author: Long, J.

text:
    BORSCHALL v. DETROIT RAILWAY.
    Street Railways — Accident at Crossing — Excessive Speed-Contributory Negligence.
    The rule that the contributory negligence of the plaintiff in an action for personal injuries does not prevent a recovery where the defendant, who knew, or ought by the exercise of the most ordinary care to have known, of the precedent negligence of the plaintiff, by his subsequent negligence did plaintiff the injury, has no application to a case where a person was injured in a reckless attempt to drive across a street-railway track in front of an electric car, which was operated by a competent motorman, who gave the proper signals, and did all within his power to stop the car in time to avoid the accident, even though the car was being run at an excessive rate of speed.
    Error to Wayne; Hosmer, J.
    Submitted October 15, 1897.
    Decided January 4, 1898.
    Case by August Borschall against the Detroit Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. T. Leete, Jr., for appellant.

      Lehman Bros, and F. J. Riggs, for appellee.
   Long, J.

This action was brought to recover for personal injuries received by the plaintiff, which, it is claimed, were the result of the carelessness of the defendant company. The plaintiff had verdict and judgment for $2,000.

On February 11, 1896, about 2 o’clock in the afternoon, the plaintiff was driving east on Elizabeth street in Detroit. The defendant has a double track on Clifford street, which crosses Elizabeth at right angles. The west track is used by cars south bound, and the east track by cars going north. The plaintiff' is about 54 years old, and has lived in Detroit about 14 years. On the day in question he was driving a team of horses hitched to a heavy dirt wagon, and had been for several days hauling dirt over this street to the west, returning eastward with an empty wagon. On his direct examination he testified that, going east, when he got to the defendant’s track on Clifford street on the occasion of the injury, he looked towards Henry street (which is north of Elizabeth), and did not see anything; that he then looked down the street (south), saw a car coming, and backed out of the way of it, and the car passed him, and went north, and that was the last he knew until he found himself in the hospital. On his cross-examination he testified that in looking north he could see two blocks, and that there was nothing in the way of his seeing up to Henry street. Mr. Bell, a witness for plaintiff, testified that he lived on the northwest corner of Elizabeth and Clifford streets, and was standing on the steps of his house; that he saw the plaintiff drive up to the west track, his team on a walk; that, as he arrived there, he stopped his team, to let a car pass going north; that he then seemed to urge his horses across the track, and that, as his team get across the track, a car coming from the north struck his wagon, causing the injury. Witness stated, “I should judge that he looked both ways.” Witness further stated that all he heard was the “rumbling” of the cars. Mr. Klein was also called by plaintiff, and testified to having seen the collision. HS was sitting in his house, on Elizabeth street, next to witness Bell, looking out of the bay window, with the doors of his house all closed. He saw plaintiff before the collision, just as he was on the track, and saw the car strike his wagon. He testified that he heard no bell sounded. He was asked the speed of the car, but was uncertain about it, but stated that plaintiff, when picked up, was some 50 feet from where the car first struck the wagon. Plaintiff was seriously injured.

The averment of the first count of the declaration is that the car was being propelled at an unusual, reckless, and dangerous rate of speed, and was in charge of a motorman who was careless, reckless, negligent, and incompetent, and who made no effort to arrest the car before crossing Elizabeth street, although he saw plaintiff in a dangerous position in time to have stopped his car had he made any reasonable effort to do so. The second count sets out that the plaintiff’s view of the approaching car, was obstructed; that he stopped, looked, and listened, but saw no car approaching, until-he got so close to the track that it was-dangerous to attempt to retreat, when he saw the car coming, but that the same was such a distance from him that he thought he could safely make the crossing, and could have done so if the car had been running at a reasonable rate of speed, and had been in the care of and under the control of a competent motorman; and that the car was recklessly and negligently operated. The third count states that the car was negligently and recklessly operated; that no gong was sounded, and no other warning of its approach given; and was in charge of a reckless and negligent motorman, who ran it at a dangerous rate of speed, and who did not stop said car, or attempt to stop it, although the plaintiff was in plain sight while attempting to make the crossing. This count also avers that the plaintiff’s view was obstructed by telegraph, telephone, and trolley posts, and other obstructions, which prevented him from seeing the car until he was so close to the tracks that it was dangerous for him to retreat; and that he could have made the crossing with safety, except for the dangerous rate of speed of the car. It is also averred that the motorman had abundant time to stop the car after the plaintiff’s perilous position was apparent to him; that he made no effort to do so, but carelessly, negligently, and recklessly ran the, plaintiff down, etc.

The defendant called the motorman of the car. He testified that the car was running not. to exceed eight miles an hour; that the gong was being sounded, after passing the alley first north of Elizabeth street; that- he first saw the plaintiff when the car was from 60 to 90 feet north of Elizabeth street, and that plaintiff was approaching the crossing on a trot; that he started to throw off the current, rang the bell, and started to put on the brake; that he then reversed the car; that plaintiff did not stop, but made an effort to do so when his horses were nearly on the track; that plaintiff looked neither to the right nor left when he was coming onto Clifford street, and that he then looked towards the approaching car, and made an effort to draw his horses up, and then commenced “slashing” them to go ahead. Witness further testified that his car was reversed at that time, but that the track was very bad, as the mud dropping from wagons had made it slippery. He also testified that there is quite an incline in the track after crossing Elizabeth street, and that but for this, and the mud on the track, he could have stopped quicker. The conductor of the car corroborated the motorman in reference to the speed of the car and the ringing of the gong, as well as to the prompt effort of the motorman to stop the car, and also as to seeing the plaintiff ‘ ‘ slashing ” his horses. Some other witnesses were called by defendant, — some of them passengers on the car, others who saw the collision from the ground; and all testified that the car was “going at a checked rate of speed, ” the gong being sounded; that the motorman, the moment the plaintiff appeared to be going to cross the track, did all in his power to stop the car; and some, of the witnesses testified that the car was stopped within 20 feet beyond the place of collision. Mr. Heyniger, a witness for defendant, testified that he was driving on Elizabeth street, near Clifford, when he saw the car coming down Clifford street. He says it was running at a slow rate of speed; that the gong was ringing; and that the car was stopped in a very short space near Elizabeth street. He saw the plaintiff approaching the track, and says that he evidently intended at first to stop, and.wait for the car to pass, but seemed suddenly to change his mind, started up, and tried to get across before the car could reach him.

