author: Blair, J.

text:
    GATES v. DETROIT & MACKINAC RAILWAY CO.
    1. Logs and Logging — Transportation Contract — Construction.
    Where a contract for the transportation of logs stipulated that plaintiff should furnish not less than five million feet per year until his timber should be cut from the lands described, • such stipulation fixed the duration of the contract.
    2. Contracts — Severable Contracts — Breach — Remedy.
    Where a railroad company, having contracted to transport timber in a certain amount per year for several years, elects to treat the contract as severable and not as entire, it is bound ' to perform its part of the contract, and seek compensation in ' damages for any breaches of the contract of which it is in a position to complain.
    3. Same — Stipulations—Waiver—Evidence.
    • In an action on a contract, by the terms of which plaintiff was to furnish for transportation five million feet of logs per year until his timber should be cut from certain lands, evidence examined, and held, that the stipulation as to the number óf feet was shown to be waived by evidence showing that plaintiff was continually complaining of defendant’s failure to furnish cars, and that defendant’s superintendent was uniformly making excuses and promising better service for the future.
    4. Same — Revival of Stipulations.
    Where parties mutually adopt a mode of performing their contract differing from its strict terms, or mutually relax its terms by adopting a loose method of executing it, neither party can go back upon the past and insist upon a breach because it was not fulfilled to the letter; but he may insist upon a different mode of observing it in the future, and require a return to the terms of the contract.
    5. Logs and Logging — Transportation Contract — Cancellation.
    Where the stipulation in a contract for the transportation of forest products that plaintiff should furnish five million feet a year was waived by defendant’s failure to provide cars, defendant was not entitled to cancel the contract before the expiration of the contract period on that ground and increase its tariff for transporting the timber.

      6. Same — Breach—Damages.
    Where a contract for the transportation of forest products provided that plaintiff should furnish the grade and deed or lease of right of way, and that defendant should build the necessary track into the tract of timber, and defendant actually had peaceable possession of the right of way which was provided or paid for, so far. as necessary, by plaintiff, defendant was not damaged by plaintiff’s failure to provide deeds or leases of the right of way.
    7. Same — Logging Road — Rights op Parties.
    A contract for the transportation of forest products, and providing for the building of a railroad therefor, and providing that the railroad company should charge an increased tariff to others than the forest owner for transporting their products over the road, does not bind the owner to allow others to use his private roads and banking grounds without making such charge therefor as he sees fit.
    8. Same — Error Cured by Verdict.
    Defendant cannot complain of error in presenting plaintiff’s claim for decking logs where the jury found against the claim.
    9. Same — Contract—Construction.
    A contract, by which a railroad company agrees to transport “ your ” logs from certain described lands for a certain price, and to charge others a higher rate, and divide the excess with the forest owner, obliges the company to carry, at the prescribed rate, only the logs cut from his own land by the forest owner, and allows it to charge regular rates for logs purchased from others.
    Error to Bay; Shepard, J.
    Submitted February 14, 1907.
    (Docket No. 97.)
    Decided March 12, 1907.
    Assumpsit by Samuel G. M. Gates against the Detroit & Mackinac Railway Company for breach of contract to transport certain logs. There was judgment for plaintiff, and defendant brings error.
    Affirmed, on condition.

      James McNamara (T. A. E. & J. C. Weadock, of counsel), for appellant,

      Cillett & Clark (DeVere Hall, of counsel), for appellee.
   Blair, J.

This is an action to recover damages for the alleged breach of a contract, made in August, 1899, to haul plaintiff’s logs and other forest products over a logging railroad constructed by the parties under the contract The contract was evidenced by certain letters written by defendant’s general superintendent and agreed to by the plaintiff, containing, among other provisions, the following:

“ We to haul your logs from town 25 north r^nge 4'and 5 east to North Bay City at the rate of $3.00 per thousand feet board measure, but nothing greater than 33^ to be deducted from any log for defects and a minimum of 2,500 feet to the car. * * *
‘ ‘ Where train is run exclusively for logs the minimum train is 25 cars. You to furnish not less than five million feet per year until your timber is cut from above described lands. * * *
“In regard to allowing other parties to haul timber from this branch. We will add an additional charge of 25 cents per thousand, and $1.00 per car for all other classes of freight that may come from this branch and divide the amount equally with you.”

The railroad was built for a distance of approximately five miles in 1899, and during the year 1902 was completed to the point designated in the contract. Plaintiff began lumbering his timber January 1, and began hauling May 1,1900. The shipments of logs and other forest products, up to the year 1904, were as follows:

Other

Year. Feet. Forest Products.

1900 ............2,357,982......................... 44 cars.

1901 ............2,600,125......................... 22 cars.

1902 _______......2,603,773......................... 25 cars.

1903 ____________2,320,916.........................101 cars.

Total . .9,882,796.......:.................192 cars.

In February, 1903, the parties having got into a controversy over the right of plaintiff to collect certain charges for the use of his private roads and banking grounds before permitting the shipment of ties theretofore purchased by the defendant of a third party, the defendant wrote a letter to the plaintiff containing the following:

Dear Sir: Your favor of the 17th instant in regard to the matter of the ties this company has bought of the Cash Mercantile Company, at South Branch, which are located at the back end of what is known as the ‘ Gates Branch,’ at hand.
“ I wish to state that this company has bought the ties in question from the above-named company and have settled with that company for the ties. We propose to move these ties from that point, regardless of any understanding that you have had with Mr. Harper or the Cash Mercantile Company, and do not propose to pay you, nor any one else, for the privilege of moving them out. I wish you to distinctly understand that, when we get ready to move these ties, we propose to go there, load them, and take them out.
“ There are several matters connected with the branch that we built for you that you have never carried outyour part of the agreement, and, if you still persist in being arbitrary in regard to the freight that is to be moved over this branch, we shall call upon you to carry out your contract and to the letter.”

This matter was adjusted between plaintiff and the third party without expense to the defendant, and affairs went on as before till January 13, 1904, when defendant’s superintendent wrote the following letter to plaintiff:

“ S. G. M. Gates,
“Bay City, Mich.
“Dear Sir: In looking over the contract'for hauling your timber from town 25 north, range 4 and 5 east, I find that it specifies you are to ship not less than five million feet of logs per year. I have had a statement made for each year, commencing with the year 1900, with the following results: * * *
“ The total amount of timber hauled for ybu from the above-described lands in four years, allowing three thous- and feet to logs for each of the 192 cars of other forest products, overruns the amount of feet of logs that we should have had in two years only 458,796 feet.
“This is a violation of the contract on your part, and we have decided to cancel the contract, and what logs we haul for you from that branch in the future will be billed at tbe advanced rate with an additional 25 cents per thousand added to each thousand, making $4.25 per thousand on hardwood and pine, and $3.75 per thousand on hemlock and tamarack, subject to rules of our log tariff.
“The above violation is not the only one. An agreement was made with you that an additional charge of 25 cents per thousand on logs and $1.00 per car on all other classes of freight was to be charged to other parties wishing to ship from that branch, and you was to receive one-half of that amount. This was agreed to on our part with the understanding that other parties were not going to be prohibited from banking and loading out such forest products as they chose to ship. You have taken the stand that no one can ship anything over that branch but yourselves, unless they pay you an exorbitant price for doing so. Now, we propose to allow other people to do business on this branch, and, if it cannot be done peaceably, we certainly will be obliged to take legal steps to, accomplish that end.
“Commencing Monday, January 18, 1904, all logs consigned to you from the above named towns will be billed at the above named rate.
“Yours truly,
“ C. W. Luce, “General Superintendent.”

After the receipt of this letter plaintiff paid the increased rates specified therein under protest, and such increase constitutes one of the items of damages claimed in his bill of particulars.

Defendant, under the plea of the general issue, gave notice that:

1. The plaintiff, as an inducement to defendant to make the contract, represented that he owned and controlled timber tributary to the proposed logging road, which, when cut into logs, would amount to 10,000,000 or 12,000,000 feet, and that others owned timber tributary to such track, which, when marketed by means thereof, would aggregate 30,000,000 feet.

2. Plaintiff failed to furnish, as agreed in contract, deed or lease of right of way, or to build grade and furnish ties delivered on the grade, to defendant’s damage $2,000.

3. Plaintiff failed to furnish 5,000,000 feet per year as agreed, although defendant had expended $15,000, relying upon his performance of his agreement and preparing to carry out the same on its part, and which it was at all times able and willing to perform on its part, “and, so far as laid in its power, the said contract has been fully performed,” to the defendant’s damage $15,000.

4. “That in and by the terms of the contract above referred to the plaintiff was required to permit all persons desiring to ship forest products or other freight over the defendant’s road the privilege of loading and shipping the same upon and across plaintiff’s lands, * * * but refused to permit parties desiring to ship logs and other classes of freight to load the same upon defendant’s cars on plaintiff’s lands unless such parties should pay to plaintiff an additional charge of $1 per thousand feet, which was unreasonable and unwarranted, as well as prohibitive, and, in consequence of such failure of said plaintiff to perform the said contract according to its true intent and meaning, the defendant made great losses and was unable to ship a great many, to wit, -20,000,000 feet of logs and a great many hundreds, 500, cars of other freight which it otherwise would have been able to ship, to its damage, to wit, $10,000.”

■ The jury rendered a verdict for plaintiff for $1,924, which, as stated by counsel for defendant in their brief, was “the amount of the difference between the regular schedule rate paid by him and the contract price on the amount of logs actually shipped between January 13, 1904, and the date of the commencement of suit.”

