text:
    RUDELL v. GRAND RAPIDS COLD-STORAGE CO.
    1. Bailments — Cold Storage — Negligence—Evidence.
    Defendant’s agent, while soliciting the patronage of plaintiff' for cold storage, was shown by plaintiff a small cold-storage-room, in which she kept what she could of her butter, and told that it kept well at a certain temperature, but that she knew nothing about cold-storage plants. In an action against defendant for damage to butter in storage, held, that evidence-that plaintiff’s butter kept well in her private storage room,, and that other butter of like grade, left in defendant’s storage plant at the same time as that of plaintiff, was damaged, was admissible on the issue of defendant’s negligence..
    2. Same — Damages—Plaintiff’s Duty — Instructions.
    In an action for damage to butter in the storage plant of defendant, where it appeared that, at the time plaintiff was offered but little less than the market price for the butter, it was not clear to just what extent it had been injured, and the period of bailment had not expired, and there was no request on the part of defendant to take the butter from its custody, and no offer to take it off the hands of plaintiff at any price, the court properly instructed the jury that it was the duty of' plaintiff to use good faith, good judgment, and reasonable-effort in disposing of the butter, with no more loss than was necessary, and it was not error to refuse an instruction that it. was plaintiff’s duty to accept the price offered.
    3. Same — Receipt—Liability.
    A cold-storage receipt for butter, providing that the storage-company would furnish any desired temperature, but would not guarantee results, all goods being stored at owner’s risk, and exempting the company from liability for loss or damage by fire, water, ratage, leakage, breakage, frost, or to perishable property, did not, where no temperature was agreed upon, relieve the company fi-om its obligation to use due care and diligence in keeping the proper temperature, and in not exposing the butter to injurious odors from fruits and vegetables.
    Error to Kent; Wolcott, J.
    Submitted April 5, 1904.
    (Docket No. 10.)
    Decided May 17, 1904.

      Assumpsit by Eva C. Rudell against the Grand Rapids Cold-Storage Company for damage to butter in storage. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, a maker of and dealer in butter, deposited a large quantity in the cold-storage plant of the defendant for preservation for future sales. Her butter was of a very high grade, and made and kept for sale during the summer at the pleasure resorts of Northern Michigan. It was deposited with and taken charge of by the defendant daily from the 14th of May to the 3d of June following.
    The entire contract rested in parol. Each party gave her and his version of the arrangement in the various conversations that were had prior to the first deposit. The parties disagree radically as to the terms of the agreement. On May 21st, defendant gave to the plaintiff a receipt for the butter which had been stored before that time. This receipt recited that it was “ subject to the conditions printed on the back.” The condition material to this suit reads as follows:
    “ All storage taken by this company subject to the following terms:
    “ This company will furnish any desired temperature, but will not guarantee results, all goods being stored at owner’s risk. * * *
    “All loss or damage by fire, water, ratage, leakage, breakage, frost, or to perishable property, at owner’s risk.”
    Other similar receipts were subsequently given, and also one which did not contain this condition. These were given to enable the plaintiff to use them at the bank to secure loans. On June 4th it was discovered that the butter had deteriorated, either by too high a temperature, or by odors from fruits and vegetables. The object of this suit is to recover damages for the negligence of the defendant in the care of the butter. Plaintiff gave evidence tending to support her claim. The defendant gave eviclence tending to show that it agreed with the plaintiff to keep the temperature at 35 degrees, and that it had substantially complied with that agreement. The disputed issues of fact were found against the defendant. The further facts, so far as material, will be stated in connection with the points raised.

      Ward & Brown and Wolcott & Perkins, for appellant.

      William H. Eastman (Myron H. Walker, of counsel), for appellee.
   Grant, J.

(after stating the facts). Defendant’s agent, whiie at plaintiff’s house soliciting her patronage, was shown some of the butter, the manner in which it was put up, and a small cold-storage room in which she kept what butter she could. That butter was made and put up in substantially the same manner as was that deposited by her with defendant. Defendant’s agent testified that she told him that she had no difficulty in keeping butter in that room. Plaintiff was permitted to show that that butter kept well. She was also permitted to show that the butter of one Monteith, deposited in the defendant’s plant at the same time with that of the" plaintiff, became damaged. There was no error in admitting this .evidence. Plaintiff testified that she told defendant’s agent that she knew nothing about cold-storage plants. She showed him how she kept her butter of the same kind as that about which they were contracting, and told him that it kept well at a certain temperature. It was competent to show that that butter kept well, and also that other butter of like grade, deposited in the defendant’s storage plant at the same time, was damaged. Townsend v. Rich, 58 Minn. 559 (60 N. W. 545). If other butter under like conditions kept well while that of plaintiff did not, it would naturally lead to the conclusion that the fault was inherent in the butter,. and not to any negligence of defendant. The converse of the proposition would be equally true.

It is insisted that the record conclusively shows that plaintiff, soon after discovering that the butter was damaged, was offered within a half a cent of the then market price, and that it was her duty to accept the offer. The court refused to so instruct the jury, and instructed them that it was the duty of the plaintiff to use good faith, good judgment, and reasonable effort in disposing of the butter, with no more loss than was necessary. We think the evidence does not sustain defendant’s claim. The witnesses were not fully agreed as to the extent of the injury. There was evidence that it was slight, and not easily detected except by those of experience. Defendant’s engineer thought that by lowering the temperature he could freeze the bad taste out. The term of bailment had not expired. Defend - ant did not ask plaintiff to take the butter from its custody and dispose of it. It did not offer to take it off her hands at any price. The butter was permitted to remain, evidently in the hope that the injury might be repaired. When it was ready for sale, plaintiff placed it upon the market at some of the customary places for her trade, but her pátrons refused to use it. There was evidence that ■she then disposed of it at the best terms she could. We think the request was properly refused, and the question •of damages under correct instructions submitted to the jury.

It is insisted that the receipt and the printed conditions on the back of it constituted the contract between the parties. It appears that the case was submitted to the jury upon that theory. We will dispose of the question as though the receipt constituted the .contract, because both parties seemed to try the case upon that theory. We do not, however, thereby establish the rule that a parol contract for storage can be changed by a receipt issued after the property was deposited, when the storage receipt contains terms different from that agreed upon by parol, without the assent of both parties. This receipt does not, in terms or by implication, exempt the defendant from acts of negligence. The language, “This company will furnish any desired temperature, but will not guarantee results,” refers to the temperature alone. If a temperature was agreed upon and maintained, plaintiff could not recover, although the property was ruined in consequence thereof. There is nothing in the receipt or in the condition which attempts to relieve the defendant from its obligation to use due care and diligence in keeping the proper temperature, and m not éxposing the goods to fruits and vegetables. The contract does exempt the defendant from liability on account of fire, water, ratage, leakage, breakage, frost, or damage to perishable property. It was, however, under the same obligation to preserve a proper temperature, and to keep it away from injurious odors, as though no such language was in the contract. Hunter v. Storage Co., 75 Minn. 408 (78 N. W. 11); Minnesota Butter & Cheese Co. v. Warehouse Co., 75 Minn. 445 (77 N. W. 977, 74 Am. St. Rep. 515).

Judgment affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    SMITH v. JONES.
    Township Treasurer’s Default — School Moneys — Liability of Township.
    Act No. 206, Pub. Acts 1893, § 91 (1 Comp. Laws, § 3914), provides that all losses that may be sustained by the default of any township officer in the discharge of any duty imposed, by the act shall be chargeable to the township. The act imposes upon the township treasurer the duty of the collection-, and payment of all school-district taxes. Held, that a township is liable to a school district for school moneys lost through the defalcation of the township treasurer.

