author: Stone, J.

text:
    BURROUGHS v. POSTAL TELEGRAPH CABLE CO.
    1. Telegraphs and Telephones — Reasonable Care and Diligence.
    A telegraph company must use reasonable and ordinary care and diligence in its efforts to promptly, deliver a message.
    2. Same — Reasonable Care.
    - Reasonable care is that care which an ordinarily reasonable man would take under the particular circumstances.
    3. Same — Reasonable Care — Justification—Instructions.
    Where there was no evidence that the relief telegraph operator was unacquainted with the business or could not do it properly, in an action against a telegraph company for delay in delivery of a code telegram, an instruction, that defendant could not justify because of the fact that such relief agent was not acquainted with the business, and that if it did not put somebody there that was acquainted with the business and could do it properly, defendant could not justify because of it, was erroneous.

      4. Same.
    An instruction, that in determining what constitutes reasonable care the jury should consider all the attending circumstances surrounding the transmission and delivery of the telegram from the time of filing at the sending office until delivered, the volume of business received at and sent from the main office at the city of delivery and at the branch office at which the message was delivered to the sendee after transmission from the main office, the method of handling the business, that the message was in code and did not have the street address of the sendee, and that the regular operator at the branch office was sick and the relief operator sent to fill her place on the day of delivery of the telegram was not familiar with the territory and office routine, was proper, without modification.
    5. Trial — Argument of Counsel.
    In an action against a telegraph corporation it is improper for counsel for plaintiff to state in his argument that it is too often the practice of public service corporations in this country to assume the attitude of the “public be damned” or “darned.”
    6. Telegraphs and ■ Telephones — Damages—Instructions.
    In. an action against a, telegraph company for damages for delay in the delivery of a code telegram, an instruction, that where a telegram is in cipher, damages for delay in the transmission and delivery thereof are to be limited to the amount paid for the transmission of the message and interest thereon, was properly refused.
    7. Same.
    Where there is a proximate relation in a common-law sense between an injury caused by a failure of duty on the part of a telegraph company in the delivery of a telegram and the injurious results, the sendee is entitled to recover compensation, whether the form of action be on contract, or for breach of duty constituting actionable negligence.
    8. Appeal and Error — Question Not Raised on Trial.
    A question not raised by an assignment of error will not be considered on appeal.
    On loss of profits as element of damages for breach of contract to transmit telegram, see notes in 53 L. R. A. 91, 27 L. R. A. (N. S.) 639, 49 L. R. A. (N. S.) 927.

      Error to Genesee; Stevens, J.
    Submitted October 12, 1917.
    (Docket No. 96.)
    Decided December 28, 1917.
    Assumpsit in justice’s court by J. Ed. Burroughs and others, copartners as J. P. Burroughs & Son, against the Postal Telegraph Cable Company for failure to promptly deliver a message. There was. judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Roy E. Brownell, for appellant.

      Lee & Parker, for appellees.
   Stone, J.

This is an action of assumpsit for breach of contract, commenced in justice’s court, where the plaintiffs recovered a judgment for the amount of their claim. The defendant appealed to the circuit court, where the case was tried with a jury, resulting in a verdict and judgment for the plaintiffs in the sum of $252 damages. The defendant has brought error.

The plaintiffs are partners, conducting a wholesale and retail grain and produce business at Flint, Mich. The defendant and appellant is a corporation duly authorized to conduct a general telegraph and cable business in Michigan, and maintains offices at Detroit and Flint, and other cities in this State. It was the claim of the plaintiffs that its representative, on February 12, 1915, had a telephone communication with the Commercial Milling Company at Detroit in which the plaintiffs proposed to sell to said company a quantity of wheat (four cars of wheat), and the said company replied that it would take any amount up to ten carloads at $1.57 per bushel, if plaintiffs would confirm before the opening of the market at 9:30 a. m. on February 13th — the next day. On February 13, 19Í5, at 9 o’clock a. m., the plaintiffs, filed with the defendant, at its Flint office, a telegram signed by plaintiffs and addressed to the Commercial Milling Company at Detroit, Mich. The telegram was a code message reading as follows:

“2/13/1915.
“To Commercial Milling Co., Detroit, Mich.
(Rush)
“Booking 4 cars more Albino or 2 mixed, dollar congealed. [Signed] J. P. B. & S.”
This telegram, translated from the code, means:
“Booking 4 cars more number one white wheat or number 2 mixed, $1.57.
[Signed] “J. P. Burroughs & Son.”

This message was transmitted by defendant from its Flint office to the main office at Detroit at 9:02 a. m. and received in that office at 9:07 a. m. on the morning of February 13th. The message was sent by defendant from its main office to its Griswold street branch office at 9:16 a. m., and is marked as received at said branch office at 9:19 a. m. It was sent out from the branch office at 9:35 a. m. and delivered to the Commercial Milling Company at 9:37 a. m. The market opened at Detroit at 9:30 a. m. The price of wheat was three cents under $1.57, or $1.54 at opening of the market on that day, or shortly thereafter at the time the telegram was received. At 10:35 the milling company sent to plaintiffs the following message:

“Detroit, Mich., Feby. 13, 1915.
“J. P. Burroughs & Son, Flint, Michigan.
“Message book four cars received after opening. Cannot confirm. Market off three cents.
“Commercial Milling Co.”

The wheat in question was purchased by the Commercial Milling Company at the close of market on February 13th, at $1.51, or six cents per bushel less. Plaintiffs’ claim at the trial was made for loss of profits on 4,000 bushels of wheat at 6 cents per bushel, caused by the-delay of delivery of message.

Upon the trial there was not much conflict in the evidence. The manager of the defendant testified, in substance, that he had prepared a synopsis, of the manner in which the time of the operator at the Griswold street office was occupied from 9:07 until 9:20 a. m. on the day in question; that the records show that from 9:07 until 9:14 the operator at the branch office was busy with the usual detail in transmitting messages. that had been filed at her branch office to the main office; then, immediately upon her getting through sending her messages up to the main office at 9:14, the main office started to send to the branch office messages that had accumulated in the main office over the various wires; that the main office started to send to the branch office at 9:14 and was working continually with the branch office until 9:20; that there were 30 to 40 operators employed in the main office at Detroit; that according to the Detroit record the message in question was received at 9:07; that the main office held that message before sending it to the Griswold street office until the outgoing business had been received from the branch office; that the Griswold street operator sent three messages to the main office during that time; that it took from 9:07 to 9:14 to send these three messages to the main office; that, as soon as the Griswold street operator finished the outgoing business from her office, then the main office sent to the branch office the accumulated messages, as was the usual custom; that between 9:14 and 9:20 the main office sent to the Griswold street office four messages in six minutes; that the regular branch operator, Mrs. Roach, was taken ill on the morning in question, and Miss Bowering, one of the defendant’s best operators, was sent from the main office to take charge of the branch office; that she was the only person in charge there, answering telephone calls, and doing the general routine work of the office that morning; that the message in question was the first message received in the operating room, after the branch office was through with its business to the main office. The witness further testified:

“1 will say here that the message to the Commercial Milling Company at Detroit had no address on it, no street number. Now, if another message had come in at the same time, just as an illustration, with the street number on it, so that the' girl who was not familiar with her location could pass it along, the other would have to be looked up in the directory or the telephone book; it would not be possible to put the Commercial Milling Company message in its turn without you held up our entire traffic until they had looked it up. The Commercial Milling Company was getting messages over our wires every day. I don’t know the reason in the particular instance why the message was delayed. Exhibit A (the message in question) was sent within eight minutes after the wire was open; I would not call that a delay.
“Q. But you will recall this, that a message was sent that was received in your office in Detroit three minutes after the Burroughs Central Milling message was received?
“A. Yes.
“Q. And that message was sent out first to some branch office?
“A. Yes, sir.
“Q. So that message was sent out of its order?
“A. Yes, sir. A message was sent to the branch office that was received in the main office three minutes after the branch message was received. This message was sent in its regular order, and I would not say that it was given precedence over the Burroughs message. All that I would say, ordinarily, our purpose is transmitting messages in the order that they are filed, but, if the operator working on the branch wire had the Milwaukee message and did not have the other one in front of her, she would have gone ahead and sent the one she did have. If it come along later, it would have followed it, and it may have come along later, according to the arrangement of the room. I would not say that it was somebody’s fault in the main office if the Burroughs message did not go out first. * * *
“The Commercial Milling, Company is three blocks distant from the Griswold street branch. It would take the Griswold operator only about two minutes to transcribe the message. It took two minutes for the boy on a bicycle to deliver the message.' The messenger boy in the Griswold street office obeyed the instructions of Miss Bowering. It was her duty to look after the business in the branch office and see that the messages were delivered promptly. * * * Miss Bowering, who was in charge of the office on the morning in question, was not familiar with the territory, nor with the people who were in the habit of receiving messages. The girl whose place she took had been in charge of the office for ten years, and Miss Bowering had only been there a couple of weeks off and on. She had worked at this office before and knew about the territory more than any other operator I had at the office at the time. It was the best that we could do. She could not handle the work with the dispatch that our regular operator could. The regular messenger boy was there. It was not necessary, in our judgment, to send another messenger boy over to the Griswold branch. Miss Bowering,. however, had been an operator here in Flint. She was well acquainted with the details of office work, and she had been relief operator in Detroit, not only at this branch, but different offices. If any one was sent, I sent her around. She had been our manager at the Pontchartrain Hotel, was able and good; she was as good as I could supply. A person might be a competent operator in the office, and not competent to manage a branch office. Miss Bowering had worked at this office two weeks on one occasion before the day in question. She had been in Detroit 2% years. * * *
“Q. Now, the messages that were being forwarded from the main office to the Griswold street branch office between 9:07 and 9:19 a. m. were messages that were entitled to precedence by reason of their arrival in the main office, or what?
“A. No, there was one message from Milwaukee, received at 9:10 in the operating room, that apparently was sent ahead of the Commercial Milling Company message, received at 9:07. That is such a close margin, however, that we cannot regulate our traffic that close. In a big operating room like the one here in Detroit, the messages that are received come in on different wires in different parts of the room. Sometimes the last one of two messages received around the room will reach the transmitting wire first. In these two messages, however, that were transmitted to the Griswold street branch office, the Commercial Milling Company message was given preference and delivered three minutes ahead of the Milwaukee message, notwithstanding the fact that the boy had to travel further to reach the Commercial Milling Company’s office.”

