text:
    PEOPLE, for use of NEW JERSEY TERRA COTTA CO., v. TRAVES.
    1. Evidence — Customs and Usages — Written Contract — Performance of Contract — Set-off and Recoupment.
    In an action by a terra cotta company for the price of material furnished to a contractor for use in the construction of a school house, wherein the contractor sought to recoup damages because the terra cotta did not comply with the requirements of the contract, where it is conceded that the work as furnished was different from that shown in the architect’s original plans, evidence that plaintiff prepared detail and working plans which were submitted to the architect, changed in some particulars, and finally approved by him; that a general custom prevailed to send the architect’s plans to terra cotta companies and have them adapt their construction to the architect’s design, as shown by his plan; that defendant had knowledge of this custom, and that the parties contracted with reference thereto, was not incompetent as tending to vary the terms of a written contract, but, under proper instructions, was properly admitted for the purpose of presenting to the jury the issue as to plaintiff’s performance and defendant’s recoupment.
    2. Principal and Surety — Statutory Bonds — Notice—Schools and School Districts.
    Although ’Act No. 187, Pub. Acts 1905, § 2, requires the subcontractor to give notice in writing to the board or officers that he relies upon the security of the bond of the principal- contractor before payment is made, whereupon he shall acquire the benefit of the security given by the principal contractor, it is held, in an action by a subcontractor against the surety on a statutory bond for the construction of a school house, that notice served on the school board after part of the material had been paid, for, but while there was still due to the principal contractor on the general contract more than was owing to the subcontractor, was a sufficient compliance with the act.
    3. Same — Defenses—Actual Injury.
    Defendant company, being surety for profit, could not benefit by plaintiff subcontractor’s failure to give timely notice under Act No. 187, Pub. Acts 1905, § 2, where said surety has neither alleged nor proved any actual injury to it from such failure. People v. Bowen, 187 Mich. 257.
    Error to Wayne; Van Zile, J.
    Submitted June 28, 1915.
    (Docket No. 54.)
    Decided September 29, 1915.
    Assumpsit by the New Jersey Terra Cotta Company, in the name of the people of the State of Michigan, against William H. Través, principal, and the Fidelity & Deposit Company of Maryland, surety, on the bond of Través as. contractor for the construction of a school house. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Donnelly, Lyster, Brennan & Munro, for appellants.

      George F. & Peter J. Monaghan (John C. Shea, of counsel), for appellee.
   Steere, J.

On May 26, 1910, William H. Trave entered into a written contract with the Detroit board of education to furnish material and do the mason work in the construction of a certain high school building in said city. As required by Act No. 187, Pub. Acts 1905, he furnished a bond, with his codefendant, the Fidelity & Deposit Company of Maryland as surety, to pay—

“any subcontractor or by any such contractor or subcontractor as the same may become due and payable of all indebtedness which may arise from said contractor to a subcontractor or party performing labor or furnishing materials, or any subcontractor to any person, firm or corporation on account of any labor performed or materials furnished in the erection, repairing or ornamentation of such building, improvement or works.” Section 3.

The plans and specification of this contract called for the use of a quantity of architectural terra cotta as a part of the masonry. This Traves bought from the. New Jersey Terra Cotta Company, a corporation, of Perth Amboy, N. J., for the benefit of and, in effect, by which this action was brought, contracting to pay therefor the sum of $11,680. The terra cotta company, called plaintiff herein, furnished the material as required, which was used in the building. It is claimed, however, that when and as furnished it was not in the condition contracted for, and Traves was put to much trouble and extra expense on that account, for which notice of recoupment is given under a plea of the general issue.

It appears to be conceded, and the court so instructed the jury without objection, that upon this contract for terra cotta Través was in default and owing plaintiff the sum of $9,350.45, including interest, at the time the case was tried, provided plaintiff had fully performed on its part. A verdict was rendered against both defendants for $9,350, and judgment entered accordingly.

The case as presented by the pleadings and proofs Involved two issues, one between plaintiff and the defendant bonding company only, in which the latter denied plaintiff’s right of recourse to the bond, because it failed to give timely notice, as required by said Act No. 187, that it relied upon such security; the other being primarily between plaintiff and Través, but an available defense for the surety also, in which it was denied that the material furnished, for the price of which this action was brought, complied with the requirements of the contract. Most of the evidence introduced and time consumed at the trial were devoted to the latter issue.

Través received from plaintiff all the architectural terra cotta contracted for and used it in the high school building. The material and manner of using it in the construction proved satisfactory to the architects in charge, and both were accepted. Través contended, however, that the material was not “in accordance with plans and specifications made by Malcomson & Higginbotham, architects,” as his contract with plaintiff provided it should be. The terra cotta was designed to be used chiefly for cornice work, and it is claimed the architects’ plans show not only the general design of the cornice and kind of material, but the manner of construction, including size and shape of the terra cotta pieces, or blocks, indicating a comparatively small number of large blocks, simple, easy, and inexpensive to set in the wall, while that furnished consisted of a large number of small blocks, not economically fit or convenient for such construction, which caused a large amount of extra labor,' delay, and expense to Través in overcoming the difficulties this occasioned and properly setting the many small pieces. For the extra expense this imposed he claimed and sought to recover under his plea of recoupment $6,999.82, including interest. Upon this issue, conceding “that the question of whether the material furnished complied with contract was one for the jury, if all testimony objected to was properly admitted,” counsel for defendants contend that it was not, and that upon this issue there is reversible error in the admission of ■ incompetent testimony tending to vary the terms pi the written agreement.

The contract between plaintiff and Través for this material was in writing, evidenced by a proposal dated June 21, 1910, directed to and accepted by Través. It provided, amongst other things, that the terra cotta plaintiff agreed to furnish would be “in accordance with the plans and specifications made by Malcomson & Higginbotham, architects.”

Through its local agent in Detroit plaintiff had been in communication with Través some time before he secured his contract with the board of education, and from a copy of the plans furnished it had made him an estimate of the cost of the indicated terra cotta, with sketches showing the design carried out in construction. His contract with the board was signed in May, 1910, at which time he furnished the board an estimate showing in detail how he arrived at the price of $75,-880, for which the contract was let to him. • His estimated cost of the terra cotta was $11,670, and for. setting same $732. On June 21, 1910, he visited plaintiff’s office in New York, taking with him copies of the plans and specifications, and went over the matter with plaintiff’s president, Mr. Eskeson, as a result of which the written proposal before mentioned was made and accepted.

It is contended by defendants that what was said between the parties on that occasion was erroneously admitted in evidence, as well as other testimony relative to these plans, because it tended to modify or change them and with them the written contract of which they formed a part. These general plans of the building, of which both parties had copies before them, indicated for use in the terra cotta cornice longer and larger blocks than those actually used in the construction, showing them laid upon the wall so as to project over both sides. Mr. Higginbotham, the architect, testified, against objection, that those places did not particularly show the construction — “more the design and size” — and that the indication of large blocks extending the full width was an error in drafting, as terra cotta work was not generally constructed in that way. It is conceded that the original plans were not followed in that particular. The outward design and size of the cornice was the same, but smaller and thinner blocks of terra cotta than indicated on the general plan were used, which did not project into the wall its full width, being braced and held by metal supports.

Against this preserved objection that it tended to change or modify the" terms of a written agreement, and was therefor incompetent, plaintiff was allowed to introduce a line of testimony by the architect, and others who qualified as experts, that it is the general custom in connection with such building contracts to send the architect’s plans to terra cotta companies, and such other companies having subcontracts for special material, and have them adapt their construction to the architect’s design, as shown by his plans, they furnishing the detail drawings and working plans, and that such course was followed in this case; that details and working plans were prepared by plaintiff, submitted to the architect, changed in some particulars according to his directions, and finally approved by him before the terra cotta was made and shipped to Detroit. Of this he testified:

“They make the setting plans and they take our design. * * * The expert terra cotta men could do it, but we do not propose to, and we never attempt to do it. We show the design. * * * The details are furnished to us and must conform to the scale drawing on which our bids for the work are based.”

He further testified that the detail plans from the terra cotta company simply were put. in better shape than the general plans, and were approved by him as architect. The president of the company with whom Traves closed the deal in New York was allowed to testify to the general custom and Traves’ knowledge of Tt, and that the matter was all gone over by them and the contract made with reference to it, saying in part:

“I went over with Mr. Traves the drawing and our sketches. I showed him how we made our sketches. I went over that very thoroughly, and I explained to him what was the custom in terra cotta; that we figured the usual terra cotta construction all the time on our drawings and would ask to have our construction approved.”

In Karwick v. Pickands, 171 Mich. 463, 471 (137 N. W. 219), the rule as to custom is stated as follows:

“It is said that all trades have their usages, and, when a contract is made with a man about the business of his craft, it is framed on the basis of its usage, which becomes a part of it, except when its place is occupied by particular stipulations.”

Counsel for defendant plants his contention upon the proposition that the construction adopted was different from that shown on the architect’s plans and in violation of the express stipulation that the terra cotta was to be “in accordance with the plans and specifications” of the architect. The specifications of the architects under the subheading “Terra Cotta” provide, amongst other things, that “all the details are to be approved by the supervisor and architect.” It is also to be- noted in connection with the question of understood manner of construction that the agreement also specifies:

“This contract does not include iron anchors or supports.”