Counsel requested the court to direct the verdict in favor of defendant. This the court refused, but stated that there could be no question but that the plaintiff was guilty of contributory negligence, and could not recover unless there was gross negligence shown on the part of the defendant. The court referred to Denman v. Johnston, 85 Mich. 387, as to the rule that, where gross negligence is shown, plaintiff may recover, notwithstanding he maybe guilty of contributory negligence. We think the court was correct in saying that the plaintiff was guilty of contributory negligence. There can be no question upon this record but that, had he looked before entering upon this track, he must have seen the car approaching Elizabeth street. If he did not look, he was clearly guilty of negligence, for, in the absence of something to excuse the performance of that duty, it was incumbent upon him, before attempting to cross, to take proper means of ascertaining whether the way was clear. Fritz v. Railway Co., 105 Mich. 50. If he saw the car coming, and then attempted to cross, he took his chances of being injured, and cannot complain. He had lived in Detroit for many, years. He knew the car could not turn out, as it ran in grooved rails, and he must have known that it could not be stopped instantly. From the undisputed evidence, there was nothing to indicate to the motorman that he intended to cross until it was too late to stop the car.

There was no evidence given by the plaintiff that the car was running at a very great or dangerous rate of speed, and no direct evidence that the bell was not sounded; while on the part of the defendant many witnesses testified that it was running either under a“ checked rate” or slow, and that the bell was sounded. But, even if it were running at a speed of more than eight miles an hour, there certainly is nothing in the case showing or tending to show that the defendant was guilty of such gross negligence that the plaintiff had a right to recover notwithstanding the plaintiff’s contributory negligence. There was no evidence that the motorman was incompetent, reckless, or negligent. As was said in Richter v. Harper, 95 Mich. 221

“It is urged by plaintiff’s counsel that the negligence ■of defendants was so gross and willful as to excuse concurring negligence on the part of the plaintiff, it being claimed that, where the negligence of the defendant is gross or willful, the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which never obtained in this State. It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought by the exercise of the most ordinary care to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury,” — citing Battishill v. Humphreys, 64 Mich. 514; Belt Railroad, etc., Co. v. Mann, 107 Ind. 89; and Cooley, Torts, 674.

Judge Cooley says:

“In such cases it may be said that the negligence of the plaintiff only put him in position of danger, and was, therefore, only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.”

• It was further said, in the case of Richter v. Harper, supra:

“This rule does not permit recovery notwithstanding plaintiff’s contributory negligence, but it recognizes that such discovered negligence of plaintiff, or his negligence which should have been discovered, is not a contributing cause to the injury in a legal sense. This, we think, is the logical statement of the rule as deduced from the authorities,”' — citing 4 Am. & Eng. Enc. Law. 80, and notes.

In the present case, as in that, it may be said, “This rule has no application to the present case.” The plaintiff was certainly negligent in not seeing the approaching car, as, if he had looked, he could have seen it; and, if he did not look, he was equally guilty of negligence. He was seen by the motorman as he was' about to enter upon the track. - From that time on the testimony shows conclusiv^ly that the motorman did all in his power to stop the car, and prevent the collision. He reversed the motor,

put on his brake, and continuously rang the bell. As was said in Fritz v. Railway Co., supra:

“If we assume that, under these circumstances, the plaintiff had, by this act, placed himself in a position where his negligence might have been discovered, and the car brought under control, it will result that, in every case where an attempt to cross ahead of a street car is made, the question whether there was a timely discovery of the situation will turn upon whether the motorman could have stopped his car after the attempt was made; and it would follow that, if he could, his negligence will authorize a recovery, notwithstanding the contributory negligence of plaintiff. With such a rule, there could no longer be any such thing as contributory negligence defeating a recovery in any case where the defendant’s negligence consists of failing to control the car.”

The court below should have directed the verdict in favor of the defendant, as requested. In this view of the case, no other assignments of error will be discussed.

The judgment will be reversed, and a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LITTLE v. G. E. VAN SYCKLE & CO.
    Sale — Implied Warranty.
    A dealer who sells a piano by a written contract which makes no reference to the subject of a warranty is bound by an implied warranty that the instrument is properly constructed, even though the contract expressly provides that  ‘ there is no agreement or understanding * * * otherwise than herein . mentioned.”

    Error to Bay; Kelley, J., presiding.
    Submitted October 15, 1897.
    Decided January 4, 1898.

      Assumpsit by Edward C. Little against G. E. Van Syckle & Company, a corporation, for breach of warranty. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James E. Duffy (T. A. E. & J. C. Weadock and R. E. Van Syckle, of counsel), for appellant.

      C. L. Collins, for appellee.

       There is a review of the authorities on the implied warranty of fitness of property bought for a special purpose in a note to McQuaid v. Ross, (Wis.) 22 L. R. A. 187.

   Moore, J.

