text:
    STUART v. MATTERN.
    1. Statute of Frauds — Contract to Convey Land — Authority of Agent — Undisclosed Principal.
    A written contract to convey land, naming the purchaser, made by an agent duly authorized in writing, and signed by him in behalf of his principal, is valid under the statute of frauds (§ 9511, 3 Comp. Laws) though the name of the purchaser was not disclosed to the vendor before the contract was made.
    2. Principal and Agent — Ratification—Sale of Land.
    Circumstances attending the making of a contract for the sale of land by a real estate agent, on request of one of two tenants in common, examined, and held, that by writing a letter disclosing knowledge and approval of the contract, and using funds arising from a part payment thereon, the other tenant ratified the sale.
    3. Estoppel — Tenant in Common — Contract to Convey Land-Part Performance.
    Payment of $1,000 on a purchase price of $2,500, taking possession, and expending $2,000 in improvements, constitute such a part performance of a contract to convey land, made by a tenant in common, as makes it inequitable to permit the other tenant, who had full knowledge of the facts, to repudiate the contract.

      Appeal from Chippewa; Steere, J.
    Submitted June 22, 1905.
    (Docket No. 47.)
    Decided November 21, 1905.
    Bill by Samuel Stuart and George N. Stuart against Louise S. Mattern, individually, and as administratrix of the estate of George E. Swain, deceased, Bertha A. Swain, and Florence A. Swain to enforce the specific-performance •of a land contract. From a decree for complainants, but dismissing the bill as to Louise S. Mattern individually, all parties appeal.
    Modified, and decree entered for complainants as prayed.

      John W. Shine, for complainants.

      Sharpe & Handy, for defendants.
   Montgomery, J.

This suit is brought by complainants to enforce specific performance of a land contract against the defendant Louise S. Mattern, individually, and also as administratrix of the estate of George E. Swain, deceased, and his widow and heir. Decree was granted in the trial court in favor of complainants and against Louise S. Mattern, as administratrix of said estate, and against the other defendants; but as to Louise S. Mattern individually the bill was dismissed, and from the decree dismissing the bill of complaint as to her individually complainants appeal. Defendants also appeal from the decree against her as administratrix of said estate.

Louise S. Mattern and George E. Swain were brother and sister, and resided in New York City. They owned, as tenants in common, the land in question in this suit, being two vacant adjoining lots on Spruce street, in Sault Ste. Marie, Mich. John G. Stradley, of Sault Ste. Marie, Mich., was agent for George E. Swain and Louise S. Matte'rn, in looking after these lots, paying taxes, etc., since 1895, and at one time procured a loan on the property from Mrs. Price for defendants. George E. Swain looked after the property for Mrs. Mattern, and handled her interest for her. In the latter part of the year 1902, Swain wrote Stradley, requesting him to try and make a sale of the lots. Stradley got an offer from Mr. Joseph Ganley of $2,200 for the lots, and wired Swain to that effect. He got no reply, and wrote Swain January 17, 1903. That deal fell through. Stradley finally succeeded in getting complainants to buy the lots at $2,500, and on April 29th Stradley wrote Swain that he had a party who expected his brother here, and thought he would take the lots at $2,500; $1,000 cash, and balance in one year. On May 1st Swain wrote Stradley to make the sale. Upon receipt of the letter from Swain, and on May 7th, Stradley prepared and signed a contract of sale of the lots on behalf of Mr. Swain and Mrs. Mattern to complainants, and complainants paid $1,000 down pending the approval of the contract by Swain, owing to the fact that the terms were changed somewhat. On the same day Stradley wrote Swain, giving him all the details of the terms of sale, and asked him to telegraph acceptance. Swain, on receiving Stradley’s letter, went to his sister, Mrs. Mat-tern, with the letter, and talked over the terms of sale, and Mrs. Mattern read the Stradley letter; and next morning, May 11th, Swain wired Stradley that sale was approved, and complainants then paid Stradley $400, the balance of the first payment, according to contract. Shortly after, complainants desired to pay all of the purchase price and get their deed, and Stradley communicated this fact to Swain. Upon completing the first payment, complainants went into possession, and commenced the erection of a block of stores on the premises. There were taxes due on the property and interest, and the principal on the Price mortgage, to which Stradley was to apply the money received. On May 14th Swain wired Stradley to send him some money (he was facing a crisis), ■ and that his sister agreed. On May 19th Stradley forwarded draft for $200, stating that he would use the payment falling due June 16th to pay taxes, etc., and that the $1,500 mortgage to Swain and his sister could be negotiated; that he would try and get the money before; that he would send on the deed for himself and sister to sign. Swain died suddenly May 22d without seeing Stradley’s letter. The letter was opened and read by Mrs. Swain, and handed to Mrs. Mattern. On the 10th she had discussed with Mr. Swain Stradley’s letter giving the terms of the sale, and asking for acceptance by wire. Stradley’s letter of the 19th referred to the sale that he made to complainants, and inclosed draft for $200. Mrs. Mattern suggested a reply to this letter, and on the 25th a letter was written to Stradley, signed by Mrs. Swain and by Mrs. Mattern, containing the following:

“Your letter of May 19th, inclosing draft for $200, was received May 21st, too late for Mr. Swain’s signature, as he died at 1:30 a. m. May 22d, after being unconscious for several hours. As Mr. Swain died without making a will, I ask you to advise Mrs. Mattern and myself regarding the sale of the property, as we wish it sold as soon as possible, as money is very necessary to us now. We do not feel able to maintain the property, and are most anxious to make this sale. Will you kindly inform us how matters stand regarding interest and taxes. Kindly advise us as soon as possible.”

On May 28th Stradley, replying, wrote direct to Mrs. Mattern, giving full details of the sale, and advised as how to proceed owing to the death of Mr. Swain, Mrs. Mattern handed this letter to an attorney for reply, and on the 19th of June he wrote Stradley, suggesting that the simplest way to convey the property to the purchasers would be by taking an assignment of the Price mortgage to some one there, and foreclosing it; to which Stradley replied, saying that to foreclose the mortgage would not be practicable, and stating that complainants were building on the property. Mrs. Mattern’s attorney then wrote Stradley, returning the draft, and asking that it be made to Mrs. Mattern, as she was half owner, and so she could get it cashed. Stradley had the draft indorsed to Mrs. Mattern and returned. Mrs. Mattern indorsed the draft and had it cashed. Some further correspondence was had between Stradley and Mrs. Mattern’s attorney as to the best way to proceed to make a conveyance of the property to the purchasers, and finally Mrs. Mattern came on to Sault Ste. Marie. When she arrived there, about August 11, 1903, she talked the matter of the sale over with Stradley, and was anxious to get the sale closed up, give the deeds, and get all the money. She went to the premises to see complainants, and wanted to have the matter closed up, so she could get all the money. At that time complainants had expended about $2,000 on the building they were erecting on the lots. Mrs. Mattern remained there, and was appointed administratrix of the estate of George E. Swain. She went with Arthur E. Stuart, a brother of complainant Samuel Stuart, and father of George N. Stuart, to an attorney’s office, to see what would be the quickest and best way to have the matter closed up and give deeds. At the attorney’s office the contract was read over to them, and they were advised that proceedings would have to be had, either in the probate court or in the court of chancery, for specific performance of the contract in such cases; and the attorney recommended the court of chancery, and that, while all of the money was not due under the contract, if all the parties were agreeable, it could be determined, and all of the money paid; that she could be joined as a defendant, and the whole matter closed- up at the same time; that it would be an amicable suit to perfect title. She agreed to it. Suit was started, and the bill of complaint was drawn on the line of an amicable suit, and payment in full tendered with the bill of complaint. Later on, and in November, for the first time, Mrs. Mattern concluded to repudiate the contract. From the time Mrs. Mattern first talked with complainants at the premises until November, when she objected to the contract, the complainants had laid out on the building about $5,000. During that time she had been to the premises several times, and talked with complainants, but never intimating that she did not regard the contract binding, or make any protest against it. On November 30, 1903, Mrs. Mattern filed her answer to the bill of complaint, denying the validity of the contract. Thereupon the bill of complaint was amended, setting up the letters, draft, etc., signed by Mrs. Mattern, and her actions regarding the contract during the erection of the building.

The case presents two questions: 1. Is the estate of George E. Swain bound by the contract ? 2. Should defendant Louise S. Mattern be required to convey her interest ?

It seems not to be questioned that the contract signed by Stradley in the name of Swain and Mrs. Mattern was sufficient in its terms to make a valid contract to convey the land; but, as respects its validity as against Swain and his estate, the contention seems to be that, as the name of the purchaser was not disclosed to Swain and Mrs. Mat-tern, the contract is insufficient under the statute of frauds. The case of Grafton v. Cummings, 99 U. S. 100, is cited to support this contention. In that case there was no writing which fixed the identity of the party to the contract not signing. In the present case the purchasers were fully named in the contract signed by Stradley in the name of, and on behalf of, the owners. This was sufficient, under 3 Comp. Laws, § 9511, which recognizes the validity of contracts for the sale of land if signed by some person thereunto lawfully authorized by the owner in writing, unless we accept the view that the authorization must contain the name of the purchaser. We do not so understand the requirement. The authority may, and often does, extend to the making of a contract with any one who may become a customer on terms stated. In this case the authority to sell on terms first contemplated was given in unmistakable terms, and the slight departure from those terms was ratified by Swain promptly by telegram. See White v. Breen, 106 Ala. 159 (32 L. R. A. 127).

The question of ratification of the contract by Mrs. Mattern is not so clear. We are disposed, however, to say that there is a connection shown between the letter of' Stradley of May 7th and that of Mrs. Mattern of May 25th, and that this latter letter was intended to authorize the sale according to the terms fully stated in the former, and fully known to and understood by Mrs. Mattern. We are also convinced that there has been such part performance as would make it inequitable to permit Mrs. Mattern to repudiate her agreement at this late day.

