text:
    P. HOFFMASTER SONS CO. v. HODGES.
    1. Statute of Frauds — Promise to Answer for Another’s Debt — Partnership.
    Where defendant held himself out as a partner with his co-defendant, there was no occasion for the application of the statute of frauds with respect to defendant’s liability for a debt created by his co-defendant on partnership account.
    3.Partnership — Firm Debts — Business—Soope.
    Though there is no implied power on the part of one partner to enter into contracts outside of the scope of the business without the assent of the other partners, the question what is within the scope of the business is frequently a question of fact.
    3. Same — Firm Business — Scope—Evidence—Judicial Notice.
    The court cannot take judicial notice that carpets, napkins, curtains, thread, pins, and other articles of dry goods, may not be useful in the customary furnishing and ornamenting of a hotel.
    4. Same — Purchases by Partner — Purpose.
    Where goods proper for use in the business were supplied on partnership account to the wife of one of a firm conducting a hotel, the use to which she put them after purchase did not fix the character of the transaction, or bind the seller, she having had authority to buy for the firm, and the seller having no notice of the real purpose of the purchases.
    5. Same — Ratification.
    In an action against partners for the price of goods supplied to the wife of one of them on partnership account, evidence examined, and held, that whether the other partner ratified the transaction was a question for the jury.
    6. Account Stated — Evidence—Sufficiency.
    Whether defendant was liable as on an account stated, held, a question for the jury, in view of repeated sending of statements of the account by mail, and conversations respecting the account in which no objection was raised.
    7. Appeal and Error — Right to Allege Error.
    Where counsel representing defendants sued as partners stated that there was no question as to the liability of one of them, the other cannot complain that the trial court instructed the jury to render a verdict as to that one in any event, leaving to their consideration only the liability of the defendant contesting the suit.
    Error to Calboun; North, J.
    Submitted October 12, 1908.
    (Docket No. 23.)
    Decided November 30, 1908.
    Assumpsit by P. Hoffmaster Sons Company, Limited, against Carlton A. Hodges and Prank E. Halladay, co-partners as Hodges & Halladay, for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Hilliard G. Lyle (Joseph T. Schiappacasse, of counsel), for appellants. .

      Burritt Hamilton, for appellee.
    Plaintiff, a mercantile partnership association, brought suit in justice’s court against the defendants to recover a balance due for goods sold and delivered, and recovered a judgment for $157.20. On appeal to the circuit court the plaintiff again recovered a like judgment. The account began April 18, 1899, and continued until September 18, 1903. The total amount was $637.92, upon which there had been paid $480.72. Accounts were rendered from time to time and sent to the defendants, who were running a hotel under the firm name of Hodges & Halladay. The defendant Halladay and his sister, Mrs. H. G. Lyle, owned the hotel. About the time the account was opened, the hotel was being repaired and furnished, and it is claimed by plaintiff that defendant Halladay then went to plaintiff and requested them to sell goods to the defendants on an open account. Mr. Hodges was the manager of the hotel; Mrs. Hodges attending to the purchase of the material required in furnishing and carrying it on. The amount and price of the goods sold are not disputed. . The defense is: That part of the goods were purchased for the sole use of Mrs. Hodges and her daughter, were not within the scope of the partnership business; that defendant Halladay did not know of these purchases and never ratified them; that therefore the firm is not responsible for them, and these items amount to more than the balance due. Defendant Halladay upon the trial also denied the partnership. His own testimony, however, established the fact that he held himself out as a partner, and that the business of the hotel was conducted under the name of Hodges & Halladay. He also knew that the goods were being purchased of the plaintiff in the firm name. The several issues of fact were submitted to the jury, who found for the plaintiff.
   Grant, C. J.

(after stating the facts). The following issues of fact were submitted to the jury:

(1) Were the defendants actual partners ?

(2) If not, did defendant Halladay hold himself out as a partner ?

(3) Did defendant Halladay verbally promise to pay for the goods if defendant Hodges did not, and thus bring the case within the statute of frauds ?

(4) Were the goods purchased within the scope of the partnership business ?

(5) If they were not, was the purchase ratified by the defendants ?

(6) Was there an account stated ?

The court might with propriety have eliminated the first three issues from the consideration of the jury. Defendant Halladay did hold himself out as a partner. The defendants executed and published an announcement of a dissolution of the firm about the time this suit was commenced. There was therefore no controversy over defendant Halladay’s liability as a partner, and no room for the application of the statute of frauds.

As to the fourth issue, the defendants claim that the articles in dispute were not, as a matter of law, within the scope of the partnership business, and that the court should so have instructed the jury. It is true that there is no implied power on the part of one partner to enter into contracts outside of the scope of the business without the assent of the other partners. Mechem on Partnership, § 165, where are found illustrations of the rule. What is within the scope of the business is more frequently a question of fact. Mechem on Partnership, § 166. In this case the defendants were engaged in furnishing and carrying on a hotel during the time covered by this account, extending over a period of about three years. Various things are required for the use of a hotel. This account covers carpets, napkins, curtains, thread, pins, and many other articles of dry goods of various kinds. Courts cannot take judicial notice that these things may not be useful in the customary furnishing and ornamenting of a hotel. One of the items involved is a carpet, an article very proper for use in a well-regulated hotel. The question is not to be determined by what the purchaser saw fit to do with the goods after they were purchased. This would not bind the plaintiff or fix the character of the purchase. Kritzer v. Sweet, 57 Mich. 617. The wife of defendant Hodges was called as a witness by the defendants, and she testified that she purchased some of these things for her personal use and that of her daughter; but the record fails to show that she so informed the plaintiff. She was authorized by the defendants to purchase things for the hotel. This question therefore was properly submitted to the jury.

As to the fifth question, there was evidence showing: That statements of the account were repeatedly sent by mail to Hodges & Halladay; that they were received; that no objection was ever made to them; that some of the disputed items were among the first articles purchased; that Mr. Hoffmaster, one of the plaintiffs, saw Mr. Halladay and told him the character of the goods Mrs. Hodges was buying, and asked him about it, and Mr. Halladay replied: “ That is all right;” that he also told Mr. Halladay that he had no personal account with Mr. or Mrs. Hodges, and that, “if he (Halladay) did not want them to run it in that way, he would stop them trading that way on this (the firm) account.” Under these circumstances, the question of ratification became one for the jury. It follows from the facts above stated that the question of an account stated was properly submitted to the jury. Raub v. Nisbett, 118 Mich. 248; Pabst Brewing Co. v. Lueders, 107 Mich. 41; Armitage v. Saunders, 94 Mich. 482.

One other question remains. Error is assigned upon the instruction of the court directing the jury to render a verdict against Mr. Hodges in any event, leaving to their consideration only the liability of the defendant Halladay. It is urged that the defendants were sued on a joint liability as partners, and therefore a several judgment could not be entered. Counsel cite authorities in support of this proposition. We find it unnecessary to discuss the question. This point was made upon a motion for a new trial. Upon determining that motion the court said:

“There was no dispute about the liability of Mr. Hodges, and this fact was repeatedly stated, * * * particularly by defendants’ counsel in his argument.”

Counsel appeared for both defendants, and, if he made this concession* he cannot now complain. The finding of the circuit judge is conclusive upon this point.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    CURTIS v. BOARD OF SUPERVISORS OF CHARLEVOIX COUNTY.
    1. Judgments — Collateral Attack — Judgment Against County —Prooess—Service—Presumptions.
    In support of a judgment rendered in the circuit court against a board of supervisors, on process served upon the deputy-county clerk, it will be presumed, as against collateral attack, that the facts existed which authorized service upon the deputy. Section 2477, 1 Comp. Laws.
    2. Same — Conolusiveness of Recitals — Regularity of Term.
    In the absence of any evidence as to the appointment of terms of court for a county under Act No. 168, Pub. Acts 1887 (section 302, 1 Comp. Laws), the recital in a judgment record in the circuit court that it was rendered at “a regular term of the circuit court of the county of M. commenced and held in the court-house in the village of St. J. on Monday, the 31st day of October,” imports absolute verity, irrespective of previous recitals in the journal showing adjournments which are claimed to have closed the term.
    3. Same — Common Orders — Failure to Enter — Effect.
    Failure to enter all the orders and papers in the common rule book is a mere irregularity which can only be taken advantage of by direct proceedings or appeal, and does not render a judgment vulnerable to collateral attack.
    4. Same — Presumptions.
    All possible intendments will be made in support of a judgment rendered by the circuit court having jurisdiction of the parties and subject-matter, and only jurisdictional defects appearing on the face of the judgment record can be attacked collaterally.
    5. Same — Defective Pleadings.
    Where the pleadings present an issue which it is within the province of the court to determine, its determination cannot be attacked collaterally though the declaration contained invalid counts; the validity of the declaration as against direct attack not being the controlling question when it is attacked in a collateral proceeding.

      6. Counties — Disorganization—Indebtedness— Division — Statute — Manitou County.
    The provision of the act disorganizing Manitou county (Act No. 363, Local Acts 1895) apportioning its indebtedness between the counties to which its territory was attached, in proportion to the assessed valuation of the part attached to each county respectively, was simply declaratory of the common law.
    7. Same — Trusts —Assets of Disorganized County —Administration — Equity Jurisdiction.
    The fund arising from delinquent taxes, redemptions, and sales, in the territory of the disorganized county, is in the nature of a trust fund for the payment of creditors and others claiming a right to participate therein, of which the chancery court has jurisdiction, and, having assumed jurisdiction on the bill of a creditor, has authority to dispose of the whole subject-matter, relieving the creditor of the necessity of bringing mandamus against the townships comprising the disorganized territory.
    8. Same — Claims—Audit—Necessity.
    Where creditors had a valid enforceable judgment against a county prior to its disorganization, it was unnecessary that such judgment should be submitted to the auditing board provided for in the disorganizing act for its audit; the only reason for such submission being that it would constitute a notification of the claim that it might be listed for payment, and this purpose being fully accomplished by direct notice to the interested parties, it having been allowed as correct by the disorganized county prior to the statute and by the succeeding county afterwards.
    9. Trusts — Establishment—Expenses.
    Where complainants are the only creditors entitled to share in a trust fund which suit is brought to establish, they are not entitled to their expenses, including attorneys’ fees, inourred in bringing the fund into court.
    Cross-appeals from Charlevoix; Davis, J., presiding.
    Submitted October 12, 1908.
    (Docket No. 38.)
    Decided November 30, 1908.
    Bill by William L. Curtis and James R. Wylie against the board of supervisors of Charlevoix county and others to declare, enforce, and administer a trust. From the decree rendered, all parties appeal.
    Affirmed.