      Certiorari to Wayne; Rohnert, Hosmer, and Brooke,, JJ.
    Submitted April 5, 1904.
    (Calendar No. 20,320.)
    Decided May 17, 1904.

      Mandamus by Arthur B. Smith, treasurer of school district No. 1 of the township of Monguagon, to compel George D. Jones, supervisor of said township, to spread a certain tax. From an order denying the writ (Brooke, J., dissenting), relator brings certiorari.

    Reversed.
    In 1903 the treasurer of the township of Monguagon defaulted in his accounts. Among the moneys embezzled by him or his deputy were $3,360.97 of school-district moneys belonging to school district No. 1 of said township. The relator brought suit by mandamus against the treasurer of said township tp compel him to pay said amount-to said district. Judgment was duly entered thereon. The treasurer was unable to pay said amount, for the reason that there were no funds in the treasury for that purpose. Relator thereupon requested respondent to spread said amount on the general tax roll of the township; The respondent refused, and thereupon relator instituted this suit to compel the defendant supervisor to spread the tax. 'Three of the judges of the circuit court for the county of Wayne heard the case. A majority of the court held that the loss was that of the school district, and denied relief. The case is now before us for review upon the writ of certiorari.

      Walter Barlow, for relator.

      James H. Pound, for respondent.
   Grant, J.

(after stating the facts). The township is not liable at the common law for the defalcations of its treasurer. Township of Hart v. County of Oceana, 44 Mich. 417 (6 N. W. 863). We must, therefore, look to the statute to ascertain whether the township is made liable for the various funds which the township treasurer collects and neglects to pay over as required by law. The school district has no voice in the giving of the bond. The bond is to be executed to the township, with such sureties as the supervisor shall require and approve. 1 Comp. Laws, § 2354. Formerly the law made the township responsible for all losses sustained by the defalcations of its treasurer. 1 How. Stat. § 1140. That provision does not appear to be in the present tax law. By Act No. 206, Pub. Acts 1893,. this liability was extended to all township officers. Section 91 of that act (1 Comp. Laws, § 3914) provides that “all losses that may be sustained by the default of any township officer in the discharge of any duty imposed by this act shall be chargeable to such township.” By the act he is charged with the collection and payment of all school-district taxes. The funds in question were lost by his default, and, under the above statute, the township is liable.

Whether the bond, in this case is good the record fails to-show. It is immaterial. If the township, as was its duty, has a good bond,- it is secure. If it failed to take a good bond, the fault is with the supervisor, the duly authorized agent of the township. If the sureties were good when the bond was given, but have since become irresponsible, the misfortune is that of the entire township, and not the school district.

The judgment is reversed, and entered in this court for the relator.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


author: Moore, C. J.

text:
    KINGSLEY v. NYLAND.
    Bridges — Repairs — Discretion op Township Authorities — Mandamus.
    Under 2 Comp. Laws, §§ 4129-4134, the opinion of the township authorities as to the cost of repairing a bridge must prevail, and, if they are honestly of the opinion that the necessary repairs cannot be made for an amount within their power to expend, the court will not substitute its judgment for theirs, and issue a mandamus to compel the making of the repairs.

      Certiorari to Allegan; Padgham, J.
    Submitted April 5, 1904.
    (Calendar No. 20,423.)
    Decided May 17, 1904.

      Mandamus by Frank W. Kingsley and others to compel John H. Nyland, highway commissioner, and Lambertus Scholten and others, composing the township board, of Laketown township, to repair' a bridge. From an order granting the writ, respondents bring certiorari.

    Reversed.

      Hyde, Earle & Thornton, for relators.

      C. B. Wilkes, for respondents.
   Moore, C. J.

Twenty-five of the property owners of the township of Laketown, Allegan county, Mich., living on the highway running north from Gosshorn Lake, on the 21st day of November, 1902, filed a petition in the circuit court for the county of Allegan for a mandamtis against the highway commissioner and township board! of Laketown to compel the repair of the bridge on the highway aforesaid across Gosshorn Lake. The matter was heard before Judge Padgham, who granted the writ. This is a certiorari to review Judge Padgham’s action.

The record discloses it is 621 feet across Gosshorn Lake where the bridge is located. The bridge is a floating one. It was built about 40 years ago, and moved to its present location in 1887, and became a part of the public highway. The water in the lake over which the bridge passes varies from a few feet to upwards of 50 feet in depth. It is the claim of the township authorities that in the spring of 1902 the bridge was badly out of repair; that, by direction of the township meeting, the township board appointed a committee of 12 freeholders to investigate its condition and report; that in April this committee made an investigation, and reported it unsafe for travel. It is also claimed that in May, 1902, the highway commissioner investigated its condition, and found nearly all of the top layer of planks to be rotten, the railings all gone, some of the stringers rotten, and all of them so soft they would not hold spikes. The floats were sound, but so water soaked they had lost their buoyancy. He made a report to the township board of what he had found, and in the report stated it would cost $1,000 for the material alone to repair the bridge so it would answer its purpose for four years; that the bridge was dangerous, and for that reason he had closed it. Soon after this, the township board, as a body, examined the bridge and its condition, and reached the conclusion it could not be put in safe repair without expending more than $2,000, and decided to close the bridge, and submit to the voters the question of raising sufficient money to rebuild the bridge so it would be practically a new one.

The relators are greatly inconvenienced by the closing of this bridge, as they are compelled to go much farther to reach their accustomed market, and their children much farther to reach the school which they attend. It is their claim the bridge could be put in reasonable repair for less than $1,000. They applied to the circuit court for the writ of mandamus to compel the respondents to put it in repair. A hearing was had in open court before the circuit judge. While the case was pending before him, the township authorities caused another examination to be made by Mr. Gaines, who, it is claimed, is an expert in "the'employ of the Grand Rapids Bridge Company, who reported the bridge as badly damaged and water soaked, and was of the opinion it would cost at least $3,800 to make it ■safe for travel. The township board submitted a proposition at the spring election of 1903 to raise $4,000 to put the bridge in repair. The proposition was voted down. At the hearing before the circuit judge a great many witnesses were sworn. Some of them were of the opinion the bridge ■could be repaired for less than $1,000; others thought it would cost upwards of $3,000.

The judge made, among others, the following findings:

“I also find from the evidence that the bridge can be répaired and put in condition and made reasonably fit and safe for the public travel for a sum not exceeding $1,000. * ❖ *
“I find that the respondents have full knowledge of the condition of this bridge, and that it is out of repair, and not reasonably safe and fit for the public travel in the condition it is now in, and have neglected and refused to repair the same, or put it in condition for public travel, and have condemned the same, and closed it to all travel.
‘ ‘ As a matter of law, I find that it is the duty of the ■respondents, or the township, to keep its highways and bridges in a condition reasonably safe and fit for travel. The law also makes it the duty of the commissioner to oversee and have the care of the building, rebuilding, or repairing of the bridges in his township, and, if a case arises involving an expenditure of more than $50, the commissioner shall submit the proposed expenditure to the township board. From the testimony and the facts found in this case, it brings the expenditure called for within the amount which may be expended by the commissioner and the township board. * * *,
“It is therefore considered, ordered, and adjudged by the court that a writ of mandamus do issue as prayed by the petitioners,” etc.

After directing that the mandamus issue to the township board to repair the bridge, he said :

“I am of the opinion that the respondents have acted in good faith in this matter, and therefore no costs will be allowed.”

In his return made to, this court he says:

“As to the second allegation of error, this respondent says that in the seventh finding he found that respondents have full knowledge of the condition of the bridge, and that it is out of repair and unsafe, and that they have neglected and refused to repair it, and have condemned it and closed it to travel.”