The defendant has brought the record to this court for review, assigning errors which may be grouped as follows:

1. Erroneous rulings of the court during the progress of the trial.

2. Erroneous instructions to the jury.

3. Erroneous refusals of defendant’s requests to charge.

Each party claimed and gave evidence tending to show readiness and ability to perform the contract, and that failure to perform was due to the default of the other party. Counsel seem to agree that the contract was never rescinded, and that the rights of the respective parties were to receive compensation in damages for breaches of the contract by the other party. The position of defendant, as stated by its counsel, is as follows:

“The legal rule which the defendant invoked in this case is that which is laid down by this court in the case of McGregor v. Ross’ Estate, 96 Mich. 103, when the defendant undertook to recover damages it had sustained because of being prevented from completing the contract. It was contemplated that the logs upon the lands owned by Gates at the time the contract, was made would be removed at the rate the logs would be furnished within two years, or, at the most, three years, and that time was up. It was also contemplated that the plaintiff would permit others to load freight upon defendant’s cars upon the track in question, and that thé plaintiff refused to do. The circuit judge held that the defendant company could not rescind the contract and claim damages for its breach. There was no effort made to rescind the contract. The contract was substantially performed. The plaintiff was undertaking to extendit beyond its terms for his own convenience and purposes, and his claimed right to do so was terminated by the letter of Mr. Luce advising him that the same was canceled, and that thereafter all logs transported would be at the regular schedule rate. The defendant did not seek to recover for any damages occasioned by the failure of the plaintiff to carry out its contract after the date of that letter. It simply sought to hold the plaintiff for the injuries then inflicted. It was never the theory of the defense that the contract was of no force or effect, or that the same had been rescinded.”

This construction of the contract is apparently based upon the testimony of President Hawks that plaintiff told him before the contract was executed that he had only 12.000. 000 feet of logs for shipment. Mr. Hawks further testified:

Q. He said he had 12,000,000 feet of timber ?
“A. Yes, sir.
Q. He did have, did he not ?
“A. It turned out later that he had 28,000,000 or 30.000. 000.
Q. He did have 12,000,000 ?
“A. He said that was all he had.
Q. How did you expect him to ship 5,000,000 feet of logs for five years and have only 12,000,000 feet ?
“A. There was nothing said in the contract about shipping 5,000,000 feet of logs for five years.
Q. There wasn’t?
A. He was to ship 5,000,000 feet of logs a year.
Q. For how many years ?
“ A. Until he had 12,000,000 of logs shipped.
Q. That is your contract, is it ?
“ A. That is our contract. The contract don’t say anything about 12,000,000. * * *
Q. Will you point out in the contract where there is anything that indicates he was to furnish 5,000,000 feet a year for two years and 2,000,000 the third year, and that satisfied the contract ?
A. The contract says he was to furnish 5,000,000 a year. That is all we wanted. I understood, then, that he had 12,000,000 feet; that he was to ship it out at this rate, and when that was shipped out it complied with our contract, except that we were to have the use of the right of way for the balance of the five years.”

The plaintiff and defendant’s superintendent first discussed the subject-matter of the contract on the train; Mr. Hawks having turned the whole subject over to Mr. Luce, the superintendent. Mr. Luce testified:

“Well, Mr. Gates, as I remember, was in Tawas for one day, or possibly two, following the time that I met him on the train, and we talked the matter over, and I said to Mr. Gates, ‘ I will outline to you just what we will do in the matter of hauling your logs out from above South Branch to North Bay City, and I will write you a letter stating just what we will do,’ which I did. * * * I tried to cover all the different points. I thought I covered all the different points that should be covered with the experience I had had in the logging business. * * *
Q. These three letters incorporate everything that was agreed to between you, do they not ?
“A. Yes, sir.”

The contract was intended to and did embrace the entire agreement of the parties. Its terms are unambiguous, and the duration of the agreement as to hauling plaintiff’s logs is fixed by the clause:

“You to furnish not less than five million feet per year until your timber is cut from above described lands.”

The parol understandings of the parties prior to the written agreement cannot, even though they induced the making of the contract, be permitted to vary its plain provisions. As the defendant’s counsel expressly disavow a rescission ot the contract and plant their case upon the right to recover damages for breaches of a contract performed by defendant so far as it was permitted to perform it by plaintiff, the contract rate for hauling the logs must prevail until the period fixed had elapsed. As “it turned out later that he had 28,000,000 or 30,000,000,” or, according to plaintiff, about 25,000,000, feet, the contract period was not at an end when the letter of January 13, 1904, was written. Defendant, having elected to treat the contract as severable and not as entire, was bound to perform its part of the contract, and seek compensation in damages for any breaches of the contract which it was in a position to complain of» Under its plea and notice defendant, if it had complied with the agreement so far as not prevented, and had not waived performance on the part of plaintiff, could have recovered its damages, if any, for the failure on the part of plaintiff to deliver 5,000,000 feet of logs per year; but there was no proof of any other items of damage for which it was entitled to recover under its plea and notice.

The court submitted to the jury the question whether the defendant was able to and had performed its agreement as to furnishing cars except as it had been prevented from doing so by the failure of the plaintiff to furnish logs, instructing the jury :

“That, under the terms of the contract, it was understood that the plaintiff was to furnish the defendant 5,Q00,000 feet of logs a year to be' transported, and that contract is valid and the defendant would be entitled to the benefit of it, and the damages arising from its breach, unless it has waived the terms of it by its own action and conduct, and failure to carry out so much of the contract or obstruct the carrying out of the contract itself so as to prevent its being carried out on the part of the plaintiff.”

We think defendant was not entitled to have this question submitted to the jury. The evidence was conclusive that both parties had waived the provision that plaintiff should furnish 5,000,000 feet for shipment, and that defendant should furnish the cars therefor as ordered. The evidence of waiver is principally in the letters of the parties, from which it appears that the plaintiff was continually complaining of the failure to furnish cars, and that defendant’s superintendent was uniformly making excuses for the failure to furnish cars and promising better service for the future. Some of these letters we quote from gfs follows:

“ Sept. 15th, 1900.
“You are long enough on cars to give them to my neighbors and keep them well supplied. I have carried out my arrangements with you and your .people and don’t know any reason why you should discriminate against me, and do know good reasons for your favoring me above other of your customers.
“If there is anything further that I have not done . which you expect me to do, kindly name it, and oblige,
“ Yours truly,
“S. G. M. Gates.”
Dear Sir: Your favor of the 15th inst. in regard to cars for logs at hand. The reason we did not give you cars for logs was on account of your August freight bills not being paid. We were not advised until today, by our agent at North Bay City, that your August bills were paid. We will now try and give you cars again, same as last month.
‘ ‘ I assure you we do not intend to discriminate against you in favor of your neighbors, nor have we done so.
“Yours truly,
“ C. W. Luce, “General Superintendent.”
“Dec. 28th, 1901.
“ I relied on your giving me a specified number of cars per day. Had men to load them and men to unload them and started the mill and we are about out of logs. If there is anything wrong or any reason why there is to he a change, you should have let me known.
“Let me hear from you at once, and oblige,
“Yours truly,
“ S. G. M. Gates.”
“Nov. 4, 1902.
‘ ‘ I have had no cars for logs for several days and need them badly. I shall want cars for shingles pretty regularly, about two a week.
“ Hoping you will be able to furnish these promptly, I remain,
“ Your humble servant,
“S. G. M. Gates.”
“ S..G. M. Gates,
“ Bay City, Mich.
Dear Sir: Referring to yours of the 12th inst. in regard to cars for logs. I will state that we will place 7 flats for you tonight, and will do the very best we can in the future in the way of supplying cars for you. I find that it is almost impossible to get enough of our flats to supply more than one-half of our orders.
“ In regard to car for shingles which you spoke to me about while in Bay City yesterday, we expect to place a stock car for you tonight on the shingle order.
“Yours truly,
“C.W. Luce, “General Superintendent.”
“Jan. 5, 1903.
“ Now, if I cannot have cars to ship out the product I am producing up there let me know, and I must stop producing and quit the business.
“I asked you to give me a steady business, about so many cars a day, eight or ten. Some days I get a fair amount, some days none, and some days one-half the amount.
“ I have started and stopped my mill at an expense of $25 per day three or four times this winter, because I had to wait for logs, only running one side of the mill at that.
“ Now, what I ask of you is this: To tell me what you will do and what you won’t do, and I must govern myself accordingly.
“Yours truly,
“ S. G. M. Gates.”
Dear Sir: Your favor of the 5th instant received. I regret that we have been unable to give you more cars for your log and bark shipments during the past few days. We have been starting a few log trains and the flat car demand has been so sharp we could not do better. However, I will start you going at once, and will put forth every effort to see that you are kept better supplied in the future. Will also rush in some cars for bark.
“ Yours truly,
“C. W. Luce, “ General Superintendent.”
“ Nov. 27, 1903.
Dear Sir: I am ready to haul logs and we should like at least five cars a day on the Gates branch. We can keep your train going at ten or twelve cars a day and we have a good deal of bark up there.”
“Nov. 29, 1903.
“S. G. M. Gates,
“Bay City, Mich.
Dear Sir: Your favor of the 27th. I will start a few flats going in for you the first of the week, also some cars for bark. We are at the present time badly crippled for cars, but will do all possible to give you as near to what you need as possible.
“We will not be able to give you ten cars a day for a few days at least.'
“ Respectfully,
“C. W. Luce, “General Superintendent.”
“January 7, 1904.
“S. G. M. Gates,
“Bay City, Mich.
Dear Sir: * * * In regard to cars for logs, we have been giving you cars daily for some time past for logs. While we might not have given you all that you require we have done the very best we could, but from now on for some little time there is no reason why we cannot give you cars to the extent of ten a day, providing, however, that all cars are released and returned to us promptly at Bay City.
“ Yours truly,
“C. W. Luce, “General Superintendent.”