      Kleinhans & Knappen, for complainants.

      B. W. Kane, for defendants.
   Blair, J.

This suit grows out of the disorganization of the county of Manitou by Act No. 363, Local Acts 1895, attaching the territory in Manitou county to Charlevoix and Leelanau counties. It is a suit in equity brought primarily to declare, enforce, and administer as a trust fund certain moneys received by Charlevoix county after the disorganization of Manitou county on account of delinquent tax sales and redemptions collected upon that portion of the territory of Manitou county annexed to Charlevoix county. Complainants’ claim against Manitou county originated October 13, 1885, on which date complainants purchased, for $1,500 in cash, six bonds of the county for $350 each, with interest at 10 per cent., said bonds having been issued for the purpose of borrowing money to pay the current liabilities of the county. These bonds having become due on August 37,1893, complainants commenced suit by declaration and rule to plead in the circuit court for Manitou county to recover for the indebtedness represented thereby. .The declaration contained both the common counts and special counts upon the bonds. The records and files in this suit at law were put in evidence by complainants, and were as follows:

“ Order entering appearance and default, dated September 30,1893, signed by M. W. George, plaintiff’s attorney. No filing mark on the paper.
“Brief and computation on bonds set forth in the declaration, being six Manitou county bonds numbered from 1 to 6, dated October 13, 1885, bearing interest at the rate of 10 per cent, per annum, computed as due, $3,706.50, undated and unsigned.
“ Copy of judgment entry.
“Order of default absolute as follows: ‘William L. Curtis & James R. Wylie v. The Board of Supervisors of Manitou County. Dated October 31,1893. Dart & Dart, attorneys for plaintiff. The default of said defendant in not appearing and pleading in this cause having been duly entered, and four days in term having elapsed since . the entry thereof, on motion of M. W. George, attorney for plaintiff, ordered that the said default be, and the same is hereby, made absolute, that interlocutory judgment be and the same is hereby entered, and that plaintiffs’ damages be assessed by this court.’

“Two copies of declaration, one apparently filed as commencement of suit, with copy of rule to plead indorsed thereon, filed August 27, 1892, by William J. Gallagher, deputy clerk; the other copy of the declaration having notice of the rule to plead, and Riso the following affidavit indorsed thereon, filed August 27, 1892, by William J. Gallagher, deputy clerk:

“‘State oe Michigan,) _
County of Manitou. )
“ ‘Robert C. Ames, being duly sworn, says that upon the 27th day of August, A. D. 1892, he served the declaration, of which the within is a true copy, upon Wm. J. Gallagher, deputy clerk of the County of Manitou, in the State of Michigan, by delivering to the said Wm. J. Gallagher, personally, in said County of Manitou, a true copy thereof, together with a true copy of the notice to appear and plead indorsed thereon, as hereon indorsed.
“ ‘Robert C. Ames.
“ ‘Subscribed and sworn to before me this 27th day of August, A. D. 1892.
“‘John Ddnlevy,
“ ‘ Notary Public in and for said County.
“ ‘ Filed this 27th day of August, A. D. 1892.
“ ‘ Wm. J. Gallagher,
“ ‘ Deputy Clerk.’ ”

In the common rule book, on page 21, appears the rule to plead in the suit of William L. Curtis and James R. Wylie v. Board of Supervisors of Manitou County, dated August 27, 1892. Contained in said book were three loose papers entitled in said cause, being: (1) Draft of default absolute, dated October 31, 1892, and judgment entry, unsigned; (2) draft of rule to plead dated August 22, 1892, also unsigned; (3) a taxed bill of costs. No other entries or papers pertaining to said suit were found in said book.

“Mr. Kane offered in evidence and read from the journal of the circuit court of Manitou county the following entries (subject to objection by Mr. Knappen that said records are irrelevant, immaterial, and incompetent, as attacking the judgment collaterally):

“‘St. James, Manitou County, Oct. 18th, A. D. 1892.
“ ‘ The regular term of the circuit court of Manitou county commenced and held in the court-house in the village of St. James, on Tuesday, October the 18th, in the year of our Lord one thousand eight hundred and ninety-two. Hon. Charles J. Pailthorp, circuit judge. The court was opened by the sheriff in due form. The judge not being present, thereupon the court do now adjourn until 10 o’clock tomorrow a. m.
“ ‘Anthony O’Donnell, Clerk.
“ ‘ Wednesday, Oct. 19th. General term continued. The court was opened by the sheriff in due form. The judge not being present, thereupon the court do now adjourn until 10 o’clock tomorrow a. m.
“‘Anthony O’Donnell, Clerk.
“‘Thursday, Oct. 20, 10 o’clock a. m. Court being opened by the sheriff in due form, the judge not being present, thereupon the court do now adjourn until Thursday, the 27th day of Oct. 10 o’clock a. m.
“ ‘Anthony O’Donnell, Clerk.
“ ‘St. James, Manitou County, Oct. 27th, A. D. 1892.
“ ‘ An adjourned term of the circuit court of the said county, commenced and held in the court-house in the village of St. James on Thursday, the 27th day of October, in the year of our Lord one thousand eight hundred and ninety-two. Hon. C. J. Pailthorp, circuit judge. The court was opened by the sheriff in due form. The judge not being present, thereupon the court do now adjourn until one o’clock p. m.
“‘Anthony O’Donnell, Clerk.
‘ ‘ ‘ One o’clock in the afternoon. The judge not being present, thereupon the court do now adjourn until 10 o’clock tomorrow a. m.
“‘Anthony O’Donnell, Clerk.
“‘Friday, Oct. the 28th, 10 o’clock a. m. Adjourned term continued. The court was opened by the sheriff in due form. The judge not being present, thereupon the court do now adjourn until 1 o’clock p. m.
“ ‘ One o’clock in the afternoon. The court was opened for business in due form. Thereupon, by order of the judge, court adjourned until Monday, Oct. 31, 1892, at 10 o’clock a. m.
“‘Anthony O’Donnell, Clerk.
‘“The circuit court for the county of Manitou. A regular term of the circuit court for the county of Manitou commenced and held in the court-house of the village of St. James, on Monday, thirty-first day of October in the year of our Lord one thousand eight hundred and ninety-two. The Hon. J. H. Steere, circuit judge. Court was opened by the sheriff in due form.
“ ‘William L. Curtis and James B. Wylie,
Action on county bonds.
“ ‘ The appearance of said defendant and its default in not pleading having been duly entered in this cause according to the rules and practice of the court, and the said default having become absolute, and the damages of said plaintiffs on occasion of the premises having been duly assessed at the sum of two thousand seven hundred and six dollars and fifty cents ($2,706.50) over and above their costs and charges by them about their suit in this behalf expended, therefore it is considered by the court now here that the said plaintiff do recover against the said defendant their damages aforesaid, together with their costs and charges aforesaid, hereby taxed at the sum of $20, and that they be and hereby are authorized to proceed to collect the same according to law.’ ”

Oral testimony was introduced by the defendants to prove that the clerk of Manitou county, at the time of service upon the deputy, was in the county but not in his office. This judgment of the circuit court has never been appealed from or attacked in any direct proceeding.

The disorganization act of 1895, although in terms not mentioning the township of Peaine as being attached to the county of Charlevoix, but providing only for “the territory embraced in said township of Galilee, viz., the Beaver group of islands,” probably should be held to have omitted the township of Peaine by mistake, and to have included the same in the general description, “the Beaver group of islands,” which contained both the township of Galilee and the township of Peaine. The act provided for a division of the assets in proportion to the assessed valuation of the territory attached to each county and for apportionment of the valid indebtedness of the county in accordance with the assessed valuation of the part attached to each county respectively, as fixed by the board of supervisors at the October, 1894, session. The act also provided that the. excess of such indebtedness over the proportion of the indebtedness of Charlevoix county on its own valuation should be met by taxation levied on the territory annexed, and the same provision was made with reference to Leelanau county. Neither. Charlevoix nor Leelanau had any indebtedness at the time of the annexation of this territory. The disorganizing act also provided for an auditing board, composed of the county clerk and treasurer of each of the counties of Charlevoix, Leelanau, and the former Manitou, to audit all accounts of the county and file the record of such accounts for future reference. This board never took any action. In 1893, at the next meeting of the board of supervisors of Manitou county following complainants’ judgment, the board of supervisors passed a resolution directing the payment upon such judgment of $1,000 from the taxes at that time ordered. In 1896 the board of supervisors of Charlevoix county, upon the advice of the prosecuting attorney, adopted a resolution reciting the rendition of the judgment of October 31, 1892; that the amount then due was $3,816, apportioning the judgment indebtedness, on the basis of assessed valuation, to Charlevoix county, $2,257, and to Leelanau, $1,559, reciting the existence of certain delinquent and unpaid taxes on the portion of Manitou county annexed to Charlevoix county and directing the county treasurer of Charlevoix county to receive all delinquent taxes aforesaid, “and pay over and apply the same in payment and satisfaction of the portion of said judgment debt aforesaid on the territory attached to the said county.” The resolution ordered the supervisors of the attached townships to spread upon their respective tax rolls a tax of 1 per cent, as the Manitou county judgment tax, “tobe collected and paid over upon such judgment, and that a like tax be spread, levied, and collected each year thereafter and applied until the judgment debt be satisfied.” In 1897 the board of supervisors of Leelanau county passed a similar resolution, under which Leelanau county has paid in full its proportion of the judgment debt. October 30, 1897, no action having been taken by the supervisors of the attached territory (at that time united in one township under the title of Peaine township), complainants brought mandamus proceedings against the supervisors of that township, which resulted in the issuance of the writ commanding the supervisor of Peaine township to levy a 1 per cent. tax. This tax was levied in 1897 and 1898, and from the proceeds of these two tax levies complainants received $677.89. In April, 1902, complainants instituted suit at law against Charlevoix county to recover the fund arising from delinquent taxes. The county of Charlevoix alleges in defense, among other things, that there were other claimants to the fund, if, in fact, it was a fund for the benefit of creditors. This suit was thereupon brought in aid of the suit at law and for the purpose of determining the fund and those entitled to share in it. Pitch & Pitch, claiming to hold by assignment a large number of county orders, are made parties to the bill as claimants upon the fund, and they filed a cross-bill, asking for the establishment of the . fund in question, and for the determination of the validity of their orders. Leelanau county, together with the townships comprising the attached territory, were made parties, and R. W. Kane was also made a party defendant because of his former claims to a share in the trust fund. He disclaimed, however, upon the record. Decree was entered in favor of complainants August 20, 1907, from which decree the townships of Peaine and St. James, comprising the territory attached to Charlevoix county, have appealed to this court. The complainants have also appealed because of the refusal of the court to allow complainants from the trust fund established by the decree their expenses in bringing the fund into court for the benefit of the creditors of Manitou county, including the reasonable sums paid their attorneys.

