text:
    WIXOM v. BIXBY.
    Eminent Domain—Jury—Impeaching Verdict—Evidence.
    The jury provided for by section 2, art. 18, of the Constitution, in proceedings to condemn land for the public use, is a common-law jury, whose verdict cannot be impeached by the testimony of a member thereof. So held where it was sought to show, as against a confirmation of the report of the jury in a drain case, that the damages awarded were arrived at by average.
    . Error to Oakland; Smith, J.
    Submitted March 8, 1901.
    Decided July 10, 1901.

      Certiorari by John R. Wixom to review the proceedings of A. B. Bixby, drain commissioner of Oakland county, in the matter of establishing a drain. From an order dismissing the writ, plaintiff brings' error.
    Affirmed.

      James H. Lynch, for appellant.

      A. & S. H. Perry, for appellee.
   Moore, J.

The following statement of facts is substantially taken from the brief of the attorney for appellant:

“Defendant in this case is drain commissioner for the county of Oakland, and successor in office of John Thayer. In the spring of 1899, a petition regularly made and signed was filed with Thayer' for the location and establishment of a certain drain in the township of Farmington, in said county. The drain commissioner took all the regular and necessary steps required by law, and petitioned the probate court for the appointment of at least three commissioners to determine the necessity for the proposed drain, and award the damages occasioned by the construction thereof. On the hearing of this petition, several of the landowners, among whom was the plaintiff, filed a demand for a jury. A jury was selected, viewed the premises, heard testimony, and retired to deliberate in secret, and made their report, which was filed with the probate judge on the 8th day of November, 1899. Objection was made by five of the owners of property traversed by said drain to the said report, which objections were sustained, and the same referred to the jury for correction. •The amended report was filed with the probate judge on the 27th day of December, 1899, and a hearing fixed thereon, at which time several of the owners of land traversed by the drain, among whom was the plaintiff in this case, filed objections to said report. On the hearing of said objections, the objectors offered Joshua W. Bird, who was one of the jury whose report was offered for confirmation, as a witness in support of the objections filed, and for the purpose of showing that the said jury, in deliberating upon their verdict, arrived at the amount of damages to be awarded the respective persons found to be entitled thereto by agreeing that each juror should mark or write the amount of damages which he thought should be allowed the person whose damages they were at the time considering, and the amount so marked by each juror should then be added together, and the sum divided by 12, and the quotient thus obtained should be decided as the damages which would be awarded to such person, which agreement and mode of determining the respective damages was carried out by the said jury, and was reported to the court in their report offered for confirmation; to which testimony A. and S. H. Perry, who appeared for the drain commissioner for Oakland county, and also on behalf of Horace Green, one of the petitioners for the Minnow Pond drain in question, objected for a number of reasons,—among others, because it would be contrary to public policy to permit such evidence to be given. The objection was sustained, and on the 15th day of January, 1900, an order was entered in said court confirming the amended report. On the 25th day of May, 1900, Mr. Bixby filed with the clerk of the circuit court for the county of Oaídand his final order of determination. Plaintiff in this case then removed the case to the circuit court for Oakland county, alleging several matters of error, the eighth of which is ‘ that the said judge erred in rejecting the testimony of- witness Joshua W. Bird, offered to support the objections in opposition to the confirmation of the report of said jury.’ On the hearing in the circuit court the writ of certiorari was dismissed, and from this order of the circuit judge the cause has been brought to the Supreme Court for review. It is agreed by counsel that the sole question which is presented to this court for determination is simply this: Was the court in error in refusing to permit the testimony of one’ of the jurors to impeach the report of the jury?”

The appellant admits that the evidence of a juror cannot be used to impeach the verdict of a common-law trial or petit jury, but he insists the jury in this proceeding is not a common-law petit jury, but is a common-law jury of inquest, and that the same rule should apply to the jury that would apply to commissioners appointed to condemn land. It is contended that their office is of the same character; citing New Jersey, etc., Transportation Co. v. Suydam, 17 N. J. Law, 25; Canal Bank of Albany v. Mayor, etc., of Albany, 9 Wend. 244; and other cases. Counsel for defendant say that, whether the jury in question is to be designated a jury of inquest or a common-law jury, it was, nevertheless, a jury with the functions of an ordinary jury, as far as such functions are applicable to the drain law; and that it would be against public policy to permit a juryman to nullify the action of the whole jury by testifying to the misconduct of the jury while in secret session deliberating [on its verdict. They also urge, and we now quote from the brief:

“The jury provided for under the drain law is a jury with the functions of an ordinary common-law jury. The provisions of our State Constitution bearing upon the question involved are section 27 of article 6 and section 2 of article 18. The first of said sections provides:

“ ‘The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.’

‘ ‘ The second section above referred to provides:

‘ ‘ ‘ When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.’ ,

“Randolph, in his work on Eminent Domain (section 316), says:

“ ‘The jury referred to in constitutional provision or statute is usually a common-law jury of 12 men. But, if a special jury is the tribunal in vogue at the enactment of the constitution, it may be presumed to be the jury intended.’

“ The New York cases which have been cited at great length by opposing counsel in this case seem to be based upon the second proposition of Mr. Randolph above stated. They are based on the theory that in the State of New York there is no particular distinction between the functions of a jury and those of a commission when acting in condemnation cases. This court has expressly repudiated the New York cases as not applicable under the Constitution and statutes of this State, and has expressly followed the decisions of the. State of Ohio upon the point involved as being more consistent with the intention of our State Constitution, and as better preserving the right of trial by jury in civil cases in this State.”

We are favored with excellent briefs by counsel upon both. sides. It is urged upon the part of the appellant that:

“It is well settled that the constitutional guaranty of the right of jury trial is a guaranty of a trial by a common-law petit jury of 12 members. But it is not true that this guaranty applies to proceedings under exercise of the power of eminent domain. The courts have not so recognized it, and the legislatures have proceeded in disregard of such a principle.”

Counsel then traces the provisions of law in eminent-domain proceedings from the territorial act of 1805 to the adoption of the Constitution of 1850. Ho calls attention to Livingston v. Mayor, etc., of New York, 8 Wend. 85, 22 Am. Dec. 622 (where Chancellor Walworth said: “ The provision of the constitution relative to the trial by jury relates to the trial of issues of fact in civil and criminal proceedings in courts of justice, and has no relation to cases of this kind. Although damages have frequently been ascertained by the oaths of 12 freeholders, both before and since the adoption of the constitution, yet these are not jury trials, within the spirit or meaning of that provision”); to Canal Bank of Albany v. Mayor, etc., of Albany, 9 Wend. 244 (where it was decided that affidavits of the jurors could be received to impeach their verdict ); and to a number of Michigan cases,—and insists that a very different rule obtains in a common-law jury of inquest from the rule governing a common-law trial jury. Counsel makes the following quotation:

“ The right to trial by jury meant by the constitutional provision is the common-law and historic right declared by the common-law courts, and perpetuated by the Magna Charta. The right to trial by jury in cases of the seizure of private property for public uses did not exist at common law.” Elliott, Roads & S. (2d Ed.) § 196.

The precise question involved here has, so far as we know, never been before this court. In Elliott, Roads & S. (2d Ed.) § 279, the following language is used:

“The landowner is not always entitled to a jury as a matter of right, but, where the constitution provides that the damages shall be assessed by a jury, a statute providing for an assessment by a different tribunal will be void. Where a jury is required by the constitution, and there are no explanatory words, it is held to require a jury of 12 men; for the general rule is that the word ‘jury’ means the tribunal established by the common law.”

We have already quoted the provisions of our Constitution as to the right of trial by jury in proceedings to condemn lands. The absence of some provision like section 2 of article 18 in the constitutions of New York and New Jersey may account for the decisions in those States; but, whether this is so or not, our Constitution has expressly provided for a jury trial, without using explanatory words, in condemnation proceedings. Applying the rule as stated in Elliott, this means a common-law jury.

In McRae v. Railroad Co., 93 Mich., at page 403 (53 N. W. 562), where there is a discussion of the right of trial by jury, the following language is used.:

“It [the statute] does not preserve the common-law right of a unanimous verdict of a jury, which the Constitution recognizes by section 27, art. 6, which provides that ‘the right of trial by jury shall remain.’ Mr. Justice Cooley, speaking of this clause, in Tabor v. Cook, 15 Mich. 322, 325, says:

“ ‘The intention here is plain to preserve to parties the right to have their controversies tried by jury in all cases where the right then existed; * * * and suitors cannot constitutionally be deprived of this right, except where, in civil cases, they voluntarily waive it by failing to demand it in some mode which the legislature shall prescribe.’

