text:
    SHIELDS v. MOODY.
    Replevin — Judsment.
    In replevin against a sheriff for goods levied upon as the property of a third person, where the issue as to plaintiff’s ownership is found against him, judgment is properly entered for a return of the property, without limitation to the amount of defendant’s lien.
    Error to Mecosta; Edwards, J.
    Submitted April 21, 1899.
    Decided June 28, 1899.
    Replevin by Fannie Shields and Benjamin T. James against Bert D. Moody, sheriff of Mecosta county. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      John T. Clark, for appellants.

      Joseph Barton, for appellee.
   Montgomery, J.

This is an action of replevin to recover one brown stallion, one single harness, one road bike sulky, one cutting-box, two canvas tents, one adz, one spike-maul, one sledge-hammer, and one corn-cutter, all of which had been duly levied upon by the defendant, as sheriff, under a valid writ directed against the property of James Shields, the husband of the plaintiff Fannie Shields. The jury rendered a verdict for the defendant, upon which judgment was entered for a return of the property. The plaintiffs moved for a new trial, which was refused, and have brought the case to this court for review on error.

The contention chiefly relied upon is that the undisputed testimony showed that the plaintiffs were the owners of the property, and that a verdict should have been directed in their favor. No request for such an instruction was made, but, as plaintiffs moved for a new trial on thé ground that the verdict was against the evidence, it is necessary to inquire whether there is any testimony to sustain the finding.

The plaintiffs’ theory was that a firm known as the Big Rapids Real-Estate Company was composed of the two plaintiffs, and that the property in question all belonged to this firm. Mr. Shields appears to have had full control of the business of the firm, with no definite arrangement as to how he was to be compensated. Mrs. Shields testified that he was to be paid according to what he did. The most valuable of the property is the brown stallion, which Mrs. Shields testifies she bought in Tennessee. It does not appear very satisfactorily where £he obtained the money to pay the price, which was about $2,500. She further testified that all the personal property which they brought to Big Rapids was turned over to Mr. Shields for property and interest in lands, and to secure Mr. Stearns upon some paper made by Mr. Shields. It appears that this property was placed with Mr. Stearns as security, and that later on Mrs. Shields paid §382 in full of all demands against Mr. Shields, and Mr. Stearns assigned to her all his right, title, and interest in three horses, including the one in question. This does not show absolute ownership in Mrs. Shields, — much less in the two plaintiffs. Certain of the other property was received bn a purchase from one Holland. It' appears the personal property was purchased in connection with certain farm lands. The title to the lands was taken in the name of Mrs. Shields. James was not named as grantee. It appears that payment was made partly in cash and partly by mortgage. One thousand four hundred dollars was paid down by Mr. Shields with money borrowed in his own name. Apart from many circumstances which aré calculated to arouse the suspicion that these transactions are merely colorable, there was ample testimony justifying the conclusion reached.

It is claimed that the judgment for the return of the property was erroneous; that it should have been limited to the amount of defendant’s lien. Plaintiffs made no such contention on the trial. The distinct question presented was whether the plaintiffs were the owners of the property. The jury found they were not. It is only where one party is the general owner, and the other has a lien, that the judgment is limited to the amount of the lien. Alderman v. Manchester, 49 Mich. 48.

The other questions do not appear to us, after full con- * sideration, to require further discussion.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    MEESKE v. PFENNING’S ESTATE.
    1. Sureties — Contribution—Payment—By ’Whom Made.
    The fact that a payment made by a surety, with the consent of his co-surety, in settlement of a claim against then)., was by the check of a corporation of which he was an officer, will not affect his right to contribution from the co-surety, where he was charged by the corporation with the amount of the check.
    2. Appeal — Exclusion oe Evidence — Objections—Privileged Communications.
    The exclusion of the testimony of an attorney as to a conversation with his client, upon the objection that it was privileged, will not be reviewed, and the character of the testimony, as privileged or otherwise, determined, where appellant conceded below that the conversation was privileged, and merely asked the witness for a conclusion which in that view was incompetent.
    Error to Muskegon; Russell, J.
    Submitted April 19, 1899.
    Decided June 28, 1899.
    Gustav Meeske presented a claim against the estate of Casper Pfenning, deceased, for'contribution to the payment of a claim against them as co-sureties on a bond. The claim was allowed in the probate court, and Helen Pfenning, administratrix, appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      James E. Sullivan, for appellant.

      Stephen H. Clink, for appellee.
   Hooker, J.

The Muskegon Brewing Company was a corporation, and its only stockholders were Gustav, Otto, and Paul Meeske, respectively president, treasurer, and secretary. Each used the check of the company to pay his personal obligations, such check being charged against him upon the books of the company. For the fiscal year beginning May 1, 1893, Henry Seider furnished a liquor bond, with. Gustav Meeske and Casper Pfenning as sureties. During that year one Johnson was drowned, and his widow subsequently prosecuted Seider and his bondsmen for causing his death, and recovered a judgment in the federal court at Grand Rapids against all of the defendants. That judgment was paid by Gustav Meeske with the brewing company’s check, and he and Pfenning amicably adjusted the matter. Afterwards several children of Johnson began suits against the same parties, one of which went to judgmeht against them; and Gustav Meeske and Casper Pfenning determined that it would be wise to settle them, which was done for $1,300, which sum was paid, with some other items, by Gustav, with the brewing company’s checks. Soon afterwards Pfenning died, and a claim for contribution was filed against his estate by Gustav Meeske.

At the time of said settlement, an assignment of the judgment was taken by the defendants’ attorney, who drew it to the brewing company. It never came to the hands of either Gustav or the brewing company, but remained with counsel. Meeske testified that counsel was not instructed to take such assignment to the brewing company. The defendant’s counsel made the claim that the settlement was made with funds of the brewing company, and upon its behalf, and that it became the owner of the judgment and claims, and that the claimant, not having paid the judgment and the amount paid in settlement of other suits, has no right of action against the estate of his co-surety for contribution. The circuit judge left these questions to the jury, with the instruction that unless the claimant had proved that the judgment had been paid by him, and at his expense, he could not recover.

The claimant testified that he directed his lawyer to settle the cases, in accordance with an arrangement between him and his co-surety, Pfenning. He admitted that he paid the money to his lawyer, with which to settle, through a brewing company’s check, and testified that he was in the habit of using those checks to pay his individual debts, the amounts being charged to him on the company’s books. The defendant introduced no testimony, except that of Mr. Chamberlain, the lawyer who represented the claimant and his co-defendants. He testified that the firm of Chamberlain & Cross defended the' case in the federal'court, and that their employment was by the Muskegon Brewing Company, who paid .them; that, after the judgment was rendered, it was assigned by Mrs. Johnson, for the purpose of taking steps to collect it as against the other defendants, who made no contribution to the payment that was made; that is, he purchased the judgment from the plaintiff with money that was furnished him by the Muskegon Brewing Company, and took an assignment to himself, and held it in trust for that company. He testified further that' he was employed by the company to defend the other cases, and was paid by it. A judgment of $350 was obtained in one of these cases. There was talk about settlement, and he was instructed by the brewing company to settle the whole matter. His only talk was with Gustav Meeske. The examination proceeded as follows:

‘ ‘ Mr. Clink: Does the court think that is competent ?
The Court: I think so.
‘ ‘ Mr. Clink: He was your client in that case, was he ?
“Mr. Chamberlain: Yes; he was my client in that case.
‘‘ The Court: Do you claim those communications were privileged ?
“Mr. Chamberlain: It is for the court to say; whatever conversation occurred between Mr. Meeske and myself occurred as between client and counsel.
" The Court: If that privilege is claimed, I think it is good, as to the conversation.
Mr. Sullivan: I haven’t asked him about the conversation. Did you follow those instructions ?
The Court: What instructions are those ?
“Mr. Sullivan: That were given you by Mr. Meeske in the settlement of that matter. .
‘ ‘ The Court: That would be the same. I will sustain that objection.
“Mr. Sullivan: There hasn’t been any objection made.
The Court: It is the same rule. Of course, if it is privileged, it is a question for the court.
“Mr. Sullivan: It isn’t unless it is objepted to. Any communications made between counsel and client — These communications, if I understand the rule, are privileged communications, and we haven’t got authority or right to go into what the communications were. Now, I asked him if he received any instructions. He said he did. I didn’t ask him what those instructions were, at all; didn’t ask him to break the privilege in any way, shape, or manner. As far as this record is concerned, that answer stands at this time.
“The Court: I understand what you asked; you asked to accomplish the same thing.
“ Mr. Sullivan: Take an exception. (Witness shown Exhibits A, B, C, D, and E, stipulation and assignments of judgments.)
“Q. Those six papers that I have shown you, were they all one part of the same transaction, made at the same time?
“A. They were all made and executed substantially at the same time, and all with reference to the same transaction of the matter of the settlement of these suits. The check for $1,300 passed through my hands at about the same time, and the check and these papers all relate to the same transaction. I ceased to act as attorney in these cases when I turned the papers over to Mr. Clink, which was some time prior to the 4th of March, 1898. Mr. Clink came to my office, and asked me for such papers as there were in the cases. • I found all there, and turned them over to Mr. Clink.
“Q. You say those different exhibits that were introduced here in evidence, with the exception of the check, that they were all prepared by you. By whose instructions were they prepared ?
“Mr. Clink: I object to that as incompetent.
“The Court: I will sustain the objection.
“Mr. Sullivan: Take an exception.
“Q. Bid you prepare the assignments of those two judgments to the Muskegon Brewing Company ?
“A. Yes, sir.
“Q. Did Gustav Meeske instruct you to prepare those assignments ?
“Mr. Clink: I object to that as incompetent and privileged.
‘ ‘ The Court: I will sustain the objection.
“Mr. Sullivan: Give me an exception.
Q. Did Casper Pfenning ever instruct you to settle those cases ?
“A. No, sir.
‘ ‘ The Court: Did he understand that you were operating for him together with the other parties, or don’t you know?
“A. There was some conversation in which he took part. This conversation extended over a long period of time, and a good many consultations about it; and there were conversations in regard to some portions of this litigation in which Casper Pfenning took part, in which he was present.
“Q. Did you generally appear for him?
“A. I appeared for him, yes, in a general way, and entered a general appearance for the defendants in all these cases. There wasn’t any special appearance for anybody, or any separate appearance for anybody.
“Q. Do you know whether he understood that or not ?
“A. Why, I knew that he knew I was acting.”
Cross-examination by Mr. Clink:
“Q. You say whatever talk you had with reference to this matter was with Gustav Meeske?
“A. In regard to the settlement ?
“Q. Yes.
‘A. I think exclusively. I don’t remember having a conversation with anybody else on that subject at all.
“Q. You had no other employment in these cases, as far as Gustav Meeske or the Muskegon Brewing Company is concerned, than that which is set out in your written contract, did you ?
“A. No, sir.
‘ ‘ Q. That covered this matter ? That provided that you should take charge of the affairs — the individual affairs— of Gustav Meeske, did it not ?
“A. The contract?
“Q. Yes.
“A. Well, I think it did. That was the understanding, at any rate, and that is what we did. Any private business that any of the members of the brewing company had to do, I did.
‘ ‘ Q. And Gustav Meeske was the party that you were representing in the case, was he not ? The brewing company was not a party to that suit, was it ?
“A. No, sir; the brewing company was not a party to the suit, — not to the record.
“ Q. It wasn’t a party to the suit, was it ?
“A. No, sir.
“Q. Then in that suit you represented Gustav Meeske, didn’t you ?
“A. Why, sure.
“Q. Under this employment that you speak of?
“A. Certainly, I represented Gustav Meeske,”