Plaintiff recovered a judgment against defendant, from which judgment an appeal is taken. The claim of plaintiff is that sometime about the 31st of August, 1894, the defendant, through its president, sold to the plaintiff a piano; that plaintiff informed the agent he knew nothing about pianos, and was informed by the agent, during the negotiations and at the time of the sale, that the instrument which was delivered to plaintiff was a first-class instrument of its kind and class, properly constructed, and in every respect a good instrument; and that, relying upon those statements, plaintiff made the purchase, and paid part of the contract price for the piano. He also claimed that the instrument was not as represented, but was a defective and worthless instrument. The particular defect claimed was that the block which held the pins to which the strings were attached would not hold the pins so they would retain their position, and that, as a result, the piano was constantly out of tune and worthless. The plaintiff also testified that the paper signed by him was not the contract under which he bought the piano, but represented his agreement in relation to the payments to be made upon the piano. The paper read as follows:

“$375.00. Bay City, Mich., Aug. 31, 1894.
“Received of G. E. Yan Syckle & Co. one instrument, known as Mozart piano, style upright, number 4,364, for the use of which I agree to pay to them or their order the sum of three hundred and seventy-five dollars, as follows: One hundred dollars to be paid in lumber on demand; fifty dollars Dec. 1st, 1894; fifty dollars June 1st, 1895; one hundred dollars Sept. 1st, 1895; and seventy-five dollars June 1st, 1896, — payable at the office of G. E. Yan Syckle & Co., Bay City, Mich., or where they may direct, with interest at the rate of seven per cent, per annum, payable annually, and interest at the rate of seven per cent, per annum on all overdue payments until paid.
“I agree to safely keep and carefully use said instrument, and not remove it from Bay City without first obtaining the written consent of said G. E. Yan Syckle & Co., and to keep said instrument insured for the benefit of said G. E. Yan Syckle & Co. If I fail to make any payment at the time and place I have herein agreed, or fail to keep said instrument insured, or remove or attempt to remove the same without said written consent, or if any writ of any court shall be levied thereon, then this lease shall at once terminate, without notice to me, at the option of said G. E. Yan Syckle & Co., and they may, without process of law, immediately take possession of said instrument, and for that purpose may enter any of my premises to search for or obtain it. If said G. E. Yan Syckle & Co. shall repossess said instrument, I agree to pay all costs, expenses, and fees which they may pay or incur in taking or retaining such possession, with interest at the rate of seven per cent, per annum.
“The title and right to possession of said instrument shall remain in G. E. Van Syckle & Co. until all of said payments, including said premium, if any, and said costs, expenses, and fees, if any, have been paid by me, and all my agreements in this contract have been performed. If I perform all my agreements in this contract at the time and in the manner I have herein agreed to perform them, then G. E. Van Syckle & Co. shall execute to me a bill of sale of said instrument.
“I also certify that I fully understand the terms of this contract, and that there is no agreement or understanding between the salesman and myself otherwise than herein mentioned.
“My address is 400 Adams St., P. O., Bay City, Bay County, Michigan.
[Signed] “Ed. C. Little.
“Salesman,-----.”
Printed across the face of the above, in red ink, was the following, viz.:
“We will not be responsible for any written or verbal contract or promise .other than written or printed on the face of this contract.”
Indorsed on back:
“Payments.
“1894
“12-18_____________________________$200 00
“1895
“9-27______________________________ 25 00
“10-8______________________________ 25 00”

A great many errors are assigned. They have all had ■our attention; but we deem a discussion of them not ■essential, except as to those which grow out of the admission of parol testimony to prove the contract made by the parties. It is claimed by the defendant that the writing is the contract; that both parties are bound by it; and that it was not competent to introduce parol proof in relation to it. We do not deem it necessary to a disposition ■of this case to decide whether it was competent to give parol testimony of the special contract or not, for the zreason that the law implies just such a warranty as the plaintiff sought to establish by express agreement. The ■contract is silent as to the construction and mechanism of the piano. Those who purchase such instruments for use are not usually familiar with 'their mechanism, and can determine the character of the instrument only by use. The doctrine of implied warranty is well established. The only difficulty lies in its application. “Where one sells an article for a particular purpose, he thereby warrants it fit for that purpose.” Blodget v. Safe Co., 76 Mich. 541. A vendor of food impliedly warrants it fit for the purpose for which it is sold. Craft v. Parker, Webb & Co., 96 Mich. 245 (21 L. R. A. 139). A dealer selling a machine impliedly warrants that it is a new one. Grieb v. Cole, 60 Mich. 397 (1 Am. St. Rep. 533). A vendor of timber, selling by a scale made for him, impliedly warrants the competency of the scaler. Ortman v. Green, 26 Mich. 209. The rule is discussed and authorities cited in the majority opinion written by my Brother Hooker in McCray, etc., Cold-Storage Co. v. Woods, 99 Mich. 269.

According to the testimony of the plaintiff, the mechanism of this instrument was so defective as to render it almost worthless. Plaintiff was ignorant of the mechanism of such instruments, and, even if he had examined it, would not have been competent to determine whether it was properly constructed. If we hold to the rule that the entire contract is expressed in this writing, it results in holding that there can be no implied warranty upon any written instrument of sale which makes no reference whatever to a warranty. This I conceive is not the law. If a vendor in such cases desires to avoid that warranty which the law implies, he must incorporate it in his contract, or insert therein a warranty which will exclude all others. Where a parol express warranty has been agreed upon outside the written contract, and that warranty is such as the law implies without any agreement, the vendee cannot be deprived of the benefit of this warranty by a provision in the contract that “there is no agreement or understanding between the salesman and myself otherwise than herein mentioned.” Such a clause is not in conflict with the'implied warranty which the law attaches to all such contracts.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J. Grant, C. J.

text:
    ALLEN v. JAKEL.
    Master and Servant — Inexperienced Employé — Obvious Danger — Instructions — Negligence — Question eor Jury.
    In an action against the owner of a paper mill for injuries resulting to an inexperienced employé 14 years of age from having her hand caught between the rollers of a machine about which she was employed, it was a question for the jury whether the owner, in view of the plaintiffs youth and inexperience, was in duty bound to instruct her how to do her wort, or was justified in leaving her to learn the proper method from observation and experience, inasmuch as it was obvious that her hand would he injured if it should get between the rollers.
    Error to Wayne; Frazer, J.
    Submitted October 15, 1897.
    Decided January 4, 1898.
    Case by Elnora Allen, an infant, against Ferdinand Jakel, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Haug & Yerkes, for appellant.