“ Mr. Justice Christiancy, in Hill v. People, 16 Mich. 351, 355, says:

“ ‘ Our Constitution, in retaining the right of trial by jury, tacitly refers to and adopts the common-law number.’

“In Van Sickle v. Kellogg, 19 Mich. 49, 52, Cooley, C. J., in speaking of this clause of the Constitution, says:

“ ‘The constitutional principle which underlies the right is one to which the people governed by the common-law have clung with perhaps more tenacity than to any other; and they have justly regarded it as not preserving simply one form of investigating the facts in preference to another where both would have obtained the same result, but as securing the mode of trial which was best calculated to insure a just result, and to secure the citizens against the usurpation of authority, and against arbitrary or prejudiced action on the part of single individuals who chanced to be possessed of judicial power.’

“In Underwood v. People, 32 Mich. 2 (20 Am. Rep. 634), Mr. Justice Campbell says:

“‘The right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character.’

“And again, in Paul v. City of Detroit, 32 Mich. 108, 114, the same learned justice, speaking of the mode of taking land for public uses prior to the adoption of the present Constitution, says:

“ ‘ The Constitution (article 18, § 2) has changed this by requiring the whole subject to be determined by a jury of freeholders, so that each case shall be determined by a separate tribunal, summoned expressly for the purpose, who must be unanimous in their views before any land can be taken; who must act openly, and before all concerned, in hearing and receiving testimony; who cannot listen to private persuasion, and where any attempt to influence them will subject the offender to severe and disgraceful punishment. All these safeguards are implied in the use of the term “jury; ” and no action, by laws or by proceedings under them, can be maintained if any of these securities are impaired or disregarded.’

“In Swart v. Kimball, 43 Mich. 443, 448 (5 N. W. 635, 637), Mr. Justice Cooley, again speaking of section 27, art. 6, providing that ‘the right of trial by jury shall remain,’ says:

“ ‘ What right ? Plainly, the right as it existed before; the right to a trial by jury as it had become known to the previous jurisprudence of the State. * * * The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood under a particular name; and, by implication at least, even a waiver of its advantages is forbidden.’

“Mr. Justice Eanney, in Work v. State, 2 Ohio St. 303 (59 Am. Dec. 673), speaking of a like provision of their constitution, says:

“ ‘An institution that has so long stood the trying tests of time and experience, that has so long been guarded with such scrupulous care, and commanded the admiration of so many of the wise and good, justly demands our jealous scrutiny when innovations are attempted to be made upon it.’

“ It is too well settled to need further citation of authority or argument to show that this part of the Constitution (article 6, § 27), providing that ‘the right .of trial by jury shall remain,’ means the right as it existed at the common law, which was well understood in the previous jurisprudence of the State at the time of the adoption of the Constitution in 1850. This right was a trial by a jury of 12 good men and true, whose determination must be unanimous upon the rights of the parties. This the Constitution of 1850 preserves, except that under section 46, art. 4, the legislature may authorize a less number than 12.”

In Kress v. Hammond, 92 Mich. 372 (52 N. W. 728), it was held that the verdict of the jury in a proceeding to condemn lands for a drain must be unanimous.

In Serrell v. Patterson, 107 Mich. 234 (65 N. W. 107), it was shown how the functions of a commission in such a case differ from the functions of a jury. In that case Mr. Justice Long uses this language:

“In Kress v. Hammond it was held that this constitutional provision requires the unanimous verdict of the jury, as the word ‘jury’ means a-common-law jury, with all the incidents thereof, and that, therefore, a unanimous verdict was required.”

In Thomp. & M. Juries, § 440, it is said:

“Upon grounds of public policy, the courts have almost universally agreed upon the rule that no affidavit, deposition, or other sworn statement of a juror will be received to impeach the verdict, to explain it, to show on what grounds it was rendered, or to show a mistake in it; or that they misunderstood the charge of the court; or that they otherwise mistook the law, or the result of their finding; or that they agreed on their verdict by average, or by lot.”

Following this language is a long list of cases showing ‘this to be almost the universal rule. We think it a rule which applies to a jury summoned under the provisions of section 2, art. 18, of our Constitution.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    CAHILL v. BOARD OF STATE AUDITORS.
    Authority of Governor—Employment of Counsel—Drafting Laws.
    Tlie governor has no authority to employ counsel, at the expense of the State, to assist in drafting laws and proposed amendments to the Constitution.

      Mandamus by Edward Cahill to compel the Board of State Auditors to allow a claim for services a§ attorney.
    Submitted March 21, 1901.
    Writ denied July 10, 1901.

      Cahill & Wood, for relator.

      Horace M. Oren, Attorney General, for respondent.
   Montgomery, C. J.

This is an application for mandamus to compel the respondent to allow the claim of relator for services as an attorney. The petition sets out that in the regular legislative session of 1899, in the special session of 1899, and in the special session of 1900, relator, at the request of the governor of the State, prepared a joint resolution submitting a proposed amendment to the Constitution relative to the taxation of railroads and other corporations; that he advised with the governor as to the form of such resolution to be adopted, and with the governor and attorney general as to the legal questions involved in the proposed amendment, and the bills relating to the repeal of the special charters of certain railroad companies. He was paid for his services at the regular session, having rendered a bill approved by the governor and attorney general; but the attorney general refused to recommend payment for the services rendered at the extraordinary sessions, although the same was approved by the governor. The petition sets out that this employment was a continuation of the first employment of relator, beginning with the general session. The answer denies this, and asserts that the attorney general did not understand that the relator was rendering the services expecting compensation from the State.

The question presented is whether the governor may employ counsel to assist in drafting laws or proposed amendments to the Constitution, and charge the State for such services. ¥e are pointed to no provision of statute authorizing such employment. The Constitution (article 4, § 13) provides that bills may originate in either house of the legislature. Section 14 provides that every bill and concurrent resolution, except of adjournment, passed by the legislature, shall be presented to the governor for his approval, before it becomes a law. Section 8, art. 5, of the Constitution provides that the governor “ shall give to the legislature * * * information, by message, of the condition of the State, and recommend such measures to them as he shall deem expedient.” These are the only provisions of the Constitution, to which our attention has been attracted, relating to the duties of the governor as to proposed legislation. It is conceived that, .when the people elect a governor, it is expected that he will recommend, on his own motion, such measures as his judgment shall dictate, and that it is not contemplated that he may employ others, to whom he will, in any part, delegate these duties. To this end, he is authorized to require information in writing from officers of the executive department upon any subject relating to the duties of their respective offices. Const. § 5, art. 5. And by statute he is authorized to call upon numerous executive officers for special information, and to submit the results of such information to the legislature. He is also, by statute, entitled to ask the attorney general his opinion upon questions of law. 1 Comp. Laws, § 108. But there is no provision of statute authorizing the governor to employ counsel to assist in preparing bills or joint resolutions to be submitted to the legislature. It would seem to be no part of the duty of the governor to prepare such bills or resolutions. The Constitution contemplates that this duty will be performed by the members of the legislature. Our attention has been called to no case in which such a power has been exercised by the governor, either in this State, or in any of the other States of the Union.

That we may not be misunderstood, it should be stated that by section 6 of article 5 of the Constitution the duty is enjoined upon the governor to “take care that the laws be faithfully executed.” As to whether he may, in the absence of statutory authority, employ counsel other than the attorney general, and without the assent of the attorney general, in the performance of this duty of seeing that the laws are faithfully executed, we express no opinion, as that question is not presented by this record. What we do hold is that the governor has not the power to charge the State with the expense of attorney’s fees incurred in the effort to change existing laws, and to draft recommendations for submission to the legislature.

We are cited to two cases in which it is held that the governor may employ counsel. The first of these is State v. Dubuclet, 25 La. Ann. 161. In that case it was held that the governor might authorize an appeal in a case in which the State was interested, to be taken by attorneys other than the attorney general. We have found no statute of Louisiana touching this question, but their constitution contains a provision that the governor shall take care that the laws be faithfully executed, and the case cited may be deemed an authority that for that purpose, and in the discharge of that duty, the governor has authority to appoint an attorney. The other case referred to is Alexander v. State, 56 Ga., at page 478. That case is rested upon express provisions of the Code, and for this reason it is no authority for the contention of relator. In our view, neither of these cases in any way tends to establish the right of the governor to employ counsel, at the expense of the State, to assist in the performance of duties which the Constitution in terms imposes upon the governor himself.