The record contains all of the evidehce in the case. Under the proof, it was conclusively established that the settlement was made with the assent of Pfenning, through Chamberlain, who had acted and was acting as counsel for all of the defendants in the case. It is also conclusively established that the Muskegon Brewing Company was not a party to the litigation, and that the money paid was charged up to Gustav. The assignment was not made to the brewing company, but to counsel; and it was held for and on behalf of Gustav Meeske, who paid it. There was no proof to the contrary, and the court might properly have directed a verdict for the claimant upon the evidence as it stood.

It is urged that the court erred in excluding the answers to some questions asked by counsel for the defendant of the witness Chamberlain. On direct examination, defendant’s counsel disavowed asking the witness for the conversation between himself and Gustav Meeske, relating to the settlement, which counsel for claimant contended to be privileged. Gustav had stated that he directed Chamberlain to settle the matter for a price which Chamberlain had named. Defendant’s counsel asked Chamberlain to state what the instructions were. The court excluded the answer upon the ground that the conversation was privileged, and that the question practically asked for the conversation. In this last proposition the court was right, and he was also justified in holding that the question was objected to. Counsel apparently, conceded that he was not entitled to the conversation, but. insisted that the witness swear to the conclusion. Under these circumstances, the ruling should not be held erroneous upon the ground now argued, viz., that the conversation was not. privileged, whatever we may think of the question of privilege.

The judgment is affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    CARLSON v. CINCINNATI, SAGINAW & MACKINAW RAILROAD CO.
    1. Railroads — Injury to Section Hand — Contributory Negligence.
    A railroad section hand, whose duty it was, under the rules of the company, to be on the lookout for trains, was guilty of con - tributory negligence, precluding a recovery for injuries sustained by reason of a switch engine’s being backed down upon him while he was engaged in cleaning the tracks at a highway crossing, where he saw the engine when it was several hundred feet distant, awaiting a signal to cross, and resumed work with his back towards the engine, without keeping watch upon its movements.
    2. Same — Rules—Backing Engine Across Highway.
    A railroad company is not liable to a section hand injured by a passing engine while he was cleaning the tracks at a crossing, on the ground of failure to observe a rule requiring a lookout on the footboard of an engine backed across a public highway, as the rule is for the protection of the public, and not of employés.
    Error to Bay; Maxwell, J.
    Submitted April 21, 1899.
    Decided June 28, 1899.
    Case by John Carlson against the Cincinnati, Saginaw & Mackinaw Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff had been in the employ of the defendant as a section hand in its yards at West Bay City for about five years. One of his duties was to clean the tracks at the highway crossings, one of which was at Main street. Defendant has four tracks across this street, and the Michigan Central Railroad three. While plaintiff was at work picking out the dirt between the planking and the rails, a switch engine backed against and seriously injured him. The engine had backed down the track to within about 300 feet of the crossing. The crew consisted of the conductor (who was also yard-master), engineer, fireman, and two switchmen. The intention was to cross the highway to a point two miles distant. The semaphore was against the right to cross. The engineer gave the customary signals by whistling to the signalman in control of the semaphore. After giving this signal, the engine stood there some time before receiving notice from the signalman to cross. Plaintiff saw the engine, and stood there watching it for 10 or 15 minutes. He testified, “ I watched it so long because I was afraid of it, and wanted to see which way it was going.” He then went to work, and looked up twice at the engine while at work. The conductor had left the engine, and gone into the interlocking tower, where plaintiff saw him. Plaintiff stood with his back towards the engine, or, as he expressed it, “with my back sideways towards the engine.” He went to work, “feeling satisfied that the engine would not come where he was.” Upon receiving notice from the tower, the engineer backed up, and when the engine reached the crossing it was going five or six miles an hour. The trainmen were in the cab with the engineer. No one stood upon the footboard on the back of the tender. The coal was piled up on the tender so high that those in the cab could not well see over it. Rule 40 of the defendant reads as follows:
    “In no case must a train be backed over a public crossing or highway, unless there is a man on rear car to see that crossing is clear; nor must a car be cut loose and allowed to run over a public crossing or highway, unless there is a man on same. ”
    The signalman in the tower and the conductor saw that plaintiff was paying no attention as the engine approached near him, hallooed to him, and did all in their power to attract his attention, but without avail. The court instructed the. jury that the employés upon the engine were fellow-servants, and that for their acts the defendant was not liable. The theory upon which the case was left to the jury appears from the following charge:
    “I charge you that, if the plaintiff was free from fault, and if this accident happened by reason of a regulation of that road permitting the running of an engine through and across the streets of the city without any lookout, the defendant is liable. I do not think it is liable on any other theory. ”
    The gates at this crossing, which were about 200 feet apart, were down on account of the passing of a train upon the Michigan Central just before, and the coming of this switch éngine. Just how far the plaintiff was from each gate is not shown by the record. He evidently was within less than 100 feet of one of them.

      Geer & Williams (E. W. Meddaugh, of counsel), for appellant.

      Simonson, Gillett & Courtright, for appellee.
   Grant, C. J.

(after stating the facts). The only ground of negligence upon which plaintiff could recover was that submitted to the jury, viz., the failure to have an employé stand upon the footboard of the tender to warn him. The object of the rule requiring an employé to be upon the footboard when backing across public highways is for the protection of the public, and not of the employés of the company. Rohback v. Pacific Railroad, 43 Mo. 187. There was no more danger to the plaintiff in working upon this crossing than there was at any other part of the tracks in the yard outside the highway. There is no testimony tending to show that employés understood that this rule was intended for a protection to them, or that the plaintiff so understood it. Evidently he knew that he was going into a place of danger; that it was his duty to keep a sharp lookout for his own protection; and that he did not rely upon such a warning, because he stood there 10 to 15 minutes, waiting for the engine to pass over. All the witnesses who testified upon the subject, both those for the plaintiff as well as for the defendant, testified that it was the plaintiff’s duty to watch out for approaching cars, and to get out of the way. One of the rules of the company provides: “ Trackmen may expect trains at any moment, and must always be on the lookout and prepared for them.” It is expected, and it is not unreasonable, that trackmen should look put for approaching trains and engines, and especially in yards, where they may be expected at an}*- moment. There was a train going upon another road, and there was a mill near by, making some noise. The law did not permit the plaintiff to rely upon his sense of hearing alone. Obviously he did not intend to, but it is certain that he did. He knew that the engine might come that way. The engineer had signaled for the right to cross. There is nothing to show that he did not hear this signal. The gates were closed. A glance at his surroundings would have warned him of danger. A glance every few seconds towards this engine would have disclosed its approach. Such precaution would not have interfered with his work, and, if it would, there is nothing to indicate that the defendant prohibited him from taking it, or that it expected him to work without taking it.

Keefe v. Railway Co., 92 Iowa, 182 (54 Am. St. Rep. 542), is very similar in its facts to this case. The plaintiff’s intestate was struck by the tender of an engine which was backing up. The court said:

“The presence of the tracks and cars thereon, and the movement of engines, were constant warnings to him of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger. These rules are founded upon the necessities of the business of operating railways. They are reasonable and just, and are fully sustained by the decisions of this and other courts.”

Where plaintiff, an employ.é, stood with his back to the approaching cars, and did not look back or watch for the moving engine, and was struck, it was said:

‘ ‘ It cannot be that, under these circumstapces, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employés who had all the time knowledge of what was to be expected. We see in the facts as disclosed no negligence on the part of the defendants, and if, by any means, negligence could be imputed to them, surely the plaintiff, by his negligent inattention, contributed directly to the injury.” Aerkfetz v. Humphreys, 145 U. S. 418.

Under circumstances somewhat similar, the supreme court of Massachusetts held that an employé had no right to abandon the use of his eyes, and rely upon a warning from every car that might be shunted upon the track where he was working. Lynch v. Railroad Co., 159 Mass. 536. See, also, Schaible v. Railway Co., 97 Mich. 318 (21 L. R. A. 660); Daly v. Railway Co., 105 Mich. 193.