Defendants ask for a reversal of the decree for the following reasons, namely:

“1. (a) There was no legal service of process upon Manitou county. The proof of service of the declaration by which the suit was commenced reveals the fact that it was served only upon a deputy county clerk, and no explanation is made in the return why service was not made upon one of the officers designated by the statute.
“ (5) Said judgment is void for the further reason that the trial was had and judgment rendered and entered at a date when the court was not, and, in fact, could not be, legally in session.
‘ ‘ (c) The judgment is void for the further reason that the judgment entry on its face shows that it was based upon county bonds, and that the only bonds set up in the declaration in said cause were unlawfully issued and such fact appears upon the face of said declaration.
(d) The invalidity of said judgment remained, and had not been cured at the date of the commencement of this action.
“2. That if complainants have any claim against the defendants, the board of supervisors of the county of Charlevoix or the said townships of St. James and Peaine, their action is by mandamus which will afford a full and complete remedy, and, there being a complete remedy at law, chancery will not interfere to afford them relief.
‘ ‘ 3. That this court is without jurisdiction in the premises either of the subject-matter or of the parties to the proceedings for the reasons:
“ (a) That no debt or claim whatever since the disorganization of Manitou county has been legally established as against Manitou county. There is therefore no evidence upon which to predicate a trust in favor of any person or persons as against Charlevoix county as trustee.
“(b) That, the legislature having the power to direct in what manner the claims against the disorganized county of Manitou should be ascertained and having made provisions in the disorganizing act for the ascertainment of the valid indebtedness against said county, such provision is exclusive, and no other body or tribunal has power or jurisdiction in the premises.
“(c) That the legislature having provided by what body the said debts against Manitou county, when ascertained, should be apportioned, and having provided the means for the payment of said indebtedness, such legislative action is exclusive and no other tribunal or body has the power or jurisdiction to apportion said indebtedness, and to provide for the payment of the same than the one indicated by the disorganizing act, viz., the board of supervisors of Charlevoix and Leelanau counties.
“(d) The boards of supervisors of Charlevoix and Leelanau counties cannot apportion said indebtedness nor any part thereof until the same has been ascertained under legislative sanction, and then only in the manner prescribed by the legislature.”

1. (a) Section 2467, 1 Comp. Laws, provides:

“In all legal proceedings against the board of supervisors, the process shall be served on the chairman or clerk of the board.”

Section 2477 provides:

“The county clerk of each county, or in his absence his deputy, shall be the clerk of the board of supervisors of such county.”

In view of the recitals in the judgment and in support thereof, we think it must be conclusively presumed, as against collateral attack, that the facts existed which authorized service upon the deputy clerk, viz., the absence of the clerk, in which event the deputy clerk was the “clerk of the board.” Peninsular Sav. Bank v. Ward, 118 Mich. 87.

(6) Defendants insist that all of the entries in the circuit court journal of Manitou county “relate to the single term of court commencing October 18, 1892, and which, according to said journal, terminated October 31, 1892, upon which date the judgment of Curtis and Wylie v. Manitou County was rendered;” that, under the provisions of section 303, 1 Comp. Laws, the adjournment by the clerk from October 20th to October 27th was void and terminated the term; that, even if it could be presumed that a written order by the circuit judge was filed authorizing the adjournment to the 27th, the failure of the judge to attend on that day required the adjournment of the term sine die at 6 o’clock in the afternoon; that, therefore, “the trial was had and judgment rendered and entered at a date when the court was not and could not have been legally in session,” and was a nullity. Act No. 168, Pub. Acts 1887 (section 802, 1 Comp. Laws), requires :

“Each of the circuit judges shall, on or before the first day of November next, and every two years thereafter, fix and appoint the times of holding the several terms within his circuit, for the period of two years, which appointments, when so made, shall continue unalterable for two years thereafter, and he shall immediately transmit to the clerk of each county within his circuit a notice of the appointment of terms so made by him, and it shall be the duty of such clerk to file and preserve such notice” etc.

The order of the circuit judge fixing the terms of court for Manitou county does not appear in the record nor any evidence whatever as to its contents. The court had jurisdiction of the parties and of the subject-matter of the suit, and, in the absence at least of proof to the contrary by the order fixing the terms of court, the recital of the judgment record that this was “a regular term of the circuit court of the county of Manitou commenced and held in the court-house in the village of St. James on Monday, the 31st day of October,” imports absolute verity. See Torr v. State, 115 Ind. 188, 190; Bracken v. Milner, 99 Mo. App. 187; Kostenbader v. Kuebler, 199 Pa. 246; Baldridge v. Penland, 68 Tex. 441. The failure to enter all of the orders and papers in the common rule book was no more than an irregularity which could only be attacked by direct proceedings or appeal. The court having jurisdiction of the parties and subject-matter, all possible intendments will be made in support of the judgment, and only jurisdictional defects appearing on the face of the judgment record can be attacked collaterally. 23 Cyc. p. 1073, par. 2; Peninsular Sav. Bank v. Ward, 118 Mich. 87; American Copying Co. v. Stern, 148 Mich. 281; Hatch v. Wayne Circuit Judge, 138 Mich. 184.

(c) The declaration, in addition to the special count on the bonds, contained the common counts in assumpsit, and, as to such counts, at least, was valid. But the validity of the declaration as against direct attack is not the controlling question, when it is attacked in a collateral proceeding. If the pleadings present an issue which it is within the province of the court to determine, his determination cannot be attacked collaterally. 23 Cyc. p. 1071; Peninsular Sav. Bank v. Ward, supra; 1 Black on Judgments (2d Ed.), § 269.

2. Under the disorganization act, the counties of Charlevoix and Leelanau received the assets of Manitou county charged with a trust in favor of its creditors. The provisions of the disorganizing act for the apportionment of the debts of Manitou county were simply declaratory of the common law. 1 Dillon on Municipal Corporations (4th Ed.), § 186; Mount Pleasant v. Beckwith, 100 U. S. 514. The fund arising from delinquent taxes, redemptions, and sales being in the nature of a trust fund for the payment of creditors and others claiming the right to participate therein, the court of chancery had jurisdiction, and, having properly assumed jurisdiction, had authority to dispose of the whole subject-matter of the suit. Husted v. Thomson, 158 N. Y. 328; Mount Pleasant v. Beckwith, supra.

3. The complainants having a valid enforceable judgment against the county of Manitou, it was unnecessary that such judgment should be submitted to the auditing board provided for in the disorganizing act for its audit. The only reason for such submission would be a notification of the claim, that it might be listed for payment. This purpose was fully accomplished by direct notice to the interested parties, and it had been allowed as correct by the county of Manitou prior to the statute and by the county of Charlevoix after the statute.

So far as the proofs indicate, the complainants are the only creditors entitled to share in the fund, and are not entitled to their expenses for bringing the fund into court on the theory that others are entitled to share in it.

There are no other questions which, in our opinion, require consideration, and the decree is affirmed, with costs of this court to complainants.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    COLLINS v. LUNDQUIST.
    1. Animals — Trespassing Cattle — Fences—Duty to Maintain.
    At the common law, one is under no duty to fence against his neighbor’s cattle, and such is the rule in Michigan.
    2. Same — Running at Large — Action by Supervisors — Effect —Trespassing Animals.
    Action by the supervisors under section 5607, 2 Comp. Laws, permitting cattle to run at large in the highways of a township, does not make it the duty of a landowner to fence against cattle so running at large, nor deprive him of his right of action against one whose cattle enter upon his premises from the highway when so running at large.
    Case made from Newaygo; Palmer, J.
    Submitted October 12, 1908.
    (Docket No. 39).
    Decided November 30, 1908.
    Replevin by Ralph Collins against Albert Lundquist. There was judgment for plaintiff, and defendant appeals.
    Reversed.

      J. Claude Youdan, for appellant.

      A. Qt. Day, for appellee.
   Hooker, J.

Two farmers whose premises are on opposite sides of a country highway are the parties to this action. Neither has a road fence. On May 25, 1907, plaintiff turned his cattle into the highway with the purpose of having them run at large. Later in the day his cow entered upon the defendant’s land, and was at once distrained by the defendant, who on the same day gave notice to the plaintiff to come and get his cow, and pay damages. Plaintiff refused to pay damages upon the ground that, because defendant maintained no road fence at the place where the cow entered upon his land, he was not entitled to damages, and, on defendant’s refusal to deliver the cow unless he was paid nominal damages, the plaintiff replevied the cow under the statute providing for replevin where beasts are unlawfully distrained, and claimed damages for such distraint and detention. The cause was submitted to the circuit court on October 24, 1907, and on April 16, 1908, the learned circuit judge rendered a judgment in favor of the plaintiff and against the defendant, that the cow was unlawfully distrained and for $5 damages, and costs limited to a $15 attorney fee and the clerk’s costs. To this judgment the defendant took the following exception:

“For the reason that said judgment is notin accordance with the just rights of said defendant and is contrary to the law applicable to the admitted facts in the cause, and appeals to this court by case made after judgment; all official records being eliminated to save expense of printing.”