This witness further testified that the main office at Detroit handled daily between 8,000 and 10,000 messages; that a great many of those messages were code messages; that the main office in Detroit is a large office filled with tables that are arranged closely together; and on February 13, 1915, there were about 36 or 37 operators in that room, and he described the manner in which the business was done in detail.

Miss Bowering testified, in substance, that on the morning of February 13, 1915, she was sent over to the Griswold street office to take the place of Mrs. Roach, the regular operator at that office, who was ill upon that occasion. She testified:

“There was one messenger boy witn me. I reached the branch office at about 8 o’clock. Exhibit A was received at 9:19. I received a message at 9:18 from Milwaukee going to Palmer-Bee Company, and one at 9:19 from New York going to Dean & Shirk Company. At 9:20 a message was received from Brattleboro, Vt., to the Detroit Milling Company. The messenger boy was called at 9:22 by Buhl & Sons; he returned at 9:28. The boy took Exhibit A out for delivery at 9:35, and the message was delivered at 9:37 a. m. I answered the telephone calls that came in that morning, and I waited upon such customers as presented themselves at the Griswold street office. I remember that it was a very busy morning. I had several telephone calls between 9 and 10 o’clock in the forenoon. The messages that were received in the branch office were placed in envelopes, entered them on the boy’s book, and got them ready for delivery.”

Among other requests by the defendant to charge was the third, as follows:

“In determining what constitutes reasonable care, you are to consider all the attendant circumstances surrounding the transmission and delivery of the said telegram from the time it was filed in the Flint office until it was delivered at Detroit. You are to consider the volume of business received at and sent from the main office, the method and manner in which the business is handled at the main office and the Griswold office; that the message was in code; that the telegram in question did not contain the street address of the Commercial Milling Company; that' the regular operator at the Griswold office, Mrs. Roach, was ill and unable to be at the said Griswold office, on the 13th day of February, 1915; and that the relief operator, Miss Bowering, who was sent from the main office on the morning in question, was not thoroughly familiar with the territory in the district of the Gris-wold office, the tariff rates, and the general routine of the office.”

This request was given by the trial court down to the words “Commercial Milling Company,” whereupon the court said:

“That is unimportant whether it contained it or not, unless there had been some delay caused by the office in Detroit ascertaining the address; but it seems there was not, so that part of it is immaterial. I have added: ‘There has been some testimony that the regular operator at the Griswold office, Mrs. Roach, was ill and unable to be at the Griswold office on the 13th day of February, 1915, and that the relief operator, Miss Bowering, who was sent from the main office on the morning in question, was not thoroughly familiar with the territory in the district of the Gris-wold street office, the tariff rates, and the general routine of the office.5
“Now, I charge you that it was the duty of the defendant company to employ competent help who are acquainted with the business of defendant, and if it did not so employ such help, and by reason thereof there was unreasonable delay in delivering the message in question, the defendant cannot justify such delay, by reason of the fact that its operator or agent in Detroit was at the time sick, and that the relief operator was not familiar with the general routine of the office. They cannot justify because of the fact that the relief agent was not acquainted with the business. If they did not put somebody therg,i,kafe-NfSS“ acquainted with the business' and coffid fib it properly, that cannot be charged to/ the plaintiffs, nor can the defendant justify by reason of it because the defendant must do its duty to/ the plaintiff.55

During the argument of the ease to the jury, one of plaintiffs5 counsel made use of the following language:

“It is too often the practice of public service corporations in this country to assume the attitude of the ‘public be damned.5 55

Some question arose as to whether the word “damned55 was used, or “darned.55 On objection being made to this language, the court said:

“Gentlemen of the jury, you must pay no attention to it. It is an improper statement and ought not to be made, even with the distinction between ‘darned5 and ‘damned.5 55

In its charge to the jury the court called attention to the statute, sections 7205 and 7206, 3 How. Stat. (2d Ed.). They are as follows:

“SECTION 1. The people of the State of Michigan enact, That it shall be the duty of all1 telegraph companies incorporated either within or without this State, doing business within this State to receive dispatches from and for other telegraph companies’ lines, and from and for any individual, and on payment of their usual charges for individuals for transmitting dispatches, as established by the rules and regulations of such telegraph companies, to transmit the same with impartiality and good faith. Such telegraph companies shall be liable for any mistakes, errors or delays in the transmission or delivery, or for the nondelivery of any repeated or nonrepeated message, in damages to the amount which such person or persons may sustain by reasons of mistakes, errors or delays in the transmission or delivery, due to. negligence of such company, or for the nondelivery of any such dispatch, due to negligence of such telegraph company or its agents, to be recovered with costs of suit, by tM-i?ar&aa_or persons sustaining such damage.
“Sec. 2. iNshaii likewise be the duty of every such telegraph company to transmit all such dispatches in the order in which they are received. In case such telegraph company shall refuse or neglect to so transmit such dispatches, such telegraph, company shall be liable for all damages sustained i>y any person or persons whose dispatch is postponed or delayed out of its order as herein prescribed, to be recovered as in the foregoing section: Provided, however, That arrangements may be made with the proprietors or publishers of newspapers for the transmission, for the purpose of publication, of intelligence of general and public interest, out of its regular order.” 2 Comp. Laws, §§ 5268, 5269 (2 Comp. Laws 1915, §§ 6686, 6687).

Error is assigned upon the language of counsel, already referred to; and in refusing to give defendant’s third request, above set forth, as well as others. The court was also, requested to instruct the jury, by defendant’s ninth request, as follows:

“You are instructed, as in the present case, where a telegram is in cipher, damages for delay in the transmission and delivery thereof are to be limited to the amount paid for the transmission of the message and interest on such amount.”

This request was refused.

In the case of Commercial Milling Co. v. Telegraph Co., 151 Mich. 425 (115 N. W. 698), this court considered and passed upon the statute above quoted. In that case the message was sent from Detroit, Mich., to Kansas City, Mo. The form of the action there, as here, was in assumpsit. A judgment for plaintiff for damages for negligence occurring beyond the limits of the State was affirmed by a divided court; Justice Ostrander writing for affirmance on the ground that the contract to deliver the message was a Michigan contract, that the statute did not interfere with interstate commerce, and did not impair defendant’s right of contract. Justice Carpenter wrote for reversal on the ground that the statute, properly construed, has no application to a contract for service to be performed in part beyond the limits of the State, and that the statute as applied to the contract in question constituted an interference with interstate commerce. The judgment of this court was affirmed by the Supreme Court of the United States. See 218 U. S. 406 (31 Sup. Ct. 59). In his opinion in that case Justice Ostrander used the following language which we think states the law correctly:

“In point of time, the statute considered here was passed after this court had, in the absence of a statute, held that regulations, similar to the one in question, limiting the liability of a telegraph company for mistakes and delays in transmitting messages, and for failures to .deliver them, were not unreasonable. The statute is entitled:
“ ‘An act to prescribe tbe duties of telegraph companies, incbrporated either within or without this state, relative to the transmission of messages, and to provide for the recovery of damages for negligence in the performance of such duties.’ Act No. 195, Pub. Acts 1893.
“The duties of telegraph companies with respect to the transmission of messages arise, not alone upon the terms of express contracts which they make, but also upon the nature of the business carried on and the interest of the public in the manner of conducting the business. They are'not common carriers, and they would not, at common law, be liable for mistakes or for delays or failures for which they were not, exercising proper care, responsible. It must be assumed that the legislature, taking into account this rule of law and the one established by this court, and already referred to, attempted to change, not the rule affecting liability for such miscarriages as proper care would have prevented, but the rule that for miscarriages for which they were responsible they might limit liability by contract or by conditions imposed upon senders of messages. If this statute is not considered to have this effect, it seems an entirely useless and ineffectual legislative effort. In reaching this conclusion, neither the reasoning employed nor the authority of the ruling made in McMillan v. Railroad Co., 16 Mich. 79 [93 Am. Dec. 208], is questioned. Assuming the intent and the effect of the legislation to be what I have stated it to be, it follows that the word ‘negligence,’ employed in the statute, does not mean a tort or wrong of defendant distinct from its expressed or implied contract obligations, but it means such a failure to perform its duty as at the common law would render’ it liable for the consequences. It must be held that the proper construction of the statute and its effect is to forbid a limitation of liability for the consequences of those miscarriages for which at common law such companies are liable, and to this extent to make void the stipulation contained in the contract which reads:
“ ‘It is agreed that the company shall not he liable for mistakes or delays in the transmission or delivery or for nondelivery of any unrepeated message beyond the amount received for sending the same. * *

As to the circumstances causing the delay in delivery of message, we are of the opinion that the learned trial judge should have given defendant’s third request to charge in. full and without qualification. We think that the rule is that a telegraph company must use reasonable and ordinary care and diligence in its efforts to promptly deliver a message. As we understand it, “reasonable care” is that care which an ordinarily reasonable man would take under the particular circumstances of the case. The case was a close one upon the facts, and the margin of claimed negligence was so narrow that the defendant was entitled to have the rule stated without modification. We think the following language was not justified by the evidence:

“They cannot justify because of the fact that the relief agent was not acquainted with the business. If they did not put somebody there that was acquainted with the business and could do it properly, that cannot be charged to the plaintiffs, nor can the defendant justify by reason of it, because the defendant must do its duty to the plaintiffs.”