The plaintiff was clearly guilty of contributory negligence. It is unnecessary to discuss the other points raised.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. TALBOT.
    1. Intoxicating Liquors — Sunday Opening — Information.
    An information for violation of the statute requiring all saloons where intoxicating liquors are sold or kept for sale, “either at wholesale or retail,” to be closed on Sunday, need not state whether respondent’s saloon was a wholesale or a retail one, the offense and penalty being the same in either case.
    2. Same — Defenses.
    It is no defense to a prosecution for keeping a saloon open on Sunday that no liquor was sold, or that the only entrance to the living apartments occupied by the respondent was through the rooms used for saloon purposes.
    Exceptions before judgment from Berrien; Coolidge, J.
    Submitted May 3, 1899.
    Decided June 28, 1899.
    Timothy Talbot was convicted of keeping his saloon open on Sunday.
    Affirmed.
    Respondent was convicted of keeping a saloon open on Sunday. He lived over his saloon. There was a room back of the bar-room. From this room a pair of stairs led up to his living rooms. Swinging doors opened from this room into the saloon. On the Sunday in question the officers went to the back door; were admitted; two persons were sitting at a table; two glasses on the table; the. doors into the saloon were open, and one of the respondent’s bartenders was behind the bar. The defense was that no liquor was sold; that respondent was away from home, and had given strict orders to his bartender not to open the saloon.

      James O’Hara (O’Hara & O’Hara, of counsel), for appellant.
    G. M. Valentine, Prosecuting Attorney, for the people.
   Grant, C. J.

(after stating the facts). 1. The second count* — the one upon which respondent was convicted — charged him with keeping a saloon, “the same being a place where spirituous, intoxicating, malt, brewed,' and fermented liquors were sold and kept for sale; such saloon not being a drug-store.” Objection was made to a conviction under this count, because it did not state that liquors were kept for sale either at wholesale or retail. The proposition deserves no discussion. The statute provides that all saloons where any such liquors are sold or kept for sale, either at wholesale or retail, shall be closed. It was not necessary to allege that the saloon was a wholesale or a retail one. The statute applies to either. The offense and punishment are the same.

2. The other defense is covered by previous decisions of this court. People v. Schottey, 116 Mich. 1; People v. Bowkus, 109 Mich. 360. The fact that the only entrance to his home was through this room is no defense.

Conviction affirmed.

The other Justices concurred.


text:
      In re GRAMMEL’S ESTATE.
    Guardian and Ward — Investing Funds — Failing Bank — Negligence.
    The fact that a guardian, instead of loaning his ward’s money on real estate, deposited it at interest in a savings bank, and permitted it to remain there for more than six months, when the bank became insolvent, is not conclusive, as a matter of law, that he was negligent, so as to charge him with the loss of the fund, where there is evidence that the bank was thought to be stable, and that the guardian had good reasons for not investing elsewhere.

      Error to Ingham; Wisner, J., presiding.
    Submitted May 3, 1899.
    Decided June 28, 1899.
    The probate court of Ingham county disallowed certain items in the final account of Frederick Schneider, as guardian of Rudolph and Louise J. Grammel, minor heirs of George Grammel, deceased, and the guardian appealed to the circuit court, where the order settling the account was set aside. Rudolph and Louise J. Grammel bring error.
    Affirmed.

      Kilbourne & Harris, for appellants.

      Russell C. Ostrander, for appellee.

      Sidney T. Miller, amicus curiae.

   Hooker, J.

On July 25, 1892, George Grammel died intestate, leaving a widow and five children, of whom the appellants were two. Prior to October, 1892, the appellee was appointed guardian for them; and among other property was two-thirds of the proceeds of a life-insurance, policy for $5,000. It was received about October 7, 1892. He deposited this sum in the Central Michigan Savings Bank, a banking institution organized under the law of this State, and took a certificate bearing interest at 4 per cent., upon the condition that the deposit be continued three months or more. The bank failed and closed its doors on April 18, 1893, and has not fully paid its depositors. Upon a final accounting, the guardian claimed credit for the deposit, and charged himself with dividends received. ’ The probate court refused to allow this claim. In the circuit court this decision was reversed, and he was given credit for the amount, and allowed the statutory commission, amounting to $120, and the statutory per diem of $1 for 175 days. The wards have appealed, alleging that the court erred in allowing the guardian credit for the amount lost through the failure of the bank.

The only question that we may consider is whether we should say that upon this record it conclusively appears that the guardian was negligent in depositing or leaving the money in this bank for so long a period. We agree with counsel for the appellants that a guardian is required to use care and diligence in handling the property of his ward, but we cannot say that he may not deposit it in banks that have good standing, and of whose stability he is honestly confident. Under some circumstances, he would be negligent if he did not. See Woodruff v. Snedecor, 68 Ala. 437. The length of time that he should permit a fund to lie in a bank must depend upon circumstances, and these circumstances may be as variable as the exigencies of the situation may be variable. Ordinarily it is the duty of guardians to invest funds with a view to their safety and increase. In so doing they arer bound to the observance of fidelity, and such diligence as men of ordinary intelligence observe in managing affairs of their own. Woerner, Guardianship, 197. In the language of Lord Hardwicke in Knight v. Earl of Plymouth, 1 Dickens, 120, ‘ ‘ if there is no mala fides, nothing willful in the conduct of the trustee, the court will always favor him.” Counsel strenuously insist that the guardian should not have left this fund in the bank, where it drew but 4 per cent, interest, when, as they contend, it could have been loaned for more. The implied argument is that, if he had done his duty, the money would have been loaned upon real estate, and consequently would not have been in the bank at the time of the failure. In Post’s Estate, Myr. Prob. 230, it was held that a guardian is not responsible for the loss of funds occurring by reason of the failure of a bank in which he had deposited the ward’s funds, unless by the exercise of reasonable diligence and prudence he might have known it to be in an unsafe condition. See, also, 1 Perry, Trusts, § 443; 2 Beach, Trusts, §§ 492, 499; In re Hunt, 141 Mass. 515. There are cases which indicate that deposits with bankers are permissible only for temporary purposes. See Moyle v. Moyle, 2 Russ. & M. 710; Johnson v. Newton, 11 Hare, 160; Darke v. Martyn, 1 Beav. 525. But,- if we adhere to that doctrine, it is nevertheless true that the length of time that a fund may prudently be left with a banker depends upon the condition and reputation of the bank, and the duty of the trustee as to investing the fund. In this case there was evidence tending to show a sufficient reason for not investing it elsewhere, and raising a question of fact as to his negligence. This was passed upon by the circuit judge, and it is not our province to review his decision upon the facts. We cannot say that they conclusively show negligence, and therefore affirm the order of the circuit court.

The other Justices concurred.


text:
    FISHER v. HARDWOOD MANUFACTURING CO.
    Justices op the Peace — Log-Lien Proceedings — Service Upon Owner — Waiver op Defects.
    Where the owner of logs attached in proceedings under the log-lien law appears before the justice on an adjourned day, pleads the general issue, and goes to trial upon the merits, he waives the right to object that service was not made upon him until the return day of the writ.
    Error to Bay; Maxwell,. J.
    Submitted May 4, 1899.
    Decided June 28, 1899.
    Proceedings under the log-lien law by Samuel Eisher against the Hardwood Manufacturing Company, Limited, and Nathan B. Bradley. Erom a judgment for defendant Bradley on verdict directed by the court, plaintiff brings error.
    Reversed.
    This suit was commenced in justice’s court by attachment to enforce a lien for labor. The work was done for the defendant the Hardwood Manufacturing Company, and defendant Bradley claimed to be the owner of the property attached. Service was made upon defendant Bradley on the morning of the return day of the writ. Bradley did not appear. Three adjournments were had without his appearance. On the last adjourned day Bradley appeared by his attorney, declaration was filed, plea of the general issue entered by both defendants, case adjourned, trial had upon the adjourned day upon the merits, and judgment rendered for plaintiff. Defendant Bradley took a general appeal. Upon the trial in the circuit court, without the introduction of any testimony, the court directed a verdict for the defendant, on the ground that the justice obtained no jurisdiction.

      J. E. Kinnane, for appellant.

      Simonson, Gillett & Courtright, for appellee Bradley.
   Grant, C. J.

(after stating the facts). The cases of Noyes v. Hillier, 65 Mich. 636, and Newbauer v. Newbauer, 112 Mich. 562, have no application. In those cases the defendant did not appear. In this case the jurisdictional defects were waived by a general appearance, plea of the general issue, and trial upon the merits. Manhard v. Schott, 37 Mich. 234; Dailey v. Kennedy, 64 Mich. 211.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    DEAN v. ANDREWS.
    Deeds — Reservation of Crops.
    The Supreme Court, agreeing with the circuit judge that the reservation in a deed from complainant to defendant was of the crops “sown” in the fall of 1896, and not, as claimed by defendant, of the crops “I own” in the fall of 1896, affirmed the decree restraining defendant from interfering with complainant’s removal of crops sown at such time.
    Appeal from Oakland; Smith, J.
    Submitted May 4, 1899.
    Decided June 28, 1899.
    Bill by Sedgwick Dean against Charles B. Andrews and another to restrain interference with the removal of crops. From a decree for complainant, defendants appeal.
    Affirmed.

      A. & S. H. Perry, for complainant.

      Sidney T. Miller and Charles T. Alexander, for defendants.
   Hooker, J.

This case involves a question of fact. The complainant exchanged a farm for other real estate. His deed contained a clause which, according to the complainant’s contention, reads as follows, viz.: “Excepting the right of possession of the above-described property until April 1, 1897, and the right to gather the crops sown in the fall of 1896.” The defendants insist that the word “sown ” should be read “ I own.” The defendants refused to permit complainant or his tenant to care for or harvest the wheat and rye growing on the land in the spring of 1897, and this bill was filed to restrain them from preventing such care and removal, and from causing it to be removed theihselves. A demurrer was interposed and overruled. No appeal from this order was taken, and subsequently the bill was amended, and the case went to hearing upon proofs taken in open court. A decree was entered in favor of the complainant, and the defendants have appealed.