In 1902 the track was extended at an expense to Gates of some $9,000, and not an intimation was given by defendant, in writing or otherwise, till January 13, 1904, as to any dissatisfaction on defendant’s part because of failure to ship the amount of logs required by the contract, although the occasion for such complaint was frequently presented, and on some occasions defendant was expressly requested to state if in any way plaintiff had failed to discharge his obligations. Defendant’s letter of February, 1903, was rather a ratification than a repudiation of the method of performing the contract up to that time, and only threatened to insist on performance in accordance with the contract in case plaintiff should still persist in being arbitrary as to freight of others. As said by Judge Agnew in a parallel case:

“ If the parties mutually adopt a mode of performing their contract differing from its strict terms, * * * or if they mutually relax its terms by adopting a loose mode of executing it, neither party can go back upon the past and insist upon a breach because it was not fulfilled according to its letter. He may insist upon a different made of observing it in the future and require a return to the terms of the contract. Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa. 301.

The defendant did not propose by the letter of January 13,1904, to proceed with the contract thereafter in accordance with its terms, but to treat it as ended and canceled, and utterly refused to transport plaintiff’s logs at the contract rate.

Defendant was unable to show any damages incurred by plaintiff’s failure to give a deed or release of the ri^ht of way, and it actually had peaceable possession thereof, which was provided and paid for, so far as necessary, by plaintiff. There was nothing in the contract to prevent plaintiff from making such charges as he thought fit for the use of his private roads and banking grounds, and defendant had no legal right to complain.

The jury found against the plaintiff’s claim of damages for decking logs, and the error, if any, of submitting that question, was without prejudice.

We q,re of the opinion, however, that the court should have qualified his instruction, as to the amount of the overcharge plaintiff could recover by instructing them that such overcharge could not be recovered as to any logs not cut from plaintiff’s lands, but purchased of others. The contract, as we construe it, only authorized the plaintiff to demand the $3 rate for logs cut from his own lands, which were the subject of the contract. As the bill of particulars only involved logs hauled after. January 13, 1904, and no claim was presented for the excess on purchased logs hauled prior to that time in defendant’s plea and notice, we can only consider the logs hauled after that date. The only evidence in the record upon that subject is that the amount recovered as overcharge on purchased logs was $75, and the verdict was too large by that amount.

For this reason, the judgment will be reversed, and a new trial granted, unless the plaintiff shall, within 30 days, remit the above amount, in which event the judgment will be affirmed, without costs to either party.

McAlvay, C. J., and Carpenter, Grant, and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    WIDER v. DETROIT UNITED RAILWAY.
    1. Street Railroads — Personal In juries — Contributory Negligence.
    One who steps or drives upon a railroad immediately in front of an approaching street car, and is struck, when, had he looked before so attempting to cross, he must have seen the proximity of the car and the necessary consequences, is chargeable with contributory negligence, as a matter of law.
    2. Same — Failure to Look — Question eor Jury.
    Where, at the time plaintiff turned to cross a street-car track, the car by which he was struck was more than 200 feet away, and at the time of the collision was running at an unusual, if not an unlawful, rate of speed, the question whether plaintiff was negligent in failing to look a second time immediately before driving upon the track was for the jury; plaintiff not being required to refrain from crossing because the car was in sight.
    Error to Wayne; Hosmer, J.
    Submitted February 21, 1907.
    (Docket No. 54.)
    Decided March 12, 1907.
    Case by William Wider against the Detroit United Railway for personal ‘injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan Donnelly & Van De Mark, for appellant.

      Frank D. Andrus, for appellee.
   Hooker, J.

The undisputed testimony in this case establishes the fact that the plaintiff, driver of an ice wagon, attempted to cross the defendant’s street-car track, when his horses, proceeding upon a walk, were struck by a car coming from the same direction that the plaintiff had been driving. He was driving in a covered wagon, with openings at his side, through which he could look out. He testified that before attempting to cross he looked by “bending or hanging out” of said opening to see whether a car was coming, and did not see any; that his horses’ heads were then 13 feet from the railway; and that he immediately started them toward the track, with the intention of crossing. There is nothing to indicate that he looked again, or saw any car, until just before the car struck the team. On the contrary, the testimony indicates that he did not. The important question in the case is that of contributory negligence.

The accident happened in the evening, and the street was lighted by arc lights. There is testimony that there was no light upon the car, or inside of it, though the contrary was proved by a strong preponderance of proof. The principal witness for the plaintiff said that he did not see any lights in or upon the car, but that he saw the car at Burns avenue, 226 feet from the place of the accident, as the plaintiff turned to cross the track. It does not appear that he saw it again until an instant before it struck the plaintiff’s horses. Plaintiff recovered a judgment, and the defendant'has appealed.

We have held that one who steps or drives upon a railroad immediately in front of an approaching street car, and is struck, when, had he looked before so attempting to cross, he must have seen the proximity of the car, and the necessary consequences, is chargeable with contributory negligence, as a matter of law (Houghton v. Railway Co., 99 Mich. 308; Kelly v. Hendrie, 26 Mich. 261; Fritz v. Railway Co., 105 Mich. 50; Borschall v. Railway, 115 Mich. 477; Henderson v. Railway Co., 116 Mich. 374; Doherty v. Railway Co., 118 Mich. 209; McCarthy v. Railway Co., 120 Mich. 400; Merritt v. Foote, 128 Mich. 367; Garrity v. Railway Co., 112 Mich. 374 [37 L. R. A. 529]), and that such nearness of the car is sometimes demonstrable from the circumstances of the accident.

On the other hand, we have held that a man is not required to refrain from crossing whenever a car is in sight, and that there are cases where he may properly exercise his judgment upon the question of when he should attempt to cross the track, and in such cases he may or may not be guilty of contributory negligence, and whether he is or not is usually a question for the jury. The application of this rule is most common in cases where the car is seen, but its distance or speed is miscalculated ( Garrity v. Railway Co., 112 Mich. 369 [37 L. R. A. 529]; Chauvin v. Railway, 135 Mich. 85), or cases where there is evidence justifying-the conclusion that the injured party looked, and that no car was visible, within such a distance as would justify him in making an attempt to cross (Ryan v. Railway Co., 123 Mich. 599; Moran v. Railway, 124 Mich. 582). See, also, Garrity v. Railway Co., supra.

In the present case the jury would have been justified in finding that the plaintiff was negligent in not looking just before driving upon the track, if he did not look, and it was certainly open to the jury to find that, had he looked, he must have seen the car to be so near that it would be reckless to try to cross in front of it. Indeed, if this record permitted, we should be inclined to reverse the judgment as contrary to the clear weight of evidence. But, oh the other hand, there is testimony which, if believed, would justify the conclusion that, at the time the plaintiff turned to cross the track, the car was more than 200 feet away, and that, at the time of the collision, it was running at an unusual, if not an unlawful, rate of speed, and while perhaps a distance of 200 feet may leave a doubtful margin of safety to one crossing in front of a swiftly moving car, without looking immediately before driving upon the track, it may be otherwise where the speed is less. If we could say that the undisputed testimony was to the effect that this plaintiff drove upon the ftrack when this car was so near that it must have been seen and the danger apprehended, had plaintiff looked, we should reverse the judgment under the rule of the cases cited; but, as there was an opportunity to find that the distance was 200 feet or more when he looked, we are of the opinion that it was for the jury to say whether an attempt to cross would have been negligent, even had plaintiff seen the car, under the rule of Garrity v. Railway Co., supra, provided they should find that the testimony referred to was true.

The only other point raised relates to the argument of counsel on the subject of damages. We are of the opinion that the cause should not be reversed on this ground.

Judgment affirmed.

McAlvay, C. J.,and Carpenter, Ostrander, and Moore, JJ., concurred.


author: McAlvay, C. J.

text:
    MENTON v. COOK.
    1. Elections — Qualifications of Voters — Statutes—Constitutional Law — Municipal Bonds.
    The submission by the city of Flint to its electors of a proposition to borrow money and issue bonds therefor is not an election within the meaning of section 1, article 7. of the Constitution, and therefore Act No. 536, Local Acts 1905, providing that only taxpaying electors shall vote on such proposition, is not unconstitutional as adding to the qualifications of electors.
    2. Constitution — Practical Construction.
    The practical construction of the Constitution given it by contemporaneous and subsequent legislatures is of great weight in determining its true meaning.
    Error to Genesee; Wisner, J.
    Submitted January 8, 1907.
    (Docket No. 98.)
    Decided March 15, 1907.
    Case by John A. C. Menton against Miles P. Cook to recover damages for a refusal to receive plaintiff’s ballot at a special election. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      McFctrlan & Wilson, for appellant.