      Isaac N. Payne and Robert Young, for appellee.
   Hooker, J.

The plaintiff, a girl of 14, was employed in the defendant’s paper mill, and was entirely without experience. Her first employment was in feeding paper into a mangle, and she worked with her sister, two persons being employed to feed the mangle. This mangle consisted of a large roller heated by steam, and above it three smaller rollers, between which and the larger roller the paper passed, and was removed at the back end of the machine, upon atable, coming out in sheets 10 or 12 yards long. After about two weeks’ experience in feeding the machine, during which she was repeatedly warned “not to get her hands into the machine,” and “not to get her fingers too close to the machine,” her sister ceased work, and the plaintiff was sent to take the paper from the machine. It does not appear that she received any instruction about this, or any further caution than not to get her hands in the rollers; but she had for two weeks seen the machine in operation, and had seen how her predecessor did her work. The method was to take the end of the sheet as it issued from the mangle, and walk to the end of the table, until the other end of the sheet came out, when she would walk back, and with her right hand lift a light weight from the sheet below, and place it upon the sheet just out, and at the same time take with her left hand the new sheet, which would usually be started out from the mangle a foot or two. It sometimes happened that the sheet would come out between the smaller rollers, when the end would be inserted in the proper place to make it return, without stopping the machine, unless the paper was torn or wound about a roller, when it would be necessary to stop it. The plaintiff’s hand was caught while attempting to insert the paper between the rollers, and she was seriously injured. The danger was obvious, and she knew and had been warned not to let her hand get caught in the rollers. It was her first attempt, and was made after she had taken but four or five sheets from the machine.

The only question in the case would seem to be whether the defendant was in duty bound to give her instruction as to how to do”this work, or might leave her to learn it from observation and experience, inasmuch as it was obvious that the hand would be inj ured if it got into the rollers. It may be that no further instruction was required; but this would depend upon the character of the work,-and the opportunities she had enjoyed for understanding how to do it safely. It sometimes happens that the dangers of a tool or machine are obvious, yet some methods of use are much safer than others. Skill and dexterity are essential, and prudence dictates that inexperienced persons, especially young children, should have some instruction or opportunity to learn the proper way before they are allowed to attempt to use them. Whether this was such a machine, and whether the opportunity for observation was all of the instruction reasonably necessary, were questions to be submitted to the jury, not being sufficiently clear to warrant us to dispose of them as questions of law, arising upon undisputed facts.

The judgment is affirmed.

Montgomery, Moore, and Long, JJ., concurred with Hooker, J.

Grant, C. J.

I concur in affirming the judgment. Plaintiff’s hand was caught while she was attempting to arrange the paper, which came up in the wrong place. Defendant contends that, when this occurred, the machine should have been stopped, and that the plaintiff knew this. Upon this point the testimony is in conflict. If she had been so instructed, or knew that this should have been done, she could not recover. The court so instructed the jury. The jury found, in reply to a special question, that other employés had done the work in the same manner in which the plaintiff did it. All questions of fact are settled against defendant by the verdict. Whether plaintiff assumed the risk depended on her age, experience, knowledge, the necessity for instructions, and the instructions given. I think the case was not so clear as to justify the court in directing a verdict.


author: Montgomery, J.

text:
    SCHABEL v. SCHABEL.
    Divorce — Alimony.
    Although the proofs in divorce proceedings showed that defendant, who was worth from §16,000 to §17,000, had accumulated liis property, in the main, before the marriage; that he had three children living; that complainant had brought her daughter into the family, and that she had been provided for up to the time of her marriage; and that defendant had deeded to complainant lands worth §1,250, — -an allowance of §650 as alimony was held to be inadequate, and it was increased to §2,750.
    Appeal from Bay; Maxwell, J.
    Submitted November 6, 1897.
    Decided January 4, 1898.
    Bill by Lucia Schabel against Balthasar Schabel for a divorce. From the decree rendered, complainant appeals.
    Modified and affirmed.

      Simonson, Gillett & Courtright, for complainant.

      D. B. Richardson, for defendant.
   Montgomery, J.

Complainant was granted a divorce, with an allowance of $650 for alimony. Complainant appeals, complaining that the allowance is not as large as the proofs in the case entitle her to have. We are satisfied that the defendant is worth about $16,000 to $17,000. The evidence shows that he deeded to complainant land worth $1,250. The complainant was not entitled to a large allowance. The testimony shows that the defendant had accumulated the property, in the main, before their marriage, and had three children living; that complainant brought her daughter into the family, and that she was provided for up to the time of her marriage. These facts, together with the fact that defendant had previously deeded to complainant lands worth $1,250, should be taken into account. We think, however, that, even in view of all these circumstances, the allowance by the circuit judge was inadequate, and that this allowance should be increased to the sum of $2,750, which, with the lands previously conveyed, amounts to $4,000, the sum to be received and-accepted in lieu of dower in defendant’s lands. In addition, complainant will recover costs of this court. In other respects the decree will stand affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    SHIPMAN v. STATE LIVE-STOCK SANITARY COMMISSION.
    1. Mandamus — Subordinate Bodies — Discretionary Powers.
    Where a subordinate body has been vested by the legislature " with the right to exercise its judgment, and with the power to determine questions of fact, mandamus may lie to compel the body to act, but will not lie to compel it to act in a particular way.
    ' 2, Live-Stock Commission — Condemnation of Animals — Award of Damages — Review in Courts.
    The state live-stock sanitary commission, by the terms of the act under which it is organized (3 How. Stat. chap. 61a), has the exclusive right to determine whether animals are so diseased as to require their destruction, and to ascertain, for the purpose of compensation to the owner, the value of animals condemned; and its findings will not be reviewed by the courts.
    3. Same — Measure of Damages.
    In such case, the value of the animals in their diseased condition is the measure of the owner’s right to compensation.
    4. Same — Wrongful Aot of Commission — Liability of State.
    If the commission condemns, as diseased, animals that are sound, the State is not liable for the wrongful act; the owner’s remedy, if any, being against the members of the commission.
    5. Same — Destruction of Sound Animals.
    As to the effect of that provision of the act which authorizes the destruction of sound animals because of their exposure to contagious disease, — queere.