■ It would subserve no useful purpose to reiterate the testimony. We are of the opinion that the agreement between the parties was as the complainant contends, and that the deed should be construed to read “sown,” instead of “I own.” As the complainant has secured the grain, it is only necessary to add that the decree is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    COMMISSIONER OF HIGHWAYS OF TOWNSHIP OF TITTABAWASSEE v. SPERLING.
    Highways — Obstructing Water-Course — Defenses.
    It is no defense to an action by a commissioner of highways for flooding a highway by the erection of a dam across a natural water-course that, owing to the construction of' a ditch along the highway by the township authorities, water that otherwise would not have reached defendant’s land was projected upon it through such water-course.
    Error to Saginaw; Snpw, J.
    Submitted May 4, 1899.
    Decided June 28, 1899.
    Case by the commissioner of highways of the township of Tittabawassee against Fedinand Sperling for injuring a highway by willfully obstructing a water-course. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Trash & Smith, for appellant.

      Snow & Snoiu, for appellee.
   Moore, J.

This action was commenced in justice’s court, by summons, to recover the -statutory penalty for willfully obstructing a ditch. The declaration was in two counts, one alleging that defendant had obstructed a natural water-course, and the other count for obstructing a drain constructed for the purpose of draining a highway. The plea was the general issue. The trial in the justice’s court resulted in a judgment against defendant for $25. Defendant appealed to the circuit court, where the case was tried, and resulted in a verdict and judgment against the defendant in the sum of six cents and costs. The defendant brings the case into this court upon a writ of error, upon claimed errors in the charge as given, and refusals to give certain charges as requested by defendant. We do not deem it necessary to discuss the assignments of error relating to the refusal to give the requests to charge, for the reason they were either not proper to be given, or else were sufficiently stated in the general charge.

The statute under which this proceeding was begun reads as follows:

“Whoever shall willfully obstruct the navigation of any river or stream which is now or may hereafter be declared a public highway, by felling any tree therein, or by putting into any such river or stream any refuse lumber, slabs, or other waste materials, or who shall willfully obstruct any highway, or fill up or place any obstructions in any ditch constructed for draining the water from any highway, or who shall injure any highway by diverting any creek, or by obstructing any water-course or sluice, shall forfeit for every such offense a sum not exceeding twenty-five dollars.” 3 How. Stat. § 1403.

The record shows that defendant lives on the E. J,- of the S. E. £ of section 8, and has lived there since 1887. There is a highway running north and south on the east side of his farm, and one running east and west on the north side of it. A natural water-course has its rise in a northeasterly direction from the center of defendant’s farm as it lies on the north and south road, and it passes across the highway through a culvert which is about 6 feet wide and 16 feet long, and which has been in existence for upwards of 20 years; then running in a south and west direction, it becoming a ravine, with banks 20 feet high, across Mr. Sperling’s farm, it empties into the Tittabawassee river. Mr. Sperling constructed a dam of logs and dirt on his land west of the highway, between 3 and 4 feet high, and higher than the surface of the highway, and about 8 rods long. This dam was so constructed as to completely stop the water and leave no outlet for it. The effect of the dam is, in the springtime, to back the water up so that the highway is completely submerged from 6 inches to 2 feet in depth with water. Upon one occasion the culvert was floated out. It cost the township $6 to replace it.

It is the claim of defendant that the authorities had • constructed a ditch on the east side of the highway, which brought water from the north which would not, in its natural course, reach defendant’s lands, and projected it upon his lands, which action, it is claimed, justified him in erecting the dam. It is also claimed that defendant made an arrangement with the pathmaster, Munger, by which he was to cut a ditch along the highway which would carry this water to the river, and was given permission to build the dam in question. It is alleged that the court erred in his instructions to the jury in relation to these two defenses.

One does not find in all the testimony any authority to construct a dam. Mr. Munger testified that he never gave defendant authority to erect this dam. It is very doubtful, if he had attempted to do so, whether he would have been authorized to bind the township by any permission he could give; but it is very clear from the testimony that he did not give defendant permission. It is doubtful if any testimony was given fairly showing that any appreciable flow of water from the north was caused by reason of the ditch put upon the east side of the highway. Testimony was introduced on the part of the township that the only ditch put there was simply one just sufficiently large to drain the surface of the highway, and by reason of putting it there no water reached defendant’s land that would not naturally reach it. If the opening of this had that effect, it is possible that the defendant might hav.e the right to stop the flow of water from it into the channel of the natural stream, though we express no opinion upon that point; but it would not justify him in building a permanent dam across the channel of this stream.

The charge of the court was very long, and, in the main, we think it a fair and correct statement of the law; but whether it is or not we do not think it necessary to decide, in this case, for the reason that, according to defendant’s own version of the transaction, the plaintiff was entitled to a judgment against him, and the jury have made it as small as they could, and render any judgment at all.

Judgment is affirmed.

The other Justices concurred.


text:
    RETAN v. SHERWOOD.

    1. Ejectment — Enforcement of Equities.
    Equities existing in favor of plaintiff in ejectment against a co-tenant, who quitclaimed to defendant, cannot be enforced in such suit.
    2. Same — Interest Claimed — Amendment of Declaration.
    It was error to refuse to permit plaintiff in ejectment to amend her declaration, alleging title in fee, to conform with proofs showing clearly that her ownership was of an undivided interest.
    Error to Ionia; Davis, J.
    Submitted May 10, 1899.
    Decided June 28, 1899.

      Ejectment by Melissa Retan against Ann E. Sherwood, Emma H. Sherwood, and James Steel. Erom a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Edwin H. Lyon (Frank C. Miller, of counsel), for appellant.

      A. A. Ellis, for appellees.

      Rehearing denied September 27, 1899.

   Hooker, J.

Lorenzo W. Chubb owned the 56 acres of land that is the subject of this controversy, and the record title stood in his name until his death, which occurred in 1887. Ann E. Sherwood was Chubb’s sister, and upon the trial she testified that her husband and herself lived on the premises for many years, having taken possession of them under a contract of purchase from Chubb, and that after her husband’s death, in 1895, she continued to occupy the premises; her daughter, also a defendant, living with her. The other defendant was her tenant. She stated that her husband had no deed, and, although counsel for the plaintiff state in their brief that “there was testimony tending to show that the title actually stood in Sherwood,” they fail to point it out, and we have not discovered it. A contract dated September 20, 1875, was produced, whereby Sherwood agreed to purchase and Chubb to sell the premises for $3,081, and a note and mortgage upon the premises, given by Sherwood to Chubb for the purchase money, $2,710.50, dated November 20,1879, was offered in evidence. It contained the following: ‘ “This mortgage is intended to apply same as a contract for same land of date Sept. 24, ’75, between these parties.” Chubb left a widow, Effaline, a son, Ira, and a daughter, Melissa, the plaintiff. He died intestate, and one Woodworth was appointed administrator. The inventory of the estate included the mortgage, and did not include this land. On a final accounting the son and daughter were declared to be the heirs, and they took the real estate subject to dower, and tbe personal property was assigned to them and the widow. In the adjustment the administrator assigned the mortgage referred to to the widow by assignment dated February 25, 1888, and in 1890,she assigned it to the plaintiff, who foreclosed it by advertisement, and bid in the premises for $4,000 on July 6, 1895. It is claimed that proper demand for possession was made, and this action of ejectment was brought to recover the land, the whole of which plaintiff claimed to own in fee. Ann E.. Sherwood claimed that she went into possession, with her husband, under the contract, and never asserted any other title, except under a quitclaim deed of an undivided half interest made to her by Ira Chubb, the son; on August 18, 1894, for a nominal consideration. The court held that the plaintiff could not recover the entire premises, refused leave to amend the declaration, and directed a verdict for all of the defendants.

Counsel for the defendants admitted that the plaintiff owned one-half of the premises, and contended that possession of that was never refused. The refusal to permit an amendment was made upon the statement by .the court that the evidence did not show that the defendants had ever denied the plaintiff’s title to an undivided half of the land. The questions, then, are: Was the court right in saying, first, that the plaintiff owned only the undivided half of the premises ? and, second, that the evidence did not show an ouster by her co-tenant ?

At Chubb’s death the legal title was in him, and descended to his son and daughter, subject to the dower right of Effaline Chubb, and subject also to Sherwood’s rights under the contract. That title now stands one-half in the plaintiff, and the other half in the defendant Ann Sherwood under the deed from Ira Chubb. The interest that Mrs. Sherwood obtained by the quitclaim deed was only the interest that Ira Chubb had (Beakley v. Robert, ante, 209), and she took it charged with any equities that existed against Ira Chubb in favor of his sister, the plaintiff, arising out of the assignment of the mortgage. But, if there are any such equities, they cannot be enforced in an ejectment case, and therefore the plaintiff could not recover more than an undivided half of the premises. The evidence clearly shows that she is entitled to one-half, and we think that there was evidence of a denial of this right upon which a jury might have found an ouster by Mrs. Sherwood. Whiteley v. Whiteley, 110 Mich. 556; Carpenter v. Carpenter, 119 Mich. 167. This should reverse the case, unless the judge was right in saying that an undivided one-half could not be recovered under this declaration, which claimed the entire fee, and in refusing an amendment. But we think he erred in this. Bringhurst v. Railroad Co., 78 Mich. 570; Hoban v. Cable, 102 Mich. 206. We discover no testimony that shows that defendant Emma H. Sherwood is claiming title; but, like the tenant, she resides upon the premises, and apparently claims the right to do so.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    BURNHAM v. NORTH BRITISH & MERCANTILE INSURANCE CO.
    Garnishment — Interpleader.
    Case ruled by Burnham, v. Home Insurance Co., 119 Mich. 588.
    Error to Charlevoix; Corbett, J.
    Submitted February 7, 1899.
    Decided June 29, 1899.
    Garnishment proceedings by James K. Burnham, Frederick C. Stoepel, and others, copartners as Burnham, Stoepel & Co., against the North British & Mercantile Insurance Company, as garnishee of Neil Gallagher. William J. Quan was interpleaded as a claimant under an alleged prior assignment. From a judgment for plaintiffs, claimant and the garnishee bring error.
    Affirmed.

      Re,my & Mann and Dart & Dart, for appellants.

      Pratt & Davis (Geer & Williams and J. H. Cole, of counsel), for appellees.
   Per Curiam.