      J. H. Farley, for appellee.
   McAlvay, C. J.

The legislature of 1905 passed Act No. 536, Local Acts 1905, authorizing the city of Flint to borrow money and issue bonds for certain purposes. The provisions of said act necessary to be considered in this case are as follows:

“ Section 1. The common council of the city of Flint in the county of Genesee, is hereby authorized and empowered to borrow money in the name and on the faith and credit of said city, and issue bonds therefor to the amount not exceeding fifty thousand dollars, to be expended in erecting a new city hall and a new fire station and furnishing and equipping them: Provided, That a majority of the taxpaying electors of said city voting on such proposition at a regular or special election held in accordance with the provisions of this act shall vote in favor of such loan, and not otherwise.
“ Sec. 5. If such loan shall be authorized by a majority of the taxpaying electors voting on such proposition at the election at which it is submitted to them, bonds may be issued in such sums not exceeding in all the sum of fifty thousand dollars.”

Plaintiff was an elector, residing in the city of Flint, having all the constitutional qualifications as such, but was not a taxpaying elector. Under the provisions of said act, the proposition to borrow money and issue bonds was submitted to vote May 24, 1905. Plaintiff, on that date, presented his ballot to defendant, who was an official inspector at the place where said voting was conducted, in charge of the ballot box and authorized to receive ballots, and claimed the right to vote. His vote was challenged, and upon his examination on oath it appeared that he was not a taxpaying elector. Defendant refused to receive his ballot on that ground. This action was brought to recover damages because of such refusal. The facts in the case are undisputed. It was tried before the court without a jury, and a judgment rendered in favor of defendant. Plaintiff seeks to have this judgment reversed on account of errors assigned upon exceptions to the conclusions of law found by the court.

It is claimed on the part of the appellant that in the contemplation of the Constitution this was an election, and that the act under which this proposition was submitted is unconstitutional, because it adds to the constitutional qualifications of an elector as fixed by section 1, art. 7, of the Constitution. This constitutional provision is as follows :

“In all elections, every male inhabitant of this State, being a citizen of the United States, * * * shall be an elector and entitled' to vote; but no one shall be an elector or entitled to vote * * * unless he shall be above the age of twenty-one years, and has resided in this State six months, and in the township or ward in which he offers to vote twenty days next preceding such election.”

The constitutionality of the act in question depends upon whether this submission of a proposition to borrow money and bond the city of Flint for the purposes mentioned was an election within the contemplation of the Constitution. We think the question has already been decided in this State in the negative. Belles v. Burr, 76 Mich. 1. In this case it was held that the legislature could fix qualifications for those entitled to vote in school districts different- from the qualifications fixed by the Constitution. The qualifications for voters in school districts are familiar to the profession, and we need for the purposes of this case refer to the one which provides that only resident taxable property owners are qualified to vote upon questions of raising money by tax. In school elections that other than constitutional qualifications of voters may be fixed by the legislature, the holdings of the following authorities are in harmony with the decisions of this court: Plummer v. Yost, 144 Ill. 68 (19 L. R. A. 110); Ackerman v. Haenck, 147 Ill. 514; State v. Cones, 15 Neb. 444; State v. Deshler, 1 Dutch. (N. J. Law) 177; Landis v. Ashworth, 57 N. J. Law, 509.

In Illinois in drainage districts the right to vote is restricted to landowners. Murdock v. Weimer, 55 Ill. App. 527. See, also, Woodley v. Town Council of Clio, 44 S. C. 374; Buckner v. Gordon, 81 Ky. 665.

The practical construction given to legislative acts of the character of the one under consideration, of which the trial judge in his opinion states there are 50 or more, should have great* weight. Three-fourths of the members of the constitutional convention of 1850, which drafted our present Constitution, became members of the first legislature elected under it,-and at that session legislation of this kind was enacted, and successive legislatures have ever since enacted similar laws. This contemporaneous and practical construction is in harmony with the decision of this court in Belles v. Burr, supra, and is a construction acquiesced in for more than 50 years. The voting upon this proposition to raise money and issue bonds provided for by the act in question was not an election within the contemplation of that provision of the Constitution herein referred to.

The judgment of the circuit court is affirmed.

-Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
      In re DOYLE’S ESTATE. DOYLE v. CAMPBELL.
    1, Executors and Administrators — Final Account — Order Allowing — Effect.
    Where an administrator files his final account, showing disbursements of amounts equal to the net value of the estate to the persons whom he.and the judge of probate believe to be the heirs of deceased, the order allowing the account, discharging the administrator, and canceling his bond, is not an adjudication determining who is entitled to the estate and assigning the residue to such persons, neither can it operate to vest title to such residue in any one not in fact a lawful heir of deceased.
    2. Same — Receipt from Distributee — Effect.
    The giving to an administrator by a person believed to be, but who in fact is not, a lawful heir of intestate, of a receipt for her distributive share of the estate, no payment being made at the time, is without consideration, and cannot operate to vest title to such distributive share in the receiptor.
    Error to Wayne; Erazer, J.
    Submitted June 8, 1906.
    (Docket No. 74.)
    Decided March 26, 1907.
    Patrick M. Doyle presented his ¡final account as administrator of the estate of Margaret G. Doyle, deceased. The account was disallowed in the probate court, and the administrator appealed to the circuit court. There was judgment for the administrator at the circuit, and James Campbell, sole heir of deceased, brings error.
    Affirmed.

      Palmer & Palmer, for appellant.

      Dennis B. Hayes and Richard I. Lawson (W. G. Fitzpatrick, of counsel), for appellee.
   McAlvay, C. J.

Patrick M. Doyle is the administrator of the estate of Margaret Doyle, deceased. He appealed from an order of the probate court of Wayne county, made upon the hearing of his final account, to the circuit court of said county. On the trial of said appeal he recovered a judgment against said estate. From that judgment, the estate and James Campbell, brother and sole heir of the deceased, appeal tó this court.

Patrick M. Doyle and Hannah D. Doyle were husband and wife. They had no children, and on April 6, 1881, by proceedings in the probate court, adopted Margaret Maud Campbell, changing her name to Margaret Gertrude Doyle. The parents of Margaret were both dead, leaving two children surviving them, this daughter and a son, James Campbell. Margaret, at the time of adoption, was three years old, and afterwards lived with and was reared by her foster parents. The adoption proceedings were had under a statute subsequently declared to be unconstitutional. Hannah D. Doyle died intestate June 30, 1902, leaving an estate of $5,000, inherited from her father. Her husband, Patrick M. Doyle, was appointed her administrator. In March, 1903, he made out his final account, showing all his receipts and disbursements, and an equal division of the balance belonging to the estate between himself and Margaret G. Doyle, of $2,192.83 each. Upon filing the receipts for these amounts in his petition accompanying the same, he prayed the court for the allowance of said account and for his discharge as administrator. In this final account he charged himself with $5,000, and was credited with $614.35, leaving a balance of $4,385.65. The receipt of Margaret for $2,192.83 accompanied the account, which was indorsed with her consent to its allowance, waiving all notice of hearing. This petition and account were filed September 24, 1903, and an order made and entered allowing the final account and discharging the administrator and canceling his bond. It is admitted that the $2,192.83 receipted for was never in fact paid over by the administrator to Margaret G. Doyle. She died September 26, 1903.

Patrick M. Doyle was appointed administrator of her estate, and proceeded in due course to administer the same. In this estate the administrator has filed three final accounts. The first does not appear in the record; but we understand that it was identical with the second, except that it did not contain a charge against him of the whole or any part of the amount Margaret G. Doyle receipted for as her share of the estate of Hannah D. Doyle, which amount, upon the suggestion of Morse Rohnert, circuit judge, presiding in probate court, is charged in the second account at $1,851.66. Upon this account a hearing was had in probate court and it was found that there was a balance of $1,078.60 due the estate from the administrator, after the payment of all debts, charges, and expenses of administration; that James Campbell was the brother and sole heir at law of the deceased; and the said residue of said estate was by the court duly assigned to said James Campbell.

From this order and decree of said court an appeal was taken to the circuit court for Wayne county. By permission of the circuit court an amended account was filed, which did not include the charge of $1,851.66, and upon this account the case was tried in the circuit court. The trial resulted in a verdict and judgment in favor of the administrator and against the estate of $773; the jury having found specially, upon a question submitted by the circuit judge on his own motion, that Margaret G. Doyle had during her lifetime given to Patrick M. Doyle all the money received by her from the estate of Hannah D. Doyle. This is the judgment before this court for review, and we are asked to set it aside on account of errors committed upon the trial.

Counsel for the administrator contend that Margaret G. Doyle never received, and was not entitled to receive, any moneys from the estate of Hannah D. Doyle; that no part of said estate was ever assigned to her by order and judgment of the probate court; that such order was merely an allowance of the final account of the administrator and his discharge. If this contention is true, it will not be necessary for this court to consider the errors assigned by appellants. It is admitted in the record that the proceeding taken by Doyle and his wife for the' adoption of Margaret was under the statute which has been declared unconstitutional by this court. It may be presumed, however, from the record, that in the proceedings for administering these estates' the administrator went upon the theory that this adoption was a legal one, and the question of its illegality was not raised until during the trial in the circuit court. Appellants insist that this question cannot be raised by the administrator; that one-half of the estate of Hannah D. Doyle, after paying all debts and charges, was in fact assigned by the probate court to Margaret, as appears from the order made by said court, and as was admitted upon the- trial by counsel for the administrator as follows:

‘ ‘ The Court: How is it claimed that this money came to Margaret Doyle from her mother ?
Mr. Lawson: By an assignment in the probate court to that effect.”