      Mandamus by Ozias W. Shipman to compel the State Live- Stock Sanitary Commission to appraise certain condemned cattle at their market value.
    Submitted November 4, 1897.
    Writ denied January 18, 1898.
    In July, 1896, relator owned a herd of Jersey cattle, 62 in number, and mostly cows and heifers. The respondent, being informed that there was reason to believe that the herd was affected with tuberculosis, made an examination, found evidences of the existence of the disease, and on August 15th and 16th the entire commission met with the state veterinarian, and applied to 47 of the animals what is known as the “tuberculin test.” It was decided that 28 were diseased, and they were slaughtered by the order of the commission, which appraised the damage at $1 per head, and turned the carcasses over to the relator. He declined to accept the damages awarded, and filed a petition for the writ of mandamus. The petition sets forth his ownership of the herd; that the cattle were sound and healthy when he purchased them; that they were condemned by the commission, and slaughtered; that the market value of the cattle so slaughtered was $3,000; that, by reason of this action, the market value of the rest of the herd was reduced' to $500; and prays for the writ of mandamus to compel the respondent to appraise the cattle at the market value. The answer admits the action taken by the commission; denies that the cattle slaughtered were of any greater value than the sum awarded; alleges that, after the application of the tuberculin test, two of the animals were slaughtered, a post mortem examination made, and both found to be extensively affected with tuberculosis; that, at the request of the relator, the rest of the “Cattle were shipped to Detroit for the purpose of slaughter and post mortem examination ; that such examination clearly and conclusively disclosed that each of the animals was extensively affected with the disease. A replication was filed, traversing the material allegations of the answer.

      The act organizing the respondent is found in 3 How. Stat. chap. 61a, and is entitled:
    “An act to provide for the appointment of a state livestock sanitary commission and a state veterinarian, and to prescribe their powers and duties, and to prevent and suppress contagious and infectious diseases among the live stock of the State.” Act No. 182, Pub. Acts 1885.
    The general duty of the commission is found in section 4:
    “ It shall be the duty of the commission to protect the health of the domestic animals of the State from all contagious or infectious diseases of a malignant character, and for this purpose it is hereby authorized and empowered to establish, maintain, and enforce such quarantine, sanitary, and other regulations as it may deem necessary. ”
    Section 7 provides for the examination by the commission of animals supposed to have any infectious or contagious disease; for quarantining such animals when necessary; and for their destruction whenever, in the opinion of the commission, it shall become necessary to prevent the further spread of the infectious or contagious disease. Section 9 reads as follows:
    “Whenever the commission shall direct the killing of any domestic animal or animals, it shall be the duty of the commissioners to appraise the animal or animals condemned, and in fixing the value thereof the commissioners shall be governed by the value of said animal or animals at the date of appraisement.”
    Said commission is then authorized to issue a certificate to the owner of its appraisal, which, when approved by the governor, is paid by the State.

      Fred A. Baker, for relator.

      Fred A. Maynard, Attorney General, for respondent.
   Grant, C. J.

(after stating the facts). The position of the relator is thus stated by his counsel:

“ If the State desires to destroy cattle which are in good 'health, simply because they cannot stand the tuberculin test, it must compensate tbe owner for tbeir full market value at the time; that is, just before they are subjected to tbe test. If tbe court will permit this case to be tried before a jury, we will bring out, with competent expert witnesses, all the known facts in regard to tbe disease and the tuberculin test, so as to enable tbe court to pass an intelligent judgment on the case, and we firmly believe that- the result of such an investigation will show: (l) That tuberculosis is not a contagious or infectious disease, within tbe meaning of tbe Michigan live-stock sanitary act. (2) That tbe tuberculin test is not sufficiently reliable to warrant tbe killing of cattle without compensation, under tbe police power of tbe State. (3) That tbe tuberculin test does not furnish sufficient proof that tbe animals tested will ever have tbe disease, or be capable of communicating it, to justify tbe State in destroying them, .except upon the condition that full compensation is made, as for perfectly healthy cattle.”

The language of the statute is unmistakable. It provides for the destruction of and compensation for diseased, and not sound, cattle. The commission is'tbe sole tribunal to determine whether the animals are diseased, and to ascertain the value, and is to be governed by the value at the date of appraisal. The only appellate jurisdiction provided for by the statute is tbe governor, whose approval of the action of the commission is necessary. If the governor should refuse to approve tbe award of tbe commission, courts could not interfere to compel him to approve the finding. Sutherland v. Governor, 29 Mich. 320; State v. Stone, 120 Mo. 428 (41 Am. St. Rep. 705). It follows that, if the governor should refuse to approve an award directed by this court, the court would be powerless to enforce its judgment. .In such cases courts will not interfere. The law has placed this matter in tbe hands of tbe commission and tbe governor. Tbeir action is final. Cicotte v. County of Wayne, 59 Mich. 509. Where a subordinate body has been vested by the legislature with the right to exercise its judgment, and with tbe power to determine questions of fact, mandamus may lie to compel the body to act, but will not lie to compel it to act in a particular way.