The decree will be modified, and a decree entered for specific performance as against Mrs. Mattern in her individual capacity and also as administratrix, as well as against the other defendants. Complainants will recover costs of both courts.

McAlvay, Blaib, Osteandee, and Hookeb, JJ., concurred. •


source: Caselaw Access Project

author: Gbant, J.

license: Public Domain

text:
    RICE v. IONIA PROBATE JUDGE.
    1. Statutes — Title—Expression of Object.
    The title of Act No. 364, Local Acts 1905, viz., “ An act to provide for the locating and establishing of drains within the county of Ionia,” sufficiently gives notice that the act is an original one so far as the county is concerned, and that any constitutional provision in regard to the construction of drains is admissible under it in the body of the bill, and hence is sufficient, under article 4, § 20, of the Constitution.
    2. Same — Amending Acts.
    Act No. 364, Local Acts 1905, providing for the locating and establishing of drains in Ionia county, section 2 of which prescribes certain preliminary steps as a condition of action “under the general law,” does not attempt to revise, alter, or amend the general drain law, within the meaning of article 4, § 25, of the Constitution, requiring an act revised, or a section altered or amended, to be re-enacted and published at length, but merely supplements the general law with some additional requirements in respect to Ionia county.
    3. Constitutional Law — Obligation of Contracts.
    Act No. 364, Local Acts 1905, relating to the locating and establishing of drains within Ionia county, and which provides that it shall not apply to any case where a contract for the construction of a drain, or any' part thereof, has been made, does not impair the obligation of any contract.
    4. Same — Vested Rights.
    The drain commissioner has no such contractual relations or vested rights under the law that his duties may not at any time be suspended, restricted, or enlarged; nor have parties interested in the construction of drains such rights.
    5. Statutes — Construction—Policy of Law.
    The policy of a law is for the legislature, and not for the courts, to consider, and, so long as the law is capable of enforcement, it must be sustained, no matter how strict the requirements are or what difficulty may be encountered in enforcing them.
    Certiorari to Ionia; Davis, J.
    Submitted October 17, 1905.
    (Calendar No. 21,344.)
    Decided November 21, 1905.
    Mandamus by Charlie C. Rice, drain commissioner, to compel Montgomery Webster, probate judge of Ionia county, to appoint commissioners to determine the necessity of a certain drain. There was an order denying the writ, and relator brings certiorari.
    Affirmed.
    The principal question involved in this case is the validity of Act No. 612, Local Acts 1905, which reads as follows:
    “An act to provide for the locating and establishing of drains within the county of Ionia.
    “ The People of the State of Michigan enact:

    “Section 1. In the county of Ionia no drain shall be located or established or cleaned out, straightened, widened, deepened or extended unless the same shall be. necessary to the public health, and the question of public convenience or welfare shall not be taken into any consideration in any proceedings to establish drains in said Ionia county.
    “ Sec. 3. In the county of Ionia, before any action can be taken by the drain commissioner under the general law, there shall be filed with him an application signed by the owners of over one-half of the value of the lands liable to an assessment for benefits in the construction of the proposed drain as shown by the last assessment roll of said lands: Provided, That in the county of Ionia, before any action can be taken by the drain commissioner to sell any drain or any part thereof, the drain commissioner shall make an actual assessment of all lands benefited by such drain, and after such assessment is completed and before anything further can be done, there shall be filed with the drain commissioner an application signed by the owners of land of over one-half of the value of benefits in the construction of the proposed drain according to the assessment made by the drain commissioner on said proposed drain. If, for any reason, the drain commissioner does not receive . an application signed by the owners of land of over one-half of the value for benefits in the construction of the proposed drain within sixty days, said proposed drain shall stand suspended and nothing further shall be done towards the construction of said proposed drain.
    “Sec. 3. In locating such drain in said Ionia county, the county drain commissioner shall be limited and confined to the precise starting point, route and terminus as set forth in the application for such drain.
    “Sec. 4. The board of supervisors of Ionia county, at any session thereof, may from time to time, by resolution, fix and determine such further conditions other than those herein set forth, to be complied with before all or any contract shall be made or entered into for the construction, improvement or clearing out of any drain as provided by the general drain law, as to such board shall seem necessary and proper to protect all persons and townships that may be affected by the proceedings; and no contract or expenditure shall be made or entered into by the drain commissioner or his deputy without first complying with such conditions. Such board may in like manner fix and determine the number and kind of employés the drain commissioner may employ and fix their compensation, and they may require that said commissioner in each year report to the board, at their October session, a full and detailed statement and account, under oath, of the time actually spent by him during the year, in the discharge of his duty, and for what purpose, the names of all employés, and the time actually spent by each, and for what purpose their labor was performed, and the amount paid or agreed to be paid on each drain and also all other expenditures, and the names of all persons to whom moneys have been paid, and the amount paid each, and the purpose for which said expenditure was made. The board may allow or disallow any item in whole or in part, and'items charged in such report and account and only so much thereof shall be paid as shall be thus allowed, and no more than one-half of the several items in such report and account shall be paid, or order drawn therefor, under the provisions of section six, chapter nine of the general law, until such accounts have been thus allowed by the board of supervisors, as in this section provided. Such board of supervisors of Ionia county may, by a majority vote of all the members elect, remove such drain commissioner or his deputy or both of Ionia county, and appoint another in his or their place or stead: Provided, That the drain proceedings now pending in Ionia county, in which contracts for construction of drains have not already been let, shall stand suspended, and nothing further shall be done regarding the same, until the board of supervisors of Ionia county shall have taken action under the provisions of this section in the first instance: And it is further provided, That in the county of Ionia no work upon a drain shall be accepted, unless so accepted by a board - consisting of the drain commissioner, the supervisors and highway commissioners of the townships through which said drain passes or is constructed, and such work must be accepted by a majority of said board: And it is further provided, That in said county of Ionia no money shall be paid on any section of a drain until said section is fully completed according to contract and accepted by said board.
    “ This act is ordered to take immediate effect.”
    The following objections are made to its validity :
    “1. The object of the act is not sufficiently expressed in its title, and is therefore in violation of section 20, art. 4, of the Constitution.
    “ 2. It revises, alters, modifies, and amends the general drain law, without complying with section 25, art. 4, of the Constitution.

      “3. It contains retrospective provisions impairing the obligation of contracts, in violation of section 43, art. 4, of the Constitution.
    ‘ ‘ 4. The entire act is incomplete, inoperative, and incapable of enforcement.”

      B. A. & W. E. Hawley, for relator.

      A. A. Ellis and Morse & Locke, for respondent.
   Gbant, J.

(after stating the facts). 1. There is nothing in the body of this act that is not germane to the general object expressed in the title. Its title gave notice that it was an original act so far as the county of Ionia was concerned, and that any constitutional provision in regard to the construction of drains was admissible under it in the body of the bill. The purpose of this constitutional provision and its application have been so often discussed by this court that we deem it unimportant to attempt to add thereto. Its purpose is well stated in People v. Mahaney, 13 Mich. 494. See, also, Cooley on Constitutional Limitations (6th Ed.), p. 172; Kurtz v. People, 33 Mich. 279; People v. Worden Grocer Co., 118 Mich. 604; Swartwout v. Railroad Co., 24 Mich. 398. The title also gave notice that the general drain law might be entirely superseded, changed, or amended, or repealed so far as it affected the county of Ionia. Counsel criticise the act severely on account of the alleged difficulties to be encountered in its enforcement. These are matters for the legislature, and not for the courts.

2. Section 25, art 4, of the Constitution, provides that “no law shall be revised, altered or amended by reference to its title only; but the act revised or the section or sections of the act altered or amended shall be re-enacted and published at length.” This act contemplates keeping in force the machinery of the general law, for in section 2 it is provided: “In the county of Ionia, before any action can be taken by the drain commissioner under the general law, there shall be filed with him,” etc. There is no attempt in this to revise, alter, or amend the general law. It modifies or amends certain provisions of the general law only so far as it affects the county of Ionia, and then supplements it with some additional requirements. This case is controlled by People v. Shuler, 186 Mich. 161.

3. It does not impair the obligations of any contract. It carefully provides that it shall not apply to any case where a contract for the construction of a drain or any part thereof has been let. The commissioner has no such contractual relations under the law, or vested rights, that his duty may not at any time be suspended, restricted, or enlarged. Neither have parties interested in the construction of drains such rights. Scribner v. City of Grand Rapids, 119 Mich. 188; Wheeler v. Board of Control of State Public School, 137 Mich. 291; Board of Sup’rs of Saginaw Co. v. Hubinger, 137 Mich. 72. Legislation similar to this is not new in this State. Act No. 91, Pub. Acts 1901; Act No. 237, Pub. Acts 1903; Act No. 21, Pub. Acts 1905.

4. Prom what has already been said it is apparent that the fourth objection is not maintainable. There is no provision which is not capable of enforcement. The policy of the law is for the legislature, and not for the courts. So long as the law is capable of enforcement it must be sustained, no matter how strict the requirements are or what difficulty may be encountered in enforcing them. The number of the petitions and the provisions thereof required in the initiatory proceedings, and the strictness with which they are limited to the precise route set forth in the petition, and the other provisions of the act, are matters which the Constitution has vested in the legislature, and cannot be condemned by the courts because difficult of enforcement.