Counsel for appellee asserts that in making this statement he was stating the claim of appellants in that regard. The portion of the order in question made in the matter of the estate of Hannah D. Doyle, necessary to quote in this connection, is as follows:

“Patrick M. Doyle, the administrator of said estate, having rendered to this court his final account in said matter, with the consent to its allowance indorsed thereon by all persons interested therein, upon examination: It is ordered that said account be, and the same is hereby, allowed as stated, with receipts and disbursements equal, and that said administrator be, and he is hereby, discharged and his bond canceled.”

This was not an adjudication by the court determining who was entitled to this estate and assigning the residue to such persons. It was merely an order settling and allowing the final account of the administrator and ordering his discharge. The account presented for allowance showed no residue in his hands, and the order was made in accordance with the prayer of the petition. It is such an order as this court has held may be made under the statute. Brown v. Forsche, 43 Mich. 499.

This order did not vest in Margaret G. Doyle any estate or interest in the moneys from the estate of Hannah D. Doyle for which Margaret had receipted to the administrator. This is the only order by virtue of which it is claimed that she derived right and title to this money, and by means of which it is claimed to belong to her estate. The receipt given to the administrator cannot operate as vesting title in’her. It was given under the erroneous belief that she was the owner of the money. It was without consideration, as no money was received by her. She was not the heir of Hannah D. Doyle, the adoption having been illegal and void. The claimed admission of counsel on the trial that this money was assigned to Margaret G. Doyle by this order of the probate court is susceptible of the construction given to it by said counsel, and from the fact that it appears in the charge of the court that the question of the validity of the adoption was raised, and it was urged by appellants that the probate order was res adjudicata of the adopted daughter’s right to the property, it is clear that such was the position counsel took upon the trial. As a matter of law, as far as this record shows, all of the estate of Hannah D. Doyle belonged to her surviving husband. Because the probate proceedings were had upon the theory that one-half of Hannah D. Doyle’s estate belonged to Margaret cannot divest him of his title. The appellant, James Campbell, could only take such estate as vested in his sister, Margaret, at the time of her death. His rights must rest upon and be determined by the probate order we have considered, and by our construction of that order he acquired no rights.

This disposes of the case, and it is not necessary to consider the errors assigned. The estate of Margaret G. Doyle, other than this amount claimed from the foster mother’s estate, consisted of $85.30 in cash, a small amount of furniture, and her wearing apparel, altogether not sufficient to pay the reasonable fees and expenses of her funeral and legal costs and charges of administration.

The judgment is affirmed.

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


author: Carpenter, J.

text:
    YORK v. WEST.
    Mortgages — Payment—Evidence—Sufficiency.
    On a bill to obtain an adjudication that a certain mortgage no longer constituted a lien on complainant’s lands, evidence examined, and held, not to show that the mortgage was paid by including its amount in a new mortgage, and to show that the statute of limitations had been tolled by payments.
    Appeal from Lapeer; Smith J.
    Submitted October 16, 1906.
    (Docket No. 83.)
    Decided March 26, 1907.
    Bill by Elizabeth York against Harrison P. West to remove a cloud from title to certain land. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Herbert W. Smith, for complainant.

      Stickney & Reed, for defendant.
   Carpenter, J.

Complainant commenced this suit in ■chancery for 'the purpose of obtaining an adjudication that a certain mortgage held by defendant, covering her lands, no longer constituted a lien thereon. The case was heard in the circuit upon testimony taken in open court, and a decree rendered in complainant’s favor. The circuit court found, in accordance with the claim of complainant, that the mortgage in question, which was made June 5, 1876, was paid January 4, 1890, by including the amount then remaining unpaid in a new mortgage that day executed by complainant and her husband and covering the same property. Was this finding correct ? There is testimony to warrant it. That testimony is furnished by complainant’s husband, her son, and her son’s wife. But we think that testimony should be discredited. The holder of the two mortgages was Daniel West, defendant’s brother. Daniel died in 1894. Subsequently, on the 5th of June, 1896, complainant’s husband, who then owned the land, signed a statement, indorsed on the back of the mortgage in question, admitting that there was then due thereon $168. On the same day he signed a statement, on the back of the second mortgage, admitting that there was due thereon $30. Complainant’s husband testifies that these statements were not read to him, and that he supposed that his admission related solely to the second mortgage. I do not credit this testimony. It is improbable, and I am convinced by the testimony of other witnesses that it is untrue. I believe that complainant’s husband, at the time he signed these statements, knew precisely what he was doing, and intended to thereby admit that the mortgage in question continued to be a lien upon the land it covered. Believing this, I am compelled to discredit his own opposing testimony and that of his son and daughter-in-law.

Complainant also contends that the statute of limitations has operated to discharge, the lien of the mortgage. We answer this by saying that if the admission of June 5, 1896, does not prevent complainant raising this question, we are convinced by the testimony that the mortgage was kept alive by payments made thereon.

We conclude, therefore, that the decree of the circuit court should be reversed, and a decree entered in this court dismissing complainant’s bill, with costs of both courts to defendant.

McAlvay, C. J., and Grant, Blair, and Moore, JJ., concurred.


author: Per Curiam.

text:
    PORT HURON SAVINGS BANK v. St. CLAIR CIRCUIT JUDGE.
    1. Prohibition — Propriety—Adequate Ordinary Remedy.
    The writ of prohibition is an extraordinary writ, and will not be granted while the petitioner has a complete and adequate remedy by some other proceeding.
    2. Same.
    A writ of prohibition restraining the circuit court from proceeding with a chancery case on the grounds that complainant has an adequate remedy at law, that it elected to pursue its remedy at law by bringing an action which isstill pending, that the case should be tried at law as directed by a previous opinion of this court, and that, as the statute forbids the discontinuance of an action at law where the defendant has pleaded set-off, the chancery court has no jurisdiction to restrain the action at law, is denied; all the reasons urged being questions which can be raised by usual and ordinary methods.
    Petition by the Port Huron Savings Bank against Eugene E. Law, circuit judge of St. Clair county, and the Supreme Tent Knights of' the Maccabees of the World for a writ of prohibition to restrain certain proceedings in chancery.
    Submitted January 30, 1906.
    (Calendar No. 21,525.)
    Writ denied March 26, 1907.

      Stevens, Graham & Stevens and John B. Mcllwain, for relator.

      Lincoln Avery and P. H. Phillips (B. D. Aitken and Be Vere Hall, of counsel), for respondents.
   Per Curiam.

Application for a writ of prohibition. In 1902 the Supreme Tent Knights of the Maccabees of the World brought suit by declaration in assumpsit against the Port Huron Savings Bank to recover certain moneys claimed to be due by reason of its treasurer, Charles D. Thompson, having transferred its funds to the credit of the bank of which he was also assistant cashier. A bill of particulars was filed by plaintiff. Defendant bank pleaded the general issue and gave notice of set-off with a bill of particulars of the same. This case was tried before Hon. Eugene E. Law, circuit judge, who directed a verdict for plaintiff for the sum of $56,263. The case was removed to this court by defendant bank, reversed, and a new trial ordered. [137 Mich. 627.] Afterwards, and while that case was still pending in said circuit court, the Supreme Tent Knights of the Maccabees of the World, plaintiff therein, filed a bill in said circuit court in chancery against said bank and Charles D. Thompson as defendants for an accounting between the parties, and, upon giving a proper bond for a stay of all proceedings in the suit at law, defendant Thompson answered said bill. Defendant bank filed a plea to the jurisdiction setting up the commencement, prosecution, judgment, appeal, reversal, order for a new trial, and pendency of the suit at law. This plea, upqn a hearing, was overruled, and complainant ordered to elect whether it would proceed in chancery or in the action at law, and, in case it elected to proceed in chancery, the suit at law to be dismissed by a proper order to be entered therein, and defendant bank was required to answer the bill of complaint within 10 days after notice of such election. Complainant elected to proceed with the hearing of the case in chancery. The action at law was not discontinued. The bank then appealed to this court from the order overruling its said plea. Complainant moved to dismiss said appeal for the reason that the order or decree appealed from was not a final order. This motion was granted. Pending the appeal complainant entered the default of defendant bank for not answering the bill within the ten days prescribed by said order.

Both the action at law and the case in chancery are now pending in said circuit court. In this proceeding defendant bank asks for a writ of prohibition from this court enjoining and restraining said circuit judge and said complainant from further proceeding with said chancery suit, for the following reasons:

(а) That complainant has a complete and adequate remedy at law.

(б) That it elected to pursue its remedy at law and is estopped from proceeding in chancery.

(c) Combines the reasons given in a and b and concludes that the court in chancery has no jurisdiction.

(d) That the case should be tried in an action at law; as directed by this court. (This refers to the opinion by this court, rendered upon the reversal of the action at law, and which contained instructions to guide the court upon anew trial.)

(e) That a statute forbids the discontinuance of an action at law where defendant has pleaded set-off (see section 10081, 3 Comp. Laws), and the court sitting in chancery has therefore no jurisdiction to restrain said action at law.

(/) That petitioner has no adequate remedy except by writ of prohibition.

The writ of prohibition is an extraordinary writ, and will not be granted where the petitioner has a complete and adequate remedy by some other proceeding. People v. Wayne Circuit Court, 11 Mich. 393; Hudson v. Judge of Superior Court of Detroit, 42 Mich. 239; Nichols v. Judge of Superior Court of Grand Rapids, 130 Mich. 189. All the reasons urged by petitioner why this writ should issue are above stated. Applying this general rule which governs the court in granting or withholding writs of prohibition, it is evident that petitioner can raise all of these questions by usual and ordinary methods which provide complete and adequate protection in the premises, provided nothing is done which waives the right to raise such questions. Cosgrove v. Wayne Circuit Judge, 144 Mich. 682, and cases cited.