This view renders it unnecessary for us to express any opinion as to whether the decision of the board of auditors is final, both as to questions of law and questions of fact, when dealing with a claim not resting upon positive statutory law.

The writ will be denied.

The other Justices concurred.


text:
    CHIPMAN v. WAYNE COUNTY AUDITORS.
    1. Counties—Board of Auditors—Mandamus.

      Mandamus will lie to compel the Wayne county auditors to consider a claim which they have power to allow, but which they have rejected on the ground that they have no such power.
    2. Same—Sheriff’s Fees—Attendance at Court.
    Under 1 Comp. Laws, § 430, providing that the sheriff shall attend the circuit court if required by the judge, it,is within the power of the auditing board of the county, in case no fees for such attendance are fixed by statute, to allow a reasonable compensation therefor.
    3. Same—Wayne County Sheriff — Statutes — Amendment— . Title of Act.
    The provision of amendatory act No. 77, Pub. Acts 1895, that deputy sheriffs of Wayne county in attendance on the circuit court shall be paid a fixed salary, which was substituted for a provision in the original statute fixing the compensation of the sheriff of said county for such attendance, is within the title to the act, i. e., “An act to amend ” 3 How. Stat. § 9017, “relative to the fees of sheriffs,” etc., and hence the sheriff of Wayne county is not entitled, as a matter of right, to compensation for attending the circuit court.
    4. Same—Sheriff's Fees—Care of Prisoners.
    Under 3 Comp. Laws, § 12006, entitling sheriffs to compensation “for services not specially provided for, in such sum as may be allowed by the board of supervisors,” the board has power to allow the sheriff compensation for the care and custody of prisoners in jail.

      5. Same—Wayne County Sheriff—Conveying Prisoners to Court.
    Under section 678 of the Detroit charter, providing that the duty of conveying prisoners to and from the recorder’s court shall be performed by the police force of the city, and that deputy sheriffs shall not receive compensation for such service, t-he sheriff is not entitled to compensation for services performed by his deputies in conveying prisoners to and from such court.
    6. Same.
    Under 3 Comp. Laws, § 12006, providing that sheriffs shall be allowed certain fees for taking prisoners before a court or to jail, the sheriff of Wayne county is entitled to fees for conveying prisoners to and from the circuit court, though such services were rendered by deputies actually in attendance on such court.
    7. Same—Turnkey Pees.
    The further provision of said section, allowing the sheriff certain fees for each person committed to jail and for each person discharged, applies only to first commitments and final discharges, and does not authorize a charge to be made on the transfer of prisoners to and from court during the course of the proceedings against them.

      Certiorari to Wayne; Waite, J._
    Submitted March 21, 1901.
    Decided July 10, 1901.

      Mandamus by Harry F. Chipman to compel the board of auditors of Wayne county to audit and allow a claim for services as sheriff. From an order denying the writ, relator brings certiorari.

    Reversed.

      Jasper C. Gates (C. D. Joslyn, of counsel), for relator.

      Ormond F. Hunt, Prosecuting Attorney, for respondent.
   Montgomery, C. J.

Relator applied for a writ of mandamus to compel respondents to audit and allow certain claims for services rendered by him as sheriff of Wayne county during the years 1897 and 1898. The application was denied, and this is certiorari to review the decision of the circuit judge.

The claim for services consists of items:

1. Of $7,000 a year for attendance on the circuit court for the county of Wayne.

2. For care and custody of prisoners, $2,500 a year.

3. For transferring prisoners to and from the recorder’s court.

4. For taking prisoners sentenced by the recorder’s court from the county jail to the house of correction.

5. For transferring prisoners to and from the circuit court, and for taking prisoners sentenced by the circuit court to the house of correction.

6. Turnkey fees,' not first commitments or final discharges, $2,158.

The answer of respondents in the court below showed that opportunity was given the relator to present his claims, and that relator had several hearings upon the questions of fact relative to the items in his bill, and that every showing was made by the relator to the respondents for which the relator made a request, and that the respondents passed upon the merits of the claims, both as a matter of fact and as a matter of law. The relator asked for issues to be framed on this return, and among the issues was No. 8:

“ Did said respondents give said relator a full and fair opportunity to prove before them the facts and circumstances in relation to the matters stated in said petition, and, if so, when, where, and under what circumstances ?”

The issue also presented the following questions:

“Did said respondents, in disallowing the claim of relator, mentioned in said petition, act upon their own judgment as to the equity and justice of said claim ? Or did said respondents therein rely upon the advice of the ‘ legal adviser of said board,’ mentioned in the answer of said respondents, on file in this cause ? ”

And, tenth:

“Did said respondents disallow said claim because said ‘adviser had given to said respondents an opinion that said claim of relator was without foundation in law,’ or such advice in substance and effect ? ”

It appears that no finding of facts was entered, the judge returning that he was not aware that such an order had been made by his associate until after the writ of certiorari was granted.

We think the testimony fairly shows that the-claim of relator -was disallowed upon the advice of the prosecuting attorney, and that the merits of the claim were not considered. In other words, the reason for the disallowance, as appears by the record, was, not that the claim was in all respects deemed inequitable, but that the board had no power to audit or allow the claim. The letter in which they informed the relator of their action, after stating the advice of the prosecuting attorney, added, “We have no course to pursue except to follow his advice.” We think, under these circumstances, that, if there was any item in the claim which the respondents had the power to allow, they should have been required to consider and audit the claim. This involves some examination of the items of relator’s claim.

As to the first item, it is contended that, ks the relator was required to attend upon the court, under 1 Comp. Laws, § 430, even, in the absence of statutory fees being fixed, the respondents had the power to allow him reasonable compensation. Section 430, it should be stated, does not require the attendance of the sheriff, except as required by the circuit judge. There was some evidence from which it might be inferred that such attendance was required, and, if this should prove to be the fact, it was within the power of the board of auditors to allow him reasonable compensation for such services. Their action, when taken, it is true, would be final, and not reviewable by the court. See Mixer v. Board of Sup’rs of Manistee Co., 26 Mich. 422; Tucker v. Common Council of Grand Rapids, 104 Mich. 621 (62 N. W. 1013), and cases cited.

But it is insisted that the relator had the right to the allowance of this item as a matter of right. Act No. 77 of the Public Acts of 1895 fixes the compensation of sheriffs for attending upon the circuit court at $1.50 for each day, except in the counties of Kent and Wayne, and further provides that in the county of Wayne there shall be paid, to the deputy sheriffs in actual attendance upon the circuit court the sum of $1,000 per annum, to be allowed and paid as other contingent charges, and provided that the number of said deputies shall not exceed two for each judge of said circuit. There is no other statute which pi’ovides in terms for compensation to the sheriff for attendance upon court. If this act is valid, therefore, the relator is not entitled, as of right, to compensation. The contention is made that this act is invalid, for the reason that the provisions which it contains do not fall within the title. The title is:

‘ ‘ An act to amend section eleven of chapter one hundred fifty of the Revised Statutes of eighteen hundred forty-six, relative to the fees of sheriffs in executing process issued out of the courts of law and equity, and by judicial and other officers, and for other services, as amended by the several acts amendatory thereof.”

It is urged that there is nothing in the title to indicate the purpose to take away, the sheriff’s compensation for attending court. But it should be observed that the compensation for that service was provided for in section 11 as it was originally enacted. This title indicates a purpose to amend the section, and the question really is whether the statement that the section, as it stood prior to amendment, was one “relative to the fees of sheriffs,” etc., was a misdescription. It is plain that it was not, and we think it follows that there is no statutory compensation fixed for the attendance of the sheriff upon the circuit court.

As to relator’s claim for the care and custody of prisoners in the jail during the years 1897 and 1898, the same considerations hold. There is no statutory compensation fixed. But the statute (3 Comp. Laws, § 12006, contained in the chapter relating to fees and costs in criminal cases) entitles the sheriff to compensation “for other services not herein specially provided for, such sums as may be allowed by the board of supervisors.” Whether, under the circumstances of this case, any allowance for such claimed services should be made, is a matter which the •board of auditors have the power to determine.. But they should have acted upon the claim on its. merits.