The order of the circuit court is affirmed.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.


author: Blair, J.

text:
    ALBERT v. GIBSON.
    1. Statutes — Construction—Duty op Courts.
    Courts are bound to endeavor, by every rule of construction, to ascertain the meaning of, and to give full force and effect to, every enactment of the legislature not obnoxious to constitutional prohibitions.
    2. Constitutional Law — Statutes —Construction in Favor op Constitutionality.
    Statutes must be so construed as to render them constitutional, if such construction is reasonably possible.
    8. Drains — Statute—Impossibility of Enforcement.
    The provision of the general drain law, that an application for the establishment of a drain shall be signed by not less than ten freeholders, five or more of whom shall be owners of land “ liable” to an assessment for benefits in the construction of such drain, means that at least five of the signers must be persons who may properly be assessed for benefits, and, as so construed, is not subject to the objection of being impossible of enforcement.

    4. Same.
    Act No. 495, Local Acts 1908, relative to the establishment of drains in Saginaw county, which provides that, before the drain commissioner shall take any action, there shall be filed with him an application, signed by not less than one-third of the freeholders “of the land to be drained thereby and to be assessed therefor,” is inoperative because of impossibility of enforcement, there being no means by which it can be ascertained beforehand what lands are to be drained or liable to assessment.
    5. Constitutional Law — Legislative Powers — Delegation to Supervisors.
    Under section 88 of article 4 of the Constitution, the legislature may, as it did in Act No. 237, Pub. Acts 1903, delegate to the board of supervisors of a county power to fix and determine conditions in contracts for the construction or improvement of drains additional to those prescribed by the statute.

      6. Same — Statutes—Construction—Policy op the Law.
    Whether the effect of legislation authorized by the Constitution is good or bad is not for the courts to determine but for the legislature alone.
    Certiorari to Saginaw; Beach, J.
    Submitted September 21, 1905.
    (Calendar No. 21,158.)
    Decided November 21, 1905.
    Mandamus by Charles Albert and others to compel Orin E. Gibson, county drain commissioner, to act upon a petition for the establishing of a certain drain. From an order granting the writ, respondent brings certiorari.
    Reversed.

      James H. Davitt, for relators.

      Frank A. Bockwith, Prosecuting Attorney (Gr. W. Davis, of counsel), for respondent.

       As to procedure for establishment of drains and sewers, see note to State, ex rel. Utiok, v. Polk County Com’rs (Minn.), 60 L. R. A. 161.

   Blair, J.

Relators filed a petition in the circuit court for the county of Saginaw, asking that an order be granted requiring respondent, the county drain commissioner of Saginaw county, to show cause why a peremptory mandamus should not issue to compel him to take action upon an application presented to him by relators, as freeholders of the townships of Albee and Maple Grove in said county, for the construction of a public drain. Relators’ application was in due form under the general drain law, but respondent refused to entertain it or act upon it, for the reasons:

1. That not one-third of the freeholders of the lands to be drained thereby and to be assessed therefor had signed said application, as required by Act No. 495 of the Local Acts of 1903.
2. Because a majority of the members of the township boards of each of the townships of Albee and Maple Grove had not approved said application in writing, as required by a resolution passed by the board of supervisors of Saginaw county, under the authority of Act No. 91 of the Public Acts of 1901, as amended by Act No. 237 of the Public Acts of 1903.

Respondent filed his answer to the petition of relators, admitting that his refusal to entertain the application for a drain was for the reasons above set forth, and, the question of law raised by the pleadings having been submitted to the court, he granted the writ of mandamus, as prayed for; filing the following opinion as his reasons therefor:

“I am satisfied that the board of supervisors have no power or authority to make laws. That is left entirely with the legislature of the State, and the resolution that was passed by the board, in my opinion, is void and of no effect, because the act of the legislature upon which it rests is unconstitutional.
‘ ‘ Section 1 of article 4 of the Constitution provides that the legislative power is vested in a senate and house of representatives; and the act that attempts to confer upon the supervisors of Saginaw county power to amend the drain laws of this State undertakes to confer upon the board legislative power, which only the legislature itself possesses and can lawfully exercise, and it is therefore void.
“Act No. 495 of the Local Acts of 1903, requiring that one-third of the freeholders of the lands to be drained and to be assessed for benefits shall sign the petition before it can be acted upon by the drain commissioner, makes no provision for ascertaining or determining what lands are to be drained or what are to be assessed; and, as it cannot be carried into effect for lack of adequate provision in this respect, it is void. Courts are not at liberty to supply defects in legislation, and to do so would be to usurp the power of the legislature. The necessary provision to carry such a law into effect must be found in the law itself, and an attempt by the court to devise rules to help out such a statute would be neither more nor less than an attempt to legislate.
“ Under the general drain law, the drain commissioner fixes the assessment district and reviews the assessments in the first instance, and on such review may change the district as originally fixed by him (2 Comp. Laws, §§ 4344, 4340, as amended by Act No. 272, Pub. Acts 1899); and the district as fixed by him may be changed by a board of review. A separate board of review is appointed for each drain, where an appeal is taken from the commissioner’s determination. The drain commissioner cannot lawfully determine what the assessment district shall be until he has reviewed his own determination after notice to the taxpayers interested; and when he has finally determined on such review what the limits of the district are to be, they are open to further review and change by a board to be thereafter appointed. There is no authority to fix the assessment district when the application is made. The authority which may finally determine that is not even then in existence, for a board of review cannot be' appointed at that stage of the proceedings, and, until appointed, does not, of course, exist. Act No. 495 attempts to require of the applicants an impossibility, as there is nothing in the law which gives them any authority or power over the subject-matter, except to sign an application. Still, it requires that they obtain the signatures of one-third of all the freeholders of lands which are to be assessed, without making any provision to enable them to comply with that requirement. To impose upon the petitioners the burden of devising means to determine the limits of the assessment district, or to, at their peril, secure at least enough signatures by some other means, would be to impose upon them a burden not authorized or required by the statute. Even the commissioner has no authority or right to determine the assessment district until after the petition is filed with him, and, until it is fixed, even he cannot know who are the freeholders of lands within it. He is not given, at any stage of the proceedings, power to finally determine these matters; but until after the application reaches him, he has no more authority in the premises than a total stranger to the proceedings. This act is therefore incomplete, inoperative, and void.”

The respondent, alleging that the holding of the circuit judge was erroneous, has removed the record to this court by writ of certiorari for review.

Act No. 495 of the Local Acts of 1903 is entitled: “ An act relative to applications for the locating and establishing of drains within the county of Saginaw.” The act provides, as far as it affects the question now before the court, as follows:

“ Section 1. Before the drain commissioner in the county of Saginaw shall take any action relative to locating or establishing any drain in said county, there shall be filed with him an application signed by not less than one-third of the freeholders of the lands to be drained thereby and to be assessed therefor,” etc.

We think it is apparent, for the reasons given by the learned circuit judge, that it would be impossible to determine what particular number would constitute “one-third of the freeholders of the lands to be drained thereby and to be assessed therefor ” at the time of presenting the application to the drain commissioner, or at any time in advance of the final review of the assessment district; and we agree with the trial court that, such being the case, the law is impossible of execution, and therefore inoperative. x

It is said, however, that if Act No. 495 of the Local Acts of 1903 is tobe held inoperative for the reasons assigned, then, for the same reasons, the general drain law must he held inoperative. We think, however, there is a reasonable distinction between the two enactments. The general drain law provides that the application shall be signed—

“ By not less than ten freeholders of the township or townships in which such drain, or the lands to be drained thereby and to be assessed therefor, may be situated; also, that five or more of said signers shall be owners of land liable to an assessment for benefits in the construction of such drain.” Act No. 272, Pub. Acts 1899, chap. 3, § 1.

It will be observed that under the general drain law the. five signatures required are not of the owners of lands to be assessed, but of the owners of lands liable to an assessment. As said in 1 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 86:

“ It is the bounden duty of courts to endeavor by every rule of construction to ascertain the meaning of, and to give full force and effect to, every enactment of the general assembly not obnoxious to constitutional prohibitions. But if, after exhausting every rule of construction, no sensible meaning can be given to the statute, or if it is so incomplete that it cannot be carried into effect, it must be pronounced inoperative and void.”

It is also well settled that statutes must be so construed ■as to render them constitutional, if such construction is reasonably possible. Applying these rules, we think the general drain law can be properly so construed as to render it constitutional, while Act No. 495 of the Local Acts of 1903 will not admit of any construction which will render it operative. The word ‘ ‘ liable ” does not always have an absolute meaning, implying a fixed and unalterable condition or status. Several varying definitions of the meaning of the word are given in volume 5 of “Words and Phrases Judicially Defined,” sub nomine “ Liable,” from which we quote as follows:

“ Webster distinguishes the shades of meaning between the word ‘liable’ and its synonym ‘subject.’ He says:
‘ “ Liable” denotes something external which may befall ns; “subject ” refers to evils which arise chiefly from internal necessity, and are likely to do so. Hence, the former applies more to what is accidental; the latter to things from which we often or inevitably suffer.’ An event is liable if its occurrence is within the range of possibility, but the law does not hold a master bound to guard against such an event; and, where the only proof that a certain event was liable to occur was that it did •occur, the only thing the evidence tends to show is that it was an event within the range of possibility, and the master was not liable for the injuries. Beasley v. Transfer Co., 148 Mo. 413.”

In speaking of the meaning of the words “liability” and “liable,” the court in Cochran v. U. S., 157 U. S. 286, 296, said:

“We know of no definition of the word ‘liability,’ either given in the dictionaries or as used in the common speech of men, which restricts it to such as are absolute, or excludes the idea of contingency. In fact, it is more frequently used in the latter sense than in the former, as when we speak of the liability of a.n insurer or a common carrier, or the liability to accidents or to errors; and in Webster’s dictionary the word ‘liable’ is said to refer ‘to .a future possible or probable happening, which may not actually occur; as horses are liable to slip; even the sagacious are liable to make mistakes.’ ”

See, also, Cent. Dict.; In re Soltau’s Trusts, L. R. 65 Ch. Div. 631; Black’s Law Dict.; State v. Davis, 12 R. I. 492, 493. Giving the word “liable” in the general drain law the contingent meaning authorized by the authorities cited, so that those liable to an assessment for benefits should mean those who might properly be assessed for benefits, the act would not be subject to the objections raised and now under consideration.