We think that this testimony tending to show a general custom, known to both contracting parties who made their agreement with reference to it, was competent. This line of testimony was introduced to meet defendant’s claim of recoupment under the charge that the material did not conform to the contract. Través testified that the contract was not made with reference to any custom, that he knew of no such custom, and relied upon the general plans with reference to which he contracted, under which the construction was easier and cheaper; that when the contract was made in New York there was no talk with Eskesen about getting out working plans, only he said they would have the architect furnish details as soon as possible. His own letters show that ten days later he wrote Eskesen from Detroit:

“Send on working drawings to be approved by architect.”

On July 18th he again wrote:

“Send along working drawings so I can get them approved by the architect and return to you.”

On July 2Sd he wrote plaintiff:

“Just as soon as you send drawings and samples will have them examined and sent back.”

They were sent August 22d, and the architect testified that Través delivered them to him for approval, stating what they were, with a request that they be examined and approved. On August 29th Través wrote plaintiff:

“Received your letter and drawings for terra .cotta on Cass high school and gave them to architects and your letter, and they have answered all questions in letter as you will see, and marked on plans.”

Whether there was a custom, its nature and Traves’ knowledge of it, and whether the parties contracted with reference to it, were questions opened to inquiry by the conflicting testimony, which fairly raised an issue for the jury, under the rule stated in Pennell v. Transportation Co., 94 Mich. 247 (53 N. W. 1049). This was not precluded by the stipulation relative to plans, and the- general plans furnished, for specifications also were equally binding, and details to be approved by the architect were required by the specifications. This is in harmony with the custom sought to be proved in explanation of the contract, rather than in exclusion of it. We find no error in'admission of the testimony complained of or the charge of the court, which fully submitted to the jury, with a clear statement of the conflicting claims of the parties, this whole question of plaintiff’s performance of the contract and Traves’ plea of recoupment, under proper instructions as to applicable rules of law for the jury’s guidance."

It is further urged that the court erred in denying the motion made in behalf of the defendant surety company for a directed verdict as to it on the ground that plaintiff failed to give timely notice that it relied upon the security of the bond in compliance with section 2 of said Act No. 187, which provides as follows:

“In the case of a subcontractor, he shall give notice in writing before payment is made for the work or materials furnished by him to the said board of officers or agents, that he is a subcontractor for the doing of some part of such work which he shall specify in his notice and that he relies upon the security of the bond by this act required to be given by the principal contractor, and that in the case of the giving of such notice to the said board of officers or agents said subcontractor shall also notify the principal contractor that he has done so, and whenever this shall have been done, the said subcontractor shall be entitled, subject to the rights of the persons with whom he has contracted for labor and materials, to the benefit of the security given by the principal, contractor, and to be subrogated to the liens of the persons who have performed labor or furnished materials.”

The title of this act is “to insure the payment of suffi contractors and wages earned and materials used in construction, repairing or ornamenting public buildings and public works.” It is to be noted that of those to whom payment is proposed to be insured section 2 only applies to subcontractors. No notice is required of laborers and materialmen. The object of the act is declared by its title to be to insure payment of all classes mentioned. The object of section 2 leaves much to conjecture. If this classification and these requirements were intended to protect the surety, as defendant claims, it would seem that either the act would require notice to be served upon the surety, or impose some duty on the municipal board or contractor, who are notified. It does neither. Just what protection this section might afford the surety, beyond a technical defense in case the subcontractor forgot to serve the notice, is far from plain.

On August 14, 1911, plaintiff wrote the board of education, giving notice of its claim and requesting that it be retained out of any payments due Traves under his contract, but this notice was not in all particulars as specified in said section 2, and on October 11, 1911, a proper notice was served with special reference to the statute. At the time of the second notice there was yet coming to Traves upon his contract with the board over $15,000, but it is contended by defendant that the proof of estimates and payments made to Traves show he had finished the terra cotta work and received payment for it, less 15 per cent, retained until final payment on the contract, before this notice was served. Traves’ contract provided for payment to him on the 15th of each month as follows:

“Within 15 per cent, of the sum which the said board of education shall determine to be a safe relative estimate of thé value of the work done during the preceding month. The said estimates shall not be required to be made by such calculations, but may be arrived at approximately according to the judgment of the said board. It is expressly understood that such estimate shall only be made at the pleasure of said board, and no estimate shall be deemed an acceptance of the work on which it is made.”

Under this Traves received his first estimate July 28, 1910, and on May 8, 1911, his ninth estimate. No portion of the retained 15 per cent, was paid him until after the second notice was served. His last payment of the entire balance due under the contract was received May 23, 1912. Estimates of work done upon the building were made up by the superintendent of buildings and furnished the board as a basis for allowance of partial payments. These were prepared by Mr. Geering, then superintendent of buildings, who was not living at the time this case was tried. In making up his estimate he itemized the amounts against various parts of the work according to their degrees of completion, and then either figured the total value of work done since the previous estimate, less 15 per cent., or the total done from the beginning and its value, less the retained percentage, and found the amount of the proposed estimate by deducting previous payments. It may be conceded, as contended by defendant, that his estimates upon which payments were made include the value of the terra cotta work completed before the notice in question was given, less 15 per cent. The Través contract with the board, however, required no separation of the different kinds of work. The estimates by the board upon which payments were to be made, were its determination of a safe relative estimate of the value of the work done, which might “be arrived at approximately according to the judgment of the board,” at the pleasure of the board, “and no estimate to be an acceptance of the work on which it is made.” In making its estimates and payments the board treated the contract as an entirety, and the records showed the payments made “on account of the contract.” Neither the contract nor Act No. 187 require any schedule to be filed or estimate furnished as to any particular part of the work done and proportionate payment. It is conceded that when the notice was filed 15 per cent, of the cost of the terra cotta work was not paid, and it is shown that more than its total cost was yet unpaid upon the contract as a whole.

Under such a state of facts the provision of section 2 that notice shall be given “before payment is made for the work or materials furnished” is difficult of application. It was certainly not paid for in full; no direct payment was applied upon it. In payments upon the contract as a whole, of which, the terra cotta work was a part, the latter was necessarily paid in part. The act makes no provision for prorating surety liability.

In a case of this kind, where defendant is not entitled to notice, and the purpose of the notice is not made clear by the act, some consideration may be given to the general statement in Ridgeway v. City of Escanaba, 154 Mich. 68 (117 N. W. 550), that this court has. “been inclined to favor a liberal construction of statutes requiring notice of claims.” The contract of surety contains no condition or stipulation for notice upon any one. The condition of the bond is that Traves shall pay as the same may become due “all indebtedness which may arise from said contractor to the subcontractor, or party performing labor or furnishing material,” etc., and section 4 of said Act No. 187 in plain language gives the right to bring an action on this bond to “any person, firm or corporation to whom any money shall be due and payable on account of having performed any labor or furnished any materials.” This, without qualification or condition, gives all contemplated in the title of the act a right of action on the bond, with only the two conditions that the State shall not be liable for costs, and, in case of a subcontractor, he shall be required “to allege and prove that he has paid to all parties entitled thereto the full sums due to them for labor or material contracted for by him.”

This condition suggests the query whether, in treating subcontractors as a special class, the legislative intent was directed to those only who contracted to assume and engage in a portion of the actual work of erecting the building upon the premises, rather than to those who under a contract of sale simply furnished to the principal contractor a commodity to be used by him in his contract. Under its contract plaintiff had no direct connection with the erection of this building. It only sold to the contractor material of the kind it dealt in, manufactured in another State and shipped to him for use in his contract. In a sense every person who sold Través any material for use in construction of the building and every laborer hired upon the job was a subcontractor. The only intimation, if such it be, given of where the lawmakers intended to draw the line is the condition in section 4. The title of this act is “to insure the payment of subcontractors,” however classified, as well as laborers and materialmen, and section 3 of the act is plain and positive as to the conditions of the bond, which make no mention of notice, but, conceding that the bond given under the statute includes and is to be tested by all provisions of the statute, that plaintiff is a subcontractor in contemplation of section 2, required to give notice as provided, and that said section was for the protection of all interested, including the surety, and that, if damnified by failure or delay in giving notice, the surety is entitled to avail itself of the statutory provision, we find it alleged and proven that the statutory notice was given before the terra cotta was fully paid for, even under defendants’ theory, and at á time when there yet remained due or to become due to the principal contractor much more than sufficient to satisfy plaintiff’s claim. The only contention against complete compliance with the statute is that there was partial payment before notice. No statute in any other State is discovered containing a provision analogous to section 2 of said act. Counsel for defendant cite as similar a statute of the State of Washington requiring a surety bond from contractors on public works for completion of the work contracted for and for the protection of laborers and materialmen, which provides that:

“Such persons shall not have any right of action on such bond for any sum whatever, unless within 30 days from and after the completion of the contract with -and acceptance of the work by the board,” etc., the claimant file a prescribed notice with such board or public body, “and said notice^ after being presented and filed, shall be a public record open to inspection by any person.” Rem. & Bal. Code, § 1161.