A stipulation was made, viz.:

“We, the undersigned attorneys for the parties to this suit, have agreed upon the above case made, and request the honorable circuit judge to sign the same.”

And the judge signed a certificate as follows:

“Settled and signed this 22d day of May, 1908, in accordance with the stipulation of the attorneys for the respective parties below attached.
“L. G. Palmer, “Circuit Judge.”

The proceeding is before us on case made after judgment. No questions of practice are raised.

The following is the statement of facts as agreed upon and settled: For the last 50 years cattle have run at large in the township. At the October, 1881, session of the board of supervisors of the county a resolution was unanimously adopted to the effect that in this and other townships mentioned the operation of Session Act No. 10 of the Legislature of 1881 in regard to animals running at large be suspended, as to cattle, and that said animals be permitted to run at large in such townships. It was conceded upon the trial that the words “Session Act No. 10 of the Legislature of 1881 ” found in the resolution, was a clerical mistake of the clerk of the board, and that the act referred to is Act No. 13 on page 10 of the Public Acts of 1881, and it was agreed that all irregularities either in distraint of the animals or the proceedings in the cause should be waived. At the April election of 1901 the question of permitting cattle to run at large in the township was regularly submitted to the people of said township and a majority of the electors voted in favor of allowing cattle to run at large, by a printed ballot.

The only question that we are asked to consider is whether the facts in this case warranted the judgment. It has often been said that at common law one is under no obligation to fence against his neighbor’s cattle, and that he may ordinarily recover in trespass against the owner of cattle which trespass upon his lands. Such is the rule in Michigan. Williams v. Railroad Co., 2 Mich. 259; Campan v. Konan, 39 Mich. 362, 365; Bertwhistle v. Goodrich, 53 Mich. 459; Robinson v. Railroad Co., 79 Mich. 327; People v. Foss, 80 Mich. 564 (8 L. R. A. 472); Niemann v. Railroad Co., 80 Mich. 199. See, also, 3 Cur. Law, p. 160; 7 Cur. Law, p. 122; 9 Cur. Law, p. 101; Tonawanda R. Co. v. Hunger, 5 Denio (N. Y.), 255 (49 Am. Dec. 248, note); Holladay v. Marsh, 3 Wend. (N. Y.) 147; Wells v. Howell, 19 Johns. (N. Y.) 385; Bileu v. Paisley, 18 Or. 47 (4 L. R. A. 840). Whether cattle may lawfully run at large in the highways in Michigan, if ever questionable, is now prohibited by 2 Comp. Laws, § 5606 et seq., except where local authorities shall have passed a resolution permitting it as authorized by the statute. Assuming the constitutionality of this statute, which has been questioned (Campau v. Konan, supra; Robinson v. Railroad Co., supra; People v. Foss, supra, and denied as to a similar statute in Tonawanda R. Co. v. Munger, supra), the question before us is whether such local authorization goes so far as to impose upon landowners the obligation of fencing against cattle running at large, or deprives an abutting owner of a right of action against one whose cattle enter upon his premises from the highway when running at large. The title of this act is not, “An act to permit cattle to run at large in the highways,” “To require the building of fences,” or “To take away the existing remedy for trespass.” On the contrary, it was “An act to prevent animals from running at large in the public highways.” Neither does it provide in terms that animals may run at large or that boards of supervisors may confer such right, unless it be by implication. Section 2 does provide that certain action by the board of supervisors may render the act inoperative in a particular county or township. It may be said that, at most, such action would leave rights to stand upon the law as it existed before the passage of the act, but we need not go so far as to hold that. The case of Williams v. Railroad Co. is conclusive of the question. It was there held that the authorization by local authorities of owners of cattle to allow them to run at large could not confer upon an individual a right to pasture his cattle upon the land of another. It is enough, however, in this case, to say that there is nothing in this statute that gives such a right or deprives an owner of his remedy in trespass.

The judgment is reversed, and a new trial ordered.

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


author: Moore, J.

text:
    METTE v. METTE.
    1. Fraudulent Conveyances — Bill to Set Aside — Conveyance by Intestate — Time to Sue.
    A bill by a creditor to set aside as fraudulent a conveyance made by an intestate will not be held to have been prematurely filed on the ground that the administrator was not given a reasonable time to decide whether he would bring the suit as requested by the creditor, where it is nowhere suggested that he intended to bring the suit, and the subsequent proceedings clearly show he intended not to.
    3. Same — Homesteads—Appeal—Theory Below.
    An objection first raised in this court to a decree setting aside a fraudulent conveyance, on the ground that intestate had a right to convey his homestead to his daughter, will not avail, where it appears from the testimony respecting the value of the property that there is ample to satisfy complainant’s demand and still preserve anv homestead right that may exist.
    Appeal from Wayne; Donovan, J.
    Submitted October 12,1908.
    (Docket No. 29.)
    Decided November 30, 1908.
    Bill by Frederick W. Mette, administrator of the estate of John Mette, deceased, against Elizabeth Mette to set aside a deed. From a decree for complainant, defendant appeals.
    Affirmed.

      William E. Henze, for complainant.

      William Look, for defendant.
   Moore, J.

The bill of complaint in this case, though filed in the name of the administrator of John Mette, deceased, is in fact filed in the interest of Joseph Kremer. It is a continuation of the litigation in the case of Kremer v. Mette, 148 Mich. 376. A reference to the opinion in that case will aid in the understanding of this case. After the decree was handed down by this court in that case, this bill was filed for the purpose of having the conveyance to Elizabeth Mette, mentioned in the opinion, set aside as in fraud of Mr. Kremer’s right as a creditor. The bill avers, among other things, the various conveyances referred to in the Kremer Case, and also that on the 24th day of May, 1899, said John Mette executed a warranty deed of all of said above-described real estate to one Joseph Culnan, a clerk in the office of William Look, attorney for said John Mette, and said Joseph Culnan on the same day executed a warranty deed of said same premises to said John Mette and defendant Elizabeth Mette, his wife, and that the consideration in each of said deeds was stated to be $1, and that said deeds were not recorded in the office of the register of deeds for Wayne county. It avers that all the conveyances mentioned in the bill of complaint were made with intent to defraud the creditors of John Mette, and particularly to defraud Joseph Kremer. The bill also sets out the decree of the circuit court, and its affirmance in this court in the case before referred to. It also avers that John Mette left an estate of personal property of the value of $300, that request was made by Joseph Kremer of the administrator to commence an action in chancery for the recovery of the real estate conveyed by John Mette to Elizabeth Mette for the benefit of Joseph Kremer and other creditors of the deceased, and the giving of security for the costs. It avers the refusal to bring said suit. The bill prays that the conveyances above referred to may be set aside and declared null and void as against the claim of said Joseph Kremer and other creditors of said deceased, and that said premises, or so much thereof as may be necessary to pay the debts of said deceased, may be ordered sold by the administrator of said estate in the manner provided by law, and the proceeds applied to the payments of the debts of said deceased. The defendant interposed a plea which was overruled. She then answered. The case was put at issue. The case was tried in open court. Complainant introduced testimony tending to sustain the allegations of the bill. No testimony was put in upon the part of defendant. A decree was prepared.

The solicitor for the defendant interposed the following objections:

“Mr. Look: I want to enter the following exceptions to the proposed decree.
“(1) Because the court is without jurisdiction and legal authority to make any decree in said cause, under the pleadings and proof, excepting one dismissing the bill of complaint.
“(2) Because the court is without jurisdiction and legal authority to make the decree as proposed by the complainant.
“ (3) Because the court is without jurisdiction to decree a sale of the premises mentioned in said bill of complaint, as contemplated and provided for in the proposed decree.
“ (4) Because the court is without jurisdiction to decree a sale of said premises at the time, and in the manner proposed by said decree.
“ (5) Because the proposed decree does not comply with the provisions of Act No. 326 of the Public Acts of Michigan for the year 1905.”

The decree was signed and an appeal was taken. We have not set out the contents of the plea or of the answer for the reason that the exceptions raise all the important questions.

It is claimed that the bill of complaint is prematurely filed, for the reason that the administrator was not given a reasonable time in which to decide whether he would bring the suit as requested by Mr. Kremer. It is nowhere suggested that he had intended to bring the proceeding in chancery, or that he was willing to do so. Indeed, the subsequent proceedings show very clearly that he had no intention of doing so, for reasons which are obvious. On the trial the solicitor for the complainant testified, among other things:

“On August 15, 1907, last year, before bringing this suit, I made a demand in writing upon Frederick Mette as administrator of the estate to bring this suit, and I offered him, or handed him, a written bond for costs, approved by the judge of probate, which is now in his possession, and asked him to bring suit, and his answer was that he could not say ‘ Yes’ or ‘No,’ but would let me know during the afternoon. I told him I would take his answer as ‘No,’ unless I heard to the contrary, and I waited until the next day, and did not hear from him, and started this suit.”

As before stated, defendant put in no testimony. It is now objected that John Mette had a right to deed his homestead to his daughter, and that to do so would not be a fraud upon his creditors, and that the decree makes no reference to a homestead. We cannot resist the impression that this claim is an afterthought, for the attention of the court was not in terms called to it, either in the plea, the answer, or the objections to the decree itself. The testimony of Mr. Look was, in part, as follows:

“ I know the value of the greater part of the property named in these deeds. The outlying property down in Fort tract I do not know, but I know the property on Monroe avenue, the homestead, lots 28 and 29 on St. Aubin avenue. The St. Aubin property is worth at least $6,000. I would not say the Monroe avenue property was worth more than $1,200, old buildings. And. the rest of the property is worth approximately $2,500.”

This is the only reference to the homestead we have been able to find in the record. From Mr. Look’s statement as to the value of the property, it is evident there will be no trouble about taking care of the decree in favor of Mr. Kremer, and at the same time preserve any homestead right which may exist.

The decree is affirmed, with costs.