We do not think that there was any evidence that the relief operator was unacquainted with the business or could not do it properly. The statute (section 7187, 3 How. Stat. [2d Ed.], 2 Comp. Laws 1915, § 8770) authorized the company to make such prudential rules and regulations as might be necessary in the transaction of its business, not inconsistent with' the laws of the State or of the.United States. In the instant case, the particular circumstances surrounding the transmission and delivery of the message consisted, in part, of the volume of business going through the main office; the method and manner of handling, both at the main, and at the Griswold- street office; the fact that the regular operator at the Griswold street office was ill, and unable to be at her place on the day in question; and the fact that the relief operator was not thoroughly familiar with the territory in the district of the Griswold street office, the tariff rates, and the general routine of the office. The whole situation should be considered by the jury, to determine whether the defendant was guilty of negligence. The defendant was not an insurer. The objection to the language used is that it imposed an absolute duty to receive, transmit, and deliver. As claimed by appellant:

“In substance, it was laid down as a matter of law that a telegraph company must have at all tiroes in its employ persons who are thoroughly familiar with the telegraph business in general, with the territory in the district where the particular office is located, the tariff rates, and the general routine of that office. In short, if that part of the charge is correct, the company can never engage a new employee, either temporarily or permanently, nor can it substitute from another office temporarily, without becoming thereby an insurer against trifling delays occasioned by such changes in the office force.”

We are of the opinion that the rule stated to the jury was too stringent and narrow, and was erroneous and prejudicial in its effect. It was the vital question an the case, and probably controlled the jury. We have examined, and call attention to, the following cases which state the correct rule, cited by appellant: Beasley v. Telegraph Co., 39 Fed. 181; Hargrave v. Telegraph Co. (Tex. Civ. App.), 60 S. W. 687; Western Union Tel. Co. v. McDonald, 42 Tex. Civ. App. 229 (95 S. W. 691); Western Union Tel. Co. v. Neel, 86 Tex. 368 (25 S. W. 15, 40 Am. St. Rep. 847).

As the case must go back for a new trial for reasons already given, it is not necessary to consider the remarks of counsel excepted to, which were improper, and probably will not be repeated upon another trial.

We are of the opinion that the court did not err in refusing to charge the jury as requested in appellant’s ninth request. We do not agree with counsel in his contention as to the measure of damages. The form of action does not control. Counsellor appellant calls attention to Fisher v. Telegraph Co., 119 Wis. 146 (96 N. W. 545). The facts in that case differ radically from the facts in the instant case. We quote from the Fisher Case, as stating the correct rule, the following:

“Where there is a proximate relation in a common-law sense between an injury caused by a'failure of duty on the part of a telegraph company, in the cases mentioned in the statute, and the injurious results, if there be such, the party damaged is entitled to recover compensation for such results under the statute, whether the form of action be on contract, or for breach of duty constituting actionable negligence.”

In this connection, we also call attention to the language of Justice Ostrander in Commercial Milling Co. v. Telegraph Co., above quoted.

Whether the measure of damages was the price of wheat at the opening of the market on February 13th, or the price of wheat at the close of the market on that day, is a question not raised by any assignment of error, and hence is not discussed.

We find no other reversible error in the ease than that above pointed out. The error first above discussed was so vital that we are constrained to reverse the judgment and order a new trial.

The judgment is therefore reversed, with costs to the appellant, and a new trial ordered.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred with Stone, J. Fellows, J., concurred in the result.


source: Caselaw Access Project

license: Public Domain

text:
    WALSH v. OAKMAN.
    1. Frauds, Statute of — Land Contracts — Terms of Contract— Sufficiency.
    A contract for the sale of real estate definitely fixing the property, the parties, the price, and the terms of payment complies with the statute of frauds, 3 Comp. Laws, § 9511 (3 Comp. Laws 1915, § 11977).
    2. Same — Vendor and Purchaser — Reservations.
    The fact that the vendor was to have a certain time in which to take off the crop and that ■ the buildings are “excepted” and would be removed, when necessary, did not constitute a grant of land so as to render the signing of the contract by the purchaser necessary within the statute.
    3. Vendor and Purchaser — Land Contracts — Vaiidity.
    Where land was sold for lot subdivision purposes, and the contract provided that releases on any lots into which the tract might be subdivided would be given on payment of a sum equal to twice the pro rata, indebtedness, such contract was not void, since the terms of the contract were fixed by such provision.
    Cross-appeals from Wayne; Hart, J., presiding.
    Submitted October 10, 1917.
    (Docket No. 8.)
    Decided December 28, 1917.
    Bill by James Walsh against Robert Oakman and others to have a land contract declared invalid. Defendant Oakman filed a cross-bill for the specific performance of said contract. From the decree rendered, both parties appeal.
    Affirmed.

      Henderson & Henderson, for plaintiff.

      Edmund J. Stafford (Leo M. Butzel, of counsel), for defendants.
   Stone, J.

In this case the plaintiff, by his bill of complaint, seeks to have the following written instrument set aside and declared invalid, and to have his record title of the land affected thereby cleared of the apparent cloud caused by the recording of the instrument, which is as follows: .

“Detroit, Mich., February 8, 1916.
“For and in consideration of two hundred ($200.00), receipt whereof is hereby confessed and acknowledged, I hereby agree to sell to Robert Oakman the west half of the east half of the west half of quarter section eight. (8) Ten Thousand Acre tract, town 1 south, range II east, Wayne county, Michigan, containing twenty (20) acres more or less, for the sum of two thousand ($2,000) dollars per acre, payable as follows: Five thousand ($5,000.00) dollars on delivery of a good and merchantable abstract of title; five thousand ($5,-000) dollars, six months thereafter; and the remainder on or before five years — ;with interest on all sums at any time unpaid at the rate of six per cent, per annum payable semi-annually.
“It is agreed that releases on any lots into which this tract may be subdivided will be given on payment of a sum equal to twice the pro rata indebtedness.
“It is understood that until July 15, 1916, shall be allowed to take off the berry crop. It is also agreed that the present buildings on said land are hereby excepted, and will be removed when the subdivision of said land shall make it necessary.
“In witness whereof I have set my hand and seal this 8th day of February, 1916.
[Signed] “James Walsh.
“Witness: Bruce H. Ware.”

The defendant Oakman by cross-bill claims that this instrument is a valid contract, and asked for specific performance thereof.

After issue joined, the case was heard in the court below upon its merits; the witnesses being examined in open court as in a suit at law.' The learned circuit judge filed an opinion containing findings of facts and conclusions of law therein. We cannot more clearly state the case and the questions involved than to recite the substance of that opinion. It is as follows:

“The plaintiff in this case, James Walsh, on February 28, 1916, filed a bill in this court setting forth that on February 8, 1916, he signed a paper writing, which is now claimed by the defendant Robert Oakman to have been a contract for the sale of 20 acres of land therein mentioned as owned by the plaintiff to said Oakman for the sum of $2,000 per acre.
“Plaintiff further claims that he is an uneducated man; that said land is worth $2,500 an acre and upwards ; that the writing does not contain all the terms of the talk and agreement; that it is unconscionable; that he did not understand it when he signed it; that his signature to the same was procured by unfair means and taking advantage of him; and that the paper has been changed since signing.
“Plaintiff further claims that the said paper is merely an offer, which he revoked before it was accepted by said Oakman; that a check was given for the down payment which was not legal tender, and therefore no payment on said land; that said paper does not satisfy the statute of frauds; that said plaintiff was intoxicated when he signed said paper, and thereby incapable of making a valid contract.
“The plaintiff for the above reasons says the said paper writing is null and void, is a cloud upon his title, and asks to have it so declared and the cloud removed.
“On the other hand, the defendants claim that the paper writing, together with its acceptance, is a valid contract, and by a cross-bill ask to have it specifically enforced.
“Findings of Facts.
“The court finds from the evidence the facts to be as follows:
“(1) On February 8, A. D. 1916, plaintiff was the owner of the west one-half of the east one-half of the west one-half of quarter section 8, Ten Thousand Acre tract, town 1 south, range 11 east, containing 20 acres of land, situated in township of Greenfield, Wayne county, Michigan.
“(2) That on the 8th day of February he signed a paper writing, which is known as Exhibit A, to the bill of complaint, and which.is adopted as a part of these findings.
“(8) While the plaintiff is an uneducated man in a way, yet his claim is not maintained by the proofs, that the bargain or contract was an unconscionable-one, and that he did not understand the paper when he signed it. The paper has not been changed since it was signed. The signature to the same was not procured by unfair means, or by taking advantage of him. I think the paper contains all the terms talked over, but, if it does not, the oral talk was merged into the written offer.
“(4) The writing contains an offer to sell, which was then and there accepted by said defendant Oak-man, through his agent, Mr, Wark, and it thus became a completed contract, which could not be revoked, except by mutual consent. The daughter testifies Mr. Oakman’s name was not in the paper when her father signed it. I find it was in, and I find the daughter was mistaken in this regard, though I believe honestly.
“(5) I find the check was given and accepted by the plaintiff on the day in question, and under those circumstances it was a valid payment on said contract and binding.
“(6) The paper writing satisfies the requirements of the statute of frauds, in that it is a sufficient memorandum signed by the vendor.
“(7) The plaintiff was not intoxicated to such an extent at the time he signed the writing, and when it was accepted, that it would vitiate the contract. Plaintiff was able to drive home on the day in question, talked the matter over, named his price, handed the paper to his daughter to read, and signed it in a perfectly legible manner. His daughter says he was intoxicated, but she does not detail facts that convince the court that his actions were such that he could not and did not understand and comprehend what he was doing. She may have honestly thought he was intoxicated, but from the evidence the court would not feel justified in so finding.
“(8) The price to be paid was $40,000, of which $200 has been paid.
“(9) The contract reserved to plaintiff the berry patch for 1916, and also the use of the buildings while they are on said land, with the right to remove them, when the subdivision makes it necessary.
“(10) Under the language of this contract possession passed to defendant Oakman at the time it was made, subject, however, to the reservations therein contained.
“(11) Plaintiff by this suit has kept possession of said premises from the time the contract was made until now.
“Conclusions of Law.
“(1) Exhibit A is a valid proposal, and by its having been accepted constitutes a valid contract.
“ (2) Being a valid contract, plaintiff should perform it according to its terms. While specific performance is not a matter of absolute right, yet when contracts are made they should not be ignored. More thinking perhaps should be done before making a contract, and there is no doubt there would be less trouble in trying to avoid them. Specific performance is decreed of this contract' according to its terms.
“(3) Plaintiff, having kept possession of said premises for the year 1916, is held to pay the taxes for that year.
“(4) Costs are allowed to defendants to be taxed, but are to be allowed and taxed as if it was a case with a single defendant.”
“(5) The bill of complaint may be, and is hereby, dismissed. A decree may be prepared in accordance with these findings.”