It was held-that under the express wording of the statute the right to maintain an action upon the bond depended upon the giving of such notice, which was a public record and condition precedent, and, as liability on the bond ceased if notice was not given, the provision, operated for the benefit of the surety. Huggins v. Sutherland, 39 Wash. 552 (82 Pac. 112); Crane v. Indemnity Co., 43 Wash. 516 (86 Pac. 849); Robinson Manfg. Co. v. Bradley, 71 Wash. 611 (129 Pac. 382). Although upon a similar subject, the provisions of the Washington statute are so distinctly at variance with the particulars under, consideration as to furnish scant precedent. There no distinction of beneficiaries or classification is attempted, no notice of claim or steps of any kind are required while the work is in progress or until 30 days after the contract is completed and accepted, and the required notice, when complied with, like the filing of a lien, becomes a public record, and that such record be made is an imperative condition precedent to any right of action. “Without such fact, nq action could be maintained, * * * under the express terms of the statute.” Huggins v. Sutherland, supra. This applied alike to all for whose protection the statute was enacted. The reasons governing those decisions upon that statute cannot be regarded as of controlling application to the provisions found in the act here involved.-

Aside from the foregoing considerations, we also are of the opinion that the defendant surety company is not. in a position to benefit by plaintiff’s alleged violation of the contract, in failing to give timely notice. Upon this record the surety neither has alleged nor proven any actual injury resulting to it from plaintiff’s failure to strictly comply with the requirements of the statute as to notice according to the construction contended for. The company being a surety for profit; this is a prerequisite as to it, under the particular facts of this case. The doctrine of strictissimi juris, said to be a rule of construction, as .discussed and applied in the recent case of People, for use of Townsend Brick & Contracting Co., v. Bowen, 187 Mich. 257 (153 N. W. 672), cannot be invoked by the surety under the circumstances disclosed here.

The judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.

The late Justice McAlvay, who sat in this case, took no part in this decision.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    VANDECAR v. NOWLAND’S ESTATE.
    1. Work and Labor — Contracts—Compensation—Express Contract.
    If the facts and circumstances attending the performance and acceptance of services rendered show an expectation of receiving compensation by the party rendering the service, and expectation to pay on the part of the one receiving them, a legal liability for the value of the services performed is created, and an express contract is not essential.
    2. Same — Estates oe Decedents — Claim.
    In_an_action_ against an estate for services rendered deceased by his son-in-law, evidence that decedent told claimant and his wife to go on a farm owned by him and work it, and what they made was theirs, and the place would be for them, and that deceased at different times made assurances that the farm should be, or was, theirs, was insufficient to establish contractual relations between claimant and décéased, and said statements amounted only to declaration of testamentary intent, not binding on deceased or his estate.
    3. Same — Services oe Relative — Presumptions.
    Evidence examined, and held, that claimant has not, under the circumstances of this case, overcome the presumption that such services, rendered by a relative, are gratuitous.
    4. Same — Estates oe Decedents — Stale Claim — Evidence — Directed Verdict.
    Where the items composing the claim extended through a period of nearly 30 years, and aR were over six years old, and no demand for compensation was ever made during the lifetime of deceased, thus affording a presumption that none was contemplated by either party, particularly strong and convincing proof is required before leaving it to a • jury.
    Error to Wayne; Murphy, J.
    Submitted June 30, 1915.
    (Docket No. 76.)
    Decided September 29, 1915.
    Matthew G. Vandecar presented a claim against the estate of Moses R. Nowland, deceased, for services and for money loaned to deceased. The claim was disallowed and claimant appealed to the circuit court. Judgment for defendant on a directed verdict. Claimant brings error.
    Affirmed.

      George M. Lehman, for appellant.

      Condon, Nellis & Condon, for appellee.
   Steere, J.

This case involves a claim against the estate of Moses R. Nowland, who died September 2, 1905, leaving, as is indicated, real and personal property of substantial worth, though the amount and appraised, value of his estate is not disclosed in this record. A widow and children, both by her and a former wife, survived him. His son-in-law, M. G. Vandecar, filed this.claim against deceased’s-estate in the Wayne county probate court. It consisted of items for money loaned, proceeds of property sold, labor and services of himself and team of various kinds, taxes paid and improvements made on a farm owned by deceased and occupied by claimant with his-family for many years. The items composing this claim extended through a period of nearly 30 years, and amount to $4,515.

Disallowance of the claim in the probate court was affirmed on appeal to the circuit court, by judgment on a directed verdict, upon the ground that claimant’s evidence failed to establish binding contractual relations between himself and deceased touching the items of said claim, and that statements shown to have been made by deceased expressing a purpose to give the farm upon which claimant and his wife resided to them amounted only to declaration of testamentary intent, not binding on him or his estate.

Claimant’s assignments of error necessarily relate to the refusal of the court to give his requests to charge and direction of a verdict against him, and present but the one important question of whether his evidence raised an issue for the jury as to a contract, express or implied.

The scene of the events in evidence here is in and around the village of New Boston, in the southwest part of Wayne county, where deceased lived many years of his somewhat protracted life, engaged in a variety of business activities. His daughter Ella, who was married to claimant in 1873, testifies that her father “was in the law business, and had a sawmill, and a store and charcoal kilns.” He is also shown to have owned at least five different farms. When claimant married, he was “living around New Boston and working at different places, on the railroad at New Boston and Plymouth.” Shortly after his marriage he went to work for his father-in-law in his sawmill, and also worked for him hauling logs, wood, coal, stone, etc. Soon after their marriage deceased gave claimant and his wife a small house and lot, called the “$250 place,” which was sold, and the proceeds given to deceased to help build a house on a lot owned by claimant; .the lumber and labor for this house being furnished by deceased. In 1878 or 1879 arrangements were made, by which the second house and lot was sold for $500' and the proceeds turned over to deceased, claimant moving with his then family upon a farm owned by his father-in-law, located about one-half of a mile from New Boston, the latter then furnishing claimant and his wife a team of horses, harnesses and wagon, some hay, two cows, and various farm implements, they being given the use of the farm free of rent, except payment of taxes. Of this claimant’s wife testifies:

“Before we went on the place we had a talk with my father. He told us to go down on the farm, and what we made was ours, and to go to work and work it, and the place would be for me and my husband, and he calculated for each of his daughters so much land. * * * There was no talk' about our renting the land, when we went there. We were to go on the farm and have the benefit of the crops, and we were to pay the taxes, and paid them, except one year.”

Claimant and family remained upon this farm for 24 or 25 years, raising a family of 12 children. During the many years they made their home upon the place and enjoyed whatever it produced, claimant raised, both crops and stock upon it and made improvements,, of which he had the benefit while there. He cleared about 20 acres of land, built fences, a corncrib, pig pen, and other outbuildings, and planted an orchard while upon the farm. He is also shown to have at times, mostly in the winter, worked for deceased with his team, hauling logs, wood, charcoal, stone, etc. The evidence as to these services is general in its tendencies, meager as to dates and values and destitute of any proof of express agreement as to any details. Claimant’s wife says he worked for her father whenever he wanted him, and “my father never said anything of an account against my husband. My husband never kept an account against my father for the work he did.”

This claim is urged upon the theory and under the general proposition of law that an express contract is not essential to substantiate it, but the facts and circumstances attending the performance and acceptance of the services rendered show an expectation of receiving compensation by the party rendering the service and expectation to pay on the part of the one receiving them, thus creating a legal liability for the value of the services performed. The only claimed proof of any expectation or promises in that connection relates to assurances by deceased that the farm should be, or was, theirs. It is conceded no deed or instrument in writing was given, and there is no proof of any agreement made at the time claimant and his family took possession of the place other than the statement of claimant’s wife as to what her father then said to them. That it was supposed by neighbors and expected by claimant and his family that this farm would belong to claimant or his wife, or both, on the death of her father, is evident. That deceased frequently expressed such an intention during the years they were upon the farm is shown — sometimes that it was or would be his daughter’s, and sometimes that both should have it. A neighbor named Davis, called by claimant, in the course of his testimony, said:

“I said on direct examination that it- was his intention that Ella should have the 63 acres. * * * I have heard him say that Ella and Dick [claimant], also Dick and Ella. * * * I never heard him say he was giving it to him [claimant] for labor performed. * * * He talked repeatedly about the manner in which he was going to dispose of his property. * * * He would talk as he felt. * * * . I heard him say to me, as well as others, what his intentions were about deeding away his property to his daughters and sons-in-law. I heard that a great many times.”

Another witness named Burrows explained the nature of deceased’s assurances as follows:

“Well, the place is Dick’s. That is the way he used to call, it: Tt is Dick’s.’ I presume likely he said at times, Tt is Ella’s and Dick’s,’ but I could not say. * * * He never discussed with me the question of labor that Mr. Vandecar performed.”

A witness named Nowland said:

“He changed his mind a number of times about certain pieces of property.”