This rule as to granting or denying these writs is the same as in mandamus cases. It is not necessary to discuss the propositions of law' relied upon by petitioner in advance of their submission to the circuit court.

For the reason given the writ of prohibition is denied.


text:
    WOOD v. ELDREDGE.
    1. Fraudulent Conveyances — Intent — Question op Law or Fact.
    Where, upon the face of an instrument its legal effect is to hinder or delay creditors, the question of fraudulent intent is a question of law and not of fact, notwithstanding the provisions of section 9536, 3 Comp. Laws.
    2. Same — Effect of Instrument.
    To bring a transaction within the statute against fraudulent conveyances, it is not necessary that the transfer should actually defraud creditors, it being sufficient if it only hinder and delay them.
    3. Same — Chattel Mortgage — Validity.
    A chattel mortgage conveying all its property to a trustee for the benefit of such of the mortgagor’s creditors as shall, within 60 days from its date, express their willingness to accept its benefits and extend the time for payment of their debts for one year, the avowed object of which is to give the mortgagor a year in which to operate its business without annoyance from creditors, is fraudulent as to creditors not availing themselves of its benefits, its apparent purpose being to hinder and delay them.

      Error to Macomb; Erskine, J.
    Submitted October 17, 1906.
    (Docket No. 95.)
    Decided March 26, 1907.
    Garnishment proceedings by Andrew O. Wood and Thomas H. Stephens, copartners as the Greenslade Oil Company, against Robert F. Eldredge as garnishee of the Macomb Sugar Company. There was judgment for the garnishee defendant, and plaintiffs bring error.
    Reversed, and judgment entered for plaintiffs.

      Graves, Hatch & Wasey, for appellants.

      James D. May, for appellee.
   McAlvay, C. J.

In this suit defendant Robert F. Eldredge is garnishee defendant of the Macomb Sugar Company, principal defendant. The proceedings are those ordinary under the statute of garnishment in this State, and no question is raised as to regularity. Judgment was obtained in due course in the Macomb circuit court against the principal defendant. The case in garnishment was tried by the 'court without a jury. Plaintiffs requested the court to make certain findings of fact and of law which were submitted in writing. Findings of fact and findings of law were made and filed by the court. The findings of fact were not excepted to. Exceptions were taken to the findings of law, and also to the refusal of the court to make the specific findings of law as requested. Judgment was entered upon these findings against plaintiffs. A complete statement of the facts of the case is contained in the findings of the court. The findings of fact( and findings of law are as follows:

“Findings of Fact.
“The Macomb Sugar Company, the principal defendant, was on May 80, 1903, indebted to the plaintiffs in this cause in a sum of money, all of which was then due and payable, and for which indebtedness judgment was rendered by this court in the above-entitled cause upon August 28,1905, in favor of the plaintiffs and against the principal defendant in the sum of $396.19, including costs.
“After deducting a payment on this judgment on January 16, 1906, there was due on January 30, 1906, the date of the trial, the sum of $214.12.
“ On May 30, 1905, the Macomb Sugar Company, the principal defendant, executed and delivered to Robert F. Eldredge, the garnishee defendant, as trustee, a chattel mortgage, covering substantially all of its personal property of every kind and nature, except small portions either previously disposed of by mortgage, or which were sold to it under contracts of conditional sale by the terms of which it had not as yet received the title, a copy of which mortgage is hereto attached.
“More than 50 per cent, of the creditors did accept the mortgage within the 60 days therein provided, but plaintiffs, who were creditors named in the list of creditors attached to the mortgage, although having due notice, have not accepted the benefits of the mortgage.
‘ ‘ The Macomb Sugar Company, by its board of directors, on February 19, 1904, passed the following resolution:
“ 'Resolved, that the title to the personal property described in the chattel mortgage given by this company to Robert P. Eldredge May 30th, 1903, for the benefit of the general creditors of this company who extended the time for paying their indebtedness, except the 5,767 shares of stock of this company not issued, be and is hereby placed in and transferred to said Eldredge as trustee for the same purposes for which he was named in said chattel mortgage; and he is hereby authorized without foreclosure proceedings to dispose of said personalty and the stock, if any, for which he may exchange the bonds in said chattel mortgage named, in such manner as he may deem best for the interest of those interested in the proceeds thereof, the purpose hereof being to avoid the expense and delay of foreclosure proceedings.’
“At the time the resolution of February 19, 1904, was passed, Robert F. Eldredge, trustee, was in possession of some of the property covered by the chattel mortgage and the resolution, and he subsequently took possession of the remainder by virtue of said chattel mortgage and resolution.
“ Robert F. Eldredge, the trustee, has since February 19, 1904, converted all but a small portion of the property so taken by him into money, and has paid to the creditors who accepted the benefit of the mortgage within the 60-day period a dividend of 45 per cent, of their claims; but has paid nothing to plaintiffs.
“ At the time of the service upon him of the writ of garnishment in this cause, Robert F. Eldredge had, besides certain unsold property, more than sufficient money in his hands and under his custody and control, which money was the proceeds of the mortgaged property, to pay plaintiffs’ judgment in this case, with interest and costs; but did not have sufficient to pay the creditors in full who accepted the provisions of said mortgage.
“ The chattel mortgage was never foreclosed.
“ The Macomb Sugar Company is a corporation organized and existing under the laws of Michigan, and upon February 19, 1904, had its principal office for the conduct of its business in Macomb county, Mich., and substantially all of the property covered by said resolution was located in said county.
“ There was never filed in the office of the county clerk of Macomb county, Mich., a duplicate or copy of the resolution of February 19, 1904, or an inventory of the property or a list of the creditors, or a bond by Robert F. Eldredge, for the faithful performance of the trust, as provided in section 9539 of volume 3 of the Compiled Laws of Michigan for the year 1897.
“The chattel mortgage made by the Macomb Sugar Company to Robert F. Eldredge, trustee, upon May 30, 1903, was not made with the intent to hinder or delay the creditors of said company, unless such construction is necessarily drawn from the face of the instrument.
“Findings of Law.
“A preliminary question, arising on a motion made by the garnishee defendant, to have the proceedings dismissed, for the reason that the statutory issue was not brought on for trial at the same term of court at which judgment was rendered against the principal defendant, was taken under advisement at the time of the trial. This motion is denied.
“Upon the merits of the case substantially two questions are involved: First. Was the chattel mortgage executed with intent to hinder, delay, and defraud creditors? Second. Did the resolution in question operate as a general assignment for the benefit of creditors ?
“ The mortgage contained a clause requiring creditors who desired to avail themselves of its provisions to file a written acceptance to that effect within 60 days of receipt of notice. It also extended the time of payment of the several claims secured thereby until May 1, 1904. It is argued that these provisions made the instrument void as to creditors under 3 Comp. Laws, § 9533.
“It is permissible in this State for an insolvent debtor to give a chattel mortgage to his creditors, and therein postpone the time of payment of the claims secured thereby. A creditor for whose benefit such mortgage is executed may or may not accept the instrument. If he does not, he is at liberty to pursue his appropriate legal remedy to collect his claims; but, unless he does accept the mortgage, either expressly or by implication, he may not derive any benefit therefrom.
“The provision requiring an express acceptance does not place an undue burden upon the creditor. In Beckman v. Noble, 115 Mich. 523, a chattel mortgage which required certain creditors therein named to extend the time of payment of their claims, and to expressly assent thereto, was sustained.
Dearing v. Hardware Co., 165 N. Y. 78, affirming 33 App. Div. 31, is relied upon by plaintiffs. There a similar clause in a Michigan mortgage was held invalid as to New York creditors attaching chattels of the defendant in that State.
“It is urged that our statute is borrowed from New York, and that the decisions of that State construing such statute are entitled to great weight. It is true that the statutes are substantially the same; but- it also true that the courts of the respective States are not in harmony on the construction of this statute. In the Dearing Case the court in the appellate division said, in part:
“ ‘Assuming, then, that the instrument in question is in conflict with the laws of this State, we are brought to the consideration of another and perhaps still more important question, which is whether this fact permits us to treat it as void, in view of the further fact that it appears to be valid under the laws of the State where it was executed.’
“ My conclusion is that the chattel-mortgage in question is valid. Whether the resolution of February 19, 1904, standing alone, would be void under 3 Comp. Laws, § 9539, it is not necessary to decide, inasmuch as it does not appear that defendant’s possession depended upon said. resolution, and that the object of such resolution was to avoid the expense and delay of foreclosure. See Austin v. First Nat. Bank of Kalamazoo, 100 Mich. 613; Daggett, Bassett & Hills Co. v. McClintock, 56 Mich. 51; Brown v. Mynard, 107 Mich. 401, 403.
“Defendant is therefore entitled to judgment.
[Signed] “Byron R. Erskine,
“ Circuit Judge.
“May 14, 1906.”