While the bill of complaint does not, in terms, claim that the plaintiff was intoxicated ■ at the time of his signing said instrument, it does allege:

“That the signature of your orator was obtained by said Wark to said paper writing by unfair means and by taking undue advantage of your orator, who was in no condition at the time he signed said paper writing to make a contract for the sale of said land, as said Wark well knew.”

The grounds upon which plaintiff largely bases his claim for relief are the following: That under the statute of frauds the writing is invalid as an agreement to convey land; that Wark, who negotiated the deal, had no authority to bind Oakman to perform the. contract, and did not do so; that Robert Oakman’s name was not written in said instrument at the time plaintiff signed it, and that Oakman was not mentioned as the buyer of the land during the negotiations; that the offer to sell, if otherwise valid, was withdrawn by plaintiff before it was accepted by Mr. Oak-man, and before any notice of his acceptance thereof was communicated to plaintiff; that plaintiff was intoxicated when he signed the instrument, and by reason of his condition was incapable of making a valid contract; that Wark, who negotiated the writing; knew the plaintiff’s intoxicated condition, and took an unfair and fraudulent advantage of that condition to secure the written offer to sell from plaintiff, which offer was unfair to him both as to price and terms; that the writing thus obtained was voidable at plaintiff’s option, and plaintiff, when he recovered his senses, did seasonably repudiate the deal; and that defendants are not entitled on their or any other theory of the facts to a specific performance of the contract.

The defendants’ claims are that plaintiff was not intoxicated at the time he signed the instrument; that Oakman’s name was written in the instrument at the time plaintiff signed it; that the writing is a contract and was fairly made; that the consideration to be paid Was fair and adequate; that the contract is legally valid, and should be specifically enforced in favor of the defendant Robert Oakman.

At the hearing Mr. Oakman’s counsel stated that he would waive the provision relating to deferred payments, and elected to pay the entire amount in cash into court for the benefit of the plaintiff!

A decree was entered on February 14, 1917, requiring specific performance of the contract. It ordered the defendants to pay to the plaintiff the sum of $39,-800, being the entire balance due under the contract; .and it is asserted, and not denied, that the money was paid by .defendant Oakman for the plaintiff to the clerk of the circuit court for the county of Wayne, and has been in his possession since. The bill of complaint was dismissed, and the relief was granted upon defendants’ cross-bill. The plaintiff has appealed to this court from the decree; and, the court having allowed interest, the defendants have also appealed; but in and by their brief their appeal is waived. We shall not refer to it again.

There is no question as to plaintiff’s title, as the bill alleges and answer admits that the plaintiff was the owner of the land in question on February 8, 1916. We shall not undertake to quote from the testimony in the case, and shall content ourselves by stating that, having read every word of the testimony in the record, we are strongly of the’ opinion that the circuit judge was justified in his findings upon the facts. Under the provisions of section 9511, 3 Comp. Laws (section 11977, 3 Comp. Laws 1915), we áre of the opinion that the contract, or memorandum thereof, was sufficient to constitute a good and valid contract. In the recent case of Ogooshevitz v. Arnold, 197 Mich. 203 (163 N. W. 946), it was said that a contract definitely fixing the property, the parties, the price, and the terms of payment complies with the requirements of the statute of frauds. See, also, Munro v. Edwards, 86 Mich. 91 (48 N. W. 689); Mull v. Smith, 132 Mich. 618 (94 N. W. 183); Miller v. Smith, 140 Mich. 524 (103 N. W. 872); Smith v. Mathis, 174 Mich. 262 (140 N. W. 548); Brin v. Michalski, 188 Mich. 400 (154 N. W. 110).

In Brin v. Michalski, supra, Justice Steere, speaking for this court, said:

“It is pointed out by counsel that this is not a contract to convey, * * * and does not contain sufficient definite and certain provisions essential to directing specific performance of a contract of that nature, in the particulars that no mention is made of defeasance, insurance, repairs, payment of taxes, and, most important of all, possession.
“As to the omission pointed out as ‘the most important agreement of them all’ in a land contract, the law provides that, where such stipulation is omitted, possession remains with the vendor until full performance and receipt of deed by the vendee. Druse v. Wheeler, 22 Mich. 439; Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Way v. Root, 174 Mich. 418 (140 N. W. 577). While the omissions pointed out properly may be and often are «guarded by express provisions in contracts for sale of real estate, as the conditions of the property and desire of parties may suggest, they are not essential to the validity or decree for performance of a contract. This agreement contains the essential elements of a contract, -and is certain and definite so far as it goes. The parties, property, consideration, terms, and time of performance are clearly stated.”

These authorities, we think, answer the criticism of plaintiff’s counsel upon the questions there suggested, and especially with reference to possession.

In Munro v. Edwards, supra, this court said:

“The memorandum agreement contains no provision for possession, but this is such a common incident of the sale of real estate that its omission will not invalidate the agreement. The right to possession follows the payment of the $300 [the amount to be paid as soon as the abstract was completed].”

It was urged by counsel for the plaintiff that the following paragraph vitiated the contract under the statute of frauds, it not having been signed by defendant Oakman:

“IF is understood that until July 15, 1916, shall be allowed to take off the berry crop. It is also agreed that the present buildings on said land are hereby excepted, and will be removed when the subdivision of said land shall make it necessary.”

It is contended that because Mr. Oakman did not sign the contract that the above provision rendered the contract void; it being a grant from him. It seems to us clearly, under our decisions, that the effect of this provision is that the plaintiff did not undertake to convey or pass to Mr. Oakman the berry crop. It is equally clear that he excepted from his sale the buildings, with the privilege in him to remove them when the subdivision of the land should make it necessary. The words “reserving” and “excepting” are often indiscriminately used, and whether a particular provision is an exception or reservation does not depend upon the use of either term, but upon the nature and effect of the provision itself. It has been said that whatever is excluded from the grant by exception remains in the grantor, as of his former title or right. In a deed of land “excepting the timber thereon” it was held that title to the timber remained in the grantor. Martin v. Cook, 102 Mich. 267 (60 N. W. 679); Reynolds v. Gaertner, 117 Mich. 532 (76 N. W. 3); Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264, 280 (96 N. W. 468).

Another contention is that the clause, “It is agreed that releases on any lots into which this tract may be ■subdivided will be given on payment of a sum equal to twice the pro rata indebtedness,” rendered the contract void. We think that the testimony of the witness Wark as to his understanding of that part of the instrument is the proper interpretation of it:

“My understanding as to the clause agreeing to release any lots into which this tract may be subdivided upon payment of a pro rata indebtedness is that, when acreage is divided into a certain number of lots, to arrive at the pro rata indebtedness bn the lots, you would divide the number of lots into the unpaid balance on principal. That result is multiplied by tw'o. Therefore the fact that the streets were out would have no bearing upon this ratio upon the whole acreage. * * * He would get the pro rata of the whole acreage, so that as a matter of fact, when half the lots were released, the whole property would be paid for.”

It is the claim of plaintiff’s counsel that Wardell v. Williams, 62 Mich. 50 (28 N. W. 796, 4 Am. St. Rep. 814), sustains his contention upon this subject. We invoke careful reading of this last-cited case, and, without quoting from it at length, we think it is readily distinguishable from the instant case. There the price of the lots was to be agreed upon, the contract stating, “Said farm having been subdivided into lots we will agree to the valuation of each lot,” etc., showing clearly that the valuation of the lots was to be agreed upon in the future. As this court said:

“This being so, there were terms which the parties have never agreed upon, and upon which their minds have never met, so as to make a completed contract, and before it was concluded the defendant withdrew altogether and refused to complete it.”

In other words, it there provided for future treaty of the parties; but here the basis of the releases is stated in the contract.

Upon the subject of intoxication it is well that we should bear in mind that there is no evidence here that any claimed intoxicated condition of the plaintiff was brought about by Mr. Wark, or any of the defendants, as was the case in Scanlon v. Connor, 168 Mich. 133 (133 N. W. 931). The condition of the plaintiff, whatever it was, was a voluntary one in so far as these defendants are concerned. We agree with the court below upon this subject.

Neither do we think that any fraudulent advantage was taken of the plaintiff by Mr. Wark in the transaction, in the light of all the testimony. The price to be paickwas a fair one.

And, lastly, as to the authority of Mr. Wark, we can come to no other conclusion, under the testimony, than that Wark was authorized in advance to make the agreement which was made. What he did was the act of Oakman, his principal. It is of but little importance whether the money that was paid was the money of Wark or of Oakman. The undisputed evidence shows that the check for $200 was a valid check upon a bank where funds were deposited for its payment.

Upon the whole record we are satisfied that the learned circuit judge reached the correct conclusion, and the decree of the circuit court is affirmed, with costs of this court to the defendants.

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


author: By the Court, Wing, J.

text:
    Fraser vs. Chene et al.

    By will, a testator made the following devise: “I give and bequeath to my beloved son, G. C., the farm I now reside on, for and during his life-time, with all the appurtenances thereon; and after his decease, then the right, title, and appurtenailces of the aforesaid farm is to become the property of the said G. C.’s male heirs.” Held, that G. C., by the will, took an estate tail, which by the Statute of 1827, (Laws of 1827, p. 261,) was changed into an allodial estate.
    Case in Chancery, reserved from Wayne Circuit Court. Gabriel Chene, Senior, of Wayne County, on the 26th day of November, A.. D. 1829, made his will, and soon afterwards died. By his will he devised his farm, on which he was living, in the township of Hamtramclr, to his son Gabriel Chene, in these words: “I give and bequeath unto my beloved son, Gabriel Chene, my eldest, the farm I now reside on, for and .during his life-time, with all the appurtenances thereon; and after he, my said son, the said Gabriel Chene, is deceased, then the right, title and appurtenances of the aforesaid farm, is to become the property
      of the said Gabriel Chene’s male heirs, the said farm being bounded and described,” &c.
    After the death of the testator, Gabriel Ohene, the devisee, claiming under the devise to be the absolute owner of. the property in fee, sold a. part of it by warranty deed to John Norvell, of which part the complainant was in possession, claiming title thereto by certain mesne conveyances. The defendants, who are the male children of the devisee, claimed that their father was only entitled to a life estate in the property, under the devise, and that they would be entitled to it in fee, on his decease; and a bill was filed by complainant to quiet his title and remove the cloud thrown upon it by the claim of the defendants.