Claimant’s wife and children and a cousin testify along the same lines, but more emphatic, as to hearing deceased at different times giving assurances that the farm belonged to one or both, that they had earned it, that it was going to be theirs, that he was going to give it to them and their children, that he “intended to give it to Ella,” that “my father and mother was to work on the farm and us children, and- when my grandfather and grandmother was dead it was to be my father’s and mother’s.” Much other testimony of like import was introduced, a careful consideration of which constrains us to agree with the- trial court that claimant has not, under the circumstances of this case, overcome the presumption that such services rendered by a member of deceased’s family or a closely associated relative are gratuitous where' no express contract is shown, nor against such presumption estab'fished an- implied contract, and that what is shown to have been said by deceased as to the disposition of this property goes no further than a declaration of testamentary intent.

It is well-settled law that:

“Particularly strong and convincing proof is required where the claim is stale, or where the services extended over a considerable period and no demand for compensation was ever made during the decedent’s lifetime.” 18 Cyc. p. 533.

Had the friendly relations and reasons for expectation in this case continued until deceased’s death, this rule would be less applicable here, but in 1896 deceased’s first wife, the mother of Mrs. Vandecar, died, and he subsequently remarried, having children by his second wife. He later sold a tract of ten acres from the farm in question, which led to some friction, resulting in litigation “in which he put them off the place,” as stated by one of claimant’s witnesses, and retook possession of the premises some six or seven years before he died. The details of this difficulty are not fully disclosed in the record, but it does appear that deceased’s position in relation to his ownership of this farm was asserted and maintained by litigation over six years prior to his death and claimant put off the place, after which time he did no work for- deceased. He now claims deceased was then owing him over $4,000. There is no evidence of any demand or assertion of this claim during decedent’s lifetime. Some items of the claim were over a quarter of a century old, and all over six years, when the alleged debtor died. That no demand for compensation was ever made during his lifetime affords a presumption that none was contemplated by either party and is in itself at least strongly, persuasive of laches.

This is of that class of claims in which it is held the duty of the court to require clear and substantial proof before leaving it to a jury to speculate as to the existence of the contract necessary to support them. Wright v. Senn Estate, 85 Mich. 191 (48 N. W. 545); Donovan v. Driscoll, 116 Iowa, 339 (90 N. W. 60).

Our conclusion upon the whole record is that the trial court rightly directed a verdict for defendant.

The judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.

The late Justice McAlvay, who sat in the case, took no part in this decision.


author: Brooke, C. J.

text:
    MORTENSEN v. BRADSHAW.
    1. Appeal and Error — Argument of Counsel — Saving Questions for Review.
    Where defendant’s counsel "failed to invoke action of the court, after excepting to opposing counsel's remark charging him, without warrant, with pettifogging, he is without remedy, on appeal.

      2. Trial — Argument of Counsel — Prejudicial Argument — Assault with Intent to Rape.
    In an action for assault with intent to commit rape, it was error for plaintiff’s counsel, in his closing argument, in response to remarks of defendant’s counsel that plaintiff, who had previously been seduced by another man, had already received the greatest injury any woman could suffer, and had settled for $400, to reply that neither the jurors nor any parent would feel that their daughter was less entitled to damages by reason of being overpersuaded by a young man to whom she was engaged, and that the position taken by counsel for defendant was unjust and. contrary to the natural feeling of parent and child.
    3. Same — Argument of Counsel — Wealth of Defendant — Damages — Assault with Intent to Rape.
    In an action for assault with intent to commit rape, it was improper for plaintiff’s counsel, in argument, while discussing the question of damages, to refer in detail to the possessions of defendant.
    4. Same — Assault with Intent to Rape — Damages—Reputation —Instructions.
    Where there was no evidence showing loss of reputation and standing in the community as a result of the alleged assault, it was erroneous for the trial judge to permit the jury to award damages therefor.
    Error to Ottawa; Cross, J.
    Submitted June 18, 1915.
    (Docket No. 64.)
    Decided September 29, 1915.
    Case by Rose Mortensen against Hugh Bradshaw for assault with intent to commit rape. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Visscher & Robinson (Smedley & Linsey, of counsel) , for appellant.

      Diekema, Kollen & Ten Cate, for appellee.
    In this action plaintiff sued to recover damages for several alleged assaults with intent to commit rape. The declaration consists of four counts. The first charges a simple assault on the 1st day of June 1914; the second, an assault with intent to commit rape upon the same day; the third, an assault with intent to commit rape on the 28th day of June; and the fourth, an assault with intent to commit rape on the 4th day of July. The offense in each count is charged' under a videlicet.
    The plaintiff at the time of the trial was an unmarried woman about 24 years of age. On November 16, 1913, she had given birth to an illegitimate child. After the birth of said child she commenced an action against the alleged father, causing his arrest, which she afterwards settled for the sum of $400. In April, 1914, her child then being about 5 months old, she secured a position as housekeeper for the defendant, who had been divorced from his wife and was at that time 75 years of age. Plaintiff testified that, within two weeks of her entry upon service with the defendant, he began to importune her to marry him. She further testified that she declined his proposals, assigning as a reason for her refusal the disparity in their ages. It is her claim that, following her refusal, he attempted, by the use of force, to carnally know her, but that she succeeded in eluding his embraces. Following this incident, plaintiff claims that defendant expressed regret for the occurrence, and promised that it should not happen again. However, he insisted they should be married, and urged her to enter into an engagement with him. This she finally consented to do. As a result of such agreement an antenuptial contract was prepared and executed by them. That contract follows:
    “An agreement made by and between Hugh Bradshaw, party of the first part, and Rose Catherine Mortensen, party of the second part: Whereas, it is the intention of the said first party and the said second party to mutually intermarry; and whereas, Hugh Bradshaw has children by a previous marriage for whom he wishes to provide, as well as for the second party: Now, therefore, it is mutually agreed by and between the. parties as follows: Said first party agrees to adopt Leroy, the child of the said Rose Catherine Mortensen, and the said second party agrees that the said Hugh Bradshaw shall so adopt the said child, and the said child shall be his child as well as her own, and that his name shall be Leroy Hugh Bradshaw. It is further agreed that, in consideration of the said marriage, the said Hugh Bradshaw will, after the marriage of the parties, convey a life interest in the whole of the first party’s homestead property on Macatawa road, in Ottawa county, Michigan, with the remainder vested in the said child and in any children born as issue of the said marriage in case there be any such issue, equally; otherwise, in the said child alone. He further agrees that he will,-, after the said marriage, will to the said second party one-third interest in all the remainder of his .property absolutely, with the exception of his house and lot in Holland, Michigan, on the northeast corner of Twelfth and Central avenue, no part or share of which shall be willed to said second party, but which is to go to Hettie Bradshaw Fergus, his daughter. Said second party agrees, in consideration of the marriage and the agreements of the said first party as hereinbefore stated, that she, the said second party, will accept as much property as is hereinbefore stated by the said first party as her future share of the estate of the said first party in the event of or at the time of his death, and that she waives all right of dower and homestead, or any rights whatever as his widow, except as hereinbefore stated. And she further agrees that she will quitclaim her interest in the property on the northeast corner of Central avenue and Twelfth street in the city of Holland to the said Hettie Bradshaw Fergus, at such time and whenever the first party may desire. Second party further agrees that she will not incumber or transfer any of the property herein mentioned now or later. The said parties mutually agree that in the event of a separation this agreement shall be null and void.
    “June 16, 1914.
    [Signed] “Hugh Bradshaw,
    “Rose Catherine Mortensen.”
    It will be noted that the date of the contract, June 16, 1914, is about two weeks later than the first of the assaults charged in the declaration. Plaintiff continued to live with defendant up to the 4th of July, some two or three weeks later. - She testified that during this period she considered the defendant engaged to her, but that she was not engaged to him, and had no intention of marrying him. • She further testified:
    “I didn’t consider myself engaged to him at that time, or any time. I just let him sign this paper, and let him go on with this just to fool the old man, because he had told me that he couldn’t marry before October anyway, and we thought by that time that he would forget it and it would be entirely over.”

      Defendant, who was called by the plaintiff under the statute, denied the several assaults charged by the plaintiff, but claimed to have had sexual intercourse with her on three occasions with her consent, and averred his willingness to marry her.
    Upon the measure of damages the court charged the jury as follows:
    “The offense charged in the declaration in this case is not a simple assault and battery, such as striking the plaintiff with the hand or fist, but an aggravated assault and battery, consisting of the taking of indecent liberties with the person of' the plaintiff, and attempting to ravish and carnally know her; and if you find that the defendant is guilty of this sort of an offense, then, in determining the damages to which she is entitled to compensate her, you should take into consideration not only her physical injury and suffering, if any, but also the injury to her feelings, and any disgrace or humiliation or injury to her name or reputation, if any. I charge you that, if you find for the plaintiff, in reaching the amount of your verdict you may consider the nervous shock sustained by the plaintiff, if any, by reason of the acts of the defendant, her anxiety, physical pain and suffering, injury to feelings, disgrace, and loss of reputation, if any. These elements of damages are not in the nature of things susceptible of exact computation,’ but the jury must determine the amount as their best, candid, and careful judgment shall dictate.”
    Plaintiff recovered a verdict of $5,000.
   Brooke, C. J.

(after stating the facts). There are some 46 assignments of error, only a few of which it will be necessary to consider. There are several assignments based upon alleged erroneous rulings with reference to the admission of testimony. We find no reversible error here.