In the case of the local act, however, there is no room for construction. The language is clear, unambiguous, and not subject to different meanings. It is an explicit provision that the application shall be signed by not less than one-third of the freeholders whose lands are actually, as the assessment is finally determined, assessed for benefits, and, as shown by the trial judge, the statute cannot be carried into effect, and is void for that reason. 1 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 86; Black on Interpretation of Laws, § 45; 26 Am. & Eng. Enc. Law (2d Ed.), pp. 655, 657; State, ex rel. Crow, v. Railway Co., 146 Mo. 155; Hilburn v. Railway Co., 23 Mont. 229, 245; Chaffee’s Appeal, 56 Mich. 244; People v. Lawton, 30 Mich. 386; Risser v. Hoyt, 53 Mich. 185, 207; People v. Taylor, 96 Mich. 576 (21 L. R. A. 287); State, ex rel. Gaines, v. Hudson County Ave. Com’rs, 37 N. J. Law, 12; In re Hendricks, 60 Kan. 796; State v. Rumberg, 90 N. W. 1055 (86 Minn. 399); State, ex rel. Wyatt, v. Ashbrook, 154 Mo. 375 (48 L. R. A. 265); Commonwealth v. Bank of Pennsylvania, 3 Watts & S. (Pa.) 173; Green v. Wood, L. R. 7 Q. B. 178.

The statute for Ionia county, construed in Rice v. Ionia Probate Judge, ante, 692, provides for an application to be signed by “the owners of one-half of the value of the lands liable to an assessment for benefits,” etc., which distinguishes that case from this.

Act No. 237, Pub. Acts 1903, provides as follows:

“ Sec. 14. The boards of supervisors of Saginaw and St. Joseph counties, at any session thereof, may from time to time, by resolution, fix and determine such further conditions than those therein set forth to be complied with before all or any contract shall be made or entered into for the construction, improvement, or clearing out of any drain as hereinbefore provided, as to such boards shall seem necessary and proper to protect all persons and townships that may be affected by the proceedings, and no contract or expenditure shall be made or entered into by the drain commissioner or his deputy without first complying with such conditions. Such boards may also in like manner fix the number and kinds of employés the drain commissioner may employ and fix their compensation, and they may require that said commissioner in each year shall report to the boards at their October session, a full and detailed statement and account under oath of the time actually spent by him during the year in the discharge of his duty and for what purpose, the names of all employés and the time actually spent by each and for what purpose their labor was performed, and the amount paid or agreed to be paid each, and also all other expenditures and the names of all persons to whom moneys have been paid and the amount paid each, and the purpose for which said expenditure was made. The boards may allow or disallow any item in whole or in part, any item charged in such report and account, and only so much thereof shall be paid as shall be thus allowed, and no more than one-half of the several items in such report and account shall be paid, or ordered drawn therefor, under the provisions of section six, chapter nine of this act, until such accounts have been thus allowed by the boards of supervisors as in this section provided. Such boards of supervisors of Saginaw and St. Joseph counties, may, by a majority vote of all the members-elect, remove any such drain commissioner or his deputy or both, of Saginaw and St. Joseph counties, and appoint another in his or their place and stead.”

It is contended that this act is unconstitutional, as delegating legislative powers to the board of supervisors, and the trial judge was of this opinion. We think that in this holding the learned trial judge was in error. Section 38 of article 4 of the Constitution provides that:

“ The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such powers of a local, legislative and administrative character as they may deem proper.”

It has been frequently held by this court that the laying out of drains is a mere neighborhood matter. Dawson v. Township of Aurelius, 49 Mich. 479; Camp v. Township of Algansee, 50 Mich. 4; Wallace v. Sortor, 52 Mich. 159; Barker v. Township of Vernon, 63 Mich. 516; Hillyer v. Township of Jonesfield, 114 Mich. 644. See, also, Attorney General, ex rel. Burbank, v. Stryker, ante, 437.

We think that the authority delegated to the board of supervisors by the act in question is clearly authorized by the Constitution itsplf, and whether the effect of such legislation be good or bad is not for the courts to determine, but for the legislature alone. See, also, Hurst v. Warner, 102 Mich. 238 (26 L. R. A. 484).

It follows that the respondent was justified in refusing to act under the petition tendered to him, and the judgment of the lower court is reversed, and the peremptory writ of mandamus quashed, with costs to respondent and appellant.

Moore, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Moore, C. J.

text:
    FLYNN v. LORIMER’S ESTATE.
    1. Executors and Administrators — Claims—Allowance—Jurisdiction oe Commissioners.
    Under section 9378, 3 Comp. Laws, a debt secured, by real-estate mortgage is an absolute claim which commissioners on claims have power to try and decide.
    3. Same — Nature oe Decision — Conolusiveness.
    The decision of commissioners on claims against the estate of a deceased person, in a claim of which they have jurisdiction, is a judicial act which, being unappealed from, is final.
    Error to Wayne; Mandell, J.
    Submitted October 10, 1905.
    (Docket No. 23.)
    Decided November 21, 1905.
    Petition to the probate court by William H. Flynn against John E. Moloney, administrator of the estate of Thomas Lorimer, deceased, for an order for the payment of a claim allowed by the commissioners. The petition was granted and defendant appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.
    Affirmed.

      John E. Moloney, for appellant.

      Orla B. Taylor, for appellee.
   Moore, C. J.

Thomas Lorimer died August 10, 1895. Nalph Phelps, Jr., was appointed administrator of his estate, and acted as such until July 7, 1899, when he resigned, and was succeeded by John E. Moloney, who is still acting as administrator. On October 33, 1895, Charles H. Fisk and George B. Yerkes were appointed commissioners on claims. They qualified, gave regular notice of the hearing of claims, and on April 37, 1896, filed their report. The material portion is as follows:

“And we do further report that, in pursuance of said notice, we met, received, examined, and adjusted all claims presented to us against said deceased, and also the claims filed on behalf of said estate in offset thereto, as hereinafter set forth opposite the names of the respective claimants; that is to say: The first column contains the names of the several claimants or creditors of said estate and character of each claim. The second column shows the amount of such claim. The third column shows the amount, if any, of the claim which was disallowed. The fourth column shows the amount, if any, of the offset filed on behalf of said estate against such claim. The fifth column shows the amount of the final balance allowed in favor of such creditor.”

On January 81, 1902, Charles M. White assigned this claim to William H. Flynn, the present claimant. The assignment being deemed insufficient in form, a further assignment was executed January 30, 1904. The claim not being paid, on February 5, 1904, claimant filed a petition in the probate court for the county of Wayne, asking for an order requiring the administrator to pay the claim. The administrator filed an answer to this petition. On February 10, 1904, the probate court made an order in accordance with the prayer of the petition. The administrator appealed from said order to the Wayne circuit court. The appeal was heard on December 15,1904. The judge directed a verdict in favor of claimant. The case comes to this court upon writ of error.

Upon the trial in the circuit court, the claimant offered in evidence the records and files in the estate of Thomas Lorimer. He also offered, over the objection of the defendant, oral proof as to the ownership of the claim and as to what occurred before the commissioners on claims; also, the various written assignments and the record and files in the chancery case of Howland against Lorimer et al., which was a proceeding to foreclose the mortgage, commenced in April, 1898, wherein a decree was taken, a sale made, and a decree taken for the deficiency after the sale of the real estate was made. A computation of the amount claimed to be due upon the basis of the deficiency shown in the foreclosure suit was submitted, showing the amount due to be $1,653.93. It was for this amount a verdict was directed.

Counsel for defendant present the following propositions :

1. Was the court in error in holding that the Charles M. White claim was legally allowed by the commissioners on claims, and in refusing to direct a verdict in favor of the estate ?

2. If so, was the court in error in allowing evidence to be introduced to show what had transpired before the commissioners on claims, and by parol evidence to attempt to establish that the claim was an absolute, and not a contingent, claim ?

3. If not, was the court in error in refusing to submit the case to the consideration of the jury, and in directing a verdict on behalf of the claimant ?

And he answers each of them in the affirmative.

As to the first proposition, it is claimed by counsel for the estate that the claim passed upon by the commissioners was a contingent claim, which they had no authority to allow, and that its allowance is a nullity. On the part of the claimant, it is said the claim was properly allowed, and is an absolute liability against the estate. Section 9378, 3 Comp. Laws, reads:

“The commissioners shall have power to try and decide upon all claims which by law survive against or in favor of executors and administrators, except claims for the possession or title of real estate; and may examine and allow all demands, at their then present value, which may be payable at a future day, including claims payable in specific articles, and may offset such demands in the same manner in favor of the estate.”

Section 9411, 3 Comp. Laws, reads:

“If any person shall be liable as security for the deceased or have any other claim against his estate which cannot be proved as a debt before the commissioners or allowed by them, the same may be presented with the proper proof to the probate court, or to the commissioners, who shall state the same in their report, if such claim shall be presented to them.”

Section 9413, 3 Comp. Laws, reads:

“ If such contingent claim shall become absolute and shall be presented to the probate court or to the executor or administrator, at any time within two years from the time limited for other creditors to present their claims to the commissioners, it may be allowed by the probate court upon due proof, or it may be proved before the commissioners already appointed or before others to be appointed for that purpose, in the same manner as if presented for allowance before the commissioners had made their report,” etc.