      Fraser, in person.
    1. It is a general rule in the construction of wills, that when the testator uses words which have been defined by judicial decision, he must be considered as speaking conformably to legal definition. (5 Mass., 501.) Courts will give to the specific words of the testator that technical effect which has been derived from usage, and sanctioned by a series of decisions; especially if they have become a rule of property. To do otherwise would render titles insecure and uncertain. (8 Mass., 81, 88; 1 JVotté McCord, 11, 72; 1 Kelly, 102,108; 1 Bay., 458.) The law will not suffer its rules to be contradicted, but will supercede the intent and reduce the gift to its own operation, such as it will allow. (1 P. Williams, 145; 3 Wend., 510; 6 Cruise, 349, 350; 3 Kelly's R., 562.) And courts camiot say that the testator did not understand the legal phrases he has used. (1 Douglas, 340.) Technical expressions always require a technical construction. (2 Law and Equity, 73, 74; 1 Richardson?s Ch'y R., 400.)
    2. Another rule is, that where a testator appears to have had a particular intent, and also a general intent, both of which cannot, by any mode of construction, be carried into effect, the Court will construe the will in such a manner as to effectuate the general intent, though by that means the particular intent be defeated. (6 Cruise, 327, 328. 1 East R., 229.)
    3. The policy of the law is now in favor of the free disposition of all kinds of property, and. especially real estate. (2 Law and Equity, 21; 2 Denio, 24.)
    4. It may be also observed that there are but two modes of acquiring title to real estate, at common law, viz: by descent exiUpurchase. When a person takes as heir at law, he is in by descent; the law casts the estate upon him at the death of his ancestor: but when he acquires title by his own act or agreement, or by devise, differently from what the law would cast it upon him, he is a purchaser. (4 Kent, 369, 870; Wharton's Diet. Jurris., 2,71, 841.)
    5. Where the heir takes in character of heir, he must take in quality of heir.
    These are familiar principles of the law of property, and of universal application in the courts of law and equity, as well in England as in this country. Keejhng these principles in view, I proceed to show that the devisee here, under the words of the devise, would, at common law, have become seized in fee tail of the property in question, which our Statute has declared shall be converted into a fee simple absolute, or “ as an allodium — a holding of lands without acknowledging any superior lord, contradistinguished from feudal lands, which are held of superiors. {Wharton's Diet. Jurisp., 36.)
    It may be admitted that it was the plain and evident intention of the testator that the devisee should take only an estate for life; but then the reason for confining it to an estate for life, was, clearly, to preserve the inheritance for the devisee’s posterity — “Ms heirs male.'' To restrict it to a life estate in the first taker, was the particular intent; to preserve the inheritance for the heirs male, was the general intent. The former was the intended means; the latter the intended end: and as we have seen, if the two intentions cannot stand together, the particular intent must be sacrificed to the general intent. The testator must have known, that by law, the children of the devisee were the general heirs of that devisee, and that, in case of an absolute devise to the son, without any remainder over to the “heirs male,” all the children of the devisee would take a fee simple estate. This provision could only then be with a view to benefit a particular class of heirs. The preservation of the estate for these heirs male, was manifestly the great end in view; but that end cannot be thus attained, consistent with the rules of law. (1 Fearne, 27, 28, 78, 84, 85, 87, 88.)
    The words “ heirs male,” are, in all instances, effectual to create an estate tail, since they are technical words of limitation, even although to one not in esse; for that circumstance does not vary the result; nor is it necessary to say the heirs male “ of Ms lody;’’ for that is implied by law. ■ The design was here to give the estate to those persons known in law as a class called “heirs male;” and be they who they may, they must take by descent, and not by purchase. The testator used the words in their general legal sense, as descriptive of a class or denomination of persons, and not as designating particular individuals: the law will not permit of a presumption or inference against the legal import of the words, such as would be implied by the term children; they must be construed according to their technical signification: their legal operation is too strong for the testator’s intention, which is supervened by rigid and imperious rules, established for centuries, and which are esteemed the landmarks of property, binding in all courts of justice. Wills must be consistent with'the rules of law, otherwise they cannot be carried into effect. The words, heirs male, are descriptive of the quantity of estate given, and denote it to be an estate tail descendible to no other hen’s but to those of the body of the devisee; for heirs male mean all the heirs of a given description, a class of inheritable persons’ taking in the character of heirs, ami in a legal course of descent. (1 Preston on Estates, 865, 881.) Imthe absence of any other clause in this will to furnish any illustrative light on the question, the terms employed must be held as words of limitation, and not of description. Where there is an express estate for life, so restricted to preserve the inheritance for the issue, and both intents cannot prevail, the life estate must be enlarged into an inheritance, to enable the issue to take through the ancestor. If the devisee shoidd take an estate for life only, then there would only remain a contingent remainder to the heirs male, and the fee simple would be in abeyance, which the’law will not permit. The legal estate must rest in some person, on the~death of an ancestor.
    ■ These principles and rules are amply sustained by a uniform current of decisions for centuries, and cannot admit of any terms of capitulation. (2 Cruisds Pig., 244; 1 Cohe, 104, Shelley’s Case; 4 Cruise,
      325; 6 do., 300 to 310, 316, 317, 321, 324, 327, 328, 330, 336, 359 to 454, 360; 6 Bac. Ab., 30, 31, 32, 39, 42, 45, 48, 49, 50, 51, 58, 63, 64, 66; 1 Brown’s Ch., 215, 218, 220; Carter, 172; 1 Ventris, 228; Ambler, 12, 379, 462; 1 P. Williams, 142, 622; 3 Bos. and 'Pul., 620; 19 Vez., 170; 3 Meriv., 176; 38, 5; Brown's P., Gas., 278; 2 Wils., 322; 2 Black. B., 177; 1 East, 229; 5 do., 548; Sonday’s Case, 9 Co., 128; 2 Eg. Case Ab., 312, 313; 1 do., 185; 1 Lord Bay'd, 203; 2 do., 1438; 1 Str., 445; 2 do., 731, 1125; 1 Comyn’s B., 289; 2 Salk., 679; 2 Atk., 265, 119; 2 Sim. <& Stuart, '410; 6 E. C. L., 73; 10 do., 419; 20*., 512; 2 Black. Corn., 115; 1 Fearne, 157 to 202; 1 Eden, 96; Bam. on Wills, 37, 61, 62.)
    A devise to a man and his “heirs male,” will pm an estate tail, for the law in favor to the intention of the testator, will supply the words, “of the body.” (1 'Preston on Estates, 312, 814, 882, and the cases there cited. 6 Bac. Ab., 30; 5 T. B., 335; Hobart, 91;'3 Salk., 336; Co. IAtt., p, 27 a; 2 P. Williams, 2.) In a will, a devise to a person and his seed, or to him and his issue, and many other expressions, are sufficient to confer an estate tail, and a devise to a man and his heirs male, which in a deed would he held to confer a fee simple, in a will gives an estate in tail male; for the addition of the word “ male,” as a qualification of heirs, shows that a elm of hens, loss extensive than his heirs general, was intended; and the gift of an estate in tail male, to which, in a will, words of procreation are unnecessary, is the only gift which at all accords with such an intention. (2 Law and Equity, 75; 2 Jarman on Wills, 233; Co. IAtt., 27 a.) It has been settled beyond controversy, that the words, heirs of the body, standing clear of any words of limitation, perfectly independent and unexplained, and preceded by a limitation of the legal freehold to the ancestor, in the same will, confers on the ancestor an estate tail. (1 Fearne, 202; 4 T. B., 82; 7 do., 531; 1 East, 229; 5 do., 548; 2 E. C. L., 73.) In several of the cases, and especially in the 5 East, the Judges remarked that they were deciding against the particular intent of the testator, in order to effectuate the general intent. And in 4 M. & 8., 865, the Court held that they were bound to take the words as they stood, “ according to the strict legal determination.” In that case, Justice Bailey stated: “I have always understood the rule to be, that wherever an estate for life is given to the first taker, and afterwards to any branch of his heirs as a class, so that the whole line of heirs to the first takers, who answer to the description in the will, should succeed him as such; there the first takers cannot have an estate for life, because all heirs claiming-as heirs, must take by descent; and therefore the heirs of the body do not operate as a designatio personarum, but are words of limitation. The words, heirs of the body, are properly words of limitation, and not words of purchase. The word “ heirs,” is technically a word of descent. (2 Lord Bay’d, 1440.) And whenever an heir takes as heir, he takes by descent. (1 Bro. G. 0., 220; Bam. on Wills, 60.)
    The terms, heirs and heirs of the body, are clearly then words of limitation merely; they mark “ out the estate which the devisee, if living at the ancestor’s death, would have taken.” (2 Law and Eq., 74.) And the words, “ heirs male,” like other expressions, have their appropiate legal sense, and claim the protection of that principle which forbids us to depart from the established legal import of any term, without a clear, manifest intention to use them as the sign of another given idea; they are never used without an intention to entail; they describe the regular .succession of entailed estates. The office of words of limitation is to measure the duration, and mark out the devolution of the ancestor’s estate ; they serve to point out the direction of the gift. But the words, children and sons, are properly descriptive of a particular class or single generation; they are words of purchase, and at once indicate the object and limit the scope of the gift; they point not to heritable succession, but to individual acquisition, a mere designation of individuals by name.
    The words in question will not yield to any expressions which are not explanatory of the sense in which the testator has used them, or which do not carry the explanation beyond conjecture or probable inference. They have a fixed sense, which must adhere to them, unless explained away by the express terms of the will. Lord Hale said, in 1 Ventris, 379, that the intention of the grantor will not control the operation of the law, and if a man covenants to stand seized to the use of himself for life, without impeachment of Waste, and afterwards to tire heirs male of his body, the law supervenes his intention, and makes him to be tenant in tail. These rules cannot be too strongly impressed or too steadily applied. They are interwoven with the first principles of judicial exposition, and never can be broken in upon without doing violence to those principles. The fundamental principles of legal interpretation do not permit a departure from their legal effect. Lord R’edesdale has said that repugnant or inconsistent expressions cannot be allowed to cancel or overthrow words having a clear meaning in law. (2 Bligh., 56.)
    The rule in Shelley’s ease is applicable also to devises of equitable estates. (Ram. on Wills, 62; IP. Williams, 142; 2 Vez., 646; Ami., 358, 376; 1 Bro. C. C., 206; 3 Vez., 120.)
    The doctrine of Shelley’s case has been adopted in South Carolina, Maryland, Virginia, Penn., New York, Connecticut, New Jersey, Mass., Georgia, and Ohio. (2 Cruise, 244, and notes; 4 Kent, 200, 209.) An examination of the American authorities on this subject, will show that the principles insisted on have been fully recognized, approved and applied in this countiy. (1 Dali., 47; 1 Veates, 332; 10 S. R., 429; 2 Veates, 410; Johns Cas., 387; 3 do. 384; 11 Wend., 259, 672; 3 Hill, 165; 3D«wo,485; 1 Barlour S. O'., 572, 576, 577; 1 Comstoclc, 492; 4 Leigh, 90, 91,112; Pennington’s R., 215, 601; 1 Day, 299; 3 do, 338; 15 Piclc’g, 104; 10 Metcalf., 366; 1 Bay, 453; 1 McCord’s Ch’y, 60; 1 Mott <& McC., 69; 5 Ohio, 465; 1 Kelly, 102; 2 Denio, 9.)
   By the Court, Wing, J.