During the cross-examination of the plaintiff by defendant’s counsel, plaintiff’s counsel, in the presence of the jury, charged defendant’s counsel with pettifogging. An exception was taken to the statement by-defendant’s counsel, but no action of the court was invoked upon the matter. We are of opinion that the language of plaintiff’s counsel was unwarranted, and, had the trial court been appealed to, a timely instruction to the jury would doubtless have rendered the remark harmless. Defendant’s counsel, having failed to invoke such action on the part of the court at the time of the occurrence, is now without remedy.

During the argument to the jury the following occurred :

“In their argument, Counsel for defendant argued to the effect that plaintiff could not recover damages in any substantial amount, because she had already received the greatest injury that any woman could suffer, and had settled this for $400. Mr. Diekema, in his closing argument for the plaintiff, insisted that neither the jurors nor any parent would feel that their daughter was less entitled to damages by reason of having been overpersuaded by a young man to whom she was engaged, and that the position taken by counsel for the defendant was entirely unjust and contrary to the natural feeling of parent and child. The following then occurred:
“Mr. Visscher: I except to that statement.
“The Court: Think you had better leave that out. They should try this case according to the testimony received here.
“Mr. Visscher: The question is not how their daughter would feel about it.
“Mr. Diekema,: Do you expect to eliminate the heart of men and paternal feelings in a case of this kind?
“The Court: No.
“Mr. Visscher: We except to Mr. Diekema’s remark.
“Later on, in the course of the same argument, Mr. Diekema, while discussing the question of damages, reviewed the testimony in detail relating to the possessions of the defendant, whereupon the following occurred :
“Mr. Visscher: I object to that; the remarks about Mr. Bradshaw being a rich man. Take an exception to it.
“The Court: It is in the testimony; I suppose he has a right to argue from it.”

We are of opinion that the argument of counsel for plaintiff constitutes reversible error under several late decisions of this court. Juries are not to be invited to assess damages upon the basis of the amount they would be willing to accept as compensation for the wrongs alleged to have been suffered. The case was one in which an appeal to the passions and prejudices of the jury was likely to produce unfortunate results. Upon this point see Hughes v. City of Detroit, 161 Mich. 283 (126 N. W. 214, 137 Am. St. Rep. 504) ; Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106), and Wells v. Railroad Co., 184 Mich. 1 (150 N. W. 340).

We are likewise of opinion that the argument of counsel relative to the alleged wealth of defendant was an improper one to make in the case, where the charge is one of assault with intent to commit rape. Johnson v. Railway Co., 135 Mich. 353 (97 N. W. 760); Holmes v. Loud, 149 Mich. 410 (112 N. W. 1109).

We have examined this record with care, and find no evidence warranting the trial court in permitting the jury to award damages to plaintiff on account of loss of reputation and standing in the community. Totten v. Totten, 172 Mich. 565 (138 N. W. 257).

A motion for a new trial was made based, inter alia, upon the ground that the verdict was excessive. As the case must go down for a new trial, because of the errors pointed out, it is unnecessary to consider the question presented by this assignment of error.

The judgment is reversed, and a new trial ordered.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    ZACHARIAS v. DONALDSON.
    Biixs and Notes — Check — Insurance Premium — Stoppage op Payment — Return oe Consideration.
    Where the insured notified plaintiff, a general insurance agent, that he would not continue in force an insurance policy, but told him to see defendant, who was interested as beneficiary or otherwise, who could continue it if she wanted to, and defendant gave plaintiff a check and received the premium receipt therefor, the effect was to continue in force the policy, notwithstanding defendant’s subsequent attempt to repudiate the policy by stopping payment of the check, where she failed to return the receipt and policy, and in an action for the amount of the check, a verdict was properly directed for plaintiff.
    Error to Wayne; Hosmer, J.
    Submitted June 21, 1915.
    (Docket No. 84.)
    Decided September 29, 1915.
    Assumpsit in justice’s court by Melville H. Zacharias against Lavina B. Donaldson for the amount of an insurance premium. From a judgment in favor of plaintiff, defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Galloway & Graham, for appellant.

      Austin L. Richardson, for appellee.
   Brooke, C. J.

On January 21, 1913, the plaintiff, as general agent of the Connecticut Mutual Life Insurance Company, through one of his agents, insured the life of one Donaldson Craig for. $10,000, and caused to be issued to said Craig a policy requiring quarterly payments, payable in advance, in the sum of $57.30 each. Defendant was either the beneficiary named in said policy or the assignee thereof under a formal assignment. The second premium fell due April 21,1913. Thirty-one days of grace in which payment of said premium could be made were allowed by the rules of said company. The insured had indicated to plaintiff prior to the expiration of the days of grace that he personally did not intend to continue said policy in-force by the payment of the second quarterly installment of the-premium. Testifying on behalf of defendant, Craig said:

“Q. Now, coming up to May 22d, which seems to be the date they obtained the check, had you an interview then with one of the solicitors upon that day?
“A. I do not recall. * * *
“Q. Now, you say you did not see any of these solicitors, as you recall, in the office; did you get a telephone message from him?
“A. Yes, sir.
“Q. Did you tell him to send over and get a check?
“A. I told him that I would not continue the policy; if Miss Donaldson wanted to continue it herself she could do so; and under those circumstances he could send over and get a check, if she cared to continue the policy.
“Q. Then you answered his phone in that way?
“A. Yes, sir.
“Q. But that you would not continue the policy?
“A. I would not do it.
“Q. Now, upon the date this check was issued you were not in the office, as I understand it?
“A. No, sir.
“Q. What did you say when you learned it was issued?
“A. I told her that I had emphasized the point that I would not continue it myself; I did not want it at all.
“Q. But you learned by going to the office that a check had been issued?
“A. Yes, sir. * * *
“Q. Did you inform hér [defendant] of that in any way?
“A. I told Miss Donaldson that if she continued that policy that she could continue it for herself, but that I would not continue it for myself, and if she gave that check that she should have an understanding with me beforehand; that she was to have an understanding with me before she paid that check as to who was to pay that money; that I did not intend to do it.”

Defendant when upon the stand testified as follows:

“The Court: Did he leave you a quarterly receipt at that time when you gave the check; did you see the paper Mr. Galloway has? Is this what the solicitor gave you at the time you gave the check?
“A. I could not say that he gave it to me or that he sent it or what; I could not say.
“Mr. Richardson: That is the one that was given, anyway?
“A. It might have been sent.”

The evidence shows conclusively that as a result of the conversation over the'telephone upon the 22d day of May, 1913, being the last day of grace, plaintiff sent a messenger to the office of Craig, the insured, in which the defendant seems to have been employed, and there caused to be delivered to her a renewal receipt which continued the policy in force for another quarter, accepting her check for $57.30 in payment therefor. The record further shows that this check was deposited by plaintiff in his private account, and settlement made by him upon the same day, for the premium, with his company, and with the representative of the soliciting agent who was entitled to a certain percentage of the premium. The check was returned marked “Insufficient funds.” It was presented many times during the following ten days, with the same result, and finally placed in the hands of an attorney for collection. Upon presenting it in person to the bank on which it was drawn, the attorney was notified that payment of the check had been stopped by the defendant, who had drawn it. Neither the defendant nor Craig, the insured, caused to be delivered to the plaintiff the renewal receipt of the policy of insurance.

The learned trial judge, in directing a verdict for plaintiff, charged the jury as follows:

“According to the testimony of Miss Donaldson, she notified the bank at that time after she had a conversation with Mr. Craig, not to pay the check. It does not seem to me, gentlemen of the jury, that under the circumstances of the case it is essential to determine the truth of either statement. There is no question but at the time of the giving of the check this receipt was left, the effect of which was to continue the policy in force for a period of three months. That check was not returned; consequently, under the testimony in this, case, the check was taken as payment of the premium, and taken by Mr. Zacharias in that way, and it represented so much cash, and under the existing circumstances, having been taken as payment by him, there could not, unless the receipt was returned to the company — the policy and the receipt returned to the company — there could not have been a successful defense in case Mr. Craig had died within that period. Under these circumstances, there having been a failure to return the policy and receipt at the time Miss Donaldson claims to have repudiated the policy, I do not think she can now say the check is not in force.”

We discover no reversible error, and the judgment is affirmed

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice. McAlvay took no part in the decision of this case.


text:
    PIKE v. HALPIN.
    1. Constitutional Law — Execution Sale — Sheeief’s Deed — Statute of Limitations.
    Act No. 63, Pub. Acts 1901, providing that if the time of redemption from a sheriff’s sale had elapsed before the taking effect of the act, a deed might be given within five years from the time the act shall take effect, and that when such deed is not taken and recorded within the time limited, the certificate of purchase shall become null and void, is not unconstitutional as depriving an execution purchaser of his property without due process of law, as his rights previous to deed are inchoate and confer no beneficial use of the,premises; defendant’s deed, not having been executed by the sheriff until after the expiration of the five years limited by the statute, is null and void.
    2. Same — Recobding Deed.
    As to the effect of failure of the execution purchaser to record the deed within five years which had been taken out within that period, — quwre.
    Appeal from Lapeer; Smith, J.
    Submitted June 28, 1915.
    (Docket No. 38.)
    Decided September 29, 1915.
    Bill by Alice L. Pike against Theodore D. Halpin, administrator of the estate of Oliver H. Wattles, deceased, and another, to have a sheriff’s deed to defendant decreed to be null and void. From a decree for defendants, complainant appeals.
    Reversed and decree entered in this court.