Section 9377 reads:

“At the expiration of the time limited, or as soon thereafter as they shall have time to complete the hearing of the claims presented, the commissioners shall make a report of their doings to the probate court, embracing lists of the claims presented, or exhibited in offset, and stating how much was allowed, and how much disallowed, together with the final balance, whether in favor of the creditor or the estate; and the report shall state particularly the manner of giving notice to the claimants.”

There are three important things noticeable in these provisions of the statute that may have a bearing in solving the questions presented by this record. The first is that, as to absolute claims, the commissioners have power to try and decide them, and it is made their duty to report how much was allowed, how much disallowed, and the final balance, whether in favor of the creditor or in favor of the estate. Second. As to the contingent claims, they have no authority to try and decide them. Third. The commissioners are required by sections 9377 and 9411 to make a report of their doings to the probate court. In neither of these sections are they required to report the character of the claims. It is very clear that a debt, secured by a real-estate mortgage, was presented to the commissioners for allowance, the claim being $2,217.11. It is equally clear that the commissioners undertook to try and decide this claim, and that they did try and decide it, and allowed a final balance in favor of the claimant of $2,217.11. Certainly, a debt represented by a real-estate mortgage and a note signed by the decedent is a claim absolute, and is such a claim as the commissioners are authorized to try. and decide by section 9378, 3 Comp. Laws. No appeal was taken from their decision. They were acting in a judicial capacity, and their action is final when not appealed from. Shurbun v. Hooper, 40 Mich. 503; People, ex rel. Green, v. McCutcheon, 40 Mich. 244; Byrne v. Hume, 86 Mich. 546; Finley v. Dubay, 112 Mich. 334. The claim presented to them was such a claim as they were authorized to try and decide. They did try and decide it. We think the effect of that decision is final. This makes it unnecessary to discuss the other questions raised.

Judgment is affirmed.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.


author: Grant, J.

text:
    SMITH & CHENEY CO. v. SCHMIDT.
    1. Partnership —Members—Sales to Firm —Knowledge op Seller.
    In an action against partners for the price of goods purchased by one of them for the firm, testimony by the seller’s agent, who visited the firm’s place of business and took the order, that, at the time the order was given and received, defendants composed the partnership, implies knowledge on the part of the seller that defendants were members of the partnership, and makes a case for the jury, notwithstanding testimony by one partner that he was not a member of the firm at the time the order was given.
    2. Same — Authority op Partners.
    One of the partners of a firm engaged in the sale of merchandise has power to bind the partnership by giving an order for the purchase of goods to be sold in the firm’s business.
    3. Same — Dissolution op Firm — Liability op Partner — Notioe.
    Where a member of a mercantile firm gives an order for goods during the continuance of the partnership, the subsequent dissolution of the firm is no defense by the retiring partner, in the absence of actual notice to the seller, or knowledge of facts sufficient to put him on inquiry as to the dissolution of the firm prior to the shipment of the goods.
    Error to Wayne; Hosmer, J.
    Submitted October 10, 1905.
    (Docket No. 27.)
    Decided November 21, 1905.
    Assumpsit by the Smith & Cheney Company against Frank J. Schmidt and William D. Parkins, copartners as the Harvard Hat Company, for goods sold and delivered. There was judgment for plaintiff against defendant Park-ins only, and plaintiff brings error.
    Reversed.

      The defendants were copartners, under the name of the Harvard Hat Company. In April, 1903, Parkins bought out Schmidt, and continued the business under the same name. On November 16, 1902, plaintiff, through its agent and traveling salesman, a Mr. Hanson, received an order from the defendants for goods of the value of $120 for May delivery. The goods were shipped as agreed, and received by defendant Parkins. The bill not being paid, plaintiff sued the copartners. Plaintiff’s testimony was by deposition, taken in Boston, Mass. The president of the plaintiff testified that he knew who composed the Harvard Hat Company at the time the order was received, and that it was Frank J. Schmidt and William D. Park-ins. Mr. Hanson, who took the order, at the business place of defendants ’in Detroit, testified that the order was given to him by Mr. Parkins, and that the Harvard Hat Company at that time was composed of Frank J. Schmidt and William D. Parkins. The defendant Schmidt testified that he sold out to Mr. Parkins on the 14th day of April, that he never heard of this order until several months after he had left the firm, and that the order did not appear on their books at that time. The court directed a verdict for the defendant Schmidt.

      Graves & Hatch, for appellant.

      George B. Greening, for appellees.
   Grant, J.

(after stating the facts). The circuit court was in error. The witnesses testified positively that, when the order for the goods was given and received, the defendants composed the copartnership. This testimony implied knowledge. It was given by one who had visited the firm’s place of business and had taken the order. One of the partners had a right to give the order and bind the partnership. Whether the other partner knew it or not is immaterial. Having given the order when they were partners, it is no defense that, in the absence of notice of dissolution, the goods were shipped after the partners had dissolved and defendant Schmidt had retired. No notice of the dissolution was given to the plaintiff. Actual notice or knowledge of the facts sufficient to put plaintiff upon inquiry was necessary. The giving and taking of the order when the defendants were partners constituted a dealing with the firm which entitled plaintiff to actual notice. 1 Lindley on Partnership, p. 213; 22 Am. & Eng. Enc. Law (2d Ed.), p. 177; Burgan v. Lyell, 2 Mich. 102; Hall v. Heck, 92 Mich. 458; Sibley v. Parsons, 93 Mich. 538; Elkinton v. Booth, 143 Mass. 479.

Where goods were ordered before dissolution, but shipped after dissolution, without any change in the terms of the order, defendants were held liable. Goodspeed v. South Bend Chilled Plow Co., 45 Mich. 237. But where goods were ordered before dissolution, and the goods shipped after dissolution, but on different terms from the original order, the retiring partner was held not bound, as it created a new contract. Goodspeed v. Wiard Plow Co., 45 Mich. 322.

Judgment reversed, and new trial ordered.

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


author: Blair, J.-

text:
    GRAND RAPIDS ELECTRIC CO. v. WALSH MANUFACTURING CO.
    1. Principal and Agent — Authority of Agent — Apparent Powers — Secret Limitations.
    A third person, having ascertained the general character and scope of an agency, is authorized to rely on the agent’s having such powers as naturally and properly belong to such an agency, and, in the absence of circumstances putting him on inquiry, is not bound to inquire for secret qualifications or limitations of the agent’s apparent.powers.
    2. Corporations — Authority of Agents —Question for Jury.
    Where a foreign corporation carried on an extensive business in a certain town, embracing a large heading mill and auxiliary lumber camps, an opera house, and a general store, employing many men, all of which were under the general management of the corporation’s local superintendent, whether he had apparent power to purchase a dynamo costing over $600, necessary for the corporation’s lighting plant, was for the jury.
    3. New Trial — Absence of Witness — Diligence.
    After a suit had been tried involving the authority of defendant’s local superintendent, whose whereabouts were unknown to defendant at the time of the trial, defendant’s president directed the letter to him in relation to the controversy, in care of the superintendent’s father, to be by him addressed to his son, whose whereabouts were thereupon discovered. Held, that such facts did not show the exercise of sufficient diligence to require the granting of a new trial in order that the superintendent’s testimony might be obtained.
    Error to Crawford; Sharpe, J.
    Submitted October 11, 1905.
    (Docket No. 37.)
    Decided November 21, 1905.
    Assumpsit by the Grand Rapids Electric Company against the Walsh Manufacturing Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      James Donnelly, for appellant.

      Stuart & Heald, for appellee.
   Blair, J.-

Plaintiff is a Michigan corporation, engaged in manufacturing and dealing in electrical supplies. Defendant is a Pennsylvania corporation, engaged in the manufacture of various kinds of cooperage stock, with branches of its business located in other States; one branch being located at Frederic, in Crawford county, in this State. The property at Frederic, consisting of a combined saw and heading mill, was purchased by defendant in May, 1903, and was soon thereafter remodeled and converted into a heading mill solely. Mr. J. C. Edsall was the superintendent of the old mill, and was retained by defendant as its superintendent till December 14, 1903, when he resigned and left its service. Defendant had a large plant at Frederic, containing an electric dynamo, which was in the plant when purchased, and was used to light it.

Some time prior to November 6, 1903, Edsall called upon plaintiff’s superintendent at Grand Rapids, presented a business card of defendant company, upon which was printed, “Walsh Manufacturing Company, J. C. Edsall, Superintendent,” and wanted to buy a 40 K. W. 250 volt generator. At' Edsall’s request, plaintiff’s superintendent wrote to Crocker-Wheeler Company, of Ampere, N. J., to procure it, and communicated their reply to Edsall, addressing him as “ J. C. Edsall, Supt. Walsh Manfg. Co., Frederic, Mich.” Edsall had stated to plaintiff’s superintendent that the dynamo was to be used to light the plant of the Walsh Manufacturing Company. On the 18th of November, 1903, Edsall wrote the following order for the dynamo:

“To Grand Rapids Electric Company:
“Ship to Walsh Manufacturing Company, Frederic, Michigan, J. C. Edsall, Superintendent. Ship freight at once, term reg. via M. C. R. R. Please ship rush the Crocker- Wheeler dynamo 40 K-W 250 volt at price quoted $616.00 with switch hoard at ‡ 102.00; also let me know if you can send me a good wire man for exposed work and also a line man.
“Respectfully yours,
“J. G. Edsall.”