This is the fiist time the question presented by the record in this case has been brought under discussion in this Court. Ordinarily it is far preferable that questions of magnitude should be fully discussed by counsel on both sides, that the Court may have the benefit of all the research that can be brought to bear upgn them., When this case was brought to a hearing, we felt some regret that the defendants were not represented in the discussion by counsel; but having folly examined all the authorities cited by the complainant in person, we are satisfied that no research or arguments of counsel could have changed the construction which we have put upon the words of the will.

There are many rules for the construction of wills like this, which the complainant has collated in his elaborate and learned brief. They have been wisely established by the Courts for their own government, in order to exclude themselves from the exercise of an unlimited and arbitrary discretion in each particular case. According to these rules where they exist and where they apply, are Courts, of both law and equity, bound to determine the intention. It is of the utmost importance that these rules, when established, should not be departed from, whether they are wise in themselves or not. The community generally, and the bar especially, ought to be able to know before hand what will be the decision of a Court upon any question which may occur and which is not new or anomalous. If this be true, it is in vain to argue to a Judicial tribunal on a question like this, that any rule heretofore laid down for the government of the construction of wills should be departed from, because of its particular’ hardship, or of new views of policy. When nothing is established they may have their influence, not otherwise. (See 1 Kelly)

It is admitted to be a cardinal rule in the construction of wills, that the intention of the testator is first to bo ascrtained from the words of the will, and when ascertained, it will govern; but to this admission, there is an important qualification, namely, so far as that intention is consistent with the laws of the land, and no farther. To stop short of this, would be an infringement of that liberty of disposing of a man’s own property, which is the most powerful incentive to honest industry and is therefore essential to a free and commercial country; while on the other hand, did indulgence to the testator’s intention go beyond this, every man would make a law for himself, and the metes and boundaries of property would bo vague and indeterminable, which would end in total insecurity. One of the most prominent examples to be found in the decisions illustrative of the principle, that the intention of the testator cannot control the construction^ repugnant to law, is, where the devise would create a perpetuity. (See Hovenden on Frauds, 255)

Courts will give to the specific words of the testator that technical effect which has been derived from usage and sanctioned by Judicial decisions, especially if they have become a rule of property. (5 Mass. Rep., 501; 8 Mass. R. 37, 38; 1 Nott & McCord., 71, 72; 1 Kelly, 102, 103; 1 Bay., 453; 1 P. Williams, 145; 3 Wendell, 510; 6 Cruiser, 350. 3 Kelly, 562; 2 Law and Equity, 73, 74; 1 Doug., 340.) It shall be presumed that the testator was acquainted with the rules of law, (Langhorn vs. Sanford, 2, Meriv., 22,) and therefore they will be interpreted acccording to their legal effect and operation, unless it clearly appears he intended to use them in a different sense, (7 Vesey, 368; 2 B. & B., 204.) They are not to be rejected upon a mere suspicion that he who used them did not know what they meant. (5 Vesey, 401; 8 Vesey, 306.) But when from the context it is apparent they have been employed in an' arbitrary manner to signify something contrary to their ordinary meaning or legal signification, Courts of Justice are bound to give effect to them in the sense in which they are used. (Lord Mansfield in Perrin vs. Blake; 1 Richardson, E. R., 398-9.) It is not enough to doubt whether they were used in the sense which they properly bear. The Court ought to be quite satisfied (says Sir William Grant,) that they were used in a different sense, and ought to be able distinctly to say what the sense is in which they wore meant to be used; and Lord Eldon says, in the case of the Att’y Gen’l vs. Grote, 3 Merivale, 316, that individual belief ought not to govern the construction; it must be Judicial persuasion. Let us apply these principles and rules.

All the modes of acquiring title to land are reducible to title by act or operation of law, and title by purchase, or by the act or agreement of the parties; whether the agreement be founded on a valuable consideration or be the result of a free and voluntary gift, the property thereby acquired is still, in the eye of the law, a pinchase. (4 Kent's Comm., 373; 3 Wend., 508.) Then the question is, whether Gabriel Chene took under the will by descent or by purchase; whether he took a mere life estate in the premises devised by the will of his father or was entitled to an absolute fee therein. In deciding this caso, we do not propose to go into an analysis of the decisions, nor do we intend to notice but few of the cases of wills that bear upon it. Whoever may feel desirous of examining the doctrine established in Shelley’s case, will find in the brief of the complainant a reference to all the books ho will need in exploring this singular branch of legal learning. It will be sufficient for our purpose to ascertain and apply the correct rule of law, without our attempting to notice the cases in which apparently but slight shades of difference in the the use of terms, have occasioned the application of a different rule. In the celebrated Shelley case, reported in 1 Coke’s Rep., 104, a, it was established at an early day as a rule of law, that when the ancestor by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either immediately or mediately to his heirs, in fee or in ..tail, that always in such cases the word “ heirs ” are words of limitation of the estate, and not words of purchase. In this case E. Shelley, being tenant in tail, suffered a recovery and declared the uses of it to himself for life, without impeachment of waste, remainder to trustees for twenty four years, remainder to the heirs male of the body of -E. Shelley and the heirs male of the body of such heirs male, remainder over. It was held, as stated above, that the words “heirs male” of the body of E. Shelley should be construed to operate as words of limitatipn and not as words of purchase; that, therefore, E. Shelley took an estate tail. The rule thus-established has never been shaken, but remains in all its original force-as a part of the common law of England.

In the ease at bar,in the will, there is not added to the word “heirs” the words “of his body;” and though it is necessary, in creating an estate tail, to designate of what body the hens inheritable shall issue; in cases of wills the law supplies the words of the body. (Pennington’s Rep., Vol. 1 & 2, 603-4; 1 Preston on Estates, 312, 314, 332; 6 Bacon Ab., 30; 5 T. Rep., 335; Hobart, 91; Co. Lit., 9, 27, a; 2 P. W., 2.)

It would seem to any one reading the will in this case, that the intention of the testator to give a life estate only, to his son Gabriel, was so» very plain, that it could not be doubted. Granting that this intention is plainly expressed, this can make no difference; in all cases the testator does mean so; but what did he intend should happen after the death of Gabriel ? Sir William Blackstone says (in the case of Perrin vs. Blake, cited 6 Cruise, 360,) the true question of intent will turn, not upon the quantity of the estate intended to be given to the first devisee, but upon the nature of the estate intended to be given to the heirs of his body; and where the second devise is inconsistent with the first, we must adopt such construction as will best effectuate the general intent of the testator. It is for this purpose that the rule is applied, that “where a testator shows a particular and also a general intent, which' are inconsistent with each other, the general intent will be established, and the particular one disregarded.” This rule was fully illustrated in the case of Robinson vs. Robinson, (1 Bur., 38.) In that case, beyond all doubt, the testator meant that the first taker should receive only an estate for life, because he had said so in express terms; but as it appeared this was inconsistent with the general intent, it was held the first taker must take an estate tail in order to effectuate the devisor’s general intent, which was that the inheritance might be preserved for his heirs. “To restrict it to a life estate in the first, was the particular intent; to preserve the inheritance for the heirs was the general intent; the former was the intended means, the latter the intended end; and as these two intentions could not stand together, the particular intent was sacrificed to the general intent.” (See 1 Fearne, 27, 28, 78, 84, 85., &c.)

So strong is the rale, and so closely has it been adhered to, that Mr. Preston, (in his book on Estates, 365-6,) treating of this rule in Shelley’s case, as it had been applied to wills, and citing the cases, says: “ Neither ■ the express declaration that the ancestor shall have the estate for life and no longer, nor that he shall have only an estate for life in the ’ premises, and after his decease it shall go to the heirs of his body, and in default of such heirs, vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator, nor that the ancestor shall be tenant for his fife and no longer, and that it shall not be in his power to sell, dispose, or make way with any part of the premises, nor a provision that the ancestor shall not be impeached for waste, nor that he shall have a power of leasing or jointureing, nor the interposition of an estate to trastees to support the contingent remainder, nor a direction that the heirs shall take severally and successively as they shall he in priority of birth, every elder and the heirs male of his body to be preferred to every younger, will change the word ■ heirs into words of purchase.”