      Herbert W. Smith, for complainant.

      Geer, Williams & Halpin, for defendants.
   Brooke, C. J.

The complainant in this case is ,the widow of Harmon D. Pike, who died May 27, 1897. On the 23d day of March, 1889, Harmon D. Pike, then being seised of the premises.in question, executed, a deed of the same to his two children, Lucy Pike and Charles L. Pike, reserving therein a life estate to the complainant. On May 29, 1896, Charles L. Pike executed a deed of his interest in said premises to his mother, the complainant. This deed was recorded on August 24, 1896. On May 19, 1896, the sheriff of Lapeer county caused a levy to be made upon the interest of Charles L. Pike in the premises on an execution issued out of the circuit court for the county of Lapeer, in an action wherein Oliver H. Wattles was plaintiff and Charles L. Pike was defendant. The levy-was recorded in the office of the register of deeds on the 19th day of May, 1896. On April 20, 1900, said premises were sold on an execution sale to Oliver H. Wattles, and a certificate of sale duly filed and recorded in the office of the register of deeds of Lapeer county on April 23, 1900. Oliver H. Wattles died intestate March 23, 1911. Defendant Theodore D. Halpin was duly' appointed administrator of said estate May 3, 1911. On June 24, 1911, John W. Scully, then sheriff of Lapeer county, executed a sheriff’s deed of the premises mentioned in the bill of complaint to defendant Halpin, administrator of the estate of Oliver H. Wattles, deceased. Said deed was executed by virtue of the certificate of sale given to Oliver H. Wattles on the execution sale held on the 20th day of April, 1900. The bill of complaint sets forth the foregoing facts, and prays that the certificate of sale be vacated, set aside, and decreed to be null and void, and that the deed to defendant Halpin, as administrator, recorded on the 24th day of June, 1911, be likewise vacated, set aside, and decreed to be null and void as against complainant. Complainant bases her right to relief on Act No. 63 of the Public Acts of 1901, section 1 of which provides:

“When the premises mentioned in any sheriff’s certificate of sale of real estate under execution shall not be redeemed in pursuance of law, the legal holder of such certificate shall be entitled to a deed therefor at any time within ten years from the expiration of the time of redemption. If the time of redemption shall have elapsed before the taking effect of this act, a deed may be given within five years from the time this act shall take effect. When such déed is not taken and recorded within the time limited by this act, the certificate of purchase shall become and be null and void.”

From a decree dismissing the bill, complainant appeals.

The sole question argued touches the constitutionality of the section above quoted. It is conceded that more than five years elapsed after the act in question went into effect before the deed to defendant Halpin was executed. It is the contention on behalf of defendant that this provision is unconstitutional and void, for the reason that it operates to deprive the execution purchaser of his property without due process of law. Counsel for defendant cite the following authorities: Whipple v. Farrar, 3 Mich. 436 (64 Am. Dec. 99) ; Willis v. Jelineck, 27 Minn. 18 (6 N. W. 373); Campbell v. Holt, 115 U. S. 620 (6 Sup. Ct. 209), and Gunn v. Barry, 15 Wall. 610. These cases, it is asserted, sustain defendant’s contention that after the time for redemption had expired^the execution purchaser had such a vested interest in the property that he could not thereafter be deprived of it by mere legislative enactment.

Complainant insists that the statute is properly maintainable as a statute of limitations, and that it deprives the purchaser at an execution sale of no right except that of indefinite delay in completing his title. It is further asserted that the time limited after the act took effect during which the execution purchaser might demand and record his deed is a reasonable one. Reference is made to the case of Whipple v. Farrar, supra, where it is said:

“The proceeding by which the judgment debtor is to be divested of his property is a statutory one, and until that proceeding lias been completed, so as to vest the title, and with it the right to the possession in another, he may lawfully remain in the use and occupation of the premises without being accountable. Upon the expiration of the time limited for redeeming, if the premises are not redeemed, the purchaser, or person holding his title, has a right to have the sale completed by the execution of a deed of conveyance which will give him the right of possession; but until such deed is executed, or he become in some other way vested with the legal title, he has no right to demand, and cannot recover the possession, and not having been entitled to the possession, he has no claim on account of the use and'occupation.”

The rights of purchasers at execution sales were later considered in the case of Whiting v. Butler, 29 Mich. 122. Three opinions were written in the case. While disagreeing in some matters, they seem to agree that the rights secured by an execution purchaser at the sale are inchoate before deed, and that it is necessary for the purchaser to procure his deed in order to complete his title; that the mere purchase and certificate of sale alone either before or after the expiration of the redemption period do not confer any right to possession or beneficial use of the premises. The same principle is recognized in the case of Cook v. Knowles, 38 Mich. 316, 322, where it is said:

“But one thing is quite clear, and it is that the plaintiff acquired no complete legal title or any right of possession until October, 1856, when the redemption was over and he obtained his deed, and this was less than 20 years before suit. No one could raise a right against him to the premises by an adverse holding whilst he was not invested with the legal title and could not enter at all for his own protection.”

The claim advanced by defendants that the statute operates as a confiscation of defendant’s property rather than as a reasonable limitation is, we think, untenable. When the redemption period had expired, Wattles had an interest in the premises in question. The interest, though assignable and capable of being inherited, was inchoate in character, until by his own act in taking a sheriff’s deed it ripened into a complete estate. Until he took that action the right to possession and the beneficial use of the premises belonged to the execution debtor or his grantee. The fact that the estate sold to Wattles was a remainder, subject to an intervening life estate, is of no importance. Had he chosen within five years after the expiration of the redemption period to take out his deed, he would thereupon have become vested with the right of possession, the enjoyment of which would be postponed during the continuance of the life estate.

Counsel for defendant concede the validity of the statute so far as it affects sales made after the act took effect. In our opinion, the argument which would invalidate the latter part of the section would be equally cogent as against the earlier part. It is urged that under the latter part of the section the failure of the execution purchaser to record the deed, within five years which had been taken out within that period would operate to defeat the title of the execution purchaser and his deed. In this case it is unnecessary to determine the effect of the statute requirement as to recording the deed. No such question is here presented; the deed itself not having been executed by the sheriff until long after the expiration of the five years limited by the statute. See, generally, McKesson v. Davenport, 83 Mich. 211 (47 N. W. 100).

The decree of the court below is reversed, and one will be entered in this court in accordance with the prayer in the bill of complaint.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Kuhn, J.

text:
    WEIR v. UNION TRUST CO.
    1. Trusts — Contracts—Fraudulent Acts.
    Evidence claimed by complainant to prove fraudulent conduct between decedent and defendant trust company to enable the latter to evade trust obligations and take in its name property of complainant in its hands in trust under an oral arrangement, held, to be insufficient to support the averments of fraudulent conduct as to either defendant or the deceased.
    2. Same — Evidence.
    Fraud is not to be lightly presumed, but there must be substantial evidence to establish it.
    3. Same — Foreclosure.

      Held, also, that the price obtained for the property mortgaged was not so excessively low as to indicate fraud or collusion, and that the holder and purchaser bought in good faith for an adequate consideration.

      4. Same — Constructive Trusts.
    Where decedent appeared from the testimony to have interested himself in the affairs of complainant from disinterested motives and at her instance and desire, to help her save a valuable equity in heavily incumbered property, and had no expectation of compensation or reward for his services, and the relation between complainant and decedent was friendly in his lifetime and he would not have claimed or withheld any part of the amount finally realized by the sale of the property, the trial court was justified in finding that the excess of proceeds above costs, expenses, etc., realized by a sale of the incumbered realty by the trust company which had bid it in, should be impressed with a constructive trust in her favor under an agreement between decedent and defendant trust company that it should make advances needed to bid in the property in its name, and to hold the property for decedent.

      5. Same — Equity.
    Fraud is not necessary to give rise to a constructive trust, but if circumstances are such as to render it inequitable for tbe holder of the legal title to retain the same, the court may charge it with a trust in favor of the equitable owner. Implied trusts arise by operation of law as contradistinguished from those that arise from agreements of the parties, and are raised by law for the purpose of carrying out the presumed intent of the parties, or without regard to such intention for the purpose of asserting equitable rights or frustrating fraud. This form of trust is practically unlimited in extent and is employed whenever, in the opinion of the court, it becomes necessary to prevent a failure of justice.
    6. Same — Interest.
    It is further held that the trustee under such implied trust should be charged with such interest on the sums in its hands as they may have earned during the time it held said money or proceeds.
    Appeal from Wayne; Van Zile, J.
    Submitted June 16, 1915.
    (Docket No. 53.)
    Decided October 12, 1915.
    Bill by Catheririe B. Weir against the Union Trust Company and others for the enforcement of a trust. From a decree for complainant, both parties appeal.
    Modified and affirmed.