The words italicized in the order were in writing; the remainder were printed. Mr. J. V. Walsh, president of the company, testified with reference to this letterhead as follows:

“Exhibit I is the form of letterhead used by our firm at Frederic. It was printed in Pittsburg, Pa.
Q. And it was by the authority of your company that these words here, ‘J. 0. Edsall, Superintendent,’ were printed upon there ?
“A. Yes.
Q. And your stationery for your correspondence and business there at Frederic were generally printed in that way, his name appearing as superintendent upon the letterheads, billheads and orderheads ?
“A. Covering Frederic ?
Q. Yes, covering Frederic alone ?
“A. Yes, sir; that is the case with all of our superintendents with all our mills.
Q. Yes, sir; and your superintendents are required to use that stationery in conducting your business there ?
“A. Yes, sir.”

Upon receipt of this order, plaintiff at once telegraphed the factory to ship the machine as soon as possible. November 28th Edsall sent the following telegram:

“Frederic, Mich., Nov. 28th, 1903.
“ Grand Rapids Electric Company,
■ “ Grand Rapids, Mich.
“ Change our order for dynamo from direct current to alternating current. See letter.
[Signed] “ Walsh Manufacturing Company.”

Plaintiff notified the factory, but received a reply that the machine had been shipped and order could not be canceled. Upon the arrival of the dynamo, the defendant refused to receive it, on the ground that Edsall had no authority to order it in its behalf, and caused it to ,b© shipped to plaintiff, who stored it subject to defendant’s order, and brought this suit for the contract price.

The principal question in the case is whether there was any evidence which would warrant a finding that Edsall had sufficient authority to bind defendant by the contract which he undertook to make for it. Mr. Henry, the plaintiff’s superintendent, testified:

“ All I know of the authority of J. C. Edsall to act as agent for the Walsh Manufacturing Company in making this purchase was his own representations to me and the business card he presented. I made no further investigation.”

It does not appear from the record that any such investigation was made by any one in plaintiff’s behalf, or that it had any other knowledge of defendant’s business or Edsall’s connection therewith, except that gained from Edsall and the reports of the commercial agencies. It is conceded that Edsall had no express authority to make this particular purchase, and the evidence fairly negatives such authority as between himself and his company, but establishes that the company had expressly prohibited the making of such a contract. This prohibition was, however, known only to himself and the company. James E. Spencer, a witness for plaintiff, testified that he was a printer residing at Frederic; that President Walsh told him that Edsall was superintendent and general manager of the company.

“My dealings with the company were through Mr. Edsall. I did service for them, and rendered bill therefor and received pay. Transacted that business with Mr. Edsall. Mr. Edsall severed his connections with the Walsh Manufacturing Company as superintendent some time in December, 1903; the latter part of that month. Up to that time, he acted in the capacity of superintendent and general manager.
“Mr. Edsall, as superintendent of the Walsh Manufacturing Company, hired and discharged men. Some of the men were working in the mill and some in the camps and store; and he also was overseer of the business — the mercantile business, timber business, and mill business. They established a general store there. He looked after that, and he hired and discharged men that worked around their business at Frederic. * * *
“The work I did for the Walsh Manufacturing Company at Frederic was printing — job printing and advertising. This was done for the Frederic branch Of the Walsh Manufacturing Company. The printing was bill-heads, letterheads, and cards. I haven’t any of them here. I always made my bills out in the name of the Walsh Manufacturing Company, and most generally gave them to Mr. Edsall himself, and I got paid. * * *
“Mr. Edsall himself paid for printing similar to those exhibits. I generally rendered my bills to Mr. Edsall, and he paid me himself. I was paid in currency at the mill office or store. At the mill they employed forty or fifty hands; at the store about a dozen at one time. I don’t know how many they employed in the woods. They cut some of the logs out themselves. I know of their having only one camp. The six papers fastened together marked ‘ Exhibit Six ’ were printed in my office, at the request of J. C. Edsall, for the Walsh Manufacturing Company, and were paid for by the Walsh Manufacturing Company. [Offered in evidence.] I know what some of those were used for. What are called the stock reports and the blanks for orders to be filled out for labor, etc., were used in connection with the mills and camps.
“Mr. Donnelly: Do you know anything about the superintendent ? Do you know whether it is identical with the Walsh Manufacturing Company or another superintendent ?
“A. It is managed by the same man. I couldn’t answer as to who owns it. I got my pay immediately upon presenting my bill, in cash.”

President Walsh testified:

“We had a dynamo in our mill at Frederic at or about the time that this purchase was made.
“Q. State whether or not that dynamo answered the purpose of that mill ?
“A. It did. During the time Mr. Edsall was superintendent, looking after our business, myself or some other member of the company, for the purpose of looking after our business, would go to Frederic every three or four weeks. * * *
“We have a general superintendent of our Michigan business. Our Michigan business is in Marion and Frederic, Mich. We had another, superior overseer at that time over all these various business locations. He wasn’t over there very much; about thirty or forty days of Mr. Edsall’s time. Latterly he left for other points. While Mr. Edsall was in charge of our business, he sold nothing, only what he knew of his actions — what had been previously authorized. He sold no timber or products of lumber from our mill at any time, except we knew of it, or had previously authorized it. We send money by express to Frederic to meet these reports. Mr. Edsall was paid by the month, and received vouchers for his salary separate from the rest, according to our agreement with him. * * *
“ His capacity is to operate the mill, hire and discharge men. If there is a matter of importance comes'up, it goes to the management or the general superintendent. R. B. Sayers is our general superintendent. He had full charge of the operations of all mills. The Walsh Manufacturing Company has direct management of the business all over the country. Then we have a general superintendent, -who had charge of certain branches of our business in the West. We have other men in the East in similar capacity. One who has our East business has charge of our stave mills, and another in the West. Under these general superintendents come the superintendent in each of the particular branches. The first then in authority would be the Walsh Manufacturing Company, then next, the general superintendent, then Mr. Edsall, superintendent of the Frederic or particular branch.”

Defendant’s counsel contends that a party dealing with an agent is bound to inquire into the extent of his authority, ignorance of which is no excuse. This is undoubtedly a correct statement of a general principle of the law of agency, but this rule is not to be applied without qualifications and under all circumstances. It is equally well settled that, having ascertained the general character or scope of the agency, the party is authorized to rely upon the agent’s having such powers as naturally and properly belong to such character, and, in the absence of circumstances putting him upon inquiry, is not bound to inquire for secret qualifications or limitations of the apparent powers of the agent. Inglish v. Ayer, 79 Mich. 516; Allis v. Voigt, 90 Mich. 125; Austrian & Co. v. Springer, 94 Mich. 343. The legitimate powers of a general agent, in the absence of known limitations, must depend largely upon the circumstances of each particular case, and usually present questions of fact for the determination of a j ury. The apparent right of the superintendent and general manager of a small business to make a purchase of machinery costing over $600 might be quite different from the right of the superintendent of a large business to make the same expenditure. The defendant company was a foreign corporation, carrying on, through Edsall as its. local representative, extensive business enterprises at Frederic, consisting of a large heading mill and auxiliary lumber camps, an opera house, and a general store, employing many men, of all of which, as we understand the record, Edsall was the superintendent and general manager. We do not think it can be said, as a matter of law, that the purchase of the dynamo which was necessary for the lighting of the plant was so clearly outside of the apparent powers with which defendant had clothed Edsall as to justify the court in directing a verdict for defendant. We therefore think that the court committed no error in submitting the question to the jury.

Error is also assigned upon the refusal of the court to grant defendant’s motion for a new trial, which is properly before us for review. The only point presented by the motion, not already disposed of by this opinion, which we deem worthy of consideration, is the fourteenth ground of the motion:

“Because the whereabouts of J. 0. Edsall has been ascertained, and it is believed that he can be secured as a witness on a retrial of said cause, or his deposition taken for use on such a retrial.”

We do not think there was a sufficient showing of diligence in endeavoring to procure the attendance of Edsall to require the trial judge to grant the motion on this ground. Canfield v. City of Jackson, 112 Mich. 120. In that case the facts, which are not set forth in the report cited, were substantially, as stated by the trial judge, as follows:

“ That at the trial it first appeared that, when plaintiff fell upon the sidewalk, a one-armed man, who was driving along the street, came to her assistance, but that this man could not be found; his name could not be ascertained. He was not produced on the trial by either party. That after the trial, and on February 9th, the defendant’s attorney published a notice in the Jackson daily papers, asking said party, whoever he might be, to call upon the mayor or chief of police of the defendant or its attorneys, and that, as a result of such publication, the Joseph T. Butler, whose, affidavit is made the basis of this action, called upon defendant’s attorney February 13, 1896, and made such affidavit. Mr. Butler’s testimony would go to the two principal questions, whether there was a hole in the sidewalk, and it was thereby rendered out of repair, as claimed by plaintiff, and whether the plaintiff was actually injured by falling at said hole. Probably, his testimony would also dispute, and so weaken, to a greater or less extent, the testimony of plaintiff and her witnesses to these two propositions, and that both of these principal questions were of the very substance of the issue as made on the pleadings; and this must have been apparent to the defendant as soon as the declaration was served, which appears, by the return of the sheriff, to have been August 2, 1894. The duty of the parties in preparing for the trial thereof attached with the declaration so served, and it became the defendant’s legal duty to exercise diligence from that time to. prepare for the trial upon these two questions. In my judgment, it cannot be said that the defendant has performed that duty under the circumstances of the case as above stated; and to illustrate the truth of this, it may be observed that, if the same course which was pursued had been resorted to earlier in the history of this case, it is not unreasonable to suppose that Mr. Butler could have been discovered and produced upon the trial.”