As to the claim for conveying prisoners to and from the recorder’s court, we think, as matter of law, that relator was not entitled to this compensation, in view of section 5,75 of the charter of Detroit. The case of Allor v. Wayne County Auditors, 43 Mich. 76 (4 N. W. 492), is relied upon. But in that case the services were in the arrest of parties charged to have committed offenses outside the city of Detroit, and in the county of Wayne. It was said in the opinion:

‘ ‘ For the purposes of the present controversy, it is necessary, in order to avoid attributing to the legislature an intention very far beyond the title of the act, to hold that the section which gives exclusive power to the police force for the service of process ‘ in criminal cases within said city ’ does not refer to any cases where the crime was committed out of the city.”

It is true that the act in question does not in terms deny compensation to the sheriff; but it does deny compensation to deputy sheriffs, and the service in this case, if any, was performed by the deputies.

As to the charge for taking prisoners to and from the courts other than the recorder’s court, the right to these fees would seem to be clear under 3 Comp. Laws, § 12006. Compensation seems to have been denied on the authority of Starmont v. Cummins, 120 Mich. 629 (79 N. W. 897), on the ground that these services were rendered by deputies whose duties required their attendance upon the court. The case of Starmont v. Cummins simply holds that a deputy attending upon the court is not entitled to fees as a witness. But the attendance of the officer upon the court is quite a different thing from conveying prisoners to and from the jail.

The claim for turnkey fees other than first commitments or final discharges is ruled adversely to the relator in Lee v. Board of Supers of Ionia Co., 68 Mich. 330 (36 N. W. 83).

The order of the circuit court will be reversed, with directions to enter an order requiring respondents to consider the claims of relator, and determine them in. accordance with this opinion.

The other Justices concurred.


author: Grant, J.

text:
    FORMALL v. STANDARD OIL CO.
    Dangerous Premises—Injury to Child—Invitation or Employe.

       1. An employer is not bound by the act of liis employé, not his alter ego, in inviting or permitting children to be upon the premises.
    2. Tacit acquiescence, on the part of an employer in permitting children upon his premises is not sufficient to fasten liability upon him for injuries caused by negligent conditions thereon.
    Error to Wayne; Donovan, J.
    Submitted April 3, 1901.
    Decided July 10, 1901.
    Case by August Eormall, administrator of the estate of Paul Eormall, deceased, against the Standard Oil Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John D. Conely, for appellant.

      James H. Pound, for appellee.

       Head-notes by Grant, J.

   Grant, J.

The defendant was the owner of two barns situated at the corner of Lovett avenue and Torrey street, in the city of Detroit; one barn running east and west, and the other north and south. The east and west barn had 23 stalls, and the north and south barn had 14 stalls. There were two box stalls in the north and south barn, and one in the east and west barn. The defendant kept in the stalls a number of horses, which were used for hauling its tank wagons to different parts of the city. The plaintiff and his family lived across the street from the barns, and about 175 feet distant therefrom. Plaintiff’s children often went across to the barn to play and assist in doing some sweeping and cleaning. Peter Wynne, who looked after the barn, occasionally gave them a few pennies. Peter Wynne had no authority to hire or discharge persons for the defendant. His brother did all the hiring and discharging. Nor had he any authority to invite boys upon defendant’s premises.

On the 29th day of June, 1894, two boys, Charles Bass and Rudolph Formall, one of the sons of the plaintiff, had been in the barn about 8 o’clock in the morning. Wynne got in a buggy to drive down town, and ordered the boys out of the barn, and Joseph Lockley shut the door, and fastened it on the inside. The two boys, Bass and Formall, testified that Peter Wynne told them to return when the shavings came, and make the beds in the stalls, and that he promised them 25 cents for so doing. This Wynne denied. The shavings came some time after Wynne left, and the two boys, Charles Bass and Rudolph Formall, during Wynne’s absence, went into the barn to make the beds for the horses. Paul Formall, a boy 7-J-years old, and exceptionally small for the age, a brother of Rudolph and son of plaintiff, followed them into the barn. The testimony shows that Paul was too small to assist in doing much sweeping or cleaning, but Charles Bass and Rudolph Formall testify that, a short time previous to the accident', he had a broom in his hands, and was doing the best he could. ' There is no evidence that the boys ever went into the barn during the absence of Wynne before the day of the accident, or that they were ever invited or permitted by Peter Wynné to enter in his absence. The door of the west box stall of the north and south barn fell upon Paul, and killed him instantly. This action is brought to recover damages under the statute in cases when death is caused by the wrongful act, neglect, or default of another. Section 10427, 3 Comp. Laws.

There is no evidence in the case as to what caused the door to fall. A horse was in the stall at the time of the accident. The door was a large oak door, and weighed about 200 pounds. It had two hangers, bolted upon the top, which ran upon an iron track. The door was 4-¿- feet wide and 8 feet high. It was constructed in 1891, at the time the barn was built. The hangers were of a kind that it was customary to use in Detroit from the time the barn was built to the time of the accident. The wholesale hardware men of Detroit sold as many of this style of hangers as. any other. The track, the hangers, and the method of regulating the track, and the hanging of the door, and the use of the hangers, were in common and ordinary use at the time. The plaintiff recovered.

The questions discussed in the brief of counsel for defendant may be reduced to two: First, whether there was any evidence that the door was improperly constructed, insecurely fastened, or out of repair; and, second, whether the testimony tended to show that the decedent was on the premises of defendant under an implied invitation. In our yiew of the case, it is only necessary to discuss one point, viz.: Was plaintiff’s decedent invited into, or given personal permission to be in, the barn by the alter ego of de-' fendant ? .Peter Wynne was an employé, a laborer, whose sole duty it was to clean out the stable, bed, feed, and water the horses. He was not clothed with any authority whatever to represent the defendant. He was simply a laborer, employed to take care of the stable. He had no authority to employ boys or any one else to do his work. There is no evidence that the defendant or its alter ego knew that he was so doing. Peter Wynne’s duties were limited exclusively to the manual labor he was employed to perform. His act in employing those boys to do his work, and in paying them, was not the act of the. defendant. If injured in consequence of being upon the premises by Peter Wynne’s authority, the defendant was not liable for injury to any of them. Flower v. Railroad Co., 69 Pa. St. 210 (8 Am. Rep. 251); Driscoll v. Scanlon, 165 Mass. 348 (43 N. E. 100, 52 Am. St. Rep. 523); Sherman v. Railroad Co., 72 Mo. 62 (37 Am. Rep. 423).

Is every person who hires a man to take care of his stable responsible for damages to those whom such employé permits or invites to be upon the premises, and that against his express instruction, as was the fact in this case ? This case was evidently tried and submitted to the jury upon the theory that these boys had been not only permitted by Peter Wynne to be upon the premises, but had been employed by the defendant through him. In the charge of the court Peter Wynne’s name is frequently used, while that of Thomas Wynne, the alter ego of the defendant, is not mentioned, and no reference whatever is made to any act or permission of his binding the defendant. This will more conclusively appear from the fact that the learned counsel for the defendant framed his brief entirely upon the question of the authority of Peter Wynne, while the plaintiff’s attorney has devoted the main portion of his brief to an argument upon the same theory; citing and relying upon Powers v. Harlow, 53 Mich. 508 (19 N. W. 257, 51 Am. Rep. 154), a case which in no senseis the parallel of this. The only reference made in plaintiff’s brief to the position of Thomas Wynne is in the following language:

“ Defendant had for years been receiving the benefit of infantile labor, which was open, public, and notorious. This was with the knowledge at least of its principal foreman, Tom Wynne, and done by his brother.”

Manifestly, it would be unjust, and I think unwarranted in practice, to now sustain this verdict and judgment, which were obtained, not upon the theory that Thomas Wynne employed or permitted these boys, including the deceased, upon the premises, but upon the sole theory that Peter Wynne could and did bind this defendant by his conduct. The above statement in plaintiff’s brief is incorr rect in that the defendant had not received any benefit of infantile labor, and it was not open, public, and notorious that Peter Wynne had employed them, or that Tom Wynne had any knowledge of such employment by Peter. It is just to Peter Wynne to say that he absolutely denies employing these boys.