Grant, C. J., and Blair, Hooker, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    WATTLES v. SLATER.
    Mortgages — Priority—Notice—Record.
    Where a second mortgagee, before taking his mortgage, was informed by the mortgagor that the mortgaged premises were subject to a prior mortgage in favor of complainant, and the second mortgagee examined the records in the office of the register of deeds and had a search made in an abstract office, but made no inquiry of complainant, who was near at hand, he was chargeable with notice of all facts he might have learned by such inquiry, though complainant’s mortgage was not recorded.
    Appeal from Lapeer; Smith, J.
    Submitted October 13, 1908.
    (Docket No. 48.)
    Decided November 30, 1908.
    Bill by Oliver H. Wattles against Frank Slater, Louisa B. Slater, Grace Slater, and the Huber Manufacturing Company for the foreclosure of certain mortgages. From a decree for complainant for one of the mortgages only, he appeals.
    Modified and affirmed.

      Geer, Williams & Halpin, for complainant.

      Jason TS. Nichols, for defendant company.
   McAlvay, J.

The bill of complaint was filed in this cause to foreclose two certain mortgages upon certain land in Lapeer county. Defendant Huber Manufacturing Company is joined under the statute as a subsequent mortgagee. The bill was taken as confessed by the Slaters. The Huber Manufacturing Company answered, claiming priority over complainant’s mortgages. The mortgage to this defendant was in fact given subsequent to the complainant’s mortgages, and was to secure the price of a threshing outfit purchased from this defendant by Frank Slater and another. The written order for this machinery recited that this land was “subject to three hundred dollars.” At this time Slater told Starkweather, agent for defendant company, that the land was mortgaged to complainant. There is a dispute'as to the amount of the incumbrance which was stated to be against the land. The agent went to the register of deeds office, and, not finding complainant’s mortgages of record, went to an abstract office, and had search made, and received a statement that there were no mortgages of record against the land. The agent did not make inquiry of complainant or at his place of business as to his mortgage interest in this land. Complainant’s bank and residence were within two blocks of the abstract office and the office of the register of deeds. Defendant company’s mortgage was placed on record before complainant’s mortgages. At the time of the hearing there was due on complainant’s first mortgage $406.77, and on his second mortgage $120.81. And at the same time there was unpaid on the Huber Manufacturing Company mortgage $1,444.21. It was conceded that the Huber mortgage was subject to a $300 incumbrance. The court held that this mortgage was subject to complainant’s first mortgage of $325 and interest, but gave it priority over the second mortgage of $100 and interest. From a decree entered in accordance with such holding, complainant has appealed, claiming that both his mortgages should be given priority over the mortgage of the Huber Manufacturing Company.

By the information which defendant company’s agent admits the mortgagor gave him of an incumbrance held by complainant he was put upon his inquiry. Complainant’s place of business and residence were near at hand. He was bound to make inquiry of complainant. The notice of the claim of complainant against the premises was sufficient to make it incumbent upon him to seek information from the person claiming rights in the premises. He made no effort whatever to get such information. He is therefore chargeable with all the facts he might have learned by such inquiry. Hains v. Hains, 69 Mich. 581; Jackson, etc., R. Co. v. Davison, 65 Mich. 416; St. Helen Shooting Club v. Barber, 150 Mich. 571.

The decree of the circuit court, in so far as it gives priority to the Huber Manufacturing Company mortgage over complainant’s mortgage, is reversed; otherwise it is affirmed, except as to costs, and a decree will be entered in this court accordingly, with costs of both courts to complainant.

Grant, C. J., and Blair and Moore, JJ., concurred. Hooker, J.. concurred in the result.


text:
    KEYES v. QUINN.
    Fraud — Misrepresentations—Value or Shares or Stock — Evidence — Surrioienoy.
    On a bill to obtain a reconveyance of land conveyed in exchange for shares of stock in a mining company, evidence examined, and held, to preponderate in support of complainant’s claim that defendant falsely represented that the stock had a value at the time equivalent to its par value, when in fact it had no value then or since.
    Appeal from Wayne; Brooke, J.
    Submitted October 18, 1908.
    (Docket No. 54.)
    Decided November 30, 1908.
    Bill by George H. Keyes and - Florence M. Keyes against Thomas J. Quinn and Alice L. Quinn for a re-conveyance of certain real estate obtained by fraud. From a decree for complainants, defendants appeal.
    Affirmed.

      Thomas Kissane, for complainants.

      J. Emmet Sullivan, for defendants.
   McAlvay, J.

Complainants, husband and wife, filed their bill for a reconveyance of a certain house and lot in Detroit,transferred in November, 1906, to defendant Quinn for 7,000 shares of stock in the Urales Mining Company, of the par value of $7,000, which transfer is claimed to have been brought about by representations, falsely made by defendant Quinn, that said stock was then of the value of $1 a share, and would be worth $2 to $3 a share in a short time, and would be paying dividends before July 1, 1907; but that in truth and in fact such stock had no value. Further details of this transaction are unnecessary. The only question in the ease is one of fact. If the proofs sustain the material allegations of the bill of complaint, and show that defendant Quinn did make such false representations of fact as to the value of the stock sold' by him to complainant Keyes, then the decree for complainants granted by the circuit court, and from which defendants have appealed, should be affirmed.

Our examination of the record satisfies us that the finding of the court as expressed in the opinion filed is supported by a preponderance of the evidence in the case. The court said:

“The testimony of the complainant Keyes is supported by that of his wife, and also the two brothers Colwell, all of whom testify positively that the defendant Quinn represented the stock to be worth at the time of the negotiations $7,000. This testimony is denied by the defendant Quinn alone. The testimony shows that the stock has no market value at the present time, nor did it have at the time of the transaction. The Urales Mining Company is supposed to have title to a large tract of land in the republic of Columbia, South America, which is supposed to carry gold in placer deposits. Whether it can ever be worked profitably or not is not apparent. It is situated some 500 or 600 miles from the coast, in a climate difficult for white men to live in, and is about 400 miles from transportation by rail. There seems to be communication by water within a short distance of the property. All the facts which were known to the defendant at the time the trade was made render the value of the stock extremely problematical and illusory. I am impelled to the conclusion that the defendant Quinn did make positive representations as to the present value of the stock he was trading. It may be he did not know that the representations he was making were false, but the representations were made certainly with a reckless disregard as to their truth or falsity, which, in my opinion, will justify a decree against him.”

The question as to whether complainant Florence M. Keyes ever consented to this transfer made by her husband, and to a delivery of a deed which she had executed in blank, as she claims, for the purpose of transferring other property, we do not consider necessary to discuss, in view of the fact that complainants have sustained the charge that the transfer of the house and lot was procured by fraudulent representations made by defendant Quinn as to the value of the mining stock given in consideration. of such transfer.

The^decree of the circuit court is affirmed, with costs.

Grant, C. J., and Blair, Hooker, and Moore, JJ., concurred.


text:
      In re McNAMARA’S ESTATE. RICHTER v. McNAMARA’S ESTATE.
    1: Saving Questions for Review — Grounds of Objection to Evidence.
    An objection to a stipulation offered in evidence that it was irrelevant and immaterial and that it was not shown that the attorneys who signed the same were authorized did not render available an objection in this court on the ground that it was not signed by the creditors of the estate involved and that it was not shown that the parties on whose behalf it was signed were heirs.
    2. Stipulations — Conolusiveness—Party Signing.
    That a stipulation consenting to the allowance of certain claims against a decedent’s estate was not signed by the creditors and all the heirs, does not affect its validity as against the heirs who did sign it and who alone are questioning its validity.
    3. Same — Matters Concluded.
    Where a stipulation was entered into by heirs consenting to the allowance of expenses incurred by the executor of a will to which probate was refused, the question whether the expenses were incurred in good faith was not an open one, and no prejudice resulted from refusal to receive testimony on that point.
    4. Executors and Administrators — Expenses — Attorneys’ Fees — Reasonableness—Question for Court.
    Where it was stipulated by heirs that the expenses and counsel fees incurred by the executor should be allowed as a claim against the estate, the question of the reasonableness of the counsel fees was one for the court.
    5. Continuance — New Trial — Absent Witness — Character of Testimony.
    A continuance and a new trial of an appeal from probate court to procure the testimony of a party to deny that he authorized his attorney at law to enter into a stipulation, as testified to by the attorney, were properly denied, where it appeared that the stipulation was also authorized by the party’s attorney in fact, and that the attorney in fact, who took and had full charge of the appeal, had notice of the stipulation for several months before the trial.
    Error to .Kent; Perkins, J.
    Submitted October 13, 1908.
    (Docket No. 51).
    Decided November 30, 1908.
    Henry J. Richter presented a claim for expenses incurred as executor of the last will and testament of Mary McNamara, deceased. The claim was allowed in the probate court, and James McNamara appealed to the circuit court. There was judgment sustaining the order of the probate court, and contestant brings error.
    Affirmed.

      Black, Beasoner & Hayden, for appellant.

      Kleinhans & Knappen and F. A. Stace, for appellee.
   Blair, J.

This case comes to this court upon writ of error to review the judgment of the circuit court for the county of Kent, allowing the account of Bishop Richter, as executor of the last will and testament of Mary McNamara, deceased, as theretofore allowed by the probate court of said county. The will was admitted to probate in the probate court, but was disallowed in the circuit court, in consequence of the verdict of the jury that it was obtained by undue influence. Pending the appeal to the circuit court, a special administrator was appointed, in accordance with the provisions of section 678, 1 Comp. Laws. After verdict and judgment in the circuit court, and while proceedings to remove the record to this court for review were pending, the parties entered into the following agreement:

“ In consideration of Henry J. Richter abstaining from appealing from the judgment of the circuit court for the county of Kent in the proceedings to allow the will of Mary McNamara, deceased, and allowing that judgment to become final, we hereby consent that the liability which the said Henry J. Richter has incurred for counsel fees, and all his expenses in connection with the attempted probate of said will may be allowed by the probate court for the county of Kent, and be paid out of the estate of said deceased.
“ Dated, October 24, 1905.
“ Thomas McMahon.
“James McNamara,
“ By Dunham & Malcolm,
“ His attorneys.
“ Arthur McNamara,
“By Thomas ParksBradfield, “His attorney.”