As to the language at the end of the judgment entry, he-returns:

“ That respondent did not intend, by the language-quoted, to in any wise lessen the effect of his findings in the case; that respondent was satisfied from the testimony that the respondents [township officers] had been mistaken and misled as to the real condition of the bridge, and the cost of repair thereof.
‘ ‘As to the third, fourth, fifth, and sixth allegations of' error, this respondent says that the judgment of the township board as to the cost of repairing the bridge was based upon an insufficient and superficial examination of its condition.”

It is the claim of the township officers that they were called upon to exercise a discretion, and as they exercised it in good faith, as was found by the trial judge, their action, will not be reviewed by mandamus. On the other hand,, it is claimed the court did not find they had acted in good faith, and that the duty is upon the officers to keep this highway in repair, and, as they have failed to do so, the writ should issue.

The proceeding is brought under sections 4129-4134, 2 Comp. Laws. These sections of the statute have been construed by this court in the following cases: Bigelow v. Brooks, 119 Mich. 208 (77 N. W. 810); Attorney General v. Board of Sup’rs, 120 Mich. 357 (79 N. W. 567); Brophy v. Schindler, 126 Mich. 341 (85 N. W. 1114); Berube v. Wheeler, 128 Mich. 32 (87 N. W. 50); and Oxby v. Board of Sup’rs, 124 Mich. 463 (83 N. W. 132).

In the cases of Attorney(General v. Board of Sup’rs and Oxby v. Board of Sup’rs the court declined to interfere by mandamus. In the other cases it was held man- damns will lie to compel the rebuilding or repairing of a bridge where the expenditure does not exceed #1,000. To the same effect is People, ex rel. Goodsell, v. Post, 30 Mich. 353. These cases, however^ do not meet the case at bar. Here is a very serious dispute as to whether this long bridge can be made reasonably safe by an expenditure within the power of the highway commissioner and the township board to make. The township authorities are of the opinion it cannot be done. The circuit judge is of a" different opinion. Under these circumstances, whose opinion is to control ?

In Mechem on Public Officers, § 945, it is said:

“Where the law imposes upon a public officer the right and duty to exercise, judgment or discretion in respect to any matter submitted to him, or in reference to which he is called upon to act, it is, of course, his judgment or discretion that is to be exercised, and not that of any other officer or court. The courts, therefore, will not attempt-by mandamus to compel the officer vested with such discretion to exercise it in any particular way, or come to-any particular decision, or to revise or alter his judgment when he has once exercised it.”

Again (section 636):

“ There is a large class of officers whose duties lie wholly outside of the domain of courts of justice, or concern the business of courts only incidentally or occasionally, and who are yet called upon by law to exercise, for the benefit of the public or of individuals, powers very nearly akin to those of judges- in the courts. .The powers conferred upon this class of officers are often, to distinguish them from those of judges proper, termed ‘quasi judicial’ or ‘discretionary.’ ”

In section 639 Mr. Mechem includes various officers-whose actions are quasi judicial, and, among others, “highway officers, authorized to lay out, alter, or discontinue highways, * * * or to exercise their judgment as to the making or repairing of highways.”

In People, ex rel. Houghton County, v. Auditor General, 36 Mich. 271, it is said:

Mandamus lies only to enforce strict legal rights, and •will not be granted to enforce the doing of an act which by law lies in the discretion of the officer refusing to do it.”

In People, ex rel. Sweet, v. Adam, 3 Mich. 427, it is said:

“ The writ of mandamus will only be granted to compel the performance of a ministerial act, not dependent upon the exercise of judicial discretion.”

In the case of People, ex rel. Goodsell, v. Post, 30 Mich. 353, it was held that:

“A highway commissioner would not be compelled by mandamus to go on under the statute and cause a bridge to be built in the place of one which had been destroyed, where the cost greatly exceeded the amount prescribed by the statute.”

In Perrine v. Township Board of Hamlin, 48 Mich. 641, it was held that “the Supreme Court will not interfere by mandamus to compel a township board to repair a public bridge.”

In the case of Travis v. Skinner, 72 Mich. 158 (40 N. W. 237), Justice Long, in speaking for the court, used this language:

“If the cost of the repairs or rebuilding of this bridge exceeds $1,000, — and from the opinion of the commissioner it appears that it would cost $1,500 to make it reasonably safe for public travel, — then the only duty devolving upon the commissioner was to report the facts to the township clerk, whose duty it is to lay it before the township board, and they may submit the question for raising such moneys to a vote of the electors of the township.”

Again:

“In his answer the commissioner states that in his opinion the cost would exceed $1,000, exclusive of the approaches. He has also caused estimates to be made of such cost by experts, and is advised by them that the cost of rebuilding or repairing this bridge would exceed $1,000. * * * Many affidavits are annexed to the petition, showing that this bridge would cost much less than the $1,000; but we cannot from this showing set up our opinion, gathered from these facts stated in the affidavits, in opposition to the opinion of the commissioner, which is to prevail, and upon which he has the undoubted right to act under this statute.”

Until this highway is legally vacated and discontinued, it is the duty of the township to repair this bridge or replace it by another, so that it shall be reasonably safe and fit for travel; but we do not think the statute confers upon the courts the right to substitute their judgment for that of the local authorities in relation to how the bridges of the township shall be maintained, nor to decide how much the necessary repairs will cost, where there is an honest dispute as to what expenditure will be required. -When the necessity for this bridge becomes sufficiently urgent, the voters of the township will doubtless do their duty, and provide the necessary means to make the highway reasonably safe and fit for travel.

The order is reversed, and proceedings quashed. No costs will be allowed.

Carpenter, Grant, and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


text:
    KAISER v. DETROIT & NORTHWESTERN RAILWAY.
    1. Street Railways — Construction op Road — Excavations-Negligence.
    2 Comp. Laws, § 6446, authorized a street-railway company to construct its line along a highway upon such terms and conditions as might be agreed upon between it and the township board. The franchise granted by the township provided that, in the construction of the tracks, the grade should be made to conform as nearly as practicable with that of the highways where they might cross. Held, that the company was not authorized to make an excavation upon a part of the traveled portion of the highway, without protection, and, having done so, was liable for injuries suffered by reason of its negligence.
    3. Same — Ratification.
    The fact that the township authorities did not protest against such construction was not a ratification of the act, relieving the company from liability, if such construction was dangerous to travelers.
    Error to Wayne; Frazer, J.
    Submitted April 6, 1904.
    (Docket No. 13.)
    Decided May 17, 1904.
    Case by Herman Kaiser against the Detroit & Northwestern Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Thomas A. E. Weadock, for appellant.

      Washington I. Robinson and J. Wodter Dohany, for ■appellee.
   Grant, J.

This case is before us the second time. See 131 Mich. 506 (91 N. W. 752). The facts in regard to the accident are the same in the present record as in the former. We there held that, “if the defendant constructed its railway as directed by the municipal authorities, acting within the powers conferred upon them, no negligence could be imputed to it.” It is urged that the record now shows that the defendant complied with the requirements of the municipal authorities, and that, therefore, the court should have directed a verdict for the defendant.

The street-railway act authorized the defendant to construct its railway along this highway upon such terms and conditions as might be agreed upon between it and the township board. 2 Comp. Laws, § 6446. The only provision of the franchise granted by the township bearing upon the method of construction is as follows:

“ In the construction of the track or tracks of said railway, the grade shall be made to conform as near as is practicable with the grade of the highway or highways where they may cross.”

The franchise contained no specifications as to the depth of cuts, or elevations, or methods of construction, or the erection of barriers, if. excavations should be made in the highway upon the traveled or untraveled portion thereof. The superintendent of construction for the defendant testi.fied that no requirements outside of the ordinance were made by the township. The general language of the franchise did not authorize defendant to make this cut or excavation as it did upon a part of the traveled portion of the highway without protection. Neither did it authorize the defendant to construct its roadbed so as to be dangerous. 2 Shear. & R. Neg. § 408.