      Fritz L. Radford (Geer, Williams, Martin & Butler and Thomas A. E. Weadock, of counsel), for complainant.

      Angell, Bodman & Turner, for appellant Union Trust Co.

      Campbell, Bulkley & Ledyard (Henry Ledyard, of counsel), for appellees Union Trust Co. and Fred M. Alger.

      Miller, Smith, Canfield, Paddock & Perry, for defendant Country Club and subsequent purchasers.
   Kuhn, J.

The complainant inherited the property here involved, known as the “Weir farm,” situate in Grosse Pointe, Wayne county, in this State, and also certain property designated in the record from time to time as the “city property,” situated in the city of Detroit, from her parents. The Weir farm is. now owned by the Country Club of the City of Detroit, and used by that club for golf links, excepting certain lots which have been sold by the club to purchasers, who are made defendants herein. The farm property was managed by the husband of the complainant during his lifetime, but he died December 3, 1886. It is alleged by complainant that after the death of her husband the property became unproductive, and, as she was in need of means for her support and to pay certain debts which she had incurred, she borrowed money from time to time and gave mortgages on the property. Her custom when she needed money was to give a new mortgage and pay the mortgage then on the property with the proceeds of the new obligation. In 1900 she borrowed $18,000 from one William Cottrell, of Mt. Clemens, Mich., and gave a mortgage for that amount on her city property, and in 1901 she borrowed from him $47,862, and gave him a mortgage covering both her farm and the city property. In the same year she gave Ernest C. Miller, who had been her business agent, a mortgage for $2,200 on her farm, and a chattel mortgage for a like amount. This mortgage was assigned October 9, 1901, to William G. Smith, who was a confidential employee of Joseph H. Berry in his lifetime. In the same year Mr. Cottrell began foreclosure of the $18,000 mortgage on the city property.

Her financial matters having become involved and embarrassing to her, early in 1902, needing advice and financial assistance, Mrs. Weir applied for assistance to the late Dexter M. Ferry, and Mr. Ferry referred her to the Union Trust Company, which company examined and put a value upon her property, and learned the amount of her indebtedness. It is Mrs. Weir’s claim that she made an oral arrangement with the trust company by which the company was to take charge of her property in trust for her; that she was referred by the trust company to Mr. Joseph H. Berry, who was a man prominent in the business affairs of Detroit and resided at Grosse Pointe, and consulted with him. Mr. Berry was doing business with the trust company at the time. The trust company denies that it ever accepted the property in trust. It appears, however, that Mr. Berry and the Union Trust Company took charge of her affairs, and on August 19, 1902, the trust company purchased the city property at the foreclosure sale under the first Cottrell mortgage, and advanced the purchase price, and took the circuit court commissioner’s deed in its own name, which advancement was guaranteed by Mr. Berry to the trust company. On September 14, 1902, an agreement was entered into between Mr. Berry and the trust company, which was dated and signed as of August 8th. It was in terms as follows:

“An agreement, entered into on the 8th day of August, A. D. 1902, between Joseph H. Berry, of Detroit, Michigan, and the Union Trust Company, a corporation, of the same place, witnesseth:
“Whereas, said party of the first part has secured and desires to secure from said party of the second part, certain advances of money to be used in the paying of debts of and claims against Catherine B. Weir, of Detroit, Michigan, and in acquiring title to certain real estate owned by said Catherine B. Weir, upon the sale of said real estate, under foreclosure proceedings or execution sales:
“Now, therefore, said party of the first part, in consideration of said advances, which he has and which he may receive from said party of the second part, does hereby agree to repay and reimburse the said party of the second part for all of its advances to him which have already been made or which may hereafter be made, for the purposes above stated, in two (2) years from the date hereof, with interest on all sums so advanced at the rate of five per cent. (5%) per annum, payable semi-annually; and said party of the second part does hereby agree upon the written request of said party of the first part so to do, to make advances of money to said party of the first part, as above provided, and also to bid in, in its name or otherwise, upon the written request of said party of the first part, the real estate of said Catherine B. Weir, under foreclosure proceedings or execution sales, and to hold for said party of the first part any property purchased in its name, and to attend to the application of its advances to the payment of the debts of and claims against said Catherine B. Weir, under the advice and direction of Russel & Campbell, its counsel.
“It is expressly understood and agreed by the parties hereto that said party of the second part shall receive two hundred and fifty dollars ($250.00) per annum as its compensation for performing its duties hereunder. The fees of said counsel of said party of the second part, together with its costs and disbursements, shall be paid by the said party of the first part, and shall be regarded by the parties hereto as advances made to said party of the first part by said party of the second part, under this agreement.
“In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.
“Joseph H. Berry [L. S.]
“Union Trust Company [L. S.]
“By Ellwood Hance, Secretary.”

We find that Mrs. Weir was appreciative of what Mr. Berry was doing for her, as in August, 1902, she wrote him a letter in which she thanked him for taking care of her city mortgage and urged him to get the rate of interest reduced, which was accomplished by Mr. Berry in due time by arranging to have the trust company carry the mortgage on the city property and reduce the rate of interest from 7 to 5 per cent. From time to time the trust company paid out money either direct to Mrs. Weir or to her creditors, and for taxes of various kinds upon her real estate, which advancements were always approved by Mr. Berry. These advancements would be made by Mrs. Weir’s requesting Mr. Berry to authorize the payment by the trust company of the account or accounts in question.

In March, 1903, the Cottrell mortgage of $47,862 fell due, and interest was in arrears. Mrs. Weir being without funds, and in order to avoid a foreclosure, it was arranged with Mr. Cottrell that the mortgage be extended until March 14, 1908, the interest reduced from 7 to 5 per cent, upon payment, to Cottrell of the sum of $6,700. This amount was paid by the trust company and charged to the account of Mr. Berry, who then insisted on further security for himself. A mortgage was prepared by Mr. Boynton, his attorney, which, after being examined by Mr. Corbett, attorney for Mrs. Weir, was signed by her March 17, 1903. At this time she knew of the agreement of August 8, 1902, between Mr. Berry and the trust company. About January 23, 1903, Mrs. Weir was sent a statement of all the advances made by Joseph Berry through the trust company, and from that time until the death of Mr. Berry, in 1907, quarterly statements.were sent to both Mrs. Weir and Mr. Berry showing in detail the advancements made throughout the quarter, and were under the caption “Union Trust Company, Account of Joseph H. Berry — Re Catherine B. Weir.” In August, 1904, the Berry-Trust Company agreement expired, and as Mrs. Weir had not sold her property, it was renewed for two years. In August, 1906, the same situation prevailed, and the agreement was again renewed until March, 1908, when the Cottrell mortgage as extended fell due. Mrs. Weir was sent copies of these s extensions. In August, 1906, the advances through the trust company had risen to over $40,000, and directly by Mr. Berry to $4,158, and Mr. Boynton suggested that a further mortgage be given by Mrs. Weir to Mr. Berry for his security. Such a mortgage was prepared by Mr. Boynton and executed by Mrs. Weir in the offices of the trust company on September 22d in the presence of Mr. George F. Monaghan, representing Mrs. Weir as her attorney.

Matters continued as before until the death of Mr. Berry, in May, 1907, and the trust company, claiming that it was not warranted in making further advances, stopped doing so. The officers of the trust company, as administrators of the estate of Mr. Berry, urged Mrs. Weir to sell her property, but this she did not do, and in March, 1908, the executor of the estate of Mr. Cottrell began foreclosure of the $47,862 mortgage, claiming it to be a first lien on both the city and farm property, and in April, 1908, the Union Trust Company, as administrator of the estate of Joseph H. Berry, began foreclosure of the mortgages of 1903 and 1906 given by Mrs. Weir to Mr. Berry on the farm. At the same time, the trust company filed another bill to foreclose its equitable mortgage on the city property represented by the deed from the circuit court commissioner given to it after the foreclosure of the first Cottrell mortgage of 1900, but did not go to a decree, and was later discontinued. Mrs. Weir was served with process in each case, and appeared by her solicitor. The Berry estate and Cottrell foreclosures proceeded to decree, and the court found that there was due the executor of the Cottrell estate the sum of $53,-376.31, and that there was due the administrator of the Berry estate the sum of $56,312.08, and that the farm should be sold subject to the superior lien of the Cottrell mortgage.

Pursuant to the decree, the property was sold on September 10,1909. It was first sold under the decree in the suit brought by Berry’s administrator, and was bid in subject to the Cottrell mortgage for $55,000. The property was then sold under the decree taken in foreclosure by Cottrell’s executor, and was bid in by the Union Trust Company in its individual capacity, upon advice of counsel for the estate of Berry, for the amount due at the time, $54,140.11, and the amount was charged to the estate of Berry and allowed in its account to the probate court. The time of redemption under these sales expired March 10,1910, and, although Mrs. Weir was urged by the officers of the Berry administrator to redeem and save any equity there might be, she allowed the time to elapse without doing so. The Berry administrator then endeavored to find a purchaser for the property.