James McNamara lived in Ireland, and it was conceded that his daughter, Bridget McNamara, had a power of attorney from him which authorized her to do everything, in reference to the estate, which he himself could have done if personally present. In compliance with this agreement the executor discontinued his proceedings for an appeal, allowed the judgment to become final, and filed a petition in the probate court for the allowance of his account, referring therein to the stipulation. Prom the allowance of the account by the probate court, James McNamara alone appealed, through his daughter, Bridget, acting under her power of attorney.

The contention was made on behalf of the appellant that the stipulation which was signed by M. L. Dunham, as attorney for James McNamara, was in fact unauthorized. The attorney, Mr. Dunham, and his stenographer testified that he received a letter from James McNamara after the trial of the will case, and before the stipulation was signed, in which he was authorized to do whatever seemed best for the writer. He testified, also, that Bridget McNamara, who it is admitted had a power of attorney from James McNamara, her father, giving her full control over his interest in the estate of Mary McNamara, deceased, gave him permission to sign the stipulation of October 24th. This was denied by Bridget McNamara, who testified that she positively refused such permission. The two following special questions were submitted to the jury, each of which was answered “Yes.”

“(1) Was Mr. Dunham authorized by Bridget McNamara, acting under the power of attorney given to her by her father, James McNamara, to sign the stipulation which has been introduced in evidence, whereby he consented that the liability which the said Henry Joseph Richter had incurred for counsel fees, and all his expenses in connection with the attempted probate of the will of said deceased, might be allowed by the probate court for the county of Kent, and be paid out of the estate of said deceased ?

“(2) Did Mr. Dunham, before signing the stipulation mentioned in the preceding question, receive a letter from James McNamara, authorizing him to compromise and settle the litigation respecting the probate of said will, and to do whatever in his judgment he thought best for the interests of said James McNamara ? ”

The questions for our consideration, as stated by counsel for appellant, are as follows:

“First. Was evidence admissible to prove that the attorney’s fees allowed to the appellee were incurred in bad faith because of his knowledge that the will of Mary McNamara was invalid for his undue influence, and the undue influence of his agents ?
“Second. Did the court err in admitting Exhibit L in evidence, as binding upon the estate, although certain creditors interested in the estate had not signed it, and although it was not shown that the persons who did sign it were the heirs at law of the deceased ?
Third. Should the court have submitted to the jury certain questions of fact: (a) The value of the attorney’s services; (b) The good faith of the executor ?
“Fourth. Should the court have granted the appellant’s motion for a continuance or the motion for a new trial, made on the ground that the testimony of James McNamara was unexpectedly needed, and could not be obtained at the hearing of the case.”

The important question, and in our opinion the decisive question, in the case is the second, which we consider first. When the stipulation (Exhibit L) was offered in evidence, counsel for appellant objected to its admission “as irrelevant and immaterial, and objected that it had not been shown that Dunham & Malcolm were authorized to sign the same, and that the case should be tried outside of any stipulation.” The ground now sought to be relied upon was not pointed out to the circuit judge, and is therefore not available here. Churchill v. Mace, 148 Mich. 456. Furthermore, if there had been proof of other heirs, or that the amount allowed would so deplete the estate as to affect the rights of creditors, which the record does not disclose, the agreement would conclude the heirs who did sign it. James McNamara alone appears to have questioned the validity of the agreement, and he alone has appealed from the judgments rendered. The jury having found, and the court having adopted the finding, that the agreement was executed with full authority from the appellant, he cannot be heard to question its validity because there may have been others who might, if they chose, have questioned it.

1. Under appellant’s agreement the question whether the expenses were incurred in good faith was not an open one; and, if the court erred in refusing to receive testimony upon that subject, the error was not prejudicial.

8. Whether the fees charged by the attorneys were reasonable or not was not for the jury to determine, but for the court, and the testimony that they were reasonable was wholly undisputed and conclusive.

4. The testimony of James McNamara, referred to, was desired for the purpose of disputing the testimony of Mr. Dunham and his stenographer as to the authority given to Mr. Dunham in his letter. This testimony, if produced, would not have tended to contradict the testimony of Mr. Dunham that Bridget McNamara expressly authorized him to sign the identical agreement which he did sign, as also found by the jury. Again, appellant’s attorney in fact, who took and had full charge and control of his appeal, knew about the stipulation several months before the trial, and we think the trial judge was fully justifled, under such circumstances, in refusing a continuance and denying the motion for a new trial for the purpose of obtaining appellant’s testimony.

The judgment is affirmed, with costs of this court to appellee.

Grant, O. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: Grant, C. J.

text:
    NOTLEY v. FIRST STATE BANK OF VICKSBURG.
    1. Corporations — Officers—Services—Compensation.
    No presumption of an agreement by a corporation to pay its president for official services arises from the mere rendition of the services.
    2. Banks and Banking — Officers—Services—Compensation.
    In an action against a bank by its former president to recover for services rendered to the bank during his presidency, evidence examined, and held, that no services, not within his duties as president, were shown to have been performed under circumstances raising a presumption that the'parties understood they were to be paid for.
    3. Corporations —Officers —Services —Compensation—Implied Contract.
    A bank or other corporation may be bound by an implied contract in the same manner as an individual may, but to render a corporation liable as a debtor under an implied promise to pay for services rendered by one of its directors, it must be shown, not only that the services were valuable, but also that they were rendered under such circumstances as to raise the fair presumption that the parties intended and understood that they were to be paid for; or, at least, that the circumstances were such that a reasonable man in the same situation with the person who received and is benefited by them would and ought to understand that compensation was to be paid for them.

      4 Work and Labor — Services—Compensation —Implied Contract.
    The mere fact that valuable services are rendered for the benefit of a party does not make him liable upon an implied contract to pay for them.
    Error to Kalamazoo; Adams, J.
    Submitted October 13,1908.
    (Docket No. 50.)
    Decided November 30, 1908.
    Assumpsit by William F. Notley against the First State Bank of Vicksburg for services rendered. ■ There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Jesse R. Cropsey and Dallas Boudeman, for appellant.

      Hollander & Notley (A. J. Mills, of counsel), for appellee.
    Vicksburg is a small village, situated in the county of Kalamazoo, several miles from any place where there are banks. The only bank in the village prior to 1905 had failed and gone into bankruptcy. Plaintiff and other citizens of the village and vicinity, and persons from Kalamazoo and Grand Rapids, on July 38, 1905, organized the defendant bank known as the “First State Bank of Vicksburg,” with a capital of $35,000. Plaintiff was its first president. His chief business in the community was the buying and selling of stock, wool, horses, etc. He was well acquainted with the inhabitants of the village and surrounding country, having lived there a long time. He was not a banker, had never had any experience in that business, and was undoubtedly chosen president because of his wide acquaintance in the vicinity. He served as its president until February 31, 1906, when he was removed. He thereupon brought this suit for services. His bill of particulars was—
    “For services rendered from July 38, 1905, to February 33, 1906, as president and general manager of said bank, $1,000. For services rendered in endeavoring to induce divers citizens of Vicksburg and vicinity to become interested in the incorporation of the First State Bank of Vicksburg, in seeing, talking with sundry citizens, and explaining the plan of the organization proposed, the advantages to accrue therefrom, how the business was expected to be conducted, and the organization of said corporation, and for services rendered in obtaining subscriptions to the capital stock of said bank, to wit, eight months between July 1, 1905, and March 1,1906, $2,000.”
    At the same meeting at which plaintiff was elected president, a cashier and bookkeeper were also elected, both of whom were to receive a fixed salary. There was no mention of salary or compensation for plaintiff in any resolution or action taken by the board of directors or by the action of the stockholders at any meeting. Plaintiff gave evidence tending to show that he spent most of his time at the bank; that he was consulted by the cashier and the discount committee in making loans; that he met and extended “the glad hand” to people who came to the bank. He took no part in the business of the bank in the way of paying out or receiving moneys, and had nothing to do with keeping the books. He did not receive deposits except occasionally. Meanwhile he attended to his own business, buying and selling stock, and people came to the bank to see him upon his own private business, which he carried on as before. When he made purchases, he gave his personal checks upon the bank when he had no deposit to meet them, and caused them to be carried as cash items until he obtained money sufficient to make his account good. The checks were then paid and charged to him. When he sold stock, he took notes of purchasers, sometimes running for six months, and caused them to be discounted at the bank. He borrowed upon two mortgages, given by himself and wife, $5,000 without consulting the discount committee. It is proper to say that this loan was afterwards ratified by the directors. In no action taken by the board and in no conversation with any officers of the bank was the term “ manager” or “general manager” used, and there is no testimony to indicate any intention or understanding on the part of the directors that plaintiff was to act as manager or to perform any other duties than those incident to his position as president. Testimony of plaintiff’s three sisters was erroneously admitted to prove that plaintiff made a statement to them, though they were not stockholders, that he expected a salary of $500. The total profits of the bank during plaintiff’s incumbency of office was $1,120.42. The case was submitted to the jury, who found a verdict for the plaintiff of $273.83.
   Grant, C. J.