There is no sound reason in saying that under this statute the relator is entitled to receive from the State the value of his property at what it would be if unaffected by disease. This would be judicial legislation, because the statute does not authorize the destruction of sound cattle. The precise question was before the court of appeals in New York in Tappen v. State, 146 N. Y. 44, wherein it was held, under a similar statute, that a party was entitled only to the actual value in the diseased condition. If the commission condemns cattle which are not diseased, the State is not liable for the wrongful act of the commission. Gilboy v. City of Detroit, ante, 131. Relator’s remedy in such case, if he has any, — and upon this w'e express no opinion, — is against the members of the commission, and not against the State. Miller v. Horton, 152 Mass. 540 (10 L. R. A. 116, 23 Am. St. Rep. 850); Pearson v. Zehr, 138 Ill. 48 (32 Am. St. Rep. 113); Newark, etc., R. Co. v. Hunt, 50 N. J. Law, 308.

It is proper to say that we have not before us that provision of the law under which sound cattle may be killed because of exposure to contagious disease.

The writ is denied.

The other Justices concurred.


author: Grant, C. J. Montgomery, J.

text:
    COIT v. CITY OF GRAND RAPIDS.

    1. Municipal Corporations — Contracts—Consideration—Ultra Vires.
    The fact- that a part of the consideration for a grant of land to a city is an agreement by the city to do something which is ultra vires, but neither malum prohibitum nor malum in se, will not relieve the city from liability as to the remainder of the consideration.
    2. Same — Defective Execution — Estoppel.
    A municipality cannot retain the benefits of a contract which has been fully performed by the other party, and which is neither malum prohibitum nor malum in se, and at the same time deny the validity of the contract because of defects in the manner of its execution.
    3. Same — Construction of Sewers — Exemptions from Taxation.
    Where the common council of a city was by- charter given exclusive control over the construction and maintenance of sewers, with the right to purchase lands therefor, and was also authorized to determine what proportion of the cost of construction should be raised by assessment upon the lands benefited, to fix upon the amount of such cost, to establish the assessment district, and, as a board of review, to pass finally upon the apportionment of benefits, it was held that an agreement by the council, in consideration of a grant to the city of the right to construct a sewer across certain lands, to exempt such lands, with other lands of the grantor, from assessment for the construction of the sewer, was valid and enforceable, even though the original assessment of benefits was, under the charter, to be made by a board of commissioners; or, at the least, that the city, having received the benefits of the contract, was estopped to deny the authority of the council to enter into the same, the defect being one of form only and not of substance.
    4. Same.
    As to the effect of an agreement to exempt such lands from taxation for the maintenance of the sewer under such circumstances, —queer e.

    Montgomery, J., dissenting.

      Error to superior court of Grand Rapids; Burlingame, J.
    Submitted June 9, 1897.
    Decided January 18, 1898.

      Assumpsit by Charles W. Coit, individually, as executor, and as assignee of Elizabeth O. Haines, against the city of Grand Rapids, to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry J. Felker, City Attorney, for appellant.

      C. H. Gleason (Arthur Lowell, of counsel), for appellee.

       Rehearing denied May 24, 1898.

   Grant, C. J.

The common council of the defendant city is, by its charter, given the exclusive control over the construction and maintenance of sewers. It is also clothed with the express power to purchase lands for that purpose. Charter, tit. 3, § 10, subds. 39, 76 (Act No, 270, Local Acts 1891). The common council deemed it necessary for the public health that the Prescott-street sewer be extended so as to empty into Grand river at a greater distance below the city than it then did. The proposed extension was for 80 rods, across lands owned by the plaintiffs. These lands were low (from 7 to 14 feet below the established grade of the streets), subject to overflow, were not then suitable for residence purposes, and were occupied only for pasturage. The mouth of the sewer is at about the center of the plaintiffs’ lands, where it empties into the river. A committee was appointed to obtain, by purchase, if possible, lands for the construction of the sewer, which was large, having an inside diameter of seven feet. The right of way and necessary land, with the perpetual right of ingress and egress, was obtained from the plaintiffs, as well as others; deeds were executed, recorded; the sewer constructed; and the city put in possession. The consideration of the deeds from the plaintiffs was one dollar, and the agreement that they should not be assessed for the construction and maintenance of the sewer. All the proceedings for the purchase of the land were regular. The common council at first undertook to carry out the agreement, and, under the authority conferred upon it, established an assessment district, leaving out the lands of plaintiffs. This assessment was again revised, excluding the land. ' The council met the third time, ignored the contract with plaintiffs, included their lands in the assessment district, and assessed their portion of the expense of construction at $2,611.22. It is just to the council to assume that they repudiated the contract because of a supposed want of power to make it. The court below, however, finds that the council carried out similar contracts with other parties, by redeeding to them, without consideration other than this agreement, their lands which had been sold for nonpayment of the assessment.

The contract was one of sale and purchase. The deed was not intended as a gift. The sole defense is that it was ultra vires. If this be so, it is because the consideration was exemption from taxation. It does not exempt from taxation generally, — either State, counter, or municipal,— but only from liability to assessment for the construction of the sewer. We need not consider that part of the contract exempting from taxation to maintain the sewer. That is not before us. The charter does not provide for maintaining sewers by assessment districts, but they are to be maintained at the common expense, paid from a common fund. For this purpose the city is divided into two districts, — one on each side of the river. Special assessment districts are provided for only to pay the cost of construction. If, however, this .clause in regard to maintenance were ultra vires, the contract is divisible, and the remainder will be enforced.

“ There is no rule of law or of morals which relieves the recipient of the substantial benefits of a partially executed contract from the obligation to perform or pay that part of the consideration which he can perform or pay because the performance of an insignificant portion of it is beyond his powers. On the other hand, the true rule is, and ought to be, the converse of that proposition. It is that when a part of a divisible contract is ultra vires, but neither malum in se nor malum prohibitum, the remainder maybe enforced.” Illinois Trust & Sav. Bank v. City of Arkansas City, 22 C. C. A. 171, 76 Fed. 271.