This case does not differ in any material respect from that of Burnham v. Home Ins. Co., 119 Mich. 588. The questions involved are discussed in the opinion in that case.

The judgment is affirmed


author: Montgomery, J.

text:
    FISH v. CRAWFORD MANUFACTURING CO.
    1. Contracts — Sale op Lumber — Inspection Charges — Local Custom — Pleading.
    Where the seller Of lumber permitted plaintiff to make an inspection thereof under the direction of the purchaser, and afterwards paid him one-half of his charges, he may be held for the balance upon proof that by a local custom the seller was required to pay the entire inspection charges in the first instance, although the custom is not specially declared upon; it being merely a matter of evidence to establish the implied contract.

      2. Same — Weight op Evidence — Question por Jury.
    There being some testimony to support a custom, its weight was for the jury.
    Error to Menominee; Stone, J.
    Submitted October 21, 1898.
    Decided July 5, 1899.

      Assumpsit by Jobn Fish against the Crawford Manufacturing Company for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Sawyer & Waite, for appellant.

      W. H. Phillips, for appellee.
   Montgomery, J.

Plaintiff is a lumber inspector. On the 26th of September, 1895, the defendant sold to one Adam Schillo, of Chicago, a quantity of lumber on dock at Menominee. The agreement for sale was silent as to the inspection. The plaintiff inspected the lumber by direction from Schillo, as he (Schillo) testified, after an agreement between the defendant and himself that plaintiff should tally the lumber. The defendant’s officers saw the plaintiff at work inspecting, and permitted him to go on, and finish the work, and afterwards paid him one-half of his charges. The plaintiff claims that by a local custom the seller of lumber to Chicago or Milwaukee purchasers pays the entire of the inspection charges, at least in the first instance. The circuit judge left it to the jury to find whether the custom claimed to exist in fact prevailed, instructing the jury that a custom, in order to be controlling, must be definite, precise, and unvarying.

It is contended that it was error to submit the question to the jury, for two reasons: First, that the custom was not declared upon; and, second, that the evidence did not show a custom.

We think it was not necessary to declare specially upon this custom. It was, in this case, only a matter of evidence, adduced for the purpose of showing what the implied contract between the defendant and plaintiff was. If the custom was for the seller to pay the entire of the inspection charges, the defendant, when he saw this plaintiff making the inspection, might well be understood to have assented to his doing the work on such terms.

We think we cannot say that there was no testimony tending to support the claim of plaintiff that the custom exists. This being so, its weight was for the jury.

No other questions call for discussion. The judgment is affirmed.

The other Justices concurred.


text:
    ANDRUS v. SCUDDER.
    Equity — Appeal—Pleadings—Unauthorized Degree.
    The Supreme Court, upon affirming a decree dismissing a bill praying for the reformation of a contract so as to show a consideration due from complainant less than the amount stated in the contract, and for an injunction against the prosecution of an action at law to recover the amount therein stated, cannot, for the sake of obviating the necessity of further legal proceedings, enter a money decree for defendant, where the pleadings in the injunction suit are not framed to authorize such relief.
    Appeal from Wayne; Smith (George W.), J., presiding.
    Submitted February 7, 1899.
    Decided July 5, 1899.
    Bill by Ward L. Andrus against John Scudder and Frances M. Scudder for the reformation of a contract, an accounting, and to enjoin an action at law. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    On May 1, 1895, complainant executed and delivered to defendant Frances M. Scudder the following agreement:
    “For and in consideration of the sum of ten thousand dollars furnished me by Frances M. Scudder, of Detroit, Michigan, the receipt of which is hereby acknowledged, for the purpose of carrying on a wholesale fruit and fancy grocery business at 53, 55, and 57 Jefferson avenue, as Ward L. Andrus & Co., of which firm I am sole partner, I hereby agree to pay said Frances M. Scudder or assigns at the end. of each year ten thirty-fourths of the net profits of said business. The said Frances M. Scudder may withdraw at any time the aforesaid funds so furnished by her by giving sixty days’ notice thereof. This agreement shall be in force five years from May 1st, 1895, unless otherwise terminated. It is expressly understood that said Frances M. Scudder shall not in any manner or in any way have any voice, direction, or 'control in the management of said firm on account of said funds so furnished; and I hereby agree not to personally or otherwise sign or indorse any note, bond, or other obligation not pertaining to the business of said firm, or do any act which would place in jeopardy the money furnished by said Scudder.”
    A notice of withdrawal was duly served. On February 9, 1897, complainant paid defendant Frances $5,000. He refused to pay the balance, and thereupon she instituted a suit at law against complainant for its recovery. This suit was instituted February 27, 1897. To the declaration filed, defendant, on April 3, 1897, filed a plea of the general issue. The case was set for trial December 2, 1897. On November 17th, defendant, Andrus, amended his plea by giving notice that his signature to the contract was fraudulently obtained by the misrepresentations of plaintiff or her representative as to the contents "thereof. On December 1, 1897, complainant filed his bill, setting up the fraud, praying for the reformation of the contract, for an accounting, and an injunction against the prosecution of the suit at law. The two particulai’S in which a reformation is asked are that the consideration in the contract should have been $8,000, instead of $10,000, and that Mrs. Scudder should participate in the losses as well as the profits. Proofs were taken in open court, and the bill dismissed.

      Corliss, Andrus & Leete (John D. Conely, of counsel), for complainant.

      Bowen, Douglas & Whiting, for defendants.
   Grant, C. J.

(after stating the facts). Counsel for complainant, in their brief, say that the questions involved are ones of fact. The sole witnesses to the agreement are the complainant and defendant John Scudder, who acted for his wife, his co-defend'ant. She personally took no part in the negotiations. The testimony of these two witnesses on every material fact is in direct conflict. Upon the facts, therefore, the result would depend upon the credit the court should give to one or the other. The court below reached the conclusion that complainant ‘ ‘ has not been able to establish the fraud by such a preponderance of evidence as entitles himself to relief.” We think the circuit judge was in a better position to decide the question of fact than we are. There was nothing unreasonable in the contract. We find nothing in the surrounding circumstances from which we can reasonably infer that complainant has a preponderance of the evidence.

Defendant Frances insists that decree should be entered in this court for the amount due, and thus obviate the necessity of resorting to the continuation of further legal proceedings. The pleadings are not framed to meet any such case. Therefore all we can do is to affirm the decree dismissing the bill.

Decree affirmed, with costs.

The other Justices concurred.


text:
    HUBBARD v. AUDITOR GENERAL.
    1. Taxes — Void Sale — Certificate of Error — Mandamus.
    "Where a void tax deed has been issued, and the original owner applies to the auditor general for a certificate of error, tendering the full amount of the tax, he is entitled to such certificate, and, if the auditor refuses to issue it, mandamus will lie to compel him to do so.
    2. Same — Purchase of State Tax Lands — Acceptance of Check as Payment.
    The fact that the auditor general sees fit to accept a check in payment for state tax lands is not a matter of which the original owner can complain, where the check is afterwards paid; and in such case the payment will be deemed to have been made as of the time of the receipt of the check.
    3. Same — Insufficient Deposit — Rights of Applicant.
    An applicant to purchase state tax lands, who deposits an amount insufficient to cover all of the descriptions applied for, is not entitled to deeds for the several descriptions in the order named in his application, where there is nothing to indicate that he intended to take a part of the lands if he could not obtain them all.
    4. Same — Payment of Tax Liens — Void Deed.
    Under section 84 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), requiring a purchaser of state tax lands to pay all taxes remaining a lien thereon at the time of his purchase, one who pays a part of the price to the auditor at the time of making his application to purchase, and the balance on a subsequent day, is bound to pay any tax that has become a lien upon the land in the interim, in default of which the deed issued to him is void.

      Mandamus by Frank W. Hubbard and James O. Wallace to compel Boscoe D. Dix, auditor general, to issue a certificate of error.
    Submitted February 15, 1899.
    Writ granted July 5, 1899.
    The petition alleges that relators are the owners of the S. E. i of section 30, township 16 N., range 13 E., being in the township of Verona, Huron county; that on November 30, 1896, William A. Garner and George F. Brown filed a written application with the respondent for the purchase of six descriptions of land, of which the description above is the first; that at the time said Garner and Brown deposited with the auditor general their personal check for $100, to be applied upon the purchase of said lands; that they were then informed by the auditor general that the total amount due was $176.39; that on December 1, 1896, Brown and Garner sent from Flint to the auditor general a check for $76.39, balance due; ujjon information, that neither of said checks was cashed by the auditor general until after December 2, 1896; upon like information, that it was not the custom of the auditor general to accept personal checks as cash upon application to purchase state tax lands; that on December 31, 1896, the auditor general wrote Garner and Brown, accounting for the $176.39, and returningto them $35.74, that amount being the excess over the taxes due; that a tax deed was issued to Garner and Brown, dated December 28, 1896, for said lands. The petition further sets up that the taxes for the year 1896 were not included in the purchase, and were not paid by Garner and Brown. On October 28, 1898, relators made application to the respondent to pay or redeem the taxes upon said land, and tendered $166.25 for that purpose, and prayed that a certificate of error be issued against the deed to Garner and Brown. The respondent refused to accept the money or issue the certificate of error, whereupon relators brought this petition for a writ of mandamus to compel such action.
    The answer admits the application, the payment of $100 by check drawn upon the Citizens’ Commercial Savings Bank of Flint, the receipt of the subsequent check, the issuance of the deed to Garner and Brown, and the refusal to issue the certificate of error. The answer further sets up a receipt for $100 given by the then auditor general, November 30, 1896, in accordance with the application, and avers that said checks became at once, on receipt thereqf, part of the public funds, were without delay deposited in the state treasury, and credited to the public fund known as the “Auditor General’s Deposit;” that it has for a long period of years been the custom in that department to receive personal checks on banks, tendered by responsible applicants, and to treat the same as cash.

      Bacon & Palmer ( William T. Bope, of counsel), for relators.

      Horace M. Oren, Attorney General, for respondent.
   Grant, C. J.