The fact that the township authorities did not protest against such construction is not a ratification of the act, so as to relieve the defendant from liability if such construction was dangerous to travelers. If, in such construction, it left an excavation so near the traveled portion of the highway as to be dangerous, it was its duty to protect it. The jury have found that it was dangerous, and that it was not properly protected. This was settled as the law of the case upon the former trial, and is therefore •controlling upon the second trial. See authorities cited in the former opinion.

Judgment affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


author: Carpenter, J.

text:
    HOUGHTELING v. STOCKBRIDGE.
    1. Wills — Annuity—Allowance to Widow — Presumption.
    Where testator bequeathed an annuity to his wife, and she-obtained an allowance by the probate court for family expenses, under 3 Comp. Laws, § 9291, providing that, if the-provision made by the will is not sufficient to pay the debts- and family expenses, such part of thp estate as has not been disposed of by will, if any, shall be appropriated for that purpose, and section 9292, making devises and legacies liable to-the payment of debts and family expenses, the order of allowance must be presumed to be in addition to, and not in substitution for, the provision for that iiurpose in the will.
    2. Same — Equity—Probate Court Order — Intent op Parties.
    On a bill filed by an executor and trustee for directions in the performance of certain trust duties, the court cannot cha'nge the legal effect of an order of allowance by the probate court for family expenses, because of the intent of the parties, unless such intent is clearly proved, if it can do so in any case.
    3. Same — Annuities—Duration—Trusts—Vested Estates.
    A will provided for the payment of certain annuities to different persons, the same to “cease to be due and payable at the division of my estate” thereinafter mentioned. Subsequent paragraphs provided that the executor should hold the estate, as trustee “until such time, not exceeding five years from my decease, as my said trustee shall deem it to be to the best interests of all concerned to make a final settlement and division thereof,” and should then, “ and within said term of five years,” make final division of the trust fund. Owing to the situation of the estate and the depressed financial condition, of the country, the estate could not be closed within five years, and the probate court extended the time for settlement. Held, that it was the intention of the testator that the estate of the beneficiaries of the trust should vest at the expiration of five years, and that the annuities ceased to be payable at the end of that period, although the estate was not settled.
    4. Same — Conduct op Executor — Right to Complain.
    A widow could not complain of the act of an executor in leaving an unpaid arrearage on her annuity and making payments on other annuities, where the property of the estate was sufficient to pay, with interest on deferred payments, the entire arrearages due to all the, annuitants, including her.
    5. Same.
    Where an executor, in good faith, applied the funds of the estate pro rata in paying annuities, and during six years the widow made no claim that her annuity was entitled to preference, and did not complain until the executor brought suit for the construction of the will, she should be deemed to have acquiesced in the course pursued by the executor, and could not then claim that she was entitled to preferred payment.
    6. Same.
    Where testator owed an indebtedness secured by bonds worth more than the amount of the debt, the executor was justified in paying the same, without allowance by the commissioners, in order to obtain the bonds.
    7. Same.
    Where a part of the assets of an estate consisted of stock in a corporation which had a plant that was not a promising investment, and the executor induced another corporation to buy the plant, he was guilty of no wrong in personally taking stock in the purchasing corporation to the amount necessary to buy the plant, and selling it at figures realizing him only a reasonable interest on the investment, the transaction being in good faith and promotive of the interests of the estate.
    8. Same.
    An executor was guilty of no wrong in purchasing at par -a note due the estate, and taking an assignment of collateral securing it, the estate being in pressing need of money, and the value of the collateral being less than the amount due on the note.
    9. Same.
    The action of an executor and his associates in purchasing stock in a corporation in which the estate was interested, and in giving a bond in which the corporation was principal and they sureties, conditioned to save the seller harmless from liability under the laws of the corporation’s domicile, was not subject to just criticism on the part of the estate.
    10. 'Same — Removal op Executor.
    Where an executor agreed with the members of a corporation, formed to take over the assets of an unprofitable partnership in which the estate was interested, that the estate would share its portion of the loss if the venture should not succeed, which agreement subsequently cost the estate a certain sum, but there was nothing to impeach the executor’s good faith, or to indicate that the transaction, considered as an entirety, was not for the best interests of the estate, whether, in making the arrangement, he exceeded his strict legal authority or otherwise, it furnished no ground for his removal.
    Cross-appeals from Kalamazoo; Yaple, J., presiding.
    Submitted February 23, 1904.
    (Docket No. 99.)
    Decided May 17, 1904.
    Bill by James L. Houghteling, as executor of the last will and testament, and trustee of the estate, of Francis B. Stockbridge, deceased, against Betsey A. Stockbridge, Cornelia S. Sheldon, and others, for the construction of said will, and for directions as to the performance of certain trust duties. From the decree rendered, all parties appeal.
    Affirmed.

      Balias Boudeman, for complainant.

      N. H. Stewart and E. M. Irish, for defendant Betsey A. Stockbridge.

      George P. Hopkins and A. M. & G. H. Stearns, for ether defendants.
   Carpenter, J.

Complainant is executor of the last will, and trustee of the estate, of Hon. Francis B. Stock-bridge, who, at the time of his decease, was one of Michigan’s representatives in the United States Senate. The first-named defendant is the widow of the late Senator Stockbridge. Complainant asks the court of chancery, by this suit, to direct him how to perform certain of his trust duties. Defendant Mrs. Stockbridge files an answer and cross-bill, charging that complainant has improperly performed certain of his duties, and seeks to make him personally chargeable therefor, and prays his removal as trustee.

The first question demanding our attention relates to the claim of Mrs. Stockbridge to the sum of $10,000 for the first year after her husband’s death, both as an allowance by the probate court and as an annuity under the will. The facts necessary to the determination of that claim are these: Paragraph 2, subdivision a, of the will of Senator Stockbridge, reads as follows: “I give and bequeath to Betsey A. Stockbridge, my wife, ten thous- and dollars per year.” The value of the estate left by Senator Stockbridge was so uncertain that, shortly after his appointment as executor, complainant feared that he could not safely pay said annuity. He feared that the estate might prove to be insolvent, and that voluntary payment on his part would expose him to the hazard of a suit by creditors. He therefore insisted on either an -order from the probate court or a bond from Mrs. Stock-bridge which should protect him. This bond Mrs. Stock-bridge could not give. Under these circumstances, Mrs. :Stockbridge petitioned the probate court for an allowance for family expenses. Among other things, the petition •stated the provision of the will respecting the annuity; complainant’s contention that he could not with safety pay the same without a bond, which petitioner could not •give; that petitioner was without means for adequate support; that it would require $10,000 per annum to maintain her, which sum it was evident the testator intended she should have. It was also stated in said petition that the petitioner expressly reserved the right, for a year, “to elect to waive the terms and conditions of said will.” The probate court thereupon made an allowance to Mrs. ■Stockbridge of $10,000 for the first year after the death of her husband. The circuit court decided that Mrs. Stock-bridge was entitled to this $10,000 allowance, and also to the $10,000 annuity for said year.

The authority given by statute to the probate court to make this allowance is found in sections 9291 and 9292 of the Compiled Laws of 1897. Those sections read:

“Sec. 9291. If the provision made by the will, or the estate appropriated, shall not be sufficient to pay the debts, expenses of administration, and family expenses, such part-of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated, according to the provisions of the law, for that purpose.
“ Sec. 9292. The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, expenses of administration, and family expenses, in proportion to the amount of the several devises or legacies, except that specific devises and legacies, and the persons to whom they shall be made, may be exempted.”