The propensity of boys to enter, and the difficulty of keeping them away from, places of this character, are matters of common knowledge. It is significant that these boys chose to .enter this barn in the absence of Peter Wynne,—a thing they had never done before,—and when the doors were closed. The other two boys testified, “We got into the barn through the front door, which was open far enough So that we could just get in.” The testimony of defendant’s witnesses is that the barn door was fastened from the inside, and that one of the boys went into the yard, and got in through a back door, and unhasped the front door. The closing of the door was notice to everybody, not invited there, to keep out. There is no testimony to indicate that these boys had ever been invited to enter the barns for work or play, or any purpose whatever, when the doors were closed, and the employés lawfully in charge were away. Not one of these boys testified that they were ever invited or permitted there by Peter Wynne in his absence. The testimony on the part of the defendant is that the boys were playing upon this door, riding to and fro upon it. This the two boys denied, and testified that Paul was behind them, in front of this door; that they did not see the door fall, and did not know why it fell. There were a horse and a colt in the box stall according to plaintiff’s testimony, and only a horse according to defendant’s testimony. Why the door fell is unknown. There is testimony that it had fallen once or twice before by the horses pressing against it.

There is no evidence that Thomas Wynne invited the deceased boy, or the other two, upon these premises. When the plaintiff rested his case, there was not a scintilla of evidence connecting anybody but Peter Wynne with inviting or permitting these boys upon the premises. Thomas Wynne, called by the defense, testified positively to driving the boys away, including the deceased, and that he gave instructions to Peter not to permit them upon the premises. Thomas Wynne had general charge of the yard, barn, and warehouse of the defendant, and superintended the business there. How often his duties took him to the barn does not appear. It is now sought to fix liability upon this defendant because upon cross-examination Thomas Wynne testified as follows:

“Q. Didn’t you swear on the hearing that you had an idea how the accident occurred ? No or yes, or you do not know.

“ A. I will explain it to you.

‘ ‘ The Court: Make the answer to it yes or no. If you cannot answer it yes or no, say you do not know.

Q. Did you do it?

A. Well, I can answer it if you will give me a chance to answer it in my own way.

Q. No, sir; no chances on this. Just answer it yes or no.

“A. The question, as I understand it in my mind, I know that the door fell—

“Mr. Conely: I except to your honor’s ruling to require the witness to answer yes or no, and refusing to let the witness answer it in his own way.

‘ ‘ The Court: I have not made that ruling, and never intended to make it; but the cross-examiner has a right to limit his answer, and then the witness may go to his own counsel, and make his answer in his own way. I have not ruled he cannot explain, but the cross-examiner can stop him, and then his own counsel can straighten him out.

“Mr. Conely: I take an exception to the ruling.

4 4 The Court: I do that every day and every year for six years. .

4 4 Mr. Conely: Oh, well, your honor, I want an exception, and the Supreme Court may test it.

44 The Court: I am satisfied the way it stands now.

44 Q. Do you mean to tell this jury that boys could be used in that barn sweeping out, and cleaning it up, and putting in new bedding, and taking out the old shavings out in the manure pile, and all that, for three or four years, and you not know it ? No or yes.

“A. That is one of the reasons why I told my brother to keep them out.

“ Q. No or yes,—you did know it, did you ?

A. I knew that they were there.

“ Q. You knew your brother was harboring them?

“A. No, sir; I did not claim to harbor them.

“ Q. You knew that he was ?

“A. No, sir.

Q. How many times did you see them there ?

“A. Well, I never counted them.

“ Q. How many, like the sands of the sea, you could not state ?

“A. Not so many.

‘ ‘ Q. Whjr didn’t you discharge your brother the second time after you told him not to have them there and they were there ?

‘ ‘ A. Because I wanted to keep my brother to work. I didn’t want to make a charge of him, or a bum on the street, and therefore I kept him to work.”

This claim is based upon the last question and answer. This testimony goes no further than that Mr. Wynne, defendant’s alter ego, knew that the boys went info the barn. This does not amount, in the law, to an invitation or a legal permission; which fastens upon the employer the same duty that it would owe to its employés, or to those entering the premises by invitation. Permission is not enough*, even in the case of an infant. Hargreaves v. Deacon, 25 Mich. 1. In that case a child of tender years was killed by falling into a cistern on defendant’s premises, which was left uncovered. The child “ was permitted to go upon the premises without any special personal permission or invitation to himself, but by a tacit acquiescence of the occupants in not excluding such persons as saw fit to enter them.”' Thomas Wynne, under no aspect of this case, as it now stands, did any more than to facitly acquiesce in the presence of these boys upon the premises. But tacit permission is not enough to establish liability for negligent conditions on one’s own premises. In that case the defendant was held not liable; and, on account of the importance of this case to persons employing others to take care of their property, I quote from that decision:

“ There is some danger, in dealing with these questions, of confounding legal obligations with those sentiments which are independent of the law, and rest merely on grounds of feeling, or moral considerations. We feel, usually, more indignation at wrongs done to children than at wrongs done to others. But the law has not usually given them civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers- towards them, resting entirely on the fact that they are children. Those who have any special, dealings with them—-as parents, teachers, and employers—incur obligations appropriate to their relations, and differing from those incurred towards others in proportion to the necessity of care and protection and the risk of injury. But those who have no such relations with them are not liable for negligence in carrying on their own business, beyond what would be their liability to others, as well as children, who are equally free from blame.”

The rule is there further stated:

“A person incurs no duties towards persons by not warning or driving them from his premises; and they go there, if mere volunteers, and without invitation, at their own risk.”

The soundness of that case has never been questioned by this court. On the contrary, it has been regarded by the profession as establishing the rule which must be followed.

We think the judgment should be reversed, and no new trial ordered.

The other Justices concurred.


text:
    GAUNTLETT v. SEA INSURANCE CO.

    1. Marine Insurance — Conditional Contract — Nonperformance.
    Complainant telegraphed the agent of defendant insurance companies, requesting insurance on his vessel according to the class and value fixed by an underwriters’ association of which the agent was a member. The agent replied that he had wired such association to ascertain the class of the vessel, and that M., the manager and chief inspector, had replied that the vessel had no class or value until repaired. In response to a further telegram from complainant, stating that M. was then in complainant’s city, and that the vessel required only minor repairs, which would be made on arrival at her destination, the agent wired that he would insure the vessel if M. “ says she is in condition to make voyageand on the same day sent a confirmatory letter, setting out the telegraphic correspondence as in form constituting an unconditional contract. Complainant did not again see M., or have any further communication with him or with defendants or their agent, until after the loss of the vessel; but he claimed to have had a conversation with M. on the day prior to the above-mentioned negotiations, in which M. told him that he regarded the vessel as entirely seaworthy, and fit to make the proposed voyage. Held, that the condition to the acceptance of the risk was not complied with by complainant, and hence there was no valid contract for insurance.
    2. Same—Waiver.
    Waiver of a compliance with such condition could not be predicated on subsequent letters from defendants recognizing the binding force of the contract, where they were written in ignorance of the fact that the condition had not been performed.
    3. Same—Loss of Subject-Matter.
    A contract of marine insurance cannot be effected, or negotiations for such insurance carried to completion, after the loss of the property on which the insurance was to oxierate and knowledge of such loss on the part of the owner.