(after stating the facts). 1. It is urged that the writ of mandamus will not lie against respondent, because the action was wholly within his discretion and judgment. No such discretion is lodged in the auditor general. When one has complied with the law in applying to purchase state lands, he is entitled to his deed or patent. When a void deed has been issued, and the original owner applies to the auditor general, tenders the full amount of taxes due, and demands a certificate of error, he is entitled to it, and the auditor general cannot refuse it. Mandamus is the proper remedy to compel performance, and determine the validity of the reasons for refusal.

2. Relators are not in position to question the method of payment between the auditor general and tax-title purchasers. The auditor general saw fit to accept the check in payment. It was paid, and the deed issued. This point is ruled by People v. Commissioner of State Land Office, 19 Mich. 470.

3. It is urged that, the deposit of $100 November 30th being more than sufficient to pay the taxes due on the first description, Garner and Brown were entitled to deeds for the descriptions in the order named in the application, under People v. Commissioner of State Land Office, 23 Mich. 270. That case applies only to selections of lands' under some law or grant from the government. It does not apply to purchasers. Webster v. Newell, 66 Mich. 503. This application was to purchase certain parcels of land. There was nothing in it or outside it to indicate that Garner and Brown intended to take one piece if they could not get all. The application was treated as an entirety; for the next day they completed their right, as they supposed, by paying the balance due. The purchase was not, therefore, completed until December 2d, when the second check was received by the respondent. At that tima the taxes of 1896 had become a lien, and should have been paid, to entitle Garner and Brown to a deed. Hughes v. Jordan, 118 Mich. 27.

The writ will issue, but without costs.

The other Justices concurred.


text:
    WATSON v. ALBERTS.
    Conditional Sale — Bona Fide Purchaser — Fixtures.
    A bona fide purchaser of land, and of a permanent distillery-plant thereon, acquires title to a steam pump attached to the distillery, as against one who sold the pump, knowing it was to be so attached, under a contract providing that title should remain in the seller until payment of the price.
    Error to Muskegon; Russell, J.
    Submitted April 19, 1899.
    Decided July 5, 1899.
    Trover by William G. Watson and others against Silas L. Alberts and another. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.
    Plaintiff, sold to one Minnick a steam pump, to be used by him in a peppermint distillery on his farm. It was sold on credit, the title to remain in plaintiffs until the price ($50) was paid. It was attached to a drive-wheel, and connected by a steam-pipe to the boiler; was fastened to a plank, which rested on timbers set in the ground. The pump and the entire distillery plant was in a permanent building. ■ Defendants bought Miimick’s farm and distillery in good faith, without notice or knowledge of plaintiffs’ claim, and believing that the pump was a part of the realty.

      A. S. Hinds (Arthur Jones, of counsel), for appellants.

      Stephen H. Clink, for appellees.
   Grant, C. J.

(after stating the facts). The property was sold to be attached to the distillery, and plaintiffs so understood it. It was so attached, and was sold by Minnick, as a part of the realty, to defendants, who were bona fide purchasers. The case is ruled by Wickes Bros. v. Hill, 115 Mich. 333.

Judgment affirmed.

The other Justices concurred.


text:
    THORNTON v. DAMM.
    1. Execution — Payment—Evidence.
    Where one of several defendants in execution, under threat of levy on her individual property, gives to plaintiff’s attorneys a check for the full amount, with no provision for the money’s being in any event returned to her, the transaction amounts to a payment of the execution, even though her attorney testifies that it was distinctly understood that it should not have that effect, but should be deemed a payment merely for the protection of plaintiff's attorneys, the execution to be kept alive and used for defendant’s benefit.
    3. Same — Payment by One Defendant — Enforcement Against Co-Defendants.
    One of several defendants in execution may, after paying the same, recover from his solvent co-defendants their proportionate shares, and.no more.
    8. Same — Notes—Consideration.
    A note given by one of several defendants in execution to a co-defendant, to avoid a threatened levy by such co-defendant to enforce the collection of the execution, which such co-defendant has paid, the maker of the note having paid m cash his proportionate share, is without consideration and void.
    Error to Muskegon; Russell, J.
    Submitted April 19, 1899.
    Decided July 5, 1899.

      Assumpsit by Anna C. Thornton against Peter Damm upon a promissory note. Erom a j udgment for plaintiff, defendant brings error.
    Reversed.

      Arthur Jones, for appellant.

      Stephen U. Clinic, for appellee.
   Montgomery, J.

This is an action on a promissory note made by defendant August 10, 1897, payable to the order of Stephen H. Clink, and indorsed by him in blank. The face of the note is $100, and the recovery was for the amount, including interest, — the whole sum being $108.60. The defendant brings error.

The defense relied upon in the court below and in this court was duress and failure of consideration. Briefly stated, the circumstances under which the note was given were as follows : In 1896 some 40 residents of Muskegon, including both plaintiff and defendant, had engaged in a contest over the taxes assessed against their property. In this contest they had been unsuccessful, with the result that execution issued out of this court in favor of' the auditor general and against the contestants in that case, amounting to $256.96, including sheriff’s fees. Mr. Clink, from the date of the issue of this execution, acted as the attorney of Mrs. Thornton. Bunker & Carpenter were attorneys for the auditor general, the plaintiff in execution. Mr. Clink was a witness, and testified as follows :

“ I was endeavoring to help her to protect her interests. The execution was in the hands of the sheriff. Bunker & Carpenter, I guess, had control of it. Prior to the taking of this note from Mr. Damm, Mrs. Thornton had given a check for the amount of the execution to Bunker & Carpenter, but not in paj^ment of the execution. They had threatened to levy upon her property, and the check was given td prevent the levy. It was done some days prior to the making of this note. I couldn’t give the amount exactly, but I think it was $256.66. It represented the full amount of the execution, together with the sheriff’s fees for collection. After that check was given, no further effort was made to collect the execution from Mrs. Thornton. That was the arrangement with Bunker & Carpenter, — that they should take that check for the purpose of making them whole, so they would be safe in the matter, and could have the use of the money if they wanted it; but it was distinctly understood that it did not pay or satisfy that execution, and that the execution should be kept alive and used for the benefit of Mrs. Thornton. I told Bunker & Carpenter to direct the sheriff to make a. levy on Mr. Damm’s property. I may also have told the sheriff to make the levy, but I required of Bunker & Carpenter that they do that,' — -or of Bunker; I did all the business with Mr. Bunker. I believe the sheriff did go and attempt to collect that execution from Mr. Damm. I told him to, and I told him to make a levy if he did not get the money. That was before the note was given. After that Mr. Damm came tó see me. There was no threat to make a levy, so far as I know. My instructions were to make a levy, not make any threat about it; to go .down and get that money, or make a levy on Damm’s property. We wanted Mr. Damm to bear an equal part of it, and get a hold, and try to do something to help collect in. I don’t know that any particular amount was settled upon. I think that was left with the idea that we would arrange that when somebody was set in motion with that execution. I couldn’t say why Mr. Damm came to see me, whether or not because of the threat which he claims had been made by the sheriff, but I suppose he came because he thought the execution was going to be levied upon him. He told me the sheriff or deputy sheriff had been there to make a levy on his property. I do not know whether Mrs. Thornton sent him to me or not. I don’t know whether he told me she did or not. I demanded that he pay $126, and I told him that, unless he did pay that, this execution would be levied upon him to compel him to pay it. I suppose I told him that, because that is what I meant to do, and, if he hadn’t given that note, there would have been an execution levied on his property,— that very execution would have been levied. I told him some collections had been made. I don’t remember that I told1 him about how much remained uncollected. I do not think that my idea was at that time to make him pay the uncollected portion of the execution; my idea was at that time that each one should assume about one-half of that matter.
“Now, I looked upon it that these two were the pecuniarily responsible ones of the lot, and that Mrs. Thornton had had to put up all the money, and there wasn’t another soul on the list that wanted to make a move in any way, shape, or manner to get a cent. Her money was gone from her. I proposed that Mr. Damm should share that responsibility with her, and should do just as much hustling as she did, now she had put up the whole of it. As I say, some little amount had been collected; there could be no mistake about that, nor any injustice about it. I am explaining to you just what basis I proceeded upon. I wanted to state that if Mrs. Thornton collected more than her share of it, or more than her half, it would be turned over to help out, and if he collected more from these parties (and they all had an opportunity to go to these. people and collect), and if he collected more than his part that he assumed, he could turn it over to her. I told him she had made some collections. I didn’t know how much she had collected. I didn’t tell him she had collected one-half the execution. I didn’t tell him whom she had collected from. I did not know who paid. I did know of one occasion where some few dollars were paid in my office, but just what it was I didn’t know, — by Mrs. Miller. I do not think there was any division made of the parties who were liable, no agreement as to whom Mrs. Thornton was to collect from and whom he could collect from. I do not believe any statement was made to Mr. Damm as to who had paid.
“Whatever arrangement was made between myself and Mr. Damm was made with the view of allowing both these parties to collect from the remainder of the persons named in the execution, — ■ collect whatever they could to recoup for the amount that they had put up. I had instructed Mrs. Thornton to make all the collections she could. I am not sure whether I deducted from the gross amount of the execution the amount that Mrs. Thornton had collected, and divided up the remainder in two parts, one-half of which should be shared by Mr. Damm and the other by her, or whether I took out what I figured would be Mrs. Thornton’s own share, — what she should have paid individually,— and then let each of them divide the balance. I have forgotten just exactly what basis. I am inclined to think that I deducted the share that Mrs. Thornton would have to pay if these people paid equally. I am not sure whether that was $6 or not, because I am not sure of the number of persons in the execution. I think there were something over 40. It would probably be about that amount. I suppose I showed Mr. Damm the basis for the demand. I don’t know whether I figured it out to him or not.”