.We think these sections indicate that an order of allowance for family expenses is to be presumed, and is therefore to be construed, to be in addition to, and not in substitution for, a provision for that purpose in the will. It is contended, however, that the order in question is to be construed as such,a substitute, because it was so intended by all the parties interested. If a court of equity oould change the legal effect of this order because of the intent-of the parties, that intent should be clearly proved. In Tilden v. Streeter, 45 Mich., at page 540 (8 N. W. 506), it was said, in a controversy where complainant insisted that a deed executed by him was a mortgage:

“Unless the testimony, say the Supreme Court off the United States, is entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. Howland v. Blake, 97 U. S. 624, 626.”

We think stronger language than that might be used where an attempt is made to change the legal effect of an order of court. While we have no doubt that complainant intended that the allowance should be a substitute for the annuity, we cannot say that it is proved beyond a reasonable doubt that Mrs. Stockbridge had that intent. The fact that she expressly reserved the right to elect to waive the terms and conditions of said will is inconsistent with such intent. If it were true that, when she made this petition, she feared that the estate would prove insolvent, she knew, of course, that she might not receive the annuity. But that by no means compels us to conclude that .she expected the allowance to be a substitute for the annuity should those fears prove groundless. Nor do we think that her rights were waived, under the circumstances of this case, by her failure to assert them at an early stage of the proceedings. It follows that the trial judge correctly disposed of the claim under consideration.

The second question involved is this: Do the annuities provided for in the will cease at the expiration of five years from the death of the testator ? Paragraph 2 of the will reads as follows:

“ I give and bequeath the legacies following:
“(a) I give and bequeath to Betsey A. Stockbridge, my wife, ten thousand dollars per year; should she not survive me, and should her sister, Caroline A. Peters, survive her and myself, then I give and bequeath to the said Caroline one thousand dollars per year; and should the said Caroline not survive my said wife and myself, and should her son, George A. Mansfield, survive his mother, my said wife, and myself, then I give the said legacy of one thousand dollars per year to him; subject to the general provisions below stated.
“(b) I give and bequeath to Cornelia S. Sheldon, my sister, twelve hundred dollars per year; should she not survive me, or, surviving me, not live to the time of the division hereinafter mentioned, then I give said sum, or the unaccrued portion thereof, to her daughter, Cornelia .Sheldon; subject to the general provisions below stated.
“(c) I give and bequeath to Marcia E. Houghteling, my ■sister, twelve hundred dollars per year; should she not survive me, or, surviving me, not live to the time of the division hereinafter mentioned, I give said sum, or the unaccrued portion thereof, to her three daughters, and the •survivor or survivors of them, in equal parts; subject to the general provisions below stated.
“(d) I give and bequeath to my sister Mary G. Drummond $400 per year; should she, surviving .me, not live to the time of the division hereinafter mentioned, the said payment to cease at her death; subject to the general provisions below stated.
“(e) I give and bequeath to Theodosia Stockbridge, of Utica, New York, my sister, eight hundred dollars per year; should she not survive me, or, surviving me, not live to the time of the said division, I give said sum, or the unaccrued portion thereof, to Mary Brown, our cousin, if she survive myself and said Theodosia; said payment tócense at the death of said Mary; subject to the general provisions below stated.
“ (/) I give and bequeath to Marcia B. Jenks, of Boston, Mass., my cousin, four hundred dollars per year;, should she not survive me, or, surviving me, not live to-the time of the said division, I give said sum, or the unaccrued portion thereof, to her daughters; subject to the general provisions below stated.
“Provided, however, that all the legacies and sums aforesaid be paid in quarterly installments, and that they shall all, at all events, cease to be due and payable at the division of my estate mentioned in paragraphs 4 and 5 hereof; and, further, that they shall be payable out of the income of the estate herein called the general trust fund,, if thereto sufficient; otherwise, I direct that they be paid out of the proceeds of sales of stocks belonging to said fund, or loans thereupon, as may seem best to my executor and trustee hereinafter named.”

We quote as much of paragraphs 4 and 5 as is necessary to understand what is meant by the foregoing reference-thereto:

“Paragraph 4. I hereby give, devise, and bequeath all the rest, residue, and remainder of my estate, not above-disposed of, real, personal, and mixed, now held or hereafter to be acquired, wheresoever situate, to James L. Houghteling, my nephew, his heirs, assigns, and successors m trust, as my trustee, to hold, use, invest, and manage the same; in trust, however, upon the uses and trusts-herein expressed (such rest, residue, and remainder, with its income and additions, to be herein termed my general trust fund or estate), until such time, not exceeding five years from my decease, as my said trustee shall deem if to be the best interest of all concerned to make a final settlement and division thereof; at which time my said trustee shall make division of all my said general trust estate among the beneficiaries and in the manner herein mentioned. * * *
“Paragraph 5. It is my will that my said trustee, at the time aforesaid, and within said term of five years, make such final division of said general trust fund in the manner and proportions, and among the persons, following, viz.:
“That he pay to my wife, Betsey A. Stockbridge, if then living, ten-thirtieths, or one-third, thereof.”

It was found that, owing to the situation of the estate and the depressed financial condition, it could not be closed within said period of five years, and accordingly the probate court extended the time for the settlement, and the estate has not yet been settled, though nearly ten years-have elapsed since the testator’s death. The trial court was of the opinion that the annuities ceased to be payable at the end of said period of five years. The correctness of this decision depends upon the construction of the clauses above read. To be more specific, it depends upon the application of the language of the testator to the situation that has arisen; and this is construction. Cooley, Const. Lim. (7th Ed.) p. 71, note 1.

It is quite obvious that the testator did not provide for the unforeseen contingency of the settlement of the estate being delayed beyond the period of five years. He undoubtedly thought he was giving all the time that might possibly be required when he fixed that limit. It actually transpires, however, that in this he was mistaken. We cannot give effect to his intent that these annuities shall continue until his estate is settled, and that they shall cease to be payable at the end of five years. It is obvious-that that purpose which the testator regarded as less important should yield to that which he regarded as more important. The testator’s intent that the estate should pass from the hands of the trustee to his residuary legatees within the period of five years is most clearly expressed, and we can, as hereafter stated, see why he might wish to fix that time definitely. On the other hand, his-intent that the annuities should continue until the estate should be distributed is not clearly stated. All that can be said is that it is to be inferred from the language, “They shall all, at all events, cease to be due and payable at the division of my estate.”

This reasoning naturally leads us to consider the purpose, of the testator in naming a limit of time in which the estate should- be closed. It is idle to say that this limitation was merely directory. It clearly was directory in the sense that it did not legally obligate the trustee to close the estate at that period. Nor can we suppose that the testator acted upon the erroneous notion that the direction would be legally binding. He unquestionably intended that the executor should regard it, but we cannot suppose that he thought that he would be under a legal obligation to do so. He did, however, have the right to prescribe the time when the annuities should cease to be payable, and when the estate of the residuary legatees should vest. Did he not, in prescribing this limitation, intend to give it such legal effect as he might ? We think he did, and that he intended to fix a time when the annuities should cease and the estate of his widow and other residuary legatees vest. Otherwise no effeet whatever is given to this limitation. Otherwise the testator has placed it in the power of the executor and the probate court to continue to pay indefinitely annuities which he intended should cease in five years. Otherwise he has given the executor and the probate court power to prevent the vesting of estates which he intended should vest within a stated period. We think that the trial court properly disposed of this branch of the controversy.