In this case an estate for life was given to Gabriel Chene, and after his decease it was to go, or in the words of the will, become the property of a particular branch of his heirs, viz: his male heirs, as a class, so that the whole line of heirs to the first taker, who answer the description in the will, will succeed him as such; and these heirs must take by descent and in the character of heirs. (1 Preston on Estates, 365; 4 M. & S., 365.) There are no words of limitation superadded to the words •male heirs, to show that the testator meant the children of Gabriel only.

The cases in England are uniform upon this subject, and establish the fact that Gabriel Chene was tenant in fee tail, and the statute of our State, (see code of 1827, p. 261,) made to dock entails, is applicable to the case, and by it the estate of the tenant in tail is raised to an allodial estate.

The doctrine of Shelley’s case, which we have been considering, is a part of the common law, and has been maintained in England by a series of decisions' during the last three hundred years; it was adopted into the United States as a part of the common law. It is said that the rule owes its origin to feudal policy, to the war made by the Courts upon perpetuities and then desire to free real estate from the embarrassments ofentailments; but whether this be so or not, we say, in the language of Judge Lane of Ohio; (see 4 Ohio Rep., 465; McFeeley's, Lessees, vs. Moore's Heirs,) “ it has been too long' established to be abrogated by us.” From the earliest period, we find it a settled rule of the common law. It is found in the Year Books; it is stated in the Institutes as clear and undisputed; it is recognized in the abridgments of Fitzherbert & Rolle; it has descended, in the English Courts, to the present time, unimpaired by attempted innovations, and flourishing in full vigor; it has been adopted in the United States. In Connecticut, Maryland, Virginia, South Carolina, New York, Pennsylvania, New Jersey and Georgia it formed a part of the common law, and it continues to exist as a rule of property, except where abolished by statute. If its policy be doubted, let the legislature be called upon to act; but if we should disregard a rule, which has prevailed so widely, and subsisted so long, it would be an unfaithful interpretation of the law. In the following cases in the United States this rulo was fully sustained: (1 Dall., 47; 1 Yeates, 332; 10 S. & R., 429; 2 Yeates, 410; 1 Johns, Cases, 387; 3 lb., 384; 11 Wend., 259, 672; 3 Hill, 165; 3 Denio, 485; 1 Barbour, S. Q., 576, 577; 1 Comstock, 492; 4 Leigh., 90, 91, 112; Pennington's Rep., 215, 601; 1 Day., 299; 3 do., 338; 15 Pick., 104; 10 Metcalf 366; 1 Bay., 453; 1 Nott & McCord, Ch’y, 60; 1 Nott & McCord, 69; 5 Ohio, 465; 1 Kelly, 102; 2 Denio, 9.)

Tins rule has been abolished by statute in Massachusetts, New York, Ohio, and in this State. (See R. Code, 1846, Sec. 28, page 252.). Nothing but the power of legislation, both in England and the United States, has been able to put it down. The exercise’ of that power, (in many of the States,) is the fullest admission of the strength of the rule and of its security against judicial attack. 'We, therefore, are of the opinion that the prayer of complainant’s bill shoidd be granted.

Let it be certified to the Circuit Judge for the County of Wayne, as the opinion of this Court, ’that a decree should be entered according to the prayer of the complainant’s bill.

Certified accordingly.


author: By the Court, Pratt, J.

text:
    Hathon, guardian, vs. Lyon.
    u. Loving a daughter by a former husband, married K., by whom she also had a child. After her marriage with K., and before the birth of her second child, she acquired by grant, and ‘ became seized in fee, of certain real estate. Her child by K. died, and afterwards she died, leaving K., and her daughter by her first husband, surviving her. Held, that (under R. S., 271, §30) K. was not tenant by the curtesy of the land his wife died seized of, which descended on her death to her daughter by her first husband.
    Case reserved from Wayne County > Court. Assumpsit for the use and occupation of real estate. The mother of Margaret Uhl, the ward, was married on 4th July, 1843, to Mathias Kemph, who was her second husband, Margaret being her daughter by a former husband. On 14th August, 1844, she acquired by grant, and became seized in fee simple, of the premises for the use and occupation of which the action was brought. During her coverture with Kemph, she gave birth to a child, which died on the 18th July, 1845; and on the 4th November, 1848, the mother died, intestate, leaving Margaret, her daughter by her first husband, and Kemph, her second husband, surviving her. On the 15th March, 1845, Thomas Lyon, the defendant, went into possession of the premises under Kemph, arid used and occupied them during the months of October and November, 1849. On the part of the plaintiff, it was contended Kemph never had any interest in the premises, and therefore could not convey any to defendant; while on the part of defendant, it was insisted he was tenant by the curtesy.

      Howard é Mandell, for plaintiff.

      Backus dr Harbaugh, for defendant.
   By the Court, Pratt, J.

By the case, it is admitted that the mother of the plaintiff was married to Mathias Kemph, on the 4th day of July, 1843, and that on the 14th day of August, 1844, she acquired by grant, and became seized in fee; of the premises in question; that the plaintiff was her daughter by a former husband by the name of Uhl, who died some two years before said grant, and about the time of the birth of the plaintiff That the mother, during her coverture with Kemph, gave birth to a child, which died on the 18th day of July, 1845; and that on the 4th day of November, 1848, the mother died intestate, leaving the plaintiff, her only ■living child, and Kemph, her second husband, surviving. That on the 15th day of March, 1845, the defendant, Thomas Lyon, went into' possession of the premises, under a demise executed to him by Kemph; that he used and occupied the same during the months of October and November, 1849, and that on the 13th day of January of-that same year, the said Anson E. Hathon was duly appointed guardian of the plaintiff, &c. Upon these facts, it is contended by the plaintiff’s counsel, that Kemph, the surviving husband, has never been seized of an estate of any kind in the premises, and therefore could not convey any valid right of possession to the defendant, by demise or otherwise.

On the other hand, it is insisted by the defendant’s counsel, that he .is legally seized of a life estate in the premises, as tenant thereof by the curtesy.

' If Kemph, as surviving husband, has an estate in the premises, by the curtesy, there is ■ no doubt that he could legally occupy the premises ■himself, or convey, that right to another. But legally, can he be regarded in the light of a tenant of the estate by the curtesy ? At common law, four requisites are necessary to create such a tenancy, viz: marriage, seizin by the wife, issue, and death of the wife. (2 Blk. Com., 127; 1 Coke upon Littleton, 643.) The facts admitted by the case are sufficient to establish his right of tenancy at common law, and unless that right has been cut off by statute before it became vested, he would be entitled to the use and occupation of the premises during his life.

By an act of the Legislature, entitled “An act to define and protect the rights of married women,” Approved March 11, 1844, it was provided, that any real estate acquired by a female before marriage, or to which she may at any time after be entitled by inheritance, gift, grant, or devise, should be and continue her estate, and should not be liable for the debts or engagements of her husband. Under this act, and several months after it became the law of the State, the wife, as admitted by the ease, acquired the premises in her own right by grant, and of which she 'died seized in fee. This provision of the act of 1844 was re-enacted in 1846 and incorporated into the revised statutes, and still remains unchanged. . (R. S. of 1846, p. 340, Sec. 25.) In order to carry out this statute,it is further expressly provided, that in all matters arising under it, the wife may institute proceedings in her own name, either at law or in equity. In view of this statute, it is clear that Kempli, at no time prior to the death of his wife, was seized of an estate in the premises of any kind.

At common law, the husband, by the birth of a child, capable of inheriting, becomes a tenant by the curtesy initiate only, but this right initiate is not consummate, nor can it be, until after the death of the wife. (2 Blk. Com., 127.) And the Legislature has the same power by statute, to cut off this right initiate before it becomes vested, that it possesses, to change or abrogate any other principle of the common law; and in this particular .class of cases has done so. It is true, that by the 27th section of the Revised Statutes, before referred to, it is provided that in case the wife dies without making .any disposition of her real estate, the husband surviving shall have a life estate therein by the curtesy. This is the general rule, established by statute; and if there was no exception to it, Kemph woidd have become seized of a life estate in the premises in question, on the death of his wife, with or without issue, during the covertwe. But by another section of the Revised Statutes, (R. S. of 1846, p. 27l, Sec. 30,) it is provided, “that if the wife, seized of an estate in her own right, shah, at her death, leave issue by a former husband, to whom the estate may descend, such issue shah take the same, discharged from the right of the sivroiving husband as tenant by the curtesy.” This provision clearly constitutes an exception to the general rule, and is most just and equitable in point of principle; and by it the prospective common law right of Kemph, as tenant of the estate by the curtesy, was cut off and abrogated before it became consummate by the death of his wife; he has, therefore, no estate of any kind in the premises, either possessory or in expectancy; hence any demise he may have executed to the defendant, can be of no legal force or effect,- or tend in the least to bar the plaintiff from recovering through her guardian the rents and profits arising from the use and occupation of the premises. The opinion of this Court certified accordingly.


text:
    Jerome vs. Hopkins et al.

    Bill to foreclose a mortgage, executed 1st of ¡March, 1836. The bill stated the condition of the mortgage to be for the payment of $400, as follows: §275 on or before the 1st of May next, and §125 on or before the 1st of May, 1837, with interest from 1st of May, 1836. The condition of the mortgage was, that if H. should pay to J. §400, as stipulated in a certain bond executed by II. to J., dated 15th Dec., 1835, that is to say, the said H. has obligated himself to pay §275 on or before 1st of May, next, and §125 on or before the 1st of May, 1837, with interest from and after the 1st of May next, then the deed to be void. H., by his answer, admitted the execution of the mortgage, but denied that it contained the condition stated in the hill, and then set forth the condition as above stated, and also two bonds, dated 15fch Dec., 1835, each referring to the other, by which it appeared J. agreed to deed to H. a farm for §3,000, to be paid for by H.’s deeding to him certain village lots, and by erecting on one of the village lots a dwelling house, to be finished as J. might direct!* Bor the village lots and house, J. was to pay §2,600; but as the finishing of the house according to J.’s directions, might exceed the estimate, the house was, in that case, to be appraised, if they could not agree upon its value; and the balance remaining due from H., was to be paid by him on or before the 1st day of May, 1837, in work, or otherwise, as the partiesmight agree, and to be secured by II.’s giving a mortgage on the farm. Held, that the reference in the condition of the mortgage to the bond of H., was intended by way of recital, to show that H. had admitted the balance due from him on the land was §400, and that the mortgage was payable in money, and not in work, or otherwise, as the parties

      might agree. Held, also, that there was no variance between the case made by the bill and •that admitted by the answer.
    Appeal by Hopkins and others, from St. Clair Circuit Court, in Chancery.