The defendant testified as follows:

“I gave the note at Mr. Clink’s office. The deputy sheriff came down with an execution, and was going to levy on my property if I didn’t pay up that execution for the Supreme Court costs. This was a few days prior to the time I gave the note. * * * I went to see Mr. Clink the same day. I told him I was sent there, had seen Mrs. Thornton, and she told me to go to him about it. He says, ‘ Well, it’s got to be paid, or else it will have to be levied on your property.’ He figured out how much I had to pay, and told me it was $126. I don’t know how he figured it. He said there was some collected on that execution, and, if I paid that for my share, then that would cover it. He didn’t tell me any sum that had been collected; he said somewhere about $130. He required me to pay the balance of it, and said that, if I didn’t, it would be levied on my property. I paid him $26 in money, and gave this note. I didn’t have any other reason for giving this note than that of saving my property from the levy of this execution. I would not have given this note had it not been for the threats to levy on my property if I didn’t give it. I didn’t owe Mrs. Thornton anything. The note was given to Mr. Clink, but was to pay this debt.”

Cross-examination by Mr. Clink:

“ I guess that you told me that Mrs. Thornton had put up the entire amount of this execution. You told me I could go and take that execution and levy on somebody else. You offered me a list on typewritten paper, and told me to go and make collections. I. guess I told Mrs. Thornton that she had more time to collect than I did. I know I was up there, but I don’t just exactly remember what our conversation was. I think that was the same day or the day after giving the note. I know it wasn’t more than a week.
“Q. You never made any effort to get any of these people named in this execution to pay their share ?
“A. Well, I kind of thought I had done wrong already to settle it the way I did, so I thought I would not try to do anything there in that case, you see.
“Q. You didn’t say anything that you were dissatisfied until the note was due, did you ?
“A. No; I did not.”

It also appeared that, before the note in question was given, Mrs. Thornton had received from various parties who were liable jointly with herself and defendant their respective proportionate shares of the amount of the execution, and had given them receipts agreeing to save them “harmless from any further payments or costs for and on account of said execution.”

The contention of defendant is that, before payment of the execution, it might have been enforced against either one of the many defendants, and that such defendant would be entitled to recover of each of his co-defendants ratably an aliquot part of the whole; that in no event could he recover more than such a sum as would be produced by dividing the amount paid among the solvent debtors. It is the further contention that, under the evidence in this case, the execution was paid by Mrs. Thornton, and the rule governing her rights is that given in Beach on Contracts (section 682): “Where one of two defendants in a joint judgment pays it, but not with the intention of discharging it, he may enforce the judgment against the co-defendant for his legal proportion of the debt”— and that this was the extent of her right.

On the other hand, plaintiff’s counsel contends that the testimony does not show payment by Mrs. Thornton, because she parted with the money on the strength of the distinct agreement that the money should not pay the execution, and should not be received for that purpose, and that the arrangement was in all respects a fair one, by which the parties, finding themselves jointly liable, divided the loss. The court instructed the jury in accordance with plaintiff’s theory, and in effect that, if the defendant understood the situation, he was liable on the note.

If the amount of the execution had been divided among the solvent debtors, the share of each would have been about $13. Defendant had paid $26 in cash, aside from the note in question, so that the question whether there was any consideration for the note must, in our opinion, be determined by ascertaining what right the plaintiff had, as against him, when the note was taken. If there had been no payment of the execution by plaintiff, there was nothing to prevent an agreement as to a division of their burdens, if made in good faith on both sides; and, as the jury found there was no deception in the case, the question again recurs, Was there a previous payment by the plaintiff? for, if there was, the law defines the extent to which the writ of execution remains available. While the plaintiff may elect to proceed against any one of numerous co-defendants, the law does not warrant him in placing a weapon in the hands of. the one called upon to make payment with which he can attack another co-defendant. Such an agreement would be against public policy.

We have no doubt, from Mr. Clink’s testimony, that the money was paid by Mrs. Thornton to Bunker & Carpenter on this execution. He says the arrangement was that Bunker & Carpenter should take the check for the purpose of making them whole, so that they would be safe in the matter, and could have the use of the money if they wanted it, but that it was distinctly understood that it did not pay or satisfy that execution, and that the execution should be kept alive and enforced for the benefit of Mrs. Thornton. There is no suggestion that in any event the money was to be returned to Mrs. Thornton, and, so far as the agreement to keep the execution alive is concerned, it is treated as an agreement to permit Mrs. Thornton to enforce the execution against her co-defendants to the extent that the law justified a resort to them, i. e., for their proportionate share. The attempted use of this execution to enforce the collection of the full face, made ■ by Mrs. Thornton’s attorney, was unauthorized, and the note given to avoid such a levy was without valid consideration. The verdict should have been directed for defendant.

Judgment reversed, and new trial ordered.

The other Justices concurred.


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      In re JONES AND CLINK.
    Attorneys — Improper Language in Briefs — Contempt.
    The Supreme Court, though deeming improper certain language used in the briefs of opposing counsel, were not disposed to take further action thereon, where counsel disclaimed, in answer to an order to show cause, any intent to use language which could be construed into a contempt of court.
    Order requiring Arthur Jones and Stephen H. Clink to show cause why they should not be adjudged guilty of contempt.
    Issued April 19, 1899.
    Dismissed October 3, 1899.
   Per Curiam.

In this matter the court, upon its own motion, issued an order to the respondents to show cause why they were not guilty of contempt in the use of language which appeared in the brief of respondent Jones in Thornton v. Damm, ante, 510, and in the motion of respondent Clink to strike the brief from the files. Each respondent filed an answer disclaiming any intent to use language which could be construed into a contempt of court. That the language was improper cannot be denied, and can only be overlooked upon the ground that it was used in the heat of excitement. Under the disclaimers made by counsel, we are disposed to take no further fiction in the matter.


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    BIG RAPIDS NATIONAL BANK v. PETERS.

    1. Principal and Surety — Extension—Release — Reservation op Remedy.
    A surety is not released by an extension of time to the principal debtor, where the remedy against him is expressly reserved by the creditor.
    2. Same — Evidence.
    Evidence that the holder of a promissory note, on granting an extension of time to the principal debtor by accepting a new note, expressly refused to surrender the original note or to discharge the surety thereon, is sufficient to sustain a finding that the remedy against the surety was reserved.
    S. Bills and Notes — Ownership—Question por Jury.
    Where defendant denied plaintiff’s ownership of a note sold by plaintiff before maturity, but redeemed, according to plaintiff’s testimony, after it went to protest, it was not error to perjnit the jury to pass upon the question of ownership.
    4. Same — Interest—Compromise Verdict.
    Defendant cannot complain of a verdict against him, as a compromise, because it does not include interest on the notes in suit.
    Error to Manistee; McMahon, J.
    Submitted April 19, 1899.
    Decided July 5, 1899.

      Assumpsit by the Big Rapids National Bank against Richard G. Peters upon promissory notes. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. H. Gleason (Arthur Lowell and Fletcher & Wanty, of counsel), for appellant.

      M. Brown (McAlvay & Grant, of counsel), for appellee.

       Rehearing denied November 7, 1899.

   Hooker, J.

The plaintiff’s action was brought to recover a balance alleged to be due upon eight promissory notes. The plaintiff obtained a verdict. Peters, the appellant, was a member of a copartnership styled Arthur Meigs & Co. These notes were signed by Carman, and were payable to Arthur Meigs & Co., and were by them indorsed and negotiated. Carman appears to have made the notes as an accommodation, to Meigs & Co., who received $10,000 in money from the plaintiff upon them, or similar notes which these renewed. The earliest note sued upon was dated July 25, and the latest October 10, 1890. In October, 1890, Meigs & Co. became pecuniarily embarrassed, and sold their shingle mill to Carman, who promised to assume and pay the outstanding notes as a portion of the consideration. Of this the plaintiff was at once informed. The notes were not paid at maturity, and this action was brought against the maker, Carman, and indorsers, Meigs & Co. Service was not obtained upon Carman or Meigs. The defendant claimed that, through Carman’s assumption of the debt, Meigs & Co. became his sureties, and that they were released by reason of an extension of time given to Carman by the plaintiff. To establish this defense, he proved that, after the maturity of these notes, the bank received otherjhotes from Carman, signed by Carman, Bromley &' Childs, from time to time, for a period of two or three years or more; discounts being regularly paid thereon. It appeared that the plaintiff was asked to receive other paper in lieu of the original notes, but refused, saying that it should not give them up until paid. There is testimony to the effect that, when the arrangement was made by which the subsequent notes were agreed to be taken, it was accompanied by a refusal to surrender the original paper or release the indorsers until the same was fully paid.

The court instructed the jury that, by the agreement for the purchase of the shingle mill, Carman became the principal debtor, and Meigs & Co. sureties; and he directed the jury to inquire whether, in the subsequent arrangement between Carman and the bank, it reserved the right of action against the sureties. Counsel for the defendant allege error upon the last proposition, claiming that the court should have directed a verdict for the defendant, upon the ground that the undisputed testimony showed that he was discharged by an extension of time to the principal debtor.

It is not every extension of time that discharges a surety.

‘ ‘ If the creditor, at the time he releases the principal, reserves his remedies against the surety, such release amounts to a covenant not to sue only, and does not discharge the surety.” 1 Brandt, Sur. § 147.

In Oriental Financial Corporation v. Overend, Gurney & Co., 7 Ch. App. Cas. 142, Lord Hatherley said:

“It is competent to the creditors to reserve all their rights against the surety, in which case the surety is not discharged; and for this reason: That the contract made with the principal is then preserved, because the creditors have engaged with the principal not to sue him for a given time, but subject to the proviso that the creditors shall be at liberty to sue the surety, and so turn the surety upon the principal without any breach of the engagement with the principal.”

The opinion of Mr. Justice Andrews. in the case of Calvo v. Davies, 73 N. Y. 217 (29 Am. Rep. 130), is to the same effect. It was there said :

“The remedies against the surety are reserved. The agreement does not operate as an absolute, but only as a i qualified and conditional, suspension of the right of action. The stipulation in that case is treated, in effect, as if it was made, in express terms, subject to the consent of the surety, and the surety is not thereby discharged.”