We now come to the question of the alleged improper acts of the executor. Defendant Mrs. Stockbridge complains of these acts from two points of view, viz., (a) that they increase the personal charges against complainant in his accounting with the estate, and (6) that they prove complainant’s unfitness as a trustee, and justify his removal. From both these points of view these charges will be considered.

The first alleged wrongdoing arises from the fact that there is a considerable unpaid arrearage on the annuity belonging to Mrs. Stockbridge, and that is due, in part, to the fact that complainant has paid in part the other annuities mentioned in paragraph 2 of the will. It is the 'Claim of Mrs. Stockbridge that the other legacies are mere bounty legacies, while the annuity to her is based, in part at least, upon the fact that it was in lieu of dower, to which otherwise she was entitled; that she is to be regarded as a creditor, to which class the otherannuitantsdonot belong, and that her annuity is therefore to be preferred. We do not think we need to pass upon the question of whether or not, as between Mrs. Stockbridge and the other annuitants, her claim is to be preferred. Mrs. Stockbridge has not sustained, and will not sustain, any damage by the course taken by the executor, for it is clear that the property of the estate is sufficient to pay, with interest on deferred payments, the entire arrearages due to all the annuitants, and therefore her annuity will be paid, with interest on deferred payments. Nor is she in a position to complain that the executor acted improperly in paying in the manner he did. There is nothing to warrant the belief that the complainant did not act in good faith, believing it to be his duty to apply the'funds of the estate pro rata in payment of these annuities. He pursued that course, to the knowledge of Mrs. Stockbridge, for six years. During this time she made no claim that her annuity was entitled tp preference,, and did not complain of the course adopted by the complainant until this suit was commenced. Under these circumstances, we are bound to say that she acquiesced in the course complained of, and that there is therefore no merit in her present complaint.

The next wrong which it is alleged that complainant perpetrated on the trust estate was this: Complainant, at the death of the testator, owed the estate $65,000. Testator owed an indebtedness of $25,000, which was secured by bonds of the par value of $30,000. Complainant paid this last-mentioned note, secured the bonds which were collateral thereto, and sold them at par. He duly accounted to the estate for the proceeds of said sale and the balance of his own indebtedness. It is claimed that he had no right to pay this $25,000 note, and deduct the same from the-amount owing by him, because it had never been allowed by commissioners on claims. It is doubtful if this question has not been foreclosed by an adjudication on complainant’s accounts, not appealed from. Assuming it to be open, there is no merit in it. For the purpose of obtaining the collateral securities, complainant was justified in making the payment in question. In re Lambie's Estate, 94 Mich. 489 (54 N. W. 173); Long v. Landman, 118 Mich. 174 (76 N. W. 374). It is apparent that if he-had not done so, and if the indebtedness had never been, paid, the estate would have lost the difference between the $25,000 note and the amount realized by the sale of the-bonds.

The next wrong to which our attention is directed is this: Among the assets of the estate was stock in the Kalamazoo Spring & Axle Company. The Kalamazoo Spring &. Axle Company had-a radiator plant, which was not a, promising investment. Complainant induced the American Radiator Company, of Chicago, to buy this plant, and pay therefor the sum of $31,199.20. This was a good sale,, and the proceeds went to the corporation, and the estate,, as a stockholder, received its proportion of them. It is, claimed that complainant perpetrated a wrong, because, in order to induce this purchase, he personally took stock in the American Radiator Company to the amount of $31,199.20. This stock he subsequently sold at figures, which only realized him a reasonable interest on his investment. We do not think there is anything in this-transaction to impeach complainant’s personal good faith.. It will scarcely be claimed that he should have invested' the trust funds of the estate in his hands in a purchase of' this stock. We think one of the motives which controlled complainant in entering into this transaction was to promote the interest of the estate, and that he succeeded. It is scarcely necessary to add that it furnishes no 'ground for complaint.

The next wrong alleged to have been done is this: Among the assets of the estate was a note of $16,250,. made by George Stockbridge, a relative of the testator, secured by $40,000 of the Spring & Axle stock. Complainant purchased this note, paying its par value, and obtaining an assignment of the stock. The evidence shows that the estate was in pressing need of money, and that the value of the collateral is less than the amount due on the note. We are unable to see how the estate is wronged by this transaction. It has got every cent to which it was entitled, and has lost nothing.

Complaint is made of complainant’s management of the affairs of the Union Lumber Company, a California corporation. When Senator Stockbridge died, he owned stock in the corporation of the par value of $299,100 and bonds for the value of $78,000, and the corporation was. indebted to him in a large amount. The estate now owns no bonds, and stock of the value of $186,980 only. When Senator Stockbridge died, complainant had no interest in said corporation. He now owns a large amount of its stock. This statement of the situation, which is substantially that made by the solicitors of Mrs. Stockbridge, demands can explanation, and that explanation is not wanting. The bonds have been sold, and the proceeds accounted for. The estate, and every other stockholder, surrendered three-eighths of their holding in order to create $750,000 of preferred stock, which was sold and applied in payment of the corporate indebtedness. The interest in the corporation acquired by complainant was. purchased; not from the estate, but from another stockholder, viz., Gen. R. A. Alger.

Complaint is made because complainant and his associates, in purchasing this stock, gave a bond to Gen. Alger, in which the corporation is principal and they sureties, to save him harmless from liability as a stockholder under the laws of California. The giving of this bond is not subject to just criticism on the part of the estate ok any other stockholder. It did not increase the liabilities of the corporation, for it merely obligated it to pay its own debts; and we think the interests of the estate were benefited, rather than injured, by the fact that complainant became personally interested in the corporation in which the estate held this stock. We are unable to see how his interest as a stockholder is in any way antagonistic to the interest of the estate, another stockholder.

Complaint is made of the disposition of certain assets formerly belonging to S. A. Browne & Co., a partnership composed of Senator Stockbridge and S. A. Browne. This partnership owned a stock farm, and had been engaged in raising and selling fast horses. It was a most unprofitable venture. At the time of Senator Stock-bridge’s death its liabilities were about $152,000, and all ,that was realized from its assets, together with what could be obtained from Mr. S. A. Browne, whose death occurred soon after that of Senator Stockbridge, aggregated about $27,000. The residue of these assets was sold for $25,100 to the Kalamazoo Farm Company, a corporation formed, it would seem, to continue the business carried on by S. A. Browne & Co., in ;which Senator McMillan owned the majority of the stock, and one S. R. Martin owned nearly all the remainder. Said S. R. Martin was a clerk‘in complainant’s office, and we infer from the testimony that he became a stockholder at complainant’s request, and that he really» held the stock as trustee for the estate. At any rate, it appears that complainant agreed with him and with Senator McMillan that the estate would share the proportion of loss chargeable to said stock if the venture should not succeed. It did not succeed, and the estate paid, in consequence, $6,093.53. This transaction is not complained of in the pleadings in the case, and it is asserted in the brief for complainant, and not denied in that of defendant, that this item has been allowed in the court below, and that no appeal has been taken from the order allowing it. We shall not, therefore, undertake to determine the strict legal authority of the executor to make this arrangement. The only question which we can determine is whether it furnishes ground for his removal. He disposed of this property for $25,100, which, as we understand, went to pay the partnership debts, and thereby reduced the loss of the estate, and entered into an arrangement which subsequently cost the estate $6,093.53, so that the estate realized from this sale the net sum of $19,000. If it be conceded that the executor exceeded his strict legal authority, — a question which we do not consider before us, and which we do not determine, — there is nothing to impeach his personal good faith. Nor is there anything to indicate that the whole transaction, considered as an entirety, was not for the best interests of the estate. It certainly furnishes no ground for the removal of the trustee.

