rep. 502); Gallaher v. City of Moundsville, 34 W. Va. 730 (12 S. E. 859, 26 Am. St. Rep. 942), are examples, to the effect that where a number of taxpayers, in behalf of themselves and all other taxpayers, seek to prevent the issue of municipal bonds, the decree sustaining the validity of the issue is binding and a bar to any further litigation, the Illinois supreme court holding that a judgment or decree against a municipal corporation, or its legal representatives, as to the validity of an issue of bonds is binding upon all its citizens though not parties to the suit, citing Freeman on Judgments (3d Ed.), § 178, to the effect:

“A judgment against a county, or its legal representatives, is a matter of general interest to all its citizens, is binding upon the latter, though they are not parties to the suit. A judgment for a sum of money rendered against a county imposes an obligation against the citizens which they are compelled to discharge. Every taxpayer is a real, though not a nominal, party to such judgment. If, for the purpose of providing for its payment, the officers of the county levied and endeavored to collect the tax, none of the citizens can, by instituting proceedings to prevent the levy or enforcement of the tax, dispute the validity of the judgment nor re-litigate any of the questions which were or which could have been litigated in the original action against the county.”

Counsel for appellee cites these cases, as well as Western Mining & Manfg. Co. v. Virginia Cannel Coal Co., 10 W. Va. 250, and Jones v. Silver, 97 Mo. App. 231 (70 S. W. 1109). Only Anderson v. Railroad Co. is precisely in point, since in the Missouri and Vermont cases the husband, necessarily or otherwise, was in fact a party plaintiff in the suit first begun, and however much respect ought to be paid to the early decisions of the court of common pleas of the city and county of New York, we are referred to no decision of the court of last resort of New York sustaining this decision. Opposed to it are Neeson v. City of Troy, 29 Hun (N. Y.), 173, and Groth v. Washburn, 39 Hun (N. Y.), 324, while in Maisky v. Schumacher, 27 N. Y. Supp. 332, and Berg v. Railroad, 89 N. Y. Supp. 433, the case of Anderson v. Railroad Co. is substantially overruled. So, in Fearn v. Ferry Co., 143 Pa. 122 (22 Atl. 708, 13 L. R. A. 366), Walker v. City of Philadelphia, 195 Pa. 168 (45 Atl. 657, 78 Am. St. Rep. 801), Brierly v. Railroad Co., 26 R. I. 119 (58 Atl. 451), Duffee v. Railway Co., 191 Mass. 563 (77 N. E. 1036), the rule is laid down that in cases like the one at bar the husband is enforcing an independent right, there is no privity between the husband and wife in that respect, and that the judgment in an action brought by one cannot be put in evidence on the trial of an action brought by the other. In Missouri, in Womach v. City of St. Joseph, 201 Mo. 467 (100 S. W. 443, 10 L. R. A. [N. S.] 140), the question was:

“If a wife sue to recover damages for injuries done by negligence to her body and for the pain of body and anguish of mind flowing therefrom, and if she be east on trial, does the judgment in her suit, as a matter of law, bar the husband’s recovery in his suit against the same defendant for the damages personal to himself and arising out of the same event?”

The opinion of the court is a valuable one, and answers the question in the negative.

Upon principle, the rule laid down by the learned trial judge is plainly wrong. The action of the wife, like the action of this plaintiff, is in personam. The right of the wife to bring and control her own action was subject, legally, to no interference on the part of the husband. He was not a necessary or a proper party to her suit. He could neither institute nor control the action in her behalf. The judgment is her sole property. Berger v. Jacobs, 21 Mich. 215; Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; McCauley v. Railway, 167 Mich. 297. The husband is not privy to the wife, in blood, representation, estate or law. He derived no title to his present demand from or through her. She could not have released it, and had she failed to recover in her action that would not have barred him. It is the general rule that judgments and decrees are conclusive evidence of facts only as between parties and privies to the litigation. Besancon v. Brownson, 39 Mich. 388, 392; Phillips v. Jamieson, 51 Mich. 153, 154.

As the case must go down for a new trial, some of the other assignments of error will be considered. It •appears that considerable expense was involved in the treatment of plaintiff’s wife for the injuries she received and was paid for out of her money recovered in her suit against this defendant. There was testimony tending to prove that the husband, the plaintiff in this action, agreed with his wife that if she would pay it he would reimburse her. It does, not appear that medical and other assistance was rendered upon the credit of the wife so that she might have included the cost in her own claim for damages in her suit. If the husband had authorized any other person to pay these charges on his account, it would not have been a bar to his recovery for them in this action, and no good reason is perceived for saying that if his wife, upon his request and promise to repay her, paid them he may not now recover them from defendant.

As to services gratuitously rendered to plaintiff and his wife, of course defendant is not liable, nor for those performed by a minor daughter, out of employment and living at home, at least in the absence of a ■contract to pay her.

The charge of the court upon the subject of future damages is criticised. The rule stated in Brininstool v. Railways Co., 157 Mich. 172, 180, and restated in Kethledge v. City of Petoskey, 179 Mich. 301, 311, should have been given to the jury.

It is not likely that other questions presented upon the record will arise upon a new trial, and they are not considered.

The judgment is reversed, with costs to appellant, and a new trial granted.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.