      Van By he db Emmons, for complainant.

      J. M. Howard, for defendants.
   By the Court, Wing, J.

The complainant files his bill to foreclose a mortgage executed by defendants to Horace B. Jerome and assigned to complainant. The condition of the mortgage is stated to be for the payment of the sum of four hundred dollars, as follows: two hundred and seventy-five dollars on or before the first day of May, 1836, and the further sum of one hundred and twenty-five dolíais on or before the first day of May, 183 V, with interest from the first day of May, 1836. The defendants admit the execution of the mortgage set forth in the bill, but deny that it contains any such condition as set forth therein, and they say that the only condition of said mortgage is as follows, viz: “ that if the said S.F. “ Hopkins, his heirs, executors, administrators or assigns shall pay or cause “ to be paid to the said Horace B. Jeróme, his heirs or assigns, the sum of “fourhundred dollars, as stipulated in a certain bond executed by the said ‘‘Hopkins to the said Jerome and bearing date the fifteenth day of December, eighteen hundred and thirty-five, that is to say, the said Hopkins has “obliged himself to pay the sum of two hundred and seventy-five dollars “on or before the first day of May next, and the further sum of one “hundred and twenty-five dollars on or before the first day of May, eighteen “hundred and thirty-seven, with interest from and after the first day of “May next, then this deed to be void,” &c. The defendant then sets out two bonds, in each of which there is a reference to the other, by which it appears, said Horace B. Jerome agrees to deed to said Hopkins a certain farm in St. Clair County, called the Jerome farm, for the sum of three thousand dollars, to be paid fort by Hopkins, by his deeding to ■said Jerome certain lots of land in the village of Palmer, and by his erecting on one of said lots a dwelling house, to bepmished as Jerome may direct, the value of the lots and the house to be built, were stated in the bonds to be agreed upon as b ing twenty-six hundred dollars; but it appears it was supposed the finishing of the house as Jerome might direct, might exceed the estimate. In that case, if they could not agree upon its value, it was to be appraised, and the balance remaining due from Hopkins after deducting such payments was to be paid by Hopkins on or before the first day of May, 183V, m worlc, or otherwise, as the parties might agree; and this payment was to be secured by Hopkins, by a mortgage on the Jerome farm. These bonds respectively bear date the fifteenth day of December, 1835.

It is not claimed by the defendants that there is any present validity to these bonds, or that they are otherwise important in this ease, than as furnishing an explanation of the true import of the undertaking to pay, as expressed in the condition of the mortgage. It is insisted by them that the mortgage, by reference to the bonds, makes the balance of four hundred dollars payable in work, or otherwise, as the parties may agree,” and not in money, as alleged in complainant’s bill; and as the complainant has not alleged any demand of the work, nor any offer to agree to any mode of payment, he cannot recover; and he also insists that the condition of the mortgage is not tralyjsetforth in the bill; and as the complainant has not sustained his case as made by the bill, he cannot recover, though the case made for him^by the defendant should be considered by the Court as one upon which he might have recovered, if properly stated in his bill.

The case is brought to a hearing upon bill, answer, and replication; no proofs have been taken.

The complainant makes no objection to the mortgage and bonds being considered together. We shall therefore endeavor to ascertain, in the first place, whether by the terms of the condition of the mortgage, the four hundred dolíais is payable in money, or “in worlc, or otherwise, as the parties mag agree?

The terms of the bonds show plainly that it was the understanding of the parties that after the defendant, S. E. Hopkins, had finished the-house, they were to come together and make the conveyances, ascertain the balance due from Hopkins, agree upon the mode of payment,, and that Hopkins should execute a mortgage to Jerome, to secure the payment of the amount due. Pursuant to this understanding and agreement they met on the first day of March, 1836, when the balance due to Jerome was found to be four hundred dollars, and Hopkins, pursuant to the condition of his bond, executed the mortgage to Jerome.

We have no doubt that the reference in the condition of the mortgage to the bond of Hopkins, was intended by way of recital, to show that Hopkins had admitted the balance due from him on his bond was four hundred dollars, as it would seem from the bond, it was supposed it would be; and that the mortgage was given in satisfaction of the bond.

This mortgage, so executed, must be considered to be the subsequent agreement which, at the time of the execution of the bonds, the parties contemplated, and which was to provide for the mode in which payment of the balance (which might be found due from Hopkins, on settlement-,) should be made.

Upon a careful examination of the condition of the mortgage, in connection with the bonds, we have no doubt that the trae construction to be put upon the undertaking of the defendant is, that the four hundred dollars is to be paid in money, and not “ in work, or otherwise, as the parties may agree? Hopkins must have intended, by executing the mortgage, to come under a definite legal obligation to Jerome. He was closing up all the matters embraced by the conditions of his bond. He was stating not only the amount of his debt to Jerome, but the mode in which it was to be paid. He was making that certain, which before was uncertain. Can we suppose that the parties would go through the useless ceremony of executing and receiving a mortgage, to secure the performance of an undertaking on the part of Hopkins, that he would pay to Jerome four hundred dollars, in the mode they might afterwards agree upon; this would not bind Hopkins; by it he would not be obliged to agree to any mode of payment; Jerome could not, by any notice, demand, or proposal, make it operative or binding upon Hopkins, who would be at liberty to disagree to any offer or proposal Jerome might make to him, without incurring any responsibility thereby. ( Ohitty on Contracts, 16 in note, page 73.) The words of the recital do not necessarily, or by fair interpretation, bear the meaning claimed for them by defendants. The mortgagor having recited the fact that he was obligated by Ms bond to give to Jerome a mortgage for tire balance due, ’ apparently for tire purpose of precision, says “ that is to say, that said Hopkiiis Has obligated himself to pay the sum of two hundred and ■'sevbnty-fiv’e dollars on or before the first day of May next, and the further suni bf oire hundred and twenty-five dollar’s on or before the first ’day ¿Í May, 1837.” This was the second instrument that had been ex-'eéuted bétwe'en the parties, to provide for the payment of this balance. Hoif'feasy aid'how natural it would have been to have added the words, ' p^hble in’work,” if the parties so intended; and how absurd it would háve been to gb through the ceremony of agreeing in writing, that at some' tifie they would agree as to whether the payment should be made in'''work or otherwise.”

If it is hot quite plain that the mortgage is payable in money, then we think itslanguage is' equivocal, and, according to a well settled rule of construction applicable to such agreements, it is our duty to construe it most ^ strongly against Hopkins, and in such manner as to make the mortgage a válid'and binding security, which may be. enforced against him. ' (8 Pet. R., 497.) This can only be done by our deciding that it is payable in money.

’ The plaintiff must recover, if he can recover, upon the case he has made'in his bill, and not upon a different case ’made for him by the defendants in their answer. (11 Pet, 294.) The complainant sets out all the operative part of the condition of the mortgage. The defendants admit 'they executed the mortgage, but they deny that it contains any such’ condition as is set forth in the bill; they then proceed to set out the condition truly, but with the exception of that part which we have ’ considSréd to be in the nature of a recital, and as forming no part of the uhdérfáking of defendants, and as having no effect upon it; the condition as Set forth by both parties agrees, not in the precise words, but ’in substance, and, in our opinion, the complainant has accurately set out the legal effect' of the condition; the qualifications attached to the ’ admission of 'the defendants in their answer do not take any thing from their force'as a full admission of the mortgage as complainant " claims it' to be. The complainant, by his mode of introducing the condition; does not, according to the rules of pleading, tie himself to the tenor of' the condition. All that would be required in a declaration under such a reference to an instrument declared on, youl^he sef it out according to its legal effect. (Stephen’s Pl., 389, 311: Gould's Pl., 182, S. 27, Chitty's Pl., 224-'5.)

In the case of Guthing vs. Lynn, (2 B. & A., 232) assumpsit was brought on warranty of a horse; the corjsid^tipjn^ted for the warranty was, that the plaintiff'would purchase the horse for sixty-three pounds; but the consideration as proved, was, that the plaintiff would pay that sum, and if the horse was lucky would give defendant five pounds more, or the buying of another horse. Held no variance; the conditional promise omitted in the declaration being too vague to be legally enforced, and not amounting in point of law to a promise. The Court say, “we must suppose the substantial part of the'~contíact'Wbé that declared on, and consider the rest as amounting merely to one of those honorary engagements which seem very much to preváil'amdngpéfáiós in this way of business.” So in this case, the recitals,, considered them to be,) being left out, does not affect '■defendanfee&se. The condition of the mortgage is set out according' tó iis legal'effect. Suppose the complainant had proved the mortgage, would the mortgage have been excluded because of a variance? "We thmli"not.''' 'Then-how does it change the case, that the defendant, after admitting tjr$ hj?§?iRtion of the mortgage, states the true condition, and denies that it is “any such condition” as the complainant has set out'in' his-bill?If the condition set out by defendant as the true one, is in legal effect the same set out in the bill, it is an admission of the statement in the bill; his’simple denial, however direct and positive, that it.is,any suplí condition as complainant has stated, is no more than the statement of his opinion of the law arising upon, the facts admitted. If the defendant meant'to say the condition of the mortgage is not in legal effect the same — ye differ from him. If ho meant to say a part of the words of the "condi-. tion were left out by complainant — we say it is immaterial,' if the 'legal "" It was not incumbent upon the ccuheffect of the words is stated, ptlainant to set out the instrument literally. (Stephens Pi., 252-f’3-4; Sec. 240, and cases cited)

As tbe items for oxen sold to complainant, and money paid, on which tbe defendant claims in bis answer should be allowed on tbe mortgage, are not proved, we cannot-further notice them.

Tbe decree of tbe Circuit Court affirmed, with costs of tbis Court.

Decree affirmed.