In addition to the foregoing, it should be stated that all the other persons interested in this estate, viz., the owners of two-thirds of the residue, desire to have complainant continued as the trustee. We quote with approbation the language of the decree in the court below:

“The situation of the estate as it went into the hands of James L. Houghteling, the executor, required financial and executive ability in order to preserve it, more than estates ordinarily require; and, in what he has done to meet the difficulties which confronted him, there appears to be no sufficient reason for his removal from his position of executor and trustee, and his removal, as prayed for by the defendant Betsey A. Stockbridge, would be detrimental to the interests of the estate.”

We think we have discussed all the objections to the decree appealed from. That decree will be affirmed. Neither party will recover costs.

Moore, C. J., Grant and Hooker, JJ. concurred. Montgomery, J., took no part in the decision.


text:
    SIMONDS v. CASH.
    1. Sale of Mortgages — Value of Security — False Representations.
    Where defendant,' who sold mortgages to plaintiff, either delivered to plaintiff’s agent, or assisted him to obtain, appraisements of the land covered by the mortgages, on which plaintiff relied, defendant was responsible for the representations contained therein.
    Same — Rescission—Tender—Delay.
    Plaintiff, a resident of Massachusetts, who did not, until sometime after January 25th, learn of the fraudulent representations of defendant in selling mortgages to him, and on February 7th had his son call on defendant, who resided in Michigan, and explain the situation, and on March 12th wrote defendant, narrating the facts, and offering to reassign the mortgages, and made a formal tender thereof on May 25th, was not chargeable with improper delay in making the tender.
    •3. Same.
    Plaintiff, who bought mortgages of defendant, relying on representations that the land was worth three or four times the amount of the mortgages, was not bound to rescind at once on discovering that the land was worth less, where the facts, as he supposed them to be, still induced him to believe that it was worth twice the amount of the mortgages.
    4. Same — Grounds of Rescission — Question for Jury.
    Where plaintiff, in writing to defendant as to mortgages sold
    to him by the latter, stated that he had satisfied himself that the land was not of the value represented, and that the titles were bad, and offered to reassign the mortgages, the jury, in a subsequent action founded on rescission, might infer that plaintiff sought to rescind on the ground of misrepresentations as to the character and value of the security.
    5. Same — Right to Rescind — Suspicion of Falsity of Representations.
    Plaintiff, in his efforts to rescind a purchase of mortgages on the ground of misrepresentations as to the character and value of the security, had a right to act upon his suspicion of the falsity of the representations, provided that, in a subsequent action founded on rescission, he could prove that his suspicion was well founded.
    8. Jurors — Challenge for Cause — Appeal—Harmless Error.
    Where the record does not show that a person challenged for cause actually sat as a juror, or that the party challenging him exhausted his peremptory challenges, it cannot he assumed that the overruling of such challenge, even if erroneous, was prejudicial.
    7. Evidence — Copy of Letter.
    Where a copy of a letter informing plaintiff of defendant’s alleged fraud formed the subject-matter of a conversation between defendant and plaintiff’s representative, the identical paper which was the subject of the conversation was admissible in evidence.
    8. Same — Depositions—Notice—Presumption.
    Where a deposition has been on file in. a cause for nearly two years, it is to be presumed, in the absence of evidence to the contrary, that the law which requires the official receiving the deposition to give notice to the parties (3 Comp. Laws, § 10139) was observed.
    9. Same — Waiver of Objections.
    Under 3 Comp. Laws, § 10139, providing that objections to the notice of or manner of taking depositions, or certifying or returning the same, shall be regarded as waived unless made within three days after notice of the return thereof, an objection that there is no proof that a deposition was taken in pursuance of a notice or under a stipulation, when not so made, is waived.
    10. Same — Identity of Exhibits.
    So, too, objections arising out of the fact that certain exhibits, already in evidence, were not attached to the deposition, are waived if not so made, and the introduction of evidence on the trial identifying the exhibits is not prejudicial.
    .11. Same — Letters—Cross-Examination.
    It was not error on the cross-examination of a witness to refuse to permit a question whether he wrote a letter referred to in another letter, unless the latter letter was put in evidence.
    13. Fraudulent Representations — Value of Land — Evidence —Materiality.
    On an issue of fraudulent representations as to the value of land covered by mortgages sold by defendant to plaintiff, testimony by deposition that the land was of no value, or of' small value, was not “entirely worthless and immaterial," though one of the parcels was misdescribed, since it referred to some of the land in controversy. •
    13. Same — Depositions.
    Objections to the admission of the depositions of the makers of' the mortgages on the ground that their testimony related simply to fraud in obtaining the title, and the title was unquestionably good, were properly overruled, since the depositions tended to prove the falsity of representations that certain improvements had been made on the mortgaged land.
    14. Trial — Conduct of Counsel — Practice.
    Where, on the trial of a cause, three counsel were talking at the same time; it was proper for the trial judge to state that arrangements must be made by which a single counsel for each party should make objections.
    15. Sale of Mortgages — Value of Land — False Representations — Right to Rescind.
    Where the land covered by mortgages sold by defendant to plaintiff, though of sufficient value to repay the loans, was. worth materially less than it was represented to be, the value of the securities was thereby affected, and plaintiff was entitled to rescind the sale.
    16. Same — Instructions.
    In an action to recover the amount paid upon an alleged fraudulent sale of mortgages, a charge that, if the lands covered thereby differed in any material respect from what they were represented to be by defendant, so that they were not worth (as represented) three or four times the amount paid by plaintiff, the latter was entitled to rescind, was not open to the objection of authorizing plaintiff to recover though the security was not of less value than it was represented to be.
    17. Same — Pleading—Common Counts.
    A purchaser of mortgages, on rescinding for fraud, may recover the amount paid under a declaration on the common counts.
    18. Pleading — Declaration—Special Counts — Variance.
    A variance between the averments of the special counts of a declaration and the proofs is immaterial, where, in view of the evidence, plaintiff is entitled to recover under the common counts, which are a part of his declaration.
    Error to Ionia; Davis, J.
    Submitted April 15, 1904.
    (Docket No. 66.)
    Decided May 17, 1904.

      Assumpsit by Francis K. Simonds against Vincent P. Cash to recover the amount paid on an alleged fraudulent sale of mortgages. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      V. H. & H. H. Smith, for appellant.

      George E. & M. A. Nichols, for appellee.
   Carpenter, J.

In the month of July, 1892, defendant sold to plaintiff certain mortgages upon land in North Dakota. On the 25th of May, 1894, under the claim that he was induced to make this purchase by the fraudulent representations of defendant, plaintiff tendered them back, and demanded the return of the amount paid therefor. Defendant refused to comply with this demand, and plain.tiff subsequently brought this suit, and recovered a verdict and judgment in the court below.

' Defendant insists that plaintiff was improperly permitted to recover by reason of misrepresentations contained in certain appraisements; that defendant is not responsible for these misrepresentations, because plaintiff obtained these appraisements himself by correspondence with parties in North Dakota, with which correspondence defendant had nothing to do. We think the jury might have inferred from the testimony in this case that defendant was himself responsible for the delivery of these appraisements to plaintiff, either by handing them directly to plaintiff’s agent or by assisting him to obtain them. Under these circumstances, the jury might very properly hold defendant responsible for the misrepresentations therein contained. See Busch v. Wilcox, 82 Mich. 315 (46 N. W. 940). Nor can we agree with defendant in the claim that the evidence proves that plaintiff did not purchase the mortgages in question relying on the statements in these appraisements.