The following .is the chattel mortgage referred to:

“ This indenture, made this thirtieth day of May, 1903, by and between the Macomb Sugar Company, a corporation duly organized under the laws of the State of Michigan, party of the first part, and Robert E. Eldredge, as trustee of the city of Mt. Clemens, Macomb county, Michigan, party of the second part, witnesseth:
“ That said first party, for and in consideration of one dollar ($1.00) and other good and valuable considerations to it in hand paid, does hereby grant, bargain, sell and mortgage to said second party all the following goods, chattels and personal property, all the tools, cultivators, beet knives, and forks, hoes, harrows and other agricultural tools, machines and implements owned and used by said first party situate in the township of Harrison, said county and State, or elsewhere; also all sugars and syrups owned by said first party situate in its factory and storehouse in said township of Harrison; also ten bonds of said first party bearing date March 1st, 1902, and being bonds numbered 1 to 10 inclusive of the issue of said company secured by a trustee mortgage given to the Unión Trust Company of Detroit; also all the shares of the capital stock of said Macomb Sugar Company not yet issued, being about 5,767 shares out of a total of 30,000 shares and being of a par value of $57,670.00. It being hereby intended to describe, convey and mortgage all of the personal property owned by said first party not covered by that certain trust mortgage before mentioned given to the Union Trust Company as trustee of whatever bind or nature the same may be (save and except whatever beet seed the said first party may have on hand at its factory and storehouse, office, or elsewhere, which said beet seed was purchased by said first party from Otto Hoerning and on which seed said Hoerning has a lien for the purchase price thereof). It being understood that said personal property is subject to certain liens thereunder as hereinafter described.
“That said first party also assigns, transfers, and sets over to said second party as trustee for the purposes hereinafter specified all the rents by it to be received from the Sugar Company, Limited, a partnership association, under and by virtue of the provision of a certain lease made between said first party and said partnership association bearing date May 30th, 1903, which said lease is hereinafter more particularly specified, save and except those rents which by the terms of said lease are to be payable to said first party in trust solely for the payment of certain interest accruing on debts secured by said trust mortgage and to the Kilby Manufacturing Company, the contractors building the plant of said first party who holds the mechanic’s lien thereon; said rental excepted from this mortgage being the portion fixed in section b of subdivision 3 of said lease.
“ Whereas, the said party of the first part at the close of its first year’s campaign operating its sugar factory and plant, has found itself largely indebted and not in a position to care for its indebtedness as the same came due, and owes a large sum of money to the Kilby Manufacturing Company, of Cleveland, Ohio, the contractors constructing its said factory, who have filed a claim of lien under the statutes of the State of Michigan upon the plant of said first party.
“And whereas, the said first party has heretofore issued its bonds to the amount of $300,000.00 (three hundred thousand dollars), and secured the payment of the principal and interest thereon by a mortgage to the Union* Trust Company of Detroit, Michigan, as trustee, which said mortgage covers all its real estate and certain portions of its personal property, references to which said mortgage, or record, is hereby made for certainty.
“And whereas, it is apparent that the most feasible, speedy and certain way for clearing up the present financial difficulties of the said first party, lies in the successful operation of said plant during the campaign of 1903-04, and the said Kilby Manufacturing Company and some of the owners of the bonds secured by said trust mortgage are willing that an opportunity be given to said first party to so operate said plant.
“ And whereas, the said bonds numbered 1 to 10 above mentioned, have been heretofore pledged with Robert F. Eldredge, to secure the payment of certain indebtedness of the said Macomb Sugar Company incurred for the purpose of raising funds to provide for the payment of beets received at the factory in the campaign of 1902-03,. of labor employed by said Macomb Sugar Company, and of interest on the bonds of said company secured, by said real estate mortgage on its plant, portions of which said indebtedness are also secured by a bill of sale of the said sugars and syrups to said Eldredge, dated January 15th, 1903, of record in the office of the town clerk of said Harrison.
“ And whereas, the beet seed now owned by said first party was purchased by it of the said Hoerning for the campaign of 1903-04, the amount of the purchase price of which is not included in the indebtedness to the said Hoerning included in Schedule A hereto attached.
“And whereas, said first party purchased from John R. Snook, the barrels for use during the campaign of 1903-04, and did in January, 1903, secure said Snook for the amount due him for said barrels so furnished by him, by a chattel mortgage covering said sugars and syrups and said agricultural implements, which said chattel mortgage is of record in the office of the town clerk of the township of Harrison, said county and State, reference being made thereto for more certainty.
“-And whereas, said first party is further indebted to various parties on claims which remain unsecured, a list of which is hereto annexed and marked ‘Exhibit A,’ and now desires to provide as ample security to said creditors as is feasible in consideration of their delaying all attempts to enforce the collection of said claims until it, said first party, can secure the benefit of the operation of said plant during the campaign of 1903-04.
“And whereas, the said first party has leased its said plant and factory to the Sugar Company, Limited, a partnership association, by written agreement which provides that the said partnership association shall pay the taxes upon said plant and property for the year 1903 and shall operate the said factory, and'after the repayment to itself, said partnership association, of the expenses of such operation, taxes and of the proper laying by of the factory of said first party, shall pay the proceeds of said campaign, not exceeding twenty-eight thousand dollars ($28,000.00) to the said first party in trust solely for the payment of the past due interest on the bonds of said first'party and of the interest then due upon the claim of the Kilby Manufacturing Company against said first party, and further shall pay to said first party one-half of the balance of the proceeds of said campaign over and above the payments above mentioned:
“Now, therefore, this mortgage is given to said second party and to his assigns, selected by him, and those entitled to the benefits hereof, as trustee for the benefit of the creditors of said first party specified in Schedule A hereto attached, who shall by writing addressed to said first party or to the said trustee, express, within sixty days from the date hereof, their willingness to accept the benefits of this mortgage and to extend the time of payment of their several debts due them from said Macomb Sugar Company to May 1st, 1904, and is given upon the express condition that if the said first party shall pay or cause to be paid the several debts due or to become due to such of said parties named in Schedule A hereto annexed as shall accept benefits hereof, with interest on or before said first day of May, 1904, then these presents and any notes for said indebtedness which said first party has given or may hereafter give to any of said creditors mentioned in Schedule A shall cease and become null and void: Provided that the owners of fifty per cent. (50s¿) of said indebtedness shall accept the benefits hereof; it being understood that unless such proportion of said creditors shall so accept, this instrument shall be of no force or effect.
“ It is further agreed by and between the parties hereto that in case default be made by said first party in the payment of such of said indebtedness specified and secured hereby as shall become entitled to the benefits hereof by extension of the time of payment as herein provided, on or before the said first day of May, 1904, it shall and may be lawful for said second party, and he is hereby empowered and authorized as a part of this security to enter into any place where said mortgaged property may be situate and to take possession thereof and to sell the same at public auction, after the like notice as is required by law for constable sales, the said goods, chattels and personal property or so much thereof as may be necessary to satisfy the debt, entitled to the benefit of this mortgage, the interest thereon and his reasonable expenses ”in the premises, and to retain the same out of the proceeds of such sale and moneys received by him from the said partnership association for such rents, the overplus and residue, if any, to belong to and be returned to said first party.
“And whereas, the amounts of said indebtedness to the parties named in Schedule A are therein given according to the best present knowledge of said first party, it is understood and agreed that this mortgage is given to secure said creditors (who are intended to include all of the creditors of said first party other than the holders of said bonds secured by said trust mortgage and the said Kilby Manufacturing Co., and the officers of said company for salaries due them, said bondholders, Kilby Manufacturing Company and officers not being entitled to the benefit^ hereof) who shall by the extension of the time become entitled to the benefit hereof in proportion to the amounts of their claims against said first party respectively, and that all the proceeds' realized by said second party under and by virtue of this instrument, after the payment of his expenses and compensation in carrying out this instrument, shall be distributed among the creditors who shall accept the benefit hereof in accordance with the terms hereof in proportion to the amounts actually due or to become due to said parties by reason of transactions heretofore had between said first party and them respectively, portions of said debts being now represented by notes not yet matured.
“ In witness whereof the said party of the first part has caused this instrument to be executed by its president and secretary in its behalf the day and year first above written.
“Macomb Sugar Company,
“By Matthew Slush, President.
“Frank E. Nellis, Secretary.”

The assignments of error raise two important questions:

1. Was this chattel mortgage voidable as to plaintiffs, under section 9533, 3 Comp. Laws? We quote the portion of the section which is claimed to apply to this case:

“ Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or goods or things in action, or of any rents or profits issuing therefrom) and any charge upon lands, goods or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors * * * of their lawful suits * * * debts or demands * * * against the persons so hindered, delayed or defrauded, shall be void.”

The question of the fraudulent intent in cases arising under this statute is by a later section declared to be deemed a question of fact, and not of law. Section 9536, 3 Comp. Laws. The question of fraudulent intent under this statute has .been several times passed upon by this court. In the case of Oliver v. Eaton, 7 Mich. 112, Justice Campbell, speaking for the court, said:

£ The law where an instrument contains illegal provisions, and such as are not reconcilable, on any possible hypothesis, with an honest or legal intent, declares it void upon its face, because no evidence could change its character. The cases in which this absolute and unchangeable presumption arises are not numerous. There are other cases in which, upon the face of the instrument, a statutory presumption arises which is only prima facie evidence of fraud. There are still more cases in which the whole illegality charged must be made out by extrinsic evidence. In both of the classes last named, the jury must determine all the facts.”

In Bagg v. Jerome, 7 Mich. 157, Justice Manning, speaking for the court, said:

££ When the instrument, on its face, is one the law will not sanction against creditors, it is the duty of the court to pronounce it fraudulent as to them; but the court cannot look dehors the instrument for that purpose.”

If, then, upon the face of this instrument, we find that its legal effect was to hinder or delay creditors, the question of fraudulent intent is a question of, law, and not a question of fact. To bring the transaction yd thin the prohibition of the statute, it is not necessary that the transfer should actually defraud creditors. It is sufficient if it only hinder and delay them. McBryan v. Trowbridge, 125 Mich. 549, quoting 14 Am. & Eng. Enc. Law (2d Ed.), pp. 244, 245.