If the council could not purchase, it would be compelled to resort to condemnation proceedings. All the other lands owned by plaintiffs, and supposed by the parties at that time to be specially benefited by the sewer, were included in the assessment district, and the assessments paid. The council could have agreed with plaintiffs to pay a money consideration. If the contract had been that the city would pay whatever amount should be assessed as their share of construction, would it not have been valid? Practically, this is what was done. By this means litigation was avoided. Plaintiffs received nothing for the land conveyed, or for the damage by emptying the filth of the city into the river at the center of their lands. The contract would not vitiate the assessment. Plaintiffs are not exempt from a share of the burden. On the contrary, they have contributed land, and suffered damage, as their share of it. Who shall say that it is not their full share ?

“It is easy to perceive that there may be a difference in principle between a complete exemption from a necessary burden of government, and an agreement that the burden shall be laid and borne in a particular manner only. Mr. Justice M’Lean has hinted at this distinction in State Bank of Ohio v. Knoop, 16 How. 389.” East Saginaw Manfg. Co. v. City of East Saginaw, 19 Mich. 259.

Another taxpayer could not well show that he was injured by the arrangement, or that his proportion of the assessment was less than it would have been had the council condemned, or agreed upon a specific amount as' damages and the value of the land. Page v. City of St. Louis, 20 Mo. 136; Williams v. Inhabitants of School Dist. No. 1, 21 Pick. 75. In the latter case the assessors omitted to tax an inhabitant who was very poor. The validity of the assessment was attacked for this reason. Chief Justice Shaw said, “If this was done through error of judgment, or any error and mistake of law in this respect, it does'not invalidate the whole tax.” The constitution of Iowa provided that the property of corporations should be liable to taxation the same as the property of individuals. A private corporation entered into a contract with the city of Davenport to supply the city with water, and the city agreed to exempt it from municipal taxation for 25 years. It was held that the arrangement did not amount to exemption from taxation, but, in effect, applied “the taxes, as they would otherwise become due, in part payment of, or in part consideration for, the water rent. * * * It might have required the payment of the taxes, and then returned the amount as part pay for water rent. The manner of doing It cannot defeat the power to do it.” Grant v. City of Davenport, 36 Iowa, 406. See, also, City of St. Louis v. Armstrong, 56 Mo. 298; City of Palestine v. Barnes, 50 Tex. 538.

It is said, however, that the authority to determine the amount of the benefit is not reposed in the common council, but in the board of review, acting as a board of commissioners. To this I reply: First, that the common council possesses the power to purchase, and to fix the compensation; and, second, that the power to fix the assessment is finally vested in the council. The council fixes the assessment district, and the cost. The board of review and equalization, consisting of three, then apportions the cost among the residents of the district according to supposed benefits. A report of their proceedings is then made to the common council, who sit as a board of review, and have the entire control over the matter. The commissioners have no power to assess damages, or fix the boundaries of the assessment district. Plaintiffs appealed to the council, sitting as a board of review; and, as already stated, the contract was ignored.

The case of Weeks v. City of Milwaukee, 10 Wis. 242, does not, in my judgment, affect the question here presented. The question was not there involved. In that case the assessing officers undertook to suspend the law, and absolutely relieve a very valuable piece of taxable property, and impose additional burden on the rest. In. this case there is no attempt to relieve the plaintiffs from taxation, or from their share of the public burdens. The common council, the final arbiter in the matter, agreed upon what their fair share was; and plaintiffs paid it, by deeding the lands, with the perpetual right of ingress and egress, and agreeing to perpetually charge their adjoining lands with the damage resulting Trom the construction of the sewer and emptying it into the river opposite. In re First Street, 66 Mich. 42, is not applicable here. The principle there established is that the common council cannot enter into a contract by which the city in all future time may be precluded from extending its streets, and that was the sole question involved.

If, however, the common council exceeded its authority, it was in form only, not in substance. It did nothing which might not have been accomplished in another and legal manner, under the charter. The contract was fairly and in good faith made, and is fully executed. The city has derived, and is in the full enjoyment of, all its benefits. It cannot and does not offer to restore the consideration, or place plaintiffs in statu quo. If we conceded the premises assumed by defendant, viz., that the contract was wholly ultra vires, we might be compelled to reach the conclusion that the city could not be estopped to set up its invalidity.

The defense of ultra vires in this case is most inequitable and unjust. It should not be sustained unless the rigid rules of law require it. “The good faith of government should never be held less sacred than that of individuals.” Where the executed contract is neither malum in se nor malum prohibitum, but can only be avoided because of. defects in the manner of its execution, the corporation cannot retain the benefits and deny its authority. Dewey v. Railway Co., 91 Mich. 351; Day v. Buggy Co., 57 Mich. 151 (58 Am. Rep; 352); Carson City Sav. Bank v. Elevator Co., 90 Mich. 550 (30 Am. St. Rep. 454); Turner v. Cruzen, 70 Iowa, 204. “The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice.” Ohio, etc., R. Co. v. McCarthy, 96 U. S. 267. In a suit to recover rent upon a lease made by a municipality, held, that the lessee could not defend upon the ground that it had no legal right to enter into it. Starin v. Edson, 112 N. Y. 206. Where all leases were required to be made at public auction, and this provision was ignored, held to constitute no defense to an action upon the lease, where the defendant had had the full benefit of the contract. Mayor, etc., of New York v. Sonneborn, 113 N. Y. 423. Where a municipality leased property, and agreed to refund to the lessee the value of improvements, although the contract was ultra vires, it was held:

“Assuming that the agreement of August 4, 1888, was at its inception, and while it remained wholly executory, ultra vires, and therefore unenforceable against the municipality, because in excess of its lawful authority to incur an indebtedness, it remains that the agreement was fully performed on the part of the Staten Island Rapid-Transit Company; such performance in reliance upon the promise to indemnify the latter corporation having resulted in the defendant municipal corporation’s gain of valuable improvements to its wharf property. Under such circumstances, a plea of ultra vires must be regarded as inequitable, and would be unavailable to the defendant municipal corporation as a defense to the Staten Island Rapid-Transit Company’s demand for payment of the value of its improvements.” Wilkins v. Mayor, etc., of New York, (Com. Pl.) 30 N. Y. Supp. 424.