It is contended that there was improper delay on the part of plaintiff in tendering back these mortgages after the discovery of the fraudulent misrepresentations. The facts respecting this discovery and tender are these: Some time after January 25, 1894, plaintiff learned of the alleged fraud. He lived in Boston, Mass. Defendant lived in Portland, Mich. On the 7th of the following February plaintiff’s son called on defendant, and told him the situation. Defendant wrote to his brother-in-law in North Dakota about the matter. March 12th plaintiff wrote defendant, narrating the facts, and offered to reassign the mortgages. May 25th a formal tender was made. We think, under these circumstances, that plaintiff proceeded with due promptness.

The suggestion is made in defendant’s brief4 and argument that plaintiff discovered in August, 1892, that the land described in the mortgages was worth less than the appraisements stated. The point was not made, however, in the court below, that it thereby became the plaintiff’s duty to at once rescind, if he intended to take advantage of the falsity of this representation. It was probably not made because of the obvious answer that what plaintiff learned in 1892 was only part of the truth, and, if the facts had been as he supposed them to be at that time (viz., that the mortgaged land was worth twice — though not three or four times — -the amount» of the mortgages, his interest did not demand a rescission.

Defendant also contends that plaintiff, in recovering in this case, is shifting his ground; that he sought to rescind on the ground that the title to the mortgaged property was worthless, and that he was permitted to recover upon the ground that, though the title was good, the security was neither in character nor value as represented. It is true that the title to the mortgaged property was good, and that plaintiff recovered upon the ground that the security was not what it was represented to be. But it is not fair to say that he sought to rescind solely because the title was worthless. In the letter of March 12, 1894, heretofore mentioned, plaintiff states:

“ The papers are in no way as you represented them, in any particular. I have satisfied myself, through most careful inquiry, that there never was the value you represented; also the titles were bad.”-

And the jury might have inferred that plaintiff sought to rescind on the ground of the misrepresentations as to the character and value of the security.

When plaintiff attempted to rescind, he had not been informed, and did not know, that the representations respecting the character and value of the mortgaged land were false. It is, however, to be inferred, as we have already stated, that he suspected their falsity. It is contended by fhe defendant that plaintiff had no right to rescind on the ground of the falsity of these representations until he had actually learned them to be false. We do not think this contention sound. Plaintiff had a right to act upon suspicion, if he could subsequently prove that suspicion to be well founded.

One of the jurors called in the case was a party to a suit then pending in court. One of plaintiff’s counsel was his attorney, and the opposing party was represented by defendant’s counsel. A challenge for cause to this juror was overruled. The record does not show that this juror actually sat in the case, or that defendant exhausted his peremptory challenges. We cannot, therefore, assume that the ruling complained of, even if erroneous, was prejudicial to defendant. People v. Bush, 113 Mich. 539 (71 N. W. 863).

It is claimed that the court erred in permitting plaintiff to introduce in evidence a copy of a letter which informed him that defendant’s representations were fraudulent. It is contended that the original, and not the copy, should have been introduced. This paper was admissible in evidence upon the ground that it formed the subject-matter of the conversation between defendant and plaintiff’s representative. The identical paper — viz., the copy in question — which was the subject of this conversation was admissible. We see no ground upon which the ■original, which was in the possession of a third person, could have been admitted.

It is contended that the court erred in admitting in evidence the deposition of Hon. Henry C. Smith, who testified that, acting for plaintiff, he tendered the securities and their assignment to defendant. This contention is based upon the ground that there is no proof that the deposition was taken in pursuance of a notice or under a stipulation. It does appear, however, that defendant’s counsel appeared when the deposition was taken, and cross-examined the witness. It also appears that the deposition was on file in the case for nearly two years. It is to be presumed, in the absence of evidence to the contrary,— and .there is no such evidence, — that the law which requires the official receiving this deposition to give notice to the parties (section 10139, 3 Comp. Laws) was observed; and therefore, according to said section, the objection in question was waived, because not made “within three days after ” said notice.

For the purpose of proving what was tendered defendant, the witness identified the original securities and assignments executed by plaintiff transferring them to defendant. These were marked as exhibits, but were not attached to the deposition. Plaintiff’s attorney, who acted for him in taking these depositions, was permitted to give testimony on the trial identifying these exhibits. Defendant contends that the admission of this testimony was error, on the ground that the uncertainty respecting what exhibits were referred to in the deposition could not be cured in this manner. There really was no uncertainty respecting the identity of these papers. The trial court was quite right in saying that there was “ no claim made by the defendant in this case that these papers offered here are not in fact the exhibits referred to.” The language of the deposition is applicable to no other exhibits. The purpose of attaching the exhibits to the deposition, and the purpose of identifying them, was not to get them in evidence, — they were already in evidence, — but it was to enable the court and jury to understand the deposition. The testimony identifying the exhibits was therefore prejudicial to defendant only because it served the purpose of attaching to the deposition the exhibits omitted by the officer who took it. In other words, the testimony was prejudicial only because it had a tendency to correct the improper manner of certifying and returning the deposition. Under section 10139, 3 Comp. Laws, all objections of this character were waived unless made within three days. We are bound to conclude, therefore, that defendant was not prejudiced by the introduction of this testimony.

On the cross-examination of plaintiff’s son and agent, the court refused to permit defendant’s counsel to ask him whether he wrote a letter referred to in another letter, unless the latter letter was put in evidence. We do not think that there was error in this ruling.

Questions were asked of certain witnesses whose testimony was taken by deposition respecting the value of the land covered by the mortgages in question, and one of the pieces of land was described as the south quarter of section 35, instead of the southeast quarter of section 35. The other descriptions were correct. It is claimed that this testimony, obtained by these questions, “was entirely worthless and immaterial.” To this we cannot agree, for some of these witnesses testified that the land was of no value; others, that it was worth only $2 per acre. As .the testimony referred to some of the land in controversy, it was not “ entirely worthless and immaterial testimony.”

Defendant contends that the court erred in admitting in ■evidence the depositions of the makers of the mortgages in question, on the ground that their testimony related simply to fraud in obtaining the title, and the title was unquestionably good. It is a complete answer to this contention to say that these depositions did not relate solely to the title. They tended to prove the falsity of representations — for which defendant might be held responsible— that certain improvements were made on the mortgaged land.

On the trial below, each party was represented by two ■counsel. It appears from the bill of exceptions that at one time three counsel were talking at the same time. The trial judge thereupon stated that arrangements must be made by which a single counsel for each party should make objections. While defendant complains of this-course, we are bound to say that, in our judgment, it was a very proper one to be adopted.

In charging the jury the court said that:

“If the said lands differ in any material respect from what they were represented to be by said defendant, * * * so that they were not worth three or four times-the amount paid by Simonds, then the said plaintiff has the right to rescind the entire transaction, and to tender back the mortgages and notes which he purchased, * * * and recover the money that he paid therefor, together-with the interest thereon.”

It is contended that this is error, because it -permits; plaintiff to recover where he has not really been injured; that, if the security is sufficient to repay the loan, then, though it is worth much less than represented, no fraud was committed which entitled plaintiff to rescind. This-theory is unsound. If it were sound, a negotiable, promissory note of an individual, which is quite certain to be-paid, would be as valuable as United States government-bonds. If the land was worth materially less than it was represented to be, it materially affected the value of the-securities, and entitled plaintiff to rescind. We do not think the foregoing charge, nor other portions of the charge, authorized the plaintiff to recover, as defendant contends it did, unless the security was less valuable than it was represented to be.

It is claimed that the special counts of the declaration did not correctly state the grounds upon which plaintiff was permitted to recover. We shall not undertake to determine this question, because plaintiff could recover under the common counts (see Cornell v. Crane, 113 Mich. 460 [71 N. W. 878]), which were a part of his declaration.

We think defendant’s brief points out no reversible error.

The judgment of the court below will be affirmed.

Moore, C. J., and Hooker, J., concurred. Grant, J., did not sit. Montgomery, J., took no part in the decision.