      Appeal from Wayne; Hosmer, J.
    Submitted April 5, 1901.
    Decided July 10, 1901.
    Bill by John C. Gauntlett, Charles A. Chamberlin, and others against the Sea Insurance Company, the Reliance Marine Insurance Company, the Marine Insurance Company, Limited, and Charles A. Macdonald and J. J. Rardon, copartners as C. A. Macdonald & Company, for the specific performance of an alleged contract for marine insurance. From a decree for complainants, defendants appeal.
    Reversed.
    The purpose of this suit is to enforce the specific performance of a contract for marine insurance. The case was heard upon pleadings and proofs taken in open court, and decree entered for complainants.
    Complainants were the owners of the steamer W. H. Barnum, of 1,200 gross tons burden, employed in the grain and ore trade upon the Lakes; Charles A. Chamberlin, of Detroit, managing owner, and authorized to obtain insurance. The defendant companies were foreign corporations doing a marine business, with headquarters at Chicago. The defendants composing the firm of C. A. Macdonald & Co. were their agents, and were made parties upon the theory that, if there were no binding contracts with the defendant companies, they were themselves personally liable as underwriters. Their authority in the premises is conceded. The Barnum was laid up at Chicago during the winter of 1893 and 1894. The last of March, 1894, she was loaded with 55,000 bushels of corn, and was under contract to sail for Port Huron on April 1st.
    For many years lake underwriters, including the defendants, had formed an association known as the “Inland Lloyds,” for the purpose of procuring for their own benefit a systematic inspection and classification of the shipping upon the Great Lakes. It was customary to publish its annual register in April of each year. The register contained an alphabetical list of the vessels, with information as to their age, condition, and approximate minimum valuations; were for the use of the association exclusively, and not for the shipowners or the general public. These registers did not include the entire lake fleet; and unclassified vessels—i. e., those without class or value—were sometimes insured by the defendants, as well as other companies. On account of the depression in trade, there was no inspection in 1892 and 1893, and the classification and values were carried in the register for those years the same as in 1891. In 1894 the chief inspector and manager of this association was Daniel McLeod, residing in Detroit, and having his office in Cleveland. The classification and valuation of vessels for the Lloyds were entirely in his hands. . He published the annual register, basing the same upon information acquired by himself and his assistants.
    The Barnum had appeared in the register previous to 1894 as “A2; value, $35,000.” The register of 1894 had not been published. On March 26, 1894, Mr. Chamberlin wrote McLeod at Cleveland, advising him that the Barnum had been docked at Chicago, new wheel put on, and bottom caulked, upper deck overhauled, some new decks put in aft, and asked for the class and value assigned to her in 1894. Mr. Chamberlin testified that McLeod’s reply was lost, and was permitted to testify to its contents, to the effect that “the inspector had reported some defects of a minor nature, particularly in her upper works,and hatch coamings; that one of the quarter timbers was cracked, and one or two beams broken,-—cracked over the stanchions, evidently the result of improper shoring when on dock.” To this letter, under date of March 28th, Mr. Chamberlin replied, asking McLeod to have his inspector in Chicago look her over again, and advise him by return mail, as the vessel was loaded, and under contract to sail on Sunday noon; that on her arrival at Port Huron, she being loaded for that port, he would faithfully do anything that was requested to be done. To this letter, under date of March 29th, McLeod replied that he would be in Detroit the next morning, and saying: “The classes of the boats yon name are the same as last year, with the exception of Barnum and Clint, which have no class. Values I am not at liberty to give.” One Drake was the inspector at Chicago for the Lloyds. He was a witness, testified to his inspection, the report of which was sent to McLeod, and was introduced in evidence. This inspection was the basis of McLeod’s action and letters. Drake did not consider her seaworthy, or entitled to any class, without repairs. McLeod came to Detroit on the 30th, and Mr. Chamberlin testified that he saw him, went over the matter with him; that McLeod said he considered the Barnum seaworthy; that he would informally classify her as “ A2-J-” until repaired; that, when repaired, he would restore her to her former class, “A2;” and that witness requested him to see the Detroit Fire & Marine Insurance Company, whose office was in Detroit, and where Chamberlin had made 'application for insurance. The agent of the Detroit Fire & Marine Company testified that McLeod came to his office, stated the condition of the Barnum, and he “gave us the impression-—if he did not say so in so many words, we so understood him to mean it—that she was in shape to come down to Port Huron;” that McLeod also said he could not give her a better class than ‘ ‘ A2£ ” in her present condition.
    The customary method of obtaining marine insurance contracts was for the owner to telegraph or write to a general agent or company to “'cover” the desired amount on a particular vessel. Such proposal was usually accepted or declined by wire, and was frequently followed by a letter. If accepted, the vessel was considered as insured from the date mentioned, although the selection of particular companies and apportionment of the gross amount among them would be left to the agent. • The owner followed this correspondence by an application, upon which the policies would be made out and sent to the owner, together with a premium note due at the close of the season, to be signed by the insured, and returned to the companies or their agent. The contract for insurance is based upon the following correspondence:
    “Detroit, March 31, 1894. “C. A. Macdonald & Co.,
    “Chicago, 111.:
    “Cover twenty-five hundred annual fire, propeller Nellie Torrent, noon April first, marine attach later; also thirty-five hundred full policy, special fire, collision, steamer Barnum, subject Lloyds’ class value, to attach noon April first. Confirm and name companies.
    “C. A. Chamberlin.”
    “Chicago, 3—31—1894.
    “C. A. Chamberlin,
    “Detroit, Mich.:
    “Have wired for class of Barnum. Do you want commission to do business, our companies ?
    “C. A. Macdonald & Co.”
    “Chicago, 3—31—1894.
    “C. A. Chamberlin,
    “Detroit:
    “McLeod wires ‘ W. H. Barnum has no class or value until repaired. ’
    “ C. A. Macdonald & Co.”
    “Detroit, Mich., 3—31—’94. “C. A. Macdonald & Co.,
    “Chicago:
    “McLeod here. Barnum requires only minor repairs, principally to upper works, and it will be done on arrival. at Pt. Huron. Other companies on risk: Detroit Fire & Marine, Commercial Union, Smith & Davis, Union Marine, and Mannheim. Limit until classed, twenty-two thousand. Probably give you fair line hull business if had commission. Answer on Barnum and Torrent.
    “C. A. Chamberlin.”
    • “Chicago, 3—31—’94.
    “C. A. Chamberlin,
    “Detroit, Mich.:
    “Will cover Torrent and Barnum if McLeod says she is in condition to make voyage. Send applications. Will send you commission, and will want good share of your business.
    “ C. A. Macdonald & Co.”

      In addition to the above telegrams, .Macdonald & Co., on the same day, wrote the following letter:
    “Chicago, 31 March, 1894. “C. A. Chamberlin, Esq.,
    “Detroit, Mich.
    “Near Sir: We are in receipt of yonr wire of today, saying ‘ Cover $2,500 annual fire, propeller Nellie Torrent, April 1st, marine attach later; also $3,500 full policy, special fire, collision, on steamer W. H. Barnum,’—to which we wired, ‘We cover; send application.’ We will also send you a commission for one of our companies to do business the coming year, and hope you will give us a good share of your hull business.
    “Yours faithfully,
    “C. A. Macdonald & Co.”
    Upon receipt of Mr- Chamberlin’s telegram asking for insurance, Macdonald & Co. telegraphed McLeod at Cleveland, to ascertain her class and value. To this McLeod replied March 31st: “W. H. Barnum has no class or value until repaired.”
    The Barnum sailed at 5 o’clock a. m. on April 1st, had' a hole knocked in her side near the bow by the ice about 3 o’clock a. m., April 3d, about 6 miles from Mackinac Island, and in about two hours thereafter sunk in 70 feet of water, becoming a total loss. A tug in the vicinity, upon hearing her signal of distress, went to the Barnum, took off her crew, returned with them to Mackinaw City, and Capt. Smith, about 6:30 o’clock a. m., telegraphed the disaster to her owners. In the forenoon of April 3d, Mr. Chamberlin telegraphed Macdonald & Co. from Detroit, as follows: “In what company or companies do you cover steamer Barnum ? ” To this was sent the following reply:
    “ Chicago, April 3, 1894.
    “ C. A. Chamberlin,
    “Detroit:
    ‘1 Sea, Marine, Reliance cover Barnum. Will send you commission in Sea Insurance Company.
    “ C. A. Macdonald & Co.”
    While Mr. Chamberlin testified that he did not think that he had received the telegram from the master of the boat announcing its loss before he sent the above telegram, we are entirely satisfied that he is mistaken, and that he had received it. The tug reached Mackinaw City about half past 6. Within a few minutes after reaching shore, the master telegraphed the loss to the owners. Upon an inspection of the original telegram sent by Mr. Chamberlin asking, ‘ ‘ In what company or companies do you cover ?” etc., it appears that it was dated, “Bo'ardof Trade Office, Detroit, Mich., 8:11 a. m.” To this a reply was received at 9:40 a. m. It is not reasonable that such an important telegram, announcing the loss of a boat with her cargo, would be from about half past 6 in the morning until 8 reaching Detroit. It is further made apparent in view of the fact that Chamberlin telegraphed Macdonald & Co. at Chicago, and got an answer back in i hour and 29 minutes, on a line over which many times as much business is done as on the line from Mackinaw City to Detroit. Under all the facts and circumstances, we reach the conclusion that Mr. Chamberlin’s telegram was prompted by' information óf the loss of the boat.
    On the same day Macdonald & Co. telegraphed to Chamberlin: “Reported Barnum sunk Mackinaw. Wire full particulars.” To this Chamberlin replied:
    ‘ ‘ Have no particulars from captain. Telegram to Grummond states sprung leak in ice. Could not beach her account ice along shore. Tug Crusader went alongside, but could not get pump on board in time to prevent sinking.”
    Chamberlin did not notify Macdonald & Co. that McLeod said she was in condition to make voyage, or pro- • cure a certificate from him to that effect; neither did he send applications until in May. The defendants refused to issue policies. The decree apportioned the full amount of the insurance, less the premium, among the different companies. The principal defenses are: (1) That no contract was made; (2) the unseaworthiness of the vessel; (3) negligence and recklessness in navigating her.