See, also, Hagey v. Hill, 75 Pa. St. 108 (15 Am. Rep. 583); Wyke v. Rogers, 1 De Gex, M. & G. 408; Sohier v. Loring, 6 Cush. 537. Many other cases will be found cited in 24 Am. & Eng. Enc. Law, 830, note 2. The same doctrine is laid down in our own case of Bailey v. Gould, Walk. Ch. 482. If, therefore, the defendant stood in the attitude of .surety, the court committed no error in submitting tbe question of his discharge to the jury. We cannot agree with counsel that there was no testimony tending to show such reservation. The cashier testified that they would not carry the notes on the books of the bank, but that he told Carman that he might substitute other paper. He said further: “There was to be no extension. I told him, plainly, we would not release Mr. Peters under any circumstances, or him either.” In this connection, we may add that we think the verdict was not so at variance with the weight of the evidence as to make a refusal to grant a new trial erroneous.

One other question demands notice, and requires a further statement of facts. It has been said that eight notes were sued upon, one of these'being known as “Exhibit A.” This was a renewal of a former note for $1,000, and was sold by the plaintiff, before maturity, to the Mecosta County Savings Bank. When Exhibit A became due, Carman paid Comstock, plaintiff’s cashier, $500 upon it, and a Carman, Bromley & Childs note for $500. The defendant claims that the plaintiff was not the owner of Exhibit A, and therefore had no right of action upon it, and that the admission of testimony regarding it was erroneous. It is said that the jury must have found that the plaintiff owned this note when suit was commenced, although there was no testimony showing it. We find, on examining the record, that Comstock testified that the plaintiff redeemed this note, after it went to protest, by placing in the place of it $500 in cash and one of the Car-man, Bromley & Childs notes. Again he said: “The plaintiff bank got the note by paying a Carman note and the money, after the protest. * * * I paid $500 in cash, and put in a Carman, Bromley & Childs note for $500, and took out this note.” The judge left the question of ownership to the jury, and we think this was right.

But it is urged further that the record shows that the verdict was a- compromise, and that it appears from the following circumstances: A witness testified that the amount due upon the eight notes, including principal and interest, was 17,211.27, and, excluding Exhibit A, $6,333.39. The verdict was for $5,000, from which counsel conclude that the jury gave plaintiff the principal of the eight notes, without interest, and that the verdict must have been the result of a compromise, because there was no dispute about the amounts due upon the respective theories. If the jury intended to render a verdict for the principal of the eight notes, only the plaintiff can complain of the fact that interest was not included, as the defendant was not injured. We cannot presume that they did not so find. The inference of a compromise is not a necessary one. The point is ruled by Benedict v. Provision Co., 115 Mich. 527.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

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    BUXTON v. JONES.
    Deeds —Cancellation —Exchange oe Land — Misrepresentations.
    One who exchanged city property for a farm cannot have the transaction set aside for misrepresentations as to the cost, value, and productiveness of the land, where he visited the land in company with his father before making the exchange," and apparently relied on the latter’s judgment as to its productiveness and value, and afterwards occupied the land for three years without making any complaint.
    Appeal from Wayne; Daboll, J., presiding.
    Submitted April 20, 1899.
    Decided July 5, 1899.
    Bill by Elmer E. Buxton and Rhoda Buxton against Charles B. Jones and Charlotte Jones to set aside certain conveyances. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      E. S. Clarkson, for complainants.

      Park & Shields, for defendants.
   Long, J.

The bill in this cause was filed to set aside a conveyance made by complainants to defendants of certain property in Detroit, and to set aside and cancel a note and a mortgage given by- complainants to defendants on land in Huron county which had been conveyed to complainants by defendants. It appeared that complainants owned a house and lot in Detroit, which they wished to trade for a farm. They heard of some land in Huron county, and complainant Elmer E. Buxton went to see it. Soon after, Charles B. Jones, having heard of this trip of complainant to see this land, came with one Binkle to Detroit to see about a trade for his (Jones’) land. The parties at this time talked about an even exchange of properties, as each claimed that his property was worth $2,250. Soon after this talk, complainant Buxton and his father went to see the defendants’ land, in Huron county, and met defendant Jones and Mr. Binkle there. It was while there, upon" the land, that the complainants contend that the defendant made the false representations respecting the land. It is claimed —

1. That defendant Jones fraudulently misrepresented the value of the land, saying it was worth $30 per acre.

2. That he fraudulently misrepresented the original cost of it.

3. That he fraudulently misrepresented the productiveness of the soil, especially for crops of hay and wheat, saying that it would produce 2],- tons of hay per acre.

4. That Binkle was the agent of defendant, but, by his professions of friendship, led the complainants to believe that he was acting in their interests.

The cause was heard below on proofs taken in open court, and the bill dismissed. Complainants appeal.

It appeared on the hearing below that, before the complainants made this exchange, the father of complainant Elmer E. Buxton went with him to the farm, and carefully examined it; that they stopped overnight with Binkle before going to the farm, and took him with them to see it. The defendants testified that Binkle was not their agent in the transaction; that they made no representations that the land would produce 2$ tons of hay per acre, but that the only statement made was that, if the land was worked right, it would produce a fair, average crop. After complainants went into possession of the farm, .they continued to work it for over three years without any complaint. They then attempted to sell it, but claim they could not sell it for the amount allowed for it in the trade, and then commenced the present suit.

We have examined the case with some care, and think the court below reached the correct conclusion. The evidence in the case does not convince us that the complainants have made out a case by their proofs which would warrant a decree setting aside these conveyances. No fraud is proved, and what was said about the value of the farm was but the expression of an opinion. The complainant saw the premises, took his father with him, and apparently relied upon his judgment as to its productiveness and value.

It appears that the Detroit property had a mortgage on it for $750, and, to.make the trade, the complainants executed a mortgage on the Hui'on county lands to take the place of it. It is this mortgage which is attempted to be set aside, and which the court below refused to do.

The decree of the court below must be affirmed, with costs to defendants.

The other Justices concurred.


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    ERVAY v. ERVAY.
    Divorce — Refusal to Pay Suit Money — Contempt—Practice.
    Filing interrogatories, and giving an opportunity to produce witnesses to rebut the showing made by the wife as’ entitling her to an allowance for expenses of suit pending divorce proceedings, are not prerequisite to a commitment of the husband for contempt in refusing absolutely to obey an order requiring such moneys to be paid.
    Appeal from Ionia; Davis, J.
    Submitted April 20, 1899.
    Decided July 5, 1899.
    Bill by James A. Ervay against Eliza M. Ervay for a divorce. Complainant appeals from an order committing him for contempt in disobeying an order for payment of suit money.
    Affirmed.

      W. H. Mains and R. A. Hawley, for complainant.

      Chaddock & Scully, for defendant.
   Long, J.

Complainant filed his bill for divorce against defendant on the ground of cruel treatment. In the bill it is charged that the parties were some years ago each the owner of ail undivided half of 60 acres of land, but that, at the defendant’s request, a contract for- a division of the land was made, so that complainant became the owner of 40 acres, and the defendant of 20 acres, on which were the buildings and orchard, with the agreement that the complainant should have the use of the whole land so long as both should live. The defendant filed an answer in the nature of a cross-bill, denying the cruelty charged in complainant’s bill, and charging him with extreme cruelty, and asking a decree of divorce and alimony, both temporary and permanent. In this cross-bill, defendant denies that she ever consented to let complainant have the use of the 20 acres of land, but alleges that he took possession thereof, and is now in possession, and refuses to allow her the income or any of the proceeds thereof. She subsequently filed a petition for an allowance for the costs and expenses of the case, setting up therein that this 20 acres of land was in the possession of complainant, and that he refused to deliver up the possession to her, and that' she has no means except this land, and a limited amount of wearing apparel, and $24 worth of personal property, and $5 in money; that the complainant’s land is worth $1,200; that he has $500 worth of personal property, and receives a pension of $144 per year; that she is 51 years of age, in feeble health, unable to work, and if compelled to mortgage her 20 acres of land, which is of the value of only $600, and already mortgaged for $72j she will not be able to pay the mortgage. Complainant filed an affidavit in opposition to the petition for alimony, in which he admits that he draws the amount of pension stated, but says that the personal property possessed by him is of the value of no more than $200, and that the land owned by him is mortgaged for $200.' ' The complainant filed with this affidavit the contract between the parties relative to the division of the lands and property of the parties. The court, on considering the petition and affidavit, made an order that complainant pay $25 to defendant’s solicitors within 20 days from the date of the order. A demand accompanying a certified copy of the order was made upon complainant for the payment of this amount, which was refused. Defendant’s solicitors thereupon filed an affidavit setting forth that, when the demand was made for this money, the complainant stated that he would not pay the same until the final end of the suit, and that he would go to jail before he would pay it. The court thereupon-made an order that complainant show cause why an attachment should not issue against him for his refusal to comply with the order. Complainant filed an affidavit on the order to show cause, reiterating therein the facts set up in the former affidavit, and again setting forth the terms of the contract; but the affidavit does not deny that he holds possession of the defendant’s 20 acres of land, nor does he deny that he is able to pay the amount named in the order. Subsequently an order was made that complainant be committed for contempt in refusing to obey the order for payment of suit money.

Complainant appeals from the order, and it is here contended that the court was in error in making the order until he had ordered interrogatories to be filed, and the complainant given an opportunity to produce his witnesses to rebut the claim made by the defendant in the petition. The filing of interrogatories was not necessary to this proceeding. Edison v. Edison, 56 Mich. 185. The order to show cause was issued and served on the complainant. He absolutely refused to comply with it, and made no showing on the return which the court below deemed a sufficient excuse. He had a full opportunity to make a showing. 2 How. Stat. § 7260, provides that “when any rule or order of the court shall have been made for the payment of costs, or any other sum of money, and proof by affidavit shall be made of the personal demand of such sum of money, and of a refusal to pay it, the court may order a precept to commit the person so disobeying to prison,” etc.

It is also contended that the defendant had sufficient property of her own to carry on the litigation, and therefore no order should have been made. The showing made, we think, warranted the court in finding otherwise.

The order must be affirmed.

The other Justices concurred.