In the case at bar the showing made by President Walsh on October 18, 1904, is that the case was tried on the 19th and 20th of September, 1904, and that—

“ On or about October 1, 1904, he wrote a letter to J. C. Edsall, from Pittsburg, Pa., in relation to Ms action in the purchase of a dynamo from the above-named plaintiff, which dynamo is the subject of the above suit, and sent the letter to L. C. Williams, Frederic, Michigan, and requested Mm to take the letter to the father of J. C. Edsall, who resides at Frederic, Michigan, and have the father of J. C. Edsall address and send the letter to his son, J. C. Edsall, whose whereabouts at that time were unknown to deponent; and that deponent received a reply to his said letter from said J. C. Edsall, dated at Groveton, Texas, on the 9th inst,” etc.

We have examined the other assignments of error not covered hereinbefore, and find them without sufficient merit to require further discussion.

The judgment is affirmed.

Moore, C. J., and McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    AUDITOR GENERAL v. FLEMING.
    1. Taxation — Cancellation op Assessment — Insufficient Description — Reassessment.
    Boards of supervisors are not authorized, in reassessing taxes, to correct descriptions absolutely void for indefiniteness, but in such cases they can only reassess the taxes upon the taxable property of the proper township.
    2. Same — Erroneous Rejection by Auditor General.
    Where the description under which land was assessed was sufficient, but the auditor general erroneously canceled the tax, the board of supervisors properly reassessed it on the same land.
    3. Same — Description—Sufficiency.
    An assessment against a lot as on “Newell’s E. & C. Plat” is sufficient, there being but one plat of the village in use and that being recorded as “Newell’s Enlarged and Corrected Plat.”
    4 Same — Reassessment—Resolution on Supervisors — Sueeicienoy.
    By adopting the report of its committee on apportionment and rejected taxes, which has recommended the reassessment of certain taxes in accordance with schedules, previously prepared and submitted by the county treasurer, the board of supervisors makes the report and schedules a part of its resolution, and makes a valid reassessment without setting the report out at length in its resolution.
    A.ppeal from Muskegon; Russell, J.
    Submitted October 11, 1905.
    (Docket No. 31.)
    Decided November 21, 1905.
    Petition by Perry F. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by R. Andrew Fleming. From a decree for petitioner, contestant appeals.
    Affirmed.'
    The contestant and appellant was the owner of a mortgage covering the land involved in this controversy. For the years 1899 and 1900 the land was assessed under the following description:
    “ Lot 5 and N. 12 feet of lot 6 of subdivision of lot 1, and E. one-half of lot 2, block 20, Newell’s E. & C. Plat.”
    The contestant applied to the auditor general to have the taxes upon this property set aside for misdescription. The auditor general complied with his application. By resolution of the board of supervisors, the taxes for these two years were reassessed under the following description:
    “ Lot 5 and the N. 12 feet of lot 6 of subdivision of lot 1, and the E. one-half of lot 2, in block 20, Newell’s Enlarged and Corrected Map of the City of Muskegon.”
    The original plat, filed in 1849, was entitled “Village Map of Muskegon, Theodore Newell, Proprietor.” In 1867 another plat was filed and recorded, entitled “ New-ell’s Enlarged and Corrected Map of Muskegon Village.” The latter plat included all land that was in the original ,and some besides. The contestant insists that, under the tax law, taxes set aside on account of misdescription of •the land cannot be reassessed. The court sustained the validity of the tax. The law bearing upon the question is ;as follows:
    “ If the auditor general shall discover before the sale of .any lands, as aforesaid, that for any reason they should not be sold, he shall cause the same to be withheld from the sale; and if the error originated with the township or ■county officers, the amount of such taxes shall be charged .against the county from which the same was returned. If such error was made by a township officer, the amount thereof shall be charged by the county treasurer to the •township in which such error occurred. If there has been .a change in the boundaries of any county or town in which the lands are situated after the return of such taxes, such ■rejected taxes shall be charged to the county to which the lands belong at the time of such rejection.” Section 3918, 1 Comp. Laws.
    “The auditor general shall prepare and forward to the county treasurer a statement of such rejected taxes, and a description' of the lands upon which the same were assessed ; and such county treasurer shall lay the same before the board of supervisors at their next session there.after, and if such taxes shall have been rejected or charged back by the auditor general, except for1 the reason that such land was not subject to taxation at the time of the assessment for such taxes, or that the taxes thereon had been paid, or that there had been a double assessment thereof, the board of supervisors shall cause the same to be reassessed upon the same land, and collected with the •taxes of the then current year, and in the same manner. If such taxes cannot be properly reassessed upon the same lands, the .board of supervisors shall cause the same to be reassessed upon the taxable property of the proper township.” Section 3919, 1 Comp. Laws.

      George 8. Lovelace, Prosecuting Attorney (Cross, .Lovelace & Loss, of counsel), for petitioner.

      Nims, Hoyt,, Erwin, Sessions & Vanderwerp, for •contestant.
   Grant, J.

(after stating the facts). The contestant’s contention is:

1. That taxes rejected by the auditor general for ■erroneous or. indefinite description cannot be reassessed upon a different description than that contained in the original assessment roll.

2. That the taxes in this- case were assessed upon a different description of land than that contained in the original assessment.

3. That the board of review is the only body clothed with power to review the roll and correct errors in the ■description of property.

We are of opinion that proposition No. 1 is sound, .and .should be applied where the description is too indefinite for correction; in other words, the statute does not authorize boards of supervisors in reassessing taxes to correct descriptions absolutely void for indefiniteness, but only authorizes the board in such cases to reassess the taxes upon the taxable property of the proper township. Auditor General v. Smith, 125 Mich. 576. The original assessment in that case was of “the center 22 feet” of a certain lot. The auditor general held the assessment void for indefiniteness and canceled it. It was reassessed as “ the easterly 22£ feet of westerly 44£ feet of lot 2,” etc. The reassessment was held void, the court saying that no one could tell whether the center 22 feet of the lot, running east and west or north and south, was intended. It would seem to follow from that case that if the descriptions which were held void in Jackson v. Sloman, 117 Mich. 126, and Petit v. Railroad Co., 114 Mich. 362, had been reassessed upon a description of land claimed to be the one intended to be assessed, such reassessment would have been held void. Description of lands upon the assessment roll by abbreviation is held good. Auditor General v. Sparrow, 116 Mich. 574; State v. Mayor, etc., of Newark, 36 N. J. Law, 288. The proper test to be applied, as gathered from the authorities, is: Is the •description sufficiently definite to be identified by a competent person ? Justice Cooley, in his work on Taxation .(2d Ed.), p. 407, says:

‘ ‘ A more satisfactory rule would seem to be that ‘ the designation of the land will be sufficient if it afford the means of identification, and do not positively mislead the owner,’ or be calculated to mislead him.”

Black says:

“A description into which such characters [abbreviations and figures] enter will be good and sufficient, provided they are familiar, easily understood, not misleading, and full enough to point out the particular land with certainty.” Black on Tax Titles, § 114.

Tested by this rule, we think that the description on the tax rolls of 1899 and 1900 was sufficient. There is but one plat or map in the village of Muskegon. The second map included the descriptions the same as the first, except as to those that had been added. There was no other description upon the map or plat to correspond with that in this case. The abbreviations “ E. &C.” were well understood. It was impossible for anybody to have been mistaken as to what map or plat was referred to. An examination would easily locate the description of the property. We are therefore of the opinion that the description upon the tax rolls of 1899 and 1900 was valid, and that the cancellation by the auditor general was unauthorized. This being so, we think that a reassessment by the board of supervisors is valid.

2. The validity of the tax is attacked because the reassessment is not included in the resolution of the board of supervisors and the resolution does not contain the description of the land. Counsel cite Gage v. City of Saginaw, 128 Mich. 682. In that case an examination of the record shows that no resolution was passed which either directly or indirectly included the plaintiff’s land. In the present case, as required by statute, the county treasurer duly made his report to the board. The board directed the county treasurer to separate and tabulate the rejected taxes into schedules for the several townships and municipalities. These schedules and the original list were referred by the board to its committee on apportionment and rejected taxes. That committee reported the facts, and recommended the reassessment of this among other lands, referring to them by schedule. The report was adopted by the board. We think this constituted a valid reassessment. A reference to a report and adopting it makes it a part of the proceedings of the council, and it is not necessary that it should be written out at length upon the records.

Judgment affirmed.

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


text:
    PAGE v. BATTLE CREEK PURE FOOD CO.
    1. Master and Servant — Injuries to Servant — Fellow-Servants.
    The true test of a master’s liability for injuries to a servant caused by the negligent act of another servant is the character of the negligent act, rather than the rank or grade of the employé performing that act; and if the act is one the performance of which the master cannot delegate, he is liable, but if it is one the performance of which may be delegated, he is not liable, if he has used due care to employ competent servants and to furnish a safe place and suitable appliances.