An option was given to Mr. F. T. Moran to buy the Weir farm at a minimum of $150 per front foot for 30 days, which was extended 30 days and allowed to. lapse. In October, 1910, Mr. Frederick M. Alger, then president of the Country Club, sought to buy the property. By permission of the probate court, the administrator of the Berry estate entered into a contract to sell the land to him for $165,000, or about $128 per front foot. The sale was carried through, and Mr. Alger took a quitclaim deed from the trust company, which held the bare legal title under the purchase at the Cottrell foreclosure sale, and a conveyance with limited covenants of warranty from the administrator of the estate of Berry. Mr. Alger at once conveyed to the Country Club for a nominal consideration, and at his own expense furnished title insurance rather than give a warranty deed when he himself had not received such a deed. Mrs. Weir, in the spring of 1911, went to the trust company and told its officers that she did not think the deed to Mr. Alger was worth the paper it was written on, and on September 10, 1912, she gave written notice to the trust company, and also to the Country Club, that the conveyance to Mr. Alger was a fraud and a violation of her rights. On May 24, 1913, the bill- of complaint in this case was filed. The bill makes general and specific charges of fraud, and prays to have impressed upon the title to this farm, acquired by the Union Trust Company, a constructive trust for her benefit, and to have this trust follow the title to this property into the hands of the Country Club and the other defendants, who now hold it; for an accounting by the Union Trust Company, both individually and as administrator, for the purpose of determining the amount of her indebtedness to them and advances of money made by them for her benefit; and for the restoration of her title to the Weir farm upon redemption thereof by her paying such indebtedness ; and also for alternative relief.

The learned circuit judge who heard the case below dismissed the bill as to all the defendants but the administrator of the Berry estate, and held that the funds in its hands paid by the Country Club, to wit, $165,000, were impressed with a constructive trust, and that the Union Trust Company, who had notice of the situation and the facts, was- bound as the administrator of Berry’s estate to carry out that trust. Both complainant and the trust company as administrator have appealed.

It is the theory of the complainant’s bill that the Union Trust Company entered into an agreement with Mrs. Weir in the summer of 1902, whereby it took all her property in trust to manage it, preserve, and sell it for her, and that the Berry-Trust Company agreement of August 8, 1902, was not made in good faith, but was merely a sham under which the trust company could evade its fiduciary duties to her.

After a very careful review of this record, we are unable to find that this contention of complainant is sustained by the proofs. The circuit judge found— and we are in entire accord with his finding — that from the time Mrs. Weir first came to the trust company and was referred to Mr. Joseph. Berry, and from the time Mr. Berry took the superintendency of her business through the trust company, the business was conducted with zealous care upon the part of both the trust company and Mr. Berry. Space forbids reviewing the testimony with .reference to the communications between Mrs. Weir and the trust company which show that she must have known the true relation between the company and Mr. Berry, and which show beyond controversy that the trust company had no trust relation whatever with complainant, but that it was Mr. Berry to whom she looked for advice and assistance. Beginning January 24,1903, and every three months thereafter through the entire period involved in this suit, the trust company sent Mrs. Weir and Mr. Berry duplicate statements showing in detail receipts and disbursements for the period covered, and carrying forward the balance from the preceding quarters, all of which statements were under the caption set forth above in the statement of facts. Indeed, it is quite significant in this connection that, instead of relying upon the trust company whenever an important step was taken with relation to her affairs, she secured her own separate and independent counsel, and was guided by them.

It is elementary that fraud is not lightly to be presumed, but there must be substantial evidence to prove it. Recent reiteration of this principle is found in the following cases, where previous decisions of this court are cited: Donnelly v. Lyons, 173 Mich. 515 (139 N. W. 246) ; Island, Mill Lumber Co. v. City of Alpena, 176 Mich. 575 (142 N. W. 770); Appenzeller v. Appenzeller, 177 Mich. 303 (143 N. W. 70). Complainant has completely failed to show any fraud or unfair dealing on the part of the trust company.

There also cannot be any question on this record of the good faith and fair dealing of Mr. Frederick M. Alger, who purchased the property from the administrator, and also that the Country Club purchased the farm without notice, either constructive or actual, of any outstanding equities thereon in favor of Mrs. Weir.

We are also satisfied that the consideration paid for the property, approved by the probate court, was a fair price for the property at the time the sale was made. It is true that property along the lake shore, because of its limited extent, has had a great rise in value; but we are satisfied that the property was not sold for such an inadequate consideration that the purchaser should not be deemed a bond fide purchaser.. Mr. Alger, who made no profit out of the deal whatsoever, had the title examined by competent title examiners, and in good faith relied upon the opinion of reputable counsel as to the title of the property purchased by him and turned over by him to the club of which he was the president.

The general charges of fraud with relation to the conduct of Mr. Berry also find no support in the record, and in our opinion are without foundation in fact. It conclusively appears that Mr. Berry was a man of charitable impulses, and we are convinced that he was persuaded by Mrs. Weir to undertake to help her from the goodness of his heart, realizing that, if no help was extended to her at the time she came to him, she would undoubtedly lose all her equity in the property inherited by her and be left-without support of any kind. The conclusion is also irresistible that he did not enter into his dealings with her with any thought of receiving compensation for his service, and it is indeed unfortunate, in view of this kindly and charitable disposition on his part, that his acts should, by the bill of complaint filed in this cause, be clouded with even the suggestion of fraud.

Counsel for the trust company, as administrator, earnestly contend that the relation between Mr. Berry and Mrs. Weir was simply that of lender and borrower, of mortgagor and mortgagee, and not that of trustee and beneficiary. The trial judge was convinced, and found,' that if Joseph H. Berry had lived to close this matter he himself would never have taken one cent of the money received froin the, Country Club over and above the actual amount paid out in transacting the business, and this record cannot be read, in our opinion, without coming to the same conclusion. But, whether this is true or not, a decision of this case need not be rested upon that ground.

Constructive trusts arise by operation of law. The following is found in 39 Cyc. p. 169:

“Constructive trusts do not arise by agreement or from intention, but by operation of law; and fraud, active or constructive, is their essential element. Actual fraud is not necessary, but such a trust will arise whenever the circumstances under which property was acquired make it inequitable that it should be retained by him who holds the legal title. Constructive trusts have been said to arise through the application of the doctrine of equitable estoppel, or under the broád doctrine that equity regards and treats as done what in good conscience ought to be done. Such trusts are also known as trusts ex maleficio or ex delicto, or involuntary trusts, and their forms and varieties are practically without limit, being raised by courts of equity whenever'it becomes necessary to prevent a failure of justice.”

Also, the following, in 15 Am. & Eng. Enc. Law (2d Ed.), p. 1123:

“Implied trusts, properly speaking, are such only as arise by operation of law as contradistinguished from such as arise by properly executed agreements of the parties. They are raised by law for the purpose of carrying out the presumed intention of the parties, or, without regard to such intention, for the purpose of asserting equitable rights of parties or frustrating fraud, and include the two classes of trusts known generally as resulting and constructive trusts.”

As the author in the first quotation says, this form of trusts is practically without limit, and is raised by a court of equity Whenever, in the opinion of the court, it becomes necessary to prevent a failure of justice.'

We áre of the opinion, that’this record clearly establishes a fiduciary relation between Mrs. Weir and Mr. Béfry. There can be no question that she'gave him the fullest confidence as to her financial situation, and trusted in him to save her property for her, and'gave him security for his advances by way of mortgages on her property. That he intended to help her, actuated by his charitable impulses, there is no doubt. He knew that she was absolutely dependent upon him to protect her from her creditors, and even for her living expenses. The fiduciary purpose which he undertook was to save to Mrs. Weir her property from loss at forced sales, and enable it to be disposed of to advantage at the best time at private sales, so that she might ultimately have the excess in value over her debts, and in the meantime provide support for her and her family. This purpose was carried out by Mr. Berry through the trust company, his agent, during his lifetime, and should now also be carried out by his administrator.

No criticism can be made of the conduct of the administrator in taking the position it has in seeking to protect the estate of Mr. Berry. But we are satisfied that, considering the manner in which the business relationship between Mr. Berry and Mrs. Weir was established, and the method of doing the business, the instant case presents just such a situation where the conscience of the court will impress on the proceeds of the sale of the property a constructive trust, and thus carry out what to the court seems necessary to prevent a failure of justice.

We are therefore in accord with the conclusion of the circuit judge that:

“There should be deducted from the amount received from Mr. Alger or the Country Club (the $165,-000) all amounts paid by Berry or the Union Trust Company as administrator or otherwise for Berry, or for the preservation of the property by way of taxes, costs, Interests, or expenses, up to the time that the business was closed and the money came into the hands of the Union Trust Company.” And that, “after the amount chargeable against the fund of $165,000 is determined and deducted, the complainant should have a decree for the amount remaining.”

We are of the opinion, however, that, in the accounting provided for in the decree of the court below, the Union Trust Company, as administrator, should be charged with such interest as it shall appear said amount due complainant has earned while in its possession, from the date of the receipt of the money from Mr. Alger or the Country Club to the date of the decree in this court. With this modification, the decree of the circuit judge will be affirmed. Neither appellant nor cross-appellant will recover costs, but costs are allowed to the other defendants against the complainant.

Brooke, C. J., and Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.

The late Justice McAlvay took no part in this decision.