(after stating the facts). The circuit judge eliminated from the case the second item in the bill of particulars, holding that plaintiff was entitled to no compensation for what he did in promoting the defendant’s organization. He also eliminated all claim for services as president, but submitted to them the question whether there was an implied contract that plaintiff should perform services outside his duties as president and an implied contract to pay for them. Stated substantially in the language of the circuit judge in his instructions, he left it to the jury to determine whether valuable services were rendered by the plaintiff to the defendant “under such circumstances as would raise a fair presumption that the directors of this bank and the plaintiff, each and both, intended that such services should and would be paid for.” No presumption of an agreement arises from the services which plaintiff claims to have rendered. Martindale v. Wilson-Cass Co., 134 Pa. 348. All the evidence adduced upon the trial is in the record. After a careful perusal of it, I fail to find any evidence that the directors of the defendant, either as a board or individually, had any knowledge of the time that plaintiff spent in the bank during banking hours, or that he was performing any services outside those imposed upon him as president, or that they expected him to spend his time there. The circuit judge instructed the jury that there was no express contract established in writing or by conversation. In other words, that there was no talk between plaintiff and the defendant’s officers from which the jury could find an agreement. If the directors had investigated it and had been informed of the actual situation, they would have ascertained that plaintiff, without any direction from them, was carrying on his own private business at the bank, attending to it substantially the same as before, and using the bank to obtain money to carry it on; that the bank books showed no services or claims for services; that plaintiff was using the bank for his own private purposes in a very questionable, if not an illegal, manner. Can an inference of an agreement be presumed under these circumstances ? If plaintiff did perform any duties outside those of president, it was in securing a few persons to borrow money from the bank, in advising upon some applications for loans, and in securing a few deposits. Can the presumption of an agreement arise from these acts ? What is there to indicate either that plaintiff expected to receive, or the defendant to give, compensation ? The cashier and bookkeeper were meanwhile attending to all the business of the bank, and much that plaintiff claims he did was not necessary for him to do. The same resolution that appointed plaintiff without a salary appointed the cashier and bookkeeper with salaries, thereby showing the clear intent of the parties that the president should serve without compensation. The acts which plaintiff performed, if not strictly within his duties as president, were closely akin to them, and the law does not permit an agreement to be implied under such circumstances, especially where such official makes no claim until the expiration of his term, or until he has been removed from office.

The supreme court of Massachusetts, in Pew v. Gloucester Nat. Bank, 180 Mass. 891, have clearly stated the rule which is quoted with approval by the Supreme Court of the United States in Fitzgerald Construction Co. v. Fitzgerald, 137 U. S. 98. It is as follows:

“A bank or other corporation may be bound by an implied contract in the same manner as an individual may. But, in any case, the mere fact that valuable services are rendered for the benefit of a party does not make him liable upon an implied promise to pay for them. It often happens that persons render services for others which all parties understand to be gratuitous. Thus, directors of banks and of many other corporations usually receive no compensation. In such cases, however valuable the services may be, the law does not raise an implied contract to pay by the party who receives the benefit of them. To render such party liable as a debtor under an implied promise, it must be shown, not only that the services were valuable, but also that they were rendered under such circumstances as to raise the fair presumption that the parties intended and understood that they were to be paid for; or, at least, that the circumstances were such that a reasonable man in the same situation with the person who received and is benefited by them would and ought to understand that compensation was to be paid for them.”

The facts of that case are applicable to those in this. The rule there stated is established by other courts. Citizens’ Nat. Bank v. Elliott, 65 Iowa, 104; Holder v. Railway Co., 71 Ill. 106; Lafayette, etc., R. Co. v. Cheeney, 87 Ill. 446; Lowe v. Ring, 123 Wis. 370; Henry Wood’s Sons v. Schaefer, 173 Mass. 443; Eakins v. White Bronze Co., 75 Mich. 568; St. Jude’s Church of Fentonville v. Van Denberg, 31 Mich. 287; Whittemore v. Kent Scientific Institute, 128 Mich. 518; 2 Cook on Corporations (5th Ed.), § 657. The court should, as requested at the close of the plaintiff’s case, have directed a verdict for the defendant. The like request should have been granted after the defense rested.

This disposal of the case renders it unnecessary to determine the many exceptions to the ruling of the court in the admission and rejection of testimony.

Judgment reversed, and new trial granted.

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


text:
    TAYLOR v. APPLEBAUM.

    1. Sales — Conditional Sales — Payment—Application—Passing Title.
    Where the notes given for the purchase price of machinery, sold on a contract of conditional sale, included the amount of a previous indebtedness, payment of an amount exceeding the price of the new machinery did not confer title on the buyer, where he did not designate the application of the payments, and the seller applied them, so far as necessary, on the old indebtedness.
    2. Same — Passing Title — Evidence.
    On the issue whether the title to machinery passed from seller to buyer at the time of its delivery and the execution of a lease thereof containing an option to purchase reserving title in the seller, notes for the rent and purchase price, including a previous indebtedness, and a statement of account receipted as having been paid by notes, evidence examined, and held, that title did not pass and that the evidence did not justify submission of the question to the jury.
    3. Same — Bona Fide Purchaser.
    Where the instrument under which a lessee had possession of chattels was at most a contract for sale, under which the lessor retained title until the purchase price should be paid, a purchaser from such lessee acquired no title as against the lessor, though he had no notice of the lessor’s rights.
    Error to Wayne; Rohnert, J.
    Submitted October 13, 1908.
    (Docket No. 52.)
    Decided November 30, 1908.
    Trover by J. E. Paul Taylor, administrator of the estate of Arthur O. Lloyd, deceased, against Isaac Applebaum. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Corliss, Leete & Joslyn, for appellant.

      Alex. J. Groesbeck, for appellee.

       Rehearing denied March 3, 1909.

   Hooker, J.

On February 24, 1903, one George Currie, being owner of certain scows and other property, made a chattel mortgage of the same to one Arthur C. Lloyd to secure a note of $1,800-and any other sums that might be owing to him. On March 27, 1905, Currie executed the following instrument; the same apparently having been written upon said mortgage:

“Detroit, Mich., March 27, 1905.
“ Whereas the chattels herein enumerated have largely depreciated’ in value from that appraised at the time this sale was made; and whereas, I am not now able to pay the note for $1,800 for which the chattels herein enumerated are pledged: Now, therefore, in consideration of the cancellation, surrender and return to me of the said note for $1,800, the receipt whereof I hereby acknowledge, I hereby absolutely sell and convey to Arthur C. Lloyd, all my right, title and interest to all the property herein and authorize him to take immediate possession thereof.
[Signed] “George E. Currie.
“Witness:
“Ernest F. Lloyd.”

On October 15,1903, Currie negotiated with Applebaum for an engine and boiler, and the result of such negotiation appears from certain writing, and the oral testimony given by Currie, who was a witness for the plaintiff. Currie acquired possession of said engine and boiler, and substituted them for those on one of the scows. The writings referred to consist of a written lease of the engine and boiler, four promissory notes and a statement; all being dated October 15, 1903.

The lease was in terms following:

“This agreement made this 15th day of October, 1903, between Isaac Applebaum, of Detroit, party of the first part, and George E. Currie, of the same place, of the second part, as follows, to wit: The first party agrees to let and lease to the said party of the second part a certain Raw’s & Morrison De La Vergue 84-xlO hoisting engine, boiler and fixtures complete for the term of four (4) months from the date hereof, at a rental of $500. The first party further agrees to, and does hereby give to said second party, the option and privilege of buying said machine, at the expiration of the said four months, from this date, for the sum of eleven hundred and twenty-five dollars ($1,125), but it is agreed that the rental price of five hundred dollars shall then apply on said purchase price, and then shall be due and payable to the party of the first part the sum of six hundred and twenty-five dollars. The party of the second part agrees to the above terms and in consideration of the use of said engines and equipment for four months agrees to pay the sum of five hundred dollars to the first party, and for that purpose has this day executed to the said party of the first part a note for the sum of five hundred dollars, payable in thirty days from the date hereof, with interest at the rate of six per cent, and if same is not paid when due the party of the first part shall be entitled to an immediate return of said engine and equipment without legal process, together with the rental therefor. The party of the second part further agrees that, if at the end of the said four months he desires to exercise his option of buying said engine as aforesaid, he will pay the said party of the first part the sum of six hundred and twenty-five dollars in addition to the rental of five hundred dollars above agreed upon. The second party further agrees and understands that the property herein mentioned at all times is owned by the first party until the second party has exercised this option and receives a proper bill of sale therefor, and further agrees that if he does not exercise his option at the end of the said four months he will return and deliver to the first party’s warehouse the engine, boiler and fixtures complete in as good condition and repair as when he received same, and will at all times keep the said engine and equipment in first class condition and repair during the term of this lease and while same is in his possession.
“ In witness whereof the parties have this 15th day of October, 1903, subscribed their names and seals.
[Signed] “ George E. Currie.
“I. Applebaum.
“Witnessed by:
“Jake Roth.
“Daisy L. Bowerman.”

Four notes were given, one for $500, and three for $481.37 each. A copy of one will answer for all:

“ 500.00 Detroit, Mich., Oct. 15, 1903.
“Thirty days after date, I promise to pay to Isaac Applebaum or order five hundred & no /100 dollars at Detroit Savings Bank. Value received. 6% interest.
[Signed] “George E. Currie.
“ [Memo, in margin] As per lease executed 15th day of October, 1903.”

The defendant insists that the title to the engine and boiler have at all times remained in him as indicated by the provisions of the lease, while the plaintiff claims that the lease was abrogated by what occurred after it was made, and that title thereupon vested in him. His position is that the testimony of Currie shows this, and therefore that the court erred in taking that question from the jury and directing a verdict for defendant. It becomes necessary to determine whether there is testimony from which such a conclusion can be legitimately inferred. We therefore insert that portion of his testimony which refers to the subject.

Direct examination/

“Q. From whom did you purchase that boiler and engine?
‘‘A. From Mr. Applebaum.
“Q. When did you buy it ?
“A. October 15, 1903.
“Q. You have had business relations with Mr. Applebaum before that time ?
“A. Yes; covering a great period of time.
“Q. October 15, 1903, you bought this boiler and engine of Mr. Applebaum ?
“A. Yes, sir.
“Q. At that time were you indebted to him?
“A. I was indebted to him over $800 apart from the purchase of the boiler and engine.
“Q. What was the price paid Mr. Applebaum October 15, 1903, for this boiler and engine ?
“A. $1,125.
“Q. How did you pay for that ?
“A. In notes.
“Q. Did you embrace in the notes given at that time your former indebtedness to him ?
“A. I did. At the time I purchased this boiler and engine from Mr. Applebaum, I was owing him $819, I believe. The first agreement was a lease of some boiler with the option of purchase. When the bargain was consummated, the notes were given in payment for the engine. * * *
“Q. What was the next step taken after the execution of this lease with reference to this boiler and engine ?
“A. I gave Mr. Applebaum four notes, one for $500 and three for $481 each.
“Q. And embracing what ?
“A. Embracing my indebtedness to him on the purchase of this boiler and engine. I took his receipts for the notes.”