It will be necessary to call attention only to those provisions of the chattel mortgage which have a material bearing upon the proposition under consideration. The property covered by the mortgage was found by the court to be substantially all the property then owned by the mortgagor. It recites that the mortgagor £ £ has found itself largely indebted and not in a position to care for its indebtedness as tbe same came due; ” that the constructing contractors have filed liens upon its plant; that for bonds issued to the amount of $300,000 a trust mortgage to secure principal and interest has been given upon the entire real estate and some of the personal property; “ that the most feasible, speedy and certain way for clearing up the present financial difficulties lies in the successful operation of said plant during the campaign of 1903-04,” and that the lienors and trust mortgagee are willing that such opportunity be given; that certain securities have theretofore been given Eldredge and other creditors for certain described indebtedness; that it is indebted to various other parties for whom it desires to provide as ample security as is feasible “ in consideration of their delaying all attempts to enforce the collection of said claims until it can secure the benefit of the operation of said plant during the campaign of 1903-04.” These unsecured creditors are given 60 days in which to accept the offered security and extend the time of payment of their several- debts to May 1, 1904. When creditors representing 50 per cent, of said indebtedness accept, the instrument becomes operative. The instrument recites that it is given for the benefit of those only who accepted within 60 days and gave the extension required, and upon the express condition that if the maker paid such creditors on or before the time limited, it was to cease and be null and void, and, in default thereof, the trustee was authorized to foreclose and make sale of the property to satisfy the creditors who accepted, and pay the surplus, if any, to the mortgagor. Creditors representing more than 50 cent, of this indebtedness accepted the proposition. The court found that there was not enough property to pay in full the creditors who accepted. Plaintiffs did not accept. Their claim against the principal defendant was due when the mortgage was made. It is conceded that in this State an insolvent debtor may prefer one or more of his creditors by mortgage security, and, if security of such favored creditors is the object, it is immaterial whether the effect of giving such security is to prevent other creditors from realizing on their claims. It is contended, however, by plaintiffs that the object of this mortgage was to coerce all creditors into giving an extension of one year upon their claims, and the real purpose was to hinder and delay creditors, and not to prefer certain creditors by security.

From the findings of law of the trial court it appears that he considered that in the case of Beckman v. Noble, 115 Mich. 523, an instrument containing provisions similar to the one in the case at bar was construéd by this court and held valid, and that decision controlled this case. An examination of the original records in the Beckman Case shows that the instrument was a chattel mortgage given to secure three creditors. Two of these creditors were required to extend the time of payment on each of their notes 40 days before the instrument became operative. Unsecured creditors, from whom no delay was asked, claimed that the two secured creditors had not granted the extension. The court found as a matter of fact that they had complied with that condition. The mortgage was held to be valid. The question we are now considering was not involved in the Beckman Case, and is for the first time before the court.

We are. referred in both briefs to Dearing v. Hardware Co., 165 N. Y. 78, which is claimed as authority both in favor of and against the validity of this instrument. Although the New York court stated that the instrument before it was executed in Michigan was a trust mortgage upon chattels according to the law of this State, because the transfer was not absolute, but conditional, and passed neither title nor right to possession until after breach of condition, it declined to express an opinion upon the question as to whether the coercive clause was established as valid by the law of this State. This court never passed upon the instrument in question. It was before the court in Albion Malleable Iron Co. v. First Nat. Bank of Albion, 116 Mich. 218. In the opinion Chief Justice Grant, for the court, said:

“ It is unnecessary to now determine the character of these instruments upon their face. Fraud is charged, and we are not prepared to say that they may be shown by proofs to constitute an assignment. Upon this we express no opinion, but prefer to leave it to the final determination of the case.”

The instrument differed somewhat from the one in the case at bar, but the provisions of the so-called coercive clause were quite similar. While the courts of the State of New York (from which State we have borrowed the statute invoked in this case) have construed certain instruments as coming within its prohibition which our courts have held to be valid trust mortgages, yet what the court of appeals of that State said in the Dearing Case, supra, in construing the coercive clause, which has never been construed by this court, is persuasive authority. The New York court says:

‘ The coercive clause of the mortgage in question required all creditors, before they could take any benefit therefrom, to come in under it and accept its terms, and, if their debts became due before the mortgage, to so extend the time of payment that they could not be enforced until after the mortgage matured. It not only withdrew from the trustee the power of paying any creditor who did not comply with these conditions, but also provided that after he had paid the creditors ‘ in full who accept of this security and assent thereto ’ he was to pay the surplus to the mortgagor. The instrument was to ‘ only operate in favor of those ’ so assenting, and the direction to pay was limited in the same manner. * * * Thus no creditor could derive any benefit from the mortgage unless he agreed to waive the remedies provided by law for the collection of debts, and, if he refused to so agree, all the property of the mortgagor was placed beyond his reach for an indefinite period. If his debt was due and he brought suit within the 90 days, he was shut out from participation in the assets. If the mortgagor failed to include him in the schedule of creditors, which, although it was to be furnished him at some undefined time after the execution of the mortgage, was, when furnished, to become a part of the instrument; or understated the amount of his claim; or it was disputed by some other creditor or by the trustee, he could not establish it ‘ by lawful suit,’ as provided by law, without running the risk of serious loss. He might wait until the 90-day period had expired, or even until his demand had outlawed, and then find that he was not on the list. * * *
“ The claim of the attaching creditor became due about 45 days before 'the mortgage, which was to run for 90 days. That creditor did not see fit to accept the privilege afforded by the mortgage upon the conditions imposed, and the necessary effect upon it and others similarly situated was that all the assets of the insolvent debtor would be converted into money and paid over to such creditors only as accepted the terms exacted, and whatever remained would be restored to the mortgagor» The hindrance and delay thus caused is precisely what the statute relating to fraudulent conveyances aims to prevent. A more adroit and dangerous method of evading that statute and violating its provisions has seldom been devised. An insolvent corporation, under the protection of this ingenious instrument, is permitted to keep possession of all its property, to continue its business, to buy, manufacture, and sell ‘in the usual course of trade,’ which admits of sales on credit, and the creditors, whether preferred or unpreferred, unless they are willing to let this condition of affairs continue for 90 days, and tie their own hands by an extension of time for the payment of their debts, must lose all benefit from the mortgage and every chance of having their debt paid out of the assets of the mortgagor until a surplus, after paying all assenting creditors, should come back into its possession. There was not even a promise by the mortgagor to pay the proceeds of sales to the trustee, although the latter was ‘authorized and empowered to receive’ them. Thus the mortgagor could keep its creditors at bay for 90 days, and continue in the possession and use of its property during that period. The inevitable result would be to hinder and delay creditors in violation of law.
“The mortgage was void upon its face on account of the coercive provisions it contained.”

We think the reasoning of the foregoing opinion is conclusive. The terms of the instrument in the case at bar present a more extreme case than that construed by the New York court. The time of extension required was one year; the schedule of creditors is by its terms incompíete, and no provision is made for giving notice to any creditor. The avowed object of the scheme was to give the Macomb Sugar Company a year in which to operate its business without annoyance from creditors. It retained absolute control of all its receipts without any obligation to pay any creditor during the time of extension. It is obvious that the purpose and effect of this instrument was to hinder and delay creditors. The instrument on its face is one the law will not sanction against creditors. 1 ‘ Therefore it is the duty of the court to pronounce it fraudulent and void as to'them.” It comes within the first class of cases described by Justice Campbell in Oliver v. Eaton, supra.

The question of the good or bad motives of the mortgagor is immaterial. We hold the instrument upon its face to be prejudicial to the rights of creditors. A party is presumed to intend the natural and necessary consequences of his own acts, and, when prejudice to the rights of creditors results, the act is constructively fraudulent, notwithstanding good motives or intentions. Schaible v. Ardner, 98 Mich. 72, and cases cited.

2. The second contention of plaintiffs is that the resolution of the Macomb Sugar Company, made February 19, 1904, amounted to a general assignment for the benefit of creditors, and was voidable as to plaintiffs because no proceedings were taken under it, as required by the statute governing such assignments. This resolution is set forth in the findings of fact. By it the title to the property is placed in and transferred to the trustee, leaving no interest or equity in the company. It is stated to be for the benefit of the general creditors who extended the time for paying their indebtedness, and for the purpose of avoiding a foreclosure.

It is not necessary to determine what as a matter of law was the effect of this resolution. No claim has been made under it by the garnishee defendant, except that it gave possession of the property and made a foreclosure of the mortgage unnecessary. It could not operate to change the terms of this chattel mortgage, which we have determined as a matter of law was intended to hinder and delay creditors and was void as against them. The court found that at the time of the service of the writ of garnishment upon him defendant Eldredge had in his hands and under his control besides certain unsold property more than sufficient money to pay plaintiffs’ judgment against the principal defendant. This property was subject to garnishment in this case, and plaintiffs were entitled to a judgment for the amount of their claim remaining unpaid. The court was in error in not entering such a judgment in their behalf.

Inasmuch as no question of fact is involved, a judgment will be entered in this court in favor of plaintiffs and against the garnishee defendant, in accordance with this opinion, for the amount remaining unpaid upon their judgment and costs against the principal defendant, together with costs in this case of both courts to be taxed.

Carpenter, Grant, Blair, and Moore, JJ., concurred.