    2. Same — Acts of Fellow-Servant.
    The act of an employé, who had charge of a department, and sometimes bought material and hired and discharged men, in turning on a blower, which stirred up the dust and ashes in an oven while a servant was working in the oven, held, to be the act of a fellow-servant, for the consequences of which, to the servant in the oven, the master was not liable, notwithstanding the superior position of the servant who turned on the blower.
    3. Same — Assumption op Risk.
    A servant who was working in an oven, cleaning the same, and who, knowing that a blower was to be turned on in the oven, continued at his work, was chargeable with knowledge that the current of air raised by the blower would violently disturb the dust and ashes in the oven, and assumed the risk of getting dust and ashes in his face and eyes.
    Error to Calhoun; Hopkins, J.
    Submitted October 11, 1905.
    (Docket No. 36.)
    Decided November 21, 1905.
    Case by Harvey H. Page against the Battle Creek Pure Food Company, Limited, for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Plaintiff, an employé of the defendant, a man 67 years old and a mason by trade, was instructed to repair one of defendant’s ovens. Plaintiff’s evidence showed that one Bordeau directed plaintiff’s son, a.foreman of mason work, to do some work in this oven; that this foreman sent plaintiff on Sunday morning to do it; that plaintiff reported to one Brower, who had charge of the oven, and that Brower showed him what to do. To accomplish this it was necessary to enter the oven from the door and work inside. The fire had gone out in the night. Plaintiff was accustomed to do this work, and was familiar with the construction of the oven. After working about 25 minutes, he thought the oven was too hot, and asked Brower to turn on the hose. This was for the purpose of cooling the oven with water. He was informed by Brower that the pumps were not working. Plaintiff then testified that he heard a voice, which he recognized as that of one Bordeau, saying, “I will turn on the blower.” Plaintiff testified that he understood this to be for the purpose of cooling the oven. He continued his work, and in a few minutes a blast of air came through the blower, driving dust and ashes into his eyes. As soon as he could, he hallooed to them to shut off the blower, which they did. He emerged from the oven, washed his face and eyes clear of the dust, returned to the oven, and continued his work. Claiming that his eyes were injured, he sued the defendant for negligence in' turning on the blower while he was at work in the oven. . At the conclusion of the plaintiff’s evidence, the court directed a verdict for the defendant, upon the ground that Bordeau and plaintiff were fellow-servants. This ruling presents the sole question in the casé.

      Hatch & Anderson, for appellant.

      JR. J. Kelley, for appellee.

       For vice principalship determined with reference to the character of the act of a servant causing injury to another servant, see note to Lafayette Bridge Co. v. Olsen (C. C. A. 7th C.), 54 L. R. A.

   Grant, J.

(a,fter stating the facts). There were several departments in the defendant’s factory, over which one Phelps was the general superintendent. Each department had a foreman or manager — a man where there were men, and a woman where there were women or girls. Some of the principal foremen had subforemen under them. From the testimony introduced on the part of the plaintiff, it appears that Bordeau “had charge of the mason department on construction and repairs,” and that plaintiff’s son was a subforeman under him. There was also evidence tending to show that Bordeau sometimes hired and discharged men, and sometimes bought material for use in his department. His position and authority were no greater than were those of the mill foreman in Lepan v. Hall, 128 Mich. 523, or of the foreman in Mikolojczak v. Chemical Co., 129 Mich. 80. See, also, Wellihan v. Wheel Co., 128 Mich. 1. The true test in these cases is the character of the act, rather than the rank or grade of the employe. 4 Thompson on Negligence, § 4923. The vice principal, manager, or superintendent may become a fellow-servant, and a fellow-servant may become a vice principal. Id. § 4918. The true principle governing the cases is that, if the master cannot delegate the authority to perform the act, he is liable regardless of the rank of his employe. If, however, he may delegate the power to perform the act, he has performed his full duty to his employe when he has used due care to employ competent assistants, regardless of their rank, and to furnish a safe place and suitable appliances. Superiority of position is not the test. Id. § 4919. The act in turning on the blower was one of fellow service. It was not an act essential in carrying on the plaintiff’s business. The blowers were not used for the purpose of cooling the oven when employés were engaged in making repairs. They had never been so used. The employer had no reason to expect that they would be. Plaintiff himself testified that the only means before employed for cooling the ovens was to leave them open, if there was time for them to cool in this way, and, if not, then to use water from a hose. The master in this case is no more liable than it would have been if a stranger had turned on the blower. In such cases the person, whether employe or stranger, who does the negligent act, is alone responsible for its consequences. In turning on the blower, Bordeau was not acting for the master, or by virtue of any power delegated to him. If it was a negligent act, Bordeau alone is responsible for it. The case is ruled by Lepan v. Hall, and Mikolojczak v. Chemical Co., supra, and authorities there cited. See, also, 4 Thompson on Negligence, § 4921.

There is another feature of this case which, though not argued by counsel, would, if raised, have clearly prevented recovery. Plaintiff testified that he remained at the work for some minutes after he knew that the blower was to be turned on, and that he knew the purpose of turning it on. Though he testified that he did not know where the blower entered the oven, he is chargeable with knowledge of the physical law that the effect of turning a strong current of air into the oven would result in violently disturbing the dust and ashes. He had time to withdraw after he heard the statement of Bordeau, or to call to him not to turn the blower on. Instead, he chose to remain at his work. Under these circumstances, it is manifest that he assumed the risk.

Judgment affirmed.

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


text:
    SWART v. WESTERN UNION TELEGRAPH CO.
    1. Landlord and Tenant — Leases—Parol Contracts.
    The proprietors of a hotel agreed to lease space therein to a telegraph company, and the term, amount of rent, and times of payment were agreed upon, but the written lease contemplated was not executed, because the parties failed to agree upon the extent of the hotel’s franking privilege and the hours during which the office should be kept open. Held, that there was no such meeting of the minds as to constitute a valid parol lease by which the rights of the parties could be determined during the occupancy of the space by the telegraph company, but its occupancy was under a tenancy at will, terminable upon a month’s notice.
    2. Same — Who Are Tenants — Renters oe Rooms.
    One who rents desk room from a tenant of an office is not a tenant, and obtains no interest in the real estate, but has simply the right to occupy a chair and desk in the office during the tenancy of the person from whom he rents, and when that tenancy ceases his right of occupancy also terminates, and his continuance in possession with the consent of the landlord does not-operate to continue-the tenant’s lease.
    Error to Wayne; Frazer, J.
    Submitted October 12, 1905.
    (Docket No. 47.)
    Decided November 21, 1905.
    Assumpsit by James H. Swart and William C. Swart, copartners as Swart Brothers, against the Western Union Telegraph Company for rent. There was judgment for plaintiff for less than the amount claimed, on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.
    In the winter of 1901, plaintiffs, proprietors of the Hotel Cadillac, and one Elster, the local manager of the defendant, entered into verbal negotiations for a lease to the defendant for room in the Hotel Cadillac for a telegraph office. A proposition was made by plaintiffs to lease room or space for that purpose for five years at $1,800 per year, payable monthly, and $40 per month franking or “dead head ” telegraphing. Mr. Elster telegraphed the proposition as to amount of rent, extent of term, and times of payment to the proper officer of his company in New York City. He received an answer approving it, and notified the plaintiffs. Defendant took possession, on March 1st, and occupied the room until July 31st. It was agreed that a written lease should be executed. Pursuant to this understanding, the plaintiffs prepared a lease, executed it in duplicate, and submitted it to the defendant. It was not satisfactory, and defendant thereupon prepared a lease and submitted it to the plaintiffs. This plaintiffs refused to sign. They then prepared another lease, which the defendant refused to sign. The defendant then prepared a fourth, which was signed by it and submitted to the plaintiffs, but, before its execution by the plaintiffs, the defendant, on July 30th, notified plaintiffs that the defendant would vacate the next day. On July 31st plaintiffs signed the last lease submitted. Defendant vacated on August 1st. The rent was paid at the rate of $150 per month to July 31st. At the time defendant took possession it leased desk room to a railroad ticket agent. He occupied his desk during the time the defendant was in possession, and for some time thereafter; plaintiffs refusing to take rent which he had agreed to pay the defendant, but making no objection to his occupancy. The disagreement between the parties arose over the extent of the franking privilege and the hours during which the office should be kept open. Upon these their minds never met.

      James McNamara and Frank C. Cook, for appellants.

      C. A. Kent, for appellee.
   Grant, J.

(after stating the facts). 1. No claim is made by plaintiffs that any written lease was executed. They claim that there was a parol lease for five years, void under the statute of frauds, but valid for a year, and seek to recover for seven months’ rent. The court held that no verbal lease had been agreed upon, and that, therefore, the defendant was a tenant at sufferance or at will, and that, the rent being payable monthly, plaintiffs were entitled to one month’s rent, and judgment was entered for that amount. The plaintiffs have appealed.

It is clear that the verbal negotiations did not embody all the terms of the proposed lease, nor was it contemplated that they should. In the cases upon which plaintiffs’ counsel rely there was no doubt that a parol lease had been agreed upon. The jury and the court were able to definitely establish their terms. See Huntington v. Parkhurst, 87 Mich. 38. It was not enough to constitute a lease that the term rent and time of payment were agreed upon, if the other provisions were contemplated upon which they had not agreed. The court, therefore, correctly held that the minds of the parties had never met, and that there was no parol lease by which their rights could be determined. The tenancy was one at will, terminable upon a month’s notice. Huyser v. Chase, 13 Mich. 98; McIntosh v. Hodges, 110 Mich. 319; Barrett v. Cox, 112 Mich. 220.

2. It is insisted that the occupancy of Mr. Traitel, the ticket agent, after the defendant had .vacated the office, operated as a continuance of the lease, and that it was the duty of the defendant to eject Mr. Traitel. Mr. Traitel was not a tenant, within the technical definition of that term. His occupancy was more in the nature of a boarder at a hotel or boarding house, who, by virtue of his contract of occupancy, obtains no interest in the real estate. Mr. Traitel was duly notified of the cancellation of the arrangement with plaintiffs and to remove. He tendered the rent to plaintiffs, and it was refused. He then tendered it to defendant, which also refused it. Mr. Traitel had no right of occupancy as against plaintiffs. He made no lease with any one. He had simply the right to occupy a chair and desk in the room. Plaintiffs could have removed these at any time. They chose, however, to let him remain. If they did not desire his presence, they should have notified him to leave. Under this record, he remained with their acquiescence. He had no right of occupancy outside of that of the defendant. When its occupancy terminated, his right of occupancy also terminated. Eaton v. Hall, 88 N. Y. Supp. 260; Wilson v. Martin, 1 Denio (N. Y.), 602.

Judgment affirmed.

Moore, C. J., and MeAlvay, Blair, and Ostrander, JJ., concurred.