The following writing is the receipt referred to and was Exhibit D:

“Main 1836. Statement.
“Detroit, Mich. Oct. 15, 1903.
“Mr. Geo. E. Currie, City.
“ In account with
“Isaac Applebaum,
“Wholesale Dealer in
“ Scrap Iron and Metals, Machinery and Belting,
“38 and 40 Randolph Street.
“Balance to date-------------------------------------- $819 13
By notes________________-............................ 1,135 00
$1,944 13
“[In pencil] Paid by notes.
“ [In ink] Paid by notes.
“I. Applebaum.”
“Q. You say that was the settlement on this entire transaction into these notes.
“A. Yes, sir. * * *
“Q. Can you state, Mr. Currie, how much you paid Mr. Applebaum on account of these notes F
“A. About $1,344.
“Q. Do you know the balance of the last renewal note that you gave Mr. Applebaum ?
“A. Six hundred dollars.
“Q. How came you to incorporate in this receipt in full the old account of $819.13 ?
“A. To get it in tangible shape.”

Cross-examination:

“Q. You obtained from Mr. Applebaum this property on the 15th day of October, 1903, did you not ?
“A. Yes, sir.
“ Q. And you took and used it in your business ?
“A. Yes, sir.
“The Court: You acquired possession under this lease? “A. No, sir. _
_ “Q. Where did you get possession of the property, if not from Applebaum ?
“A. I got possession from. Mr. Applebaum.
The Court: Under that agreement?
“A. No, sir; there has been a subsequent agreement made after this.
The Court: Where is it ?
“A. It is in evidence here. It is a receipt for payment. This was made after that agreement.
Q. So that paper which you hold in your hand is what you claim title to this property on ?
The Court: Do you rest your case on the proposition ? “Mr. Corliss: I don’t rest my case on any one paper in this controversy.
“Q. That is the paper under which you claim title to this property which you transferred to Mr. Lloyd ?
“A. Yes; and the notes which were given.
“Q. That paper and the notes ?
“A. Yes, sir. .
“Q. And that was made subsequent to this paper ?
“A. Yes, sir.
“Q. And this has nothing to do with it any more ?
“A. Yes, sir.
“Q. That is why you sold the property to A. C. Lloyd ? “A. Yes, sir; that is it.
“Q. The note specified there has been renewed ?
“A. Yes, sir.
The Court: Are those notes referred to paid ?
“A. Yes; two of them.
“Q. What is there on the margin there ?
“A. As per lease executed.
“Q. They refer to the lease ?
“A. Yes, sir.
“ Q. That note was taken up ?
“A. Yes, sir.
“Q. JBy you?
“A. Yes, sir.
“Q. Now, how much was paid by you to Mr. Applebaum in the aggregate on these notes. These notes and checks on account of the notes ?
“A. $1,344 interest.
“Q. Leaving only $600 due ?
“A. Yes, sir.
“Q. And that was embraced in the renewal note ?
“A. Yes, sir.”

Redirect examination:

“ Q. Do you remember the date of the last renewal note which you gave Applebaum ?
“A. The last I remember was October, 1904.
“Q. For how much ?
“A. $600.
“Q. Look at Exhibit 3, and state whether that is the last note you gave Mr. Applebaum.
“A. That is the last note; yes, sir.
“Q. These — this bears date October 15, 1904. You had then paid Mr. Applebaum on account of the notes mentioned in Exhibit D, $1,125 on engines and over $200 on the old account ? * * *
“Q. I understood you to say that this contract or lease was first drawn up, and that, when you came to close the transaction, Mr. Applebaum wanted the notes to include that old debt ?
“A. Yes; wanted it all put in together; yes, sir.
“Q. And that is why they were given ?
“A. Yes, sir.
“The Court: This was given in connection with the notes?
“A. It was received as a receipt for the notes.
“Q. And the notes and that paper were subsequent to this agreement?
“A. Yes, sir. It is all paid except $600. ■
“Q. The $1,125 in this bill receipted by Mr. Applebaum was for the boiler and engine, wasn’t it ?
“A. Yes, sir.
“Q. You paid for the boiler and engine by giving these notes at that time ?
A. Yes, sir.
“Q. And you included with the $1,125 the old debt of $819.13 ?
“A. Yes, sir.
“Q. Making an aggregate of $1,944.13 ?
“A. Yes, sir.
“Q. These are the four notes which you have referred to in your bills payable book ?
“A. Yes, sir.
“Q. All of which have been taken up ?
“A. Taken up by renewals or payments.”

Recross examination:

“Q. Your agreement contained this provision:
“‘The party of the second part [meaning yourself] further agrees that, if at the end of said four months he desires:to exercise his option of buying said engine as aforesaid, he will pay said party of the first part the sum of $625 in addition to the rental of $500 above agreed upon.’
‘ ‘ I ask you as to whether at the end of four months mentioned in this contract you exercised your option of buying this engine, and so notified Mr. Applebaum ?
“A. I did on the same day that the agreement was signed.
“Q. On the same day ?
“A. Yes, sir.
“Q. So that the provisions of the agreement amounted to nothing after the day that they were executed ?
“A. No, sir.
“Q. Is that right?
“A. Yes, sir.
“Q. Did you at any time receive from Mr. Applebaum a bill of sale or make an application to him for a bill of sale of this property ? Did you or did you not ?
“A. I did.
“ Q. When did you get it ?
“A. October 15, 1903.
“Q. Where is it?
“A. Here.
“Q. Is this it?
“A. Yes, sir.
“Q. That paper, Exhibit D, is what you mean to swear to the jury is the bill of sale that you got from Applebaum for that machinery on October 15th ?
“A. Yes, sir.
“Q. So that you wish this jury to understand that you base your claim to this engine and your title to it upon the fact that on the day that this agreement of October 15th was made you executed to Mr. Applebaum the four notes which I have mentioned and read to you, and, after executing them, you received from Mr. Applebaum this receipt for those four notes ?
“A. Yes, sir.
“Q. So that, as I understand youf testimony, from that time on — that is, beginning on the same date that Mr. Applebaum sold you this property under this agreement by virtue of the notes which you had given to him and by virtue of this receipt which he gave you for the notes — you claim that this property absolutely belonged to you; that is your claim in this case ?
“A. Yes, sir.
“Q. Well, this agreement of October 15th, which was made at the same time as the receipt here, was entirely abrogated the same day it was made, and that is your claim in this case ?
“A. Yes, sir.
“Q. So you did not consider at any time after October 15th that this agreement was binding upon you ?
“A. No, sir; not at all.
“Q. These papers, Exhibit Q-, a note for $481.37, Exhibit E, a note for $500, Exhibit C, the agreement of October 15, 1903, and Exhibit D, which is the receipt, were all made at the same time ? Whereabouts, in the same office?
“A. Exhibit 0 was made prior to the others. The others were made at the same day in the same office.
“Q. Whose office?
“A. Mr. Applebaum’s office.
“Q. Where was Exhibit 0 made?
“A. In the same office.
“Q. On the same day ?
“A. On the same day.
“Q. Was there two other notes ?
“A. Yes; there was three, $481.
“Q. When Mr. Applebaum took this property off the scow, you were owing him how much ?
“A. Six hundred dollars. * * *
“Q. What did you say ?
“A. At the time after we had executed this lease here, after we had executed that, Mr. Applebaum had a bill showing that I still owed him $819. He had it from his clerk, and he suggested or asked me how I was going to pay it, and he suggested putting the whole thing in the form of four notes that way, and we agreed upon the time that they should be for and that I was going to try to wipe them off then.”

The learned circuit judge charged the jury that, the lease, notes, and statement being the same date, the presumption is that they were executed at the same time; also, that the memoranda on the notes indicate an intention to keep the lease alive, thereby reserving title in Applebaum, until a bill of sale should be given by him or the articles fully paid for, and had that effect; further, that although more than the purchase price — i. e., $1,125 —was paid, and the entire claim reduced to $600, Currie did not exercise his right of designating the application of payments to the purchase price of the engine and boiler, and that Applebaum signified his application to be to the old indebtedness, and therefore the engine and boiler were not paid for in full and Currie never acquired title; further, that by the bill'of sale of 1905 plaintiff’s intestate did not acquire title, for the reason that Currie did not have title. An examination of the testimony of Currie shows a want of detail in regard to the transaction of October 15, 1908. While he states that in his opinion the lease was abrogated by the execution of the notes, and delivery of the statement, Exhibit D, the former involves a question of law, while as to the latter the claim is in contradiction of the instruments themselves. There is nothing to show that all of the papers were not executed and delivered at one time, and as part of one transaction. No testimony indicates more than one interview on October 15, 1903, and no conversation supports the theory that the notes were an afterthought. Moreover, if there were such testimony, the notes and statement were a part of a single transaction, viz., when notes were given and the statement delivered to Currie. The memorandum on the notes referring to the lease was plainly designed to indicate the continuation of the provisions of the lease, and the fact that it was then determined to give the three notes in addition to the note of $500 required by the lease is not inconsistent with such intent, the lease providing for the retention of title until the articles should be fully paid for. We find no evidence which would have justified the submission to the jury of either the question of title or the question of waiver of defendant’s alleged lien. We agree with the trial judge that title to this property was in defendant when the bill of sale was made, unless full payment had been previously made, and as to that his conclusion is correct.

Counsel say that Lloyd was a bona fide purchaser, without notice of defendant’s “lien,” and cite Blakeley v. Moshier, 94 Mich. 299, Au Sable River Boom Co. v. Sanborn, 86 Mich. 358, and Frick v. Hilliard, 95 N. C. 117, as authorities sustaining a purchaser’s claim. Those are all cases where title passed, and the claimant had only alien. Here the defendant never parted with his title; the agreement being at most a contract for sale. See Fuller v. Byrne, 102 Mich. 461; Ryan v. Wayson, 108 Mich. 519; Perkins v. Grobben, 116 Mich. 172 (39 L. R. A. 815); Lansing Iron & Engine Works v. Wilbur, 111 Mich. 413.

The judgment is affirmed.

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