      Frank H. Canfield and George L. Canfield, tor complainants.

      Shaw, Waite, Cady & Oakes, for defendants.

      W. Tudor Apmadoc, of counsel for defendant Reliance Marine Insurance Co.

       Rehearing denied November 4, 1901.

   Grant, J.

(after stating the facts). If any contract was made between these parties, it must be found in the telegrams which passed between Chamberlin and C. A. Macdonald & Co. on the 31st of March. The letter of the same date is only confirmatory of the last telegram sent by Macdonald & Co., and does not change or modify it. The telegram of Chamberlin to Macdonald & Co. of April 3d, asking for names of companies which covered the insurance, and Macdonald & Co.’s reply, cannot be considered, because Chamberlin knew at the time that the vessel was lost, and consequently .there was no vessel in existence to be the subject of insurance. If insurance was not at that time effected, these telegrams could neither create a new contract nor supply an element essential to complete one partially negotiated. Vessels and cargoes upon the seas may be insured where both parties are in ignorance of the condition of the property. Mr. Joyce thus states the rule:

“ In marine insurance a policy can be lawfully effected upon property ‘lost or not lost;’ but this phrase, so used, has reference to cases where the property has started upon its voyage, and the parties to the insurance have no knowledge whether it. has been lost or not. In such cases the insurance is against an unknown event, and the underwriter takes the risk of the arrival of the property at its destination, and thus there is something to insure.” 1 Joyce, Ins. § 105.

See Insurance Co. v. Lyman, 15 Wall. 664.

Referring to the telegrams, we find Mr. Chamberlin asking for insurance according to “ Lloyds’ class value, to attach noon.” Mr. Chamberlin did not mean “Lloyds’ class ” as it was in 1893, but as it would be under the inspection and classification of 1894. He knew the vessel, without repairs, could not be classed as she had been, “A2,” because McLeod had so advised him. He therefore must be held to have intended the classification and value according to Lloyds’ Register as it would be in 1894. Macdonald & Co. so understood it, and replied that they had wired for class of Barnum, thus clearly saying, “Before we insure, we must know her class.” On receipt of McLeod’s telegram, dated the 31st, that “W. H. Barnum has no class or value until repaired,” they wired Chamberlin that McLeod had so wired to them. To this Chamberlin replied that McLeod was in Detroit, and still asked for an answer to his proposition for insurance.. To this Macdonald Co. replied, “Will cover Barnum if McLeod says she is in condition to 'mahie voyage.” Under the custom as shown by the record, a contract for insurance would have been complete but for the condition in Macdonald & Co.’s last telegram. That introduced a new element into the negotiations. McLeod evidently was not in Detroit on that day, as was shown by his telegram to Macdonald & Co. He had been there the day before. According to Chamberlin’s own testimony, he relied upon the conversation he had had with McLeod on that day, March 30th, in which he testified that McLeod told him that he considered the Barnum “ entirely seaworthy, and fit to come to Port Huron, and that he would fix for her a class of A2£.” McLeod was not a witness, evidently being too ill to attend court, for it was stipulated upon the hearing that certain letters of McLeod to Chamberlin and to Macdonald & Co. should be read in evidence to guard against the possible loss of Mr. McLeod’s testimony by death. These letters flatly contradict the testimony of Mr. Chamberlin. In one of these letters to Macdonald & Co., McLeod writes:

‘ ‘ I was not consulted in regard to Barnum’s class last spring, further than that Mr. Chamberlin requested me not to cut class until he got her to Port Huron and repair to an A2 class. I could not class her better than Bl on inspector’s report; consequently she was not classed at all until after the disaster. If my opinion had been asked, I could only approve of Bl class.”

We draw the conclusion from all the evidence that McLeod had not made such statement. Possibly Macdonald & Co. inferred (if they stopped to consider that on that very day they had a telegram from McLeod in Cleveland) that he was going to Detroit so as to be there in the evening or the next morning, and that Chamberlin would then see him,' and obtain the statement from him, if he would give it. Be that as it may, the telegram imposed a condition upon Chamberlin, compliance with which was essential in order to complete the contract. The telegram meant that McLeod should make a statement in his official capacity with knowledge of the situation, and the reason for making it. It did not contemplate a statement made in conversation the day before, when no reference was made to insurance by Macdonald & Co. The telegram said to Chamberlin: “You say McLeod is in Detroit. Get his opinion in his official capacity, as inspector and manager of the Lloyds, that the Barnum is in condition to make the voyage, and we will insure your boat.” It is unreasonable to hold that Macdonald & Co. intended to be bound by a statement made without any knowledge that defendants were to base a contract for insurance upon it, and made the day before, resting entirely in parol. Good business men would not do business in this manner. It was Mr. Chamberlin’s duty, if he desired to perfect the insurance contract, to obtain that statement or certificate from McLeod. This he failed to do, and, so far as the record shows, made no effort to get it. It was not the duty of defendants to obtain this statement, and it is immaterial that the defendant companies were members of Lloyds’ Register Association. There could be no binding contract for insurance until such statement was furnished, and Macdonald & Co. notified by Chamberlin that he had complied with the condition, unless compliance with the condition was waived. Until notified of compliance with the condition, Macdonald & Co. could have withdrawn their offer. There is no evidence of waiver. The confirmatory letter following the telegram of March 31st, -and the telegram of April 3d, by Macdonald & Co., stating in what companies the insurance was placed, cannot be held to have waived the condition, because Macdonald & Co. had no information or knowledge that Chamberlin had not complied with it. They were legally justified in believing that Chamberlin had obtained the statement, and would forward it with his application for insurance. A waiver is “ the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it.” 2 Bouv. Law Diet.

Another obligation resting upon Chamberlin was not complied with, viz., his failure to send applications. These were not sent until a month afterwards. Macdonald & Co. telegraphed, “Send applications.” If they did not consider it necessary to have the applications forwarded at once, why the telegram ? The necessity of these applications is shown in Mr. Macdonald’s testimony. That others sometimes did not send them immediately is of no significance in this case. The defendants had a legal right to them, at least within a reasonable time. They could have been forwarded on the night of the 31st, and reached Macdonald & Co. on the following morning,—the very day the boat sailed. The purpose of these applications is to more fully and specifically inform the insurer of the extent of the risks asked to be assumed, the amount, etc. If the written application does not comply with the terms of the telegrams or letters, the insurer then has two courses open to him,-—either to accept the risk, and issue the insurance upon the terms of the application, thus making a new contract for insurance, or to reject the application as not in compliance with the telegrams or letters. This is manifest from the application made by Chamberlin, which is as follows:

“ Insurance is wanted for C. A-. Chamberlin and others; loss, if any, payable to C. A. Chamberlin, managing owner. Amount wanted, $3,500 on the hull of the steamer ’ William H. Barnum. Class, -. Registered value, ■-. Port of hail, Detroit. When built, 1873. From noon of April 1st, 1894, to noon of April 1st, 1895. Yessel to be valued at $25,666. Limit on this vessel,- $22,000. Rate of premium, $7.75. Amount of premium, $271.25. Free from particular average under 5f per cent.; each passage from port to port subject to its own average. To be employed in general freightage. Privilege to extend, etc. Proposed premium note due October 4, 1894, signed C. A. Chamberlin, M. O., Detroit, indorsed by ——, of -, payable at the office of McLellan & Anderson Savings Bank. This application to be considered binding when approved by C. A. Macdonald & Co., general agents, Chicago, III., and the contract perfected by the issue of the policy or policies.

“Dated at Detroit, April 1st, 1894. ■

“C. A. Chamberlin, M. O.”'

Mr. Macdonald testified that it was usual for these applications to be forwarded at once, and this certainly seems reasonable. Good business men would not leave these important contracts “hanging in the air” on the brief wording of telegrams. Whether the failure to forward these applications would alone work a forfeiture of a contract for insurance but for the condition we need not determine.

Decree reversed and bill dismissed, with the costs of both courts.

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


author: Moore, J.

text:
    JOHNSON v. PFEFFERLE.
    Deeds—Reformation.
    Reformation of a deed by including additional land, held to have been properly refused for failure of proof.
    Appeal from Monroe; Kinne, J.
    Submitted April 4, 1901.
    Decided July 10, 1901.
    Bill by William C. Johnson and another, trustees, against August Pfefferle and others, to reform a deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      O. A. Golden (Elliott G. Stevenson and Leo M. Butzel, of counsel), for complainants.

      E. R. Gilday, for defendants.
   Moore, J.

This is a bill to reform a deed. Complainants were securing rights of way for the construction of an electric railway between Toledo and Monroe. The corporation for which the complainants were-acting is the Toledo & Monroe Railway, organized under the general railroad act. The defendants’ intestate owned a farm adjoining the highway. Negotiations were had with Mr. Pfefferle, and a deed was procured from him conveying a certain strip of property to the complainants as trustees for the railroad company. The dispute is as to what should have been incorporated in this deed. The deed, as actually drawn, conveys a strip of land 20 feet in width parallel to and adjoining the highway, and extending along the entire frontage of the defendants’ farm, “ except therefrom twenty-four feet in width in front of house, and being in length same as the house.” The complainants’ contention is that what was intended to be conveyed by both parties was a strip 24 feet in width along the entire frontage of the farm and next to the highway, except in front of the house, where the strip was narrowed to 20 feet. The defendants claim that what was intended to be conveyed by the deed was a strip 20 feet in width along the entire frontage of the farm, excepting in front of the house, where 24 feet was to be left between the front of the house and right of way; and the circuit judge so found. The complainants have brought the case-here by appeal.

There is no question of law. We agree with the circuit judge, before whom the case was tried, that complainants have failed to establish by competent testimony the case stated in their bill of complaint.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    VILLAGE OF HOWELL v. GORDON.
    1. Taxation—Nonresidents— Credits.
    Credits owned by a nonresident of the State are not taxable under our laws. 1 Comp. Laws, § 8831, subd. 6.
    2. Same—Mortgages—Resident Agent.
    The fact that such credits are evidenced by notes and mortgages in the custody of a resident agent does not render them taxable under 1 Comp. Laws, § 3837, subd. 6, providing that personal property under the control of a trustee or agent may be assessed to him in the township where he resides.

    3.Same—Moneys.
    Nor does such statute authorize the assessment • of money belonging to a nonresident, in the temporary possession of a resident agent, but not subject to the latter’s direction and control.

      Error to Livingston; Smith, J.
    Submitted April 16, 1901.
    Decided July 10, 1901.

      Assumpsit by the village of Howell against Thomas Gordon, Jr., agent for Hosea Rogers, to recover a personalty tax. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      William P. Van Winkle (Rollin H. Person, of counsel), for appellant.

      Edmund C. Shields and Louis E. Howlett, for appellee.

       As to situs for purpose of taxation of debts evidenced by notes and mortgages, see note to Boyd v. City of Selma, (Ala.) 16 L. R. A. 729.

   Hooker, J.

This is an action to recover taxes. Hosea Rogers is a resident of the State of New York. He has loaned money in Michigan upon notes and mortgages for many years. These loans have been negotiated and collections made through Thomas Gordon, Jr., a resident of the village of Howell. The assessor of that village assessed against Thomas Gordon, Jr., agent for Hosea Rogers, the sum of $100,000 upon personal property. There is no pretense that this assessment represented anything but the money which said Rogers had loaned in this State, or the securities therefor, and such money as Gordon might have had at the time in his custody, belonging to Rogers. Gordon went before the board of review and protested against such assessment, and defendant showed or offered to show that he presented to said board an affidavit that he had no securities for money loaned, belonging to said Rogers, in his possession or under his control at the time when it was assessed, and that, while he had in his possession an amount of money belonging to him, it was in no wise under his control, except as he should obey instructions from Hosea Rogers, and that the amount was but a little over $3,000, which he had collected for him. It showed further that he had no control of his funds or-his securities, and did not have more than temporary custody of either money or securities. The court held that, under the undisputed facts, this money was subject to taxation, and that the determination of the hoard of review as to the amount was final and not reviewable, no fraud being charged. A verdict was therefore directed in favor of the plaintiff for the amount of the tax. The facts are not in dispute. There is no reason for doubting that all of the interests sought to be taxed were owned by Rogers, a nonresident of this State, and that they consisted of $3,000, approximately, in cash, and that the remainder were what the tax law (1 Comp. Laws, § 3831, subd. 6) denominates .“credits,” consisting of personal obligations secured by mortgages.

It is the policy of this State to tax credits owned by residents only, as shown by 1 Comp. Laws, § 3831, subd. 6. This section designates the kinds of property to be included in the term “personal property” for the purposes of taxation. The statute limits the credits to be included to such as belong to the inhabitants of this State. Section 3831 defines the kinds of personal property subject to taxation. Section 3836 provides that all personal property, except as thereinafter provided, shall be assessed to the owner in the township of his residence. This is a plain implication that residents only are, as a rule,.to be assessed with personal property. Section 3837 contains the exceptions, and implies that animals and tangible property and stock in banks and personal property of nonresidents may be assessed where situate, guardianship property where the guardian lives, and estates to- administrators where situate. Subdivision 6 provides that “personal property under the control of a trustee or agent * * * may be assessed to such trustee or agent in the township where he resides.”

The only credits that are assessable in Michigan are those owned by inhabitants of this State (1 Comp. Laws, § 3831, subd. 6), and they embrace “all credits of every kind.” Mortgages, bonds, and notes are sometimes called “credits.” More strictly speaking, they represent credits; for the intrinsic value is not in the paper, but in the promise or obligation which it records. An oral promise or an implied agreement to pay money is none the less a credit than the most solemn writing. State v. Gaylord, 73 Wis. 316 (41 N. W. 521); Walker v. Jack, 31 C. C. A. 462 (88 Fed. 576), and note; Cooley, Tax’n (2d Ed.), 21, 22. It is only by treating the mortgage, rather than the obligation, as the valuable thing, and as property, rather than, and as contradistinguished from, a credit, that the assessment of such, when owned by a nonresident of the State, can be justified; for, as we have seen, a credit, to be assessable, must belong to an inhabitant. It will not be claimed that nonresidents are taxable upon their various claims against citizens of Michigan when not evidenced by writing; and we understand it not to be contended that nonresident owners of bonds and mortgages are subject to be taxed in Michigan upon them where the mortgages are not held in this State. The effect of plaintiff’s contention is that, while nonresidents usually are not taxable here for their credits, if the evidences thereof are in this State they are subject to taxation. The mere fact that an agent has temporary custody in this State on the second Monday in April would, under this claim, make them taxable. Such liability would not depend on the creditor being a resident of Michigan. All obligations, though the creditor be a foreigner residing abroad, would be subject to taxation here if the securities were here on the second Monday in April, though, as we have already shown, the only credits taxable are those belonging to residents. The plaintiff’s claim is made to rest on 1 Comp. Laws, § 3837, subd. 6, already mentioned. That subdivision does not add anything to the kind of credits to be taxed, as pointed out in section 3831, subd. 6, thereby making it proper to tax credits of nonresidents. Moreover, we are not prepared to hold that this subdivision ivas intended to cover credits. In Curtis v. Township of Richland, 56 Mich. 481 (23 N. W. 175), Mr. Justice Cooley indicates his opinion to be that such was not a proper construction of this section. The statute plainly recognizes the usual rule that credits are to be assessed at tbe domicile of the owner, and does not attempt to tax those belonging to nonresidents. Such credits have no situs in this State. See City of Detroit v. Lewis, 109 Mich. 155 (66 N. W. 958, 32 L. R. A. 439), which plainly implies that the legal title must be in an inhabitant of Michigan, to make a credit taxable here. We think these mortgages were not taxable.

We think it equally, clear that the money was not assessable' It was not money in the hands and control of a trustee or agent. It was in the hands of Gordon, but not in his control in the sense contemplated by the statute. It was under the control and direction of the owner. If it is possible that money of a nonresident, sent to this State for investment, may under some circumstances be taxable, it is clear that this was not. The money and the mortgages were undoubtedly taxable at the residence of the owner, in New York, and there is no justification for the officers of this State attempting to levy tribute merely because they are able to find them temporarily in the custody of an agent at the time when property is assessable. Money collected by attorneys and others for nonresident clients does not become taxable merely because it is in their hands on the date fixed for assessment. Liability to taxation of nonresident property rests upon another and different principle, viz., situs in this State, or something which the statute makes equivalent thereto; and it is at least doubtful if any but tangible property, as contradistinguished from intangible, is subject to it.

We are of the opinion that the action of the assessing officer and board of review was without authority of law and void.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.