Herman says:

“The same result is produced in like manner in many instances where a corporation, having enjoyed the fruits of a contract fairly made, denies, when called to account, the existence of the corporate power to make it. The principle of estoppel, thus applied, has its foundation in a wise and salutary policy. It is a means of repose. It promotes fair dealing. It cannot be made an instrument of Wrong or oppression, and it often gives triumph to right and justice where nothing else known to our jurisprudence can, by its operation, secure those ends. Like the statute of limitations,'it is a conservator; and, without it, society could not well go on.” 2 Herm. Estop. § 1181.

See, also, City of Buffalo v. Balcom, 134 N. Y. 532.

“Mere irregularities of action, not going to the essentials of the power,” are not sufficient to defeat the exercise of the power. Cooley, Const. Lim. (6th Ed.) 269.

Stated most strongly for defendant, the situation is this: The result was legal, but the method by which it was reached was illegal. In such case the law does not permit a municipality to retain the fruits of its contract, and deny its validity.

I am for affirming the judgment.

Moore and Long, JJ., concurred with Grant, C. J. Hooker, J., did not sit.

Montgomery, J.

(dissenting). The plaintiff is the owner of various parcels of land in'the First and Twelfth wards of the city of Grand Rapids, in his own right and as executor, and Elizabeth C. Haines owns other lands. The construction of a public sewer across certain of these lands was contemplated. The common council entered ipto an agreement with the plaintiff and Mrs. Haines, by the terms of which the plaintiff and Mrs. Haines granted to the city the right to construct a sewer across certain of these lands, and the city, on its part, agreed to exempt the remainder of the lands of the plaintiff and Mrs. Haines in the said wards, lying west of Grandville avenue, from assessment for benefits. The sewer was constructed. An assessment was made, pursuant to charter provisions, which included the lands of plaintiff and Mrs. Haines. Plaintiff and Mrs. Haines paid the amount under protest, and, Mrs. Haines having assigned to plaintiff, he brings this action to recover the amount so paid. The questions presented are:

First. Had the council the power to contract to exempt plaintiff’s lands from assessment ?

Second. If not, the contract having been executed on the plaintiff’s behalf, is the city estopped from asserting want of power ?

Third. Can the plaintiff recover on the contract, or must he recover, if at all, on the quantum meruit ?

1. By section 3, tit. 6, of the charter of Grand Rapids, it is provided that the common council may determine whether the whole, or what portion, of an assessment to defray the expenses of any public improvement shall be assessed to the owners of houses and lands to be benefited thereby; and by sections 4-6 the members of the board of review and equalization are constituted commissioners to levy an assessment on .the lands benefited. In view of these provisions, it is not 'competent for the council to barter away the authority to levy an assessment against any particular description of property deriving a benefit from such improvement. If this can be done in one instance, it is difficult to see just where the limit can be fixed; and it is obvious that an exemption of one or more descriptions of property will increase the assessments of benefits against others.. It may be suggested that the council, in making the contract in question, must have taken into account the benefits to be derived to the lands of plaintiff by the improvement, and to have determined that the value of the easement acquired equaled the amount of such improvement. The obvious answer is that the authority to determine the amount .of this benefit is not reposed in the common council, but in the board of review, sitting as a board of commissioners, under a special oath.

The question of the power of the State to contract to exempt from taxation need not be considered. Such power is certainly a restricted one. Cooley, Tax’n (2d Ed.), 66 et seq. But the invalidity here rests, not in the excessive exercise of power by the sovereignty, but in the fact that there has been delegated to the municipality no such power to exempt from assessments for benefits, and that by the charter such power is, by clear implication, excluded. See, as .bearing on the subject, In re First Street, 66 Mich. 42; Dill. Mun. Corp. (4th Ed.) §§ 97, 780; Weeks v. City of Milwaukee, 10 Wis. 242; Cooley, Tax’n (2d Ed.), 215. The question is not whether the authority may be delegated to the municipality to exempt certain property from taxation, or whether, if this be competent, the council may, by contract, tie its hands for the future; but the controlling fact is that no such power is delegated to the common council in this case. We do not overlook the contention of plaintiff’s counsel that this power may be implied from the authority delegated by section 3109a, 3 How. Stat., to acquire by purchase an easement in private lands for the purpose of constructing sewers. We think, however, that the power to contract to exempt other property of the owner from assessment is not to be implied, and that the statute cannot be held to work a repeal of the charter provisions vesting the authority to make the assessment in the board of review. In the cases cited by plaintiff’s counsel (Grant v. City of Davenport, 36 Iowa, 396; City of Palestine v. Barnes, 50 Tex. 538; City of St. Louis v. Armstrong, 56 Mo. 298), where the municipality offered to exempt certain property from taxation for a specified time, the agreement was apparently made in each instance by the municipal officers authorized to spread the tax. The common council had no such power in the present case.

2. The settled rule is that executed contracts of private corporations, not unlawful, but ultra vires, will be treated as binding upon the corporation. Carson City Sav. Bank v. Elevator Co., 90 Mich. 550 (30 Am. St. Rep. 454); Dewey v. Railway Co., 91 Mich. 351. But the weight of authority is opposed to the contention that a municipal corporation can estop itself from asserting a want of power to enter into an engagement which is in fact ultra vires. As was said in Newbery v. Fox, 37 Minn. 141 (5 Am. St. Rep. 830):

“The doctrine of ultra vires has, with good reason, been applied with greater strictness to municipal bodies. than to private corporations; and, in general, a municipality is not estopped from denying the validity of a contract made by its officers, when there has been no authority for making such a contract.”

One reason for so restricting the effect of ultra vires contracts to municipal corporations is that those engaging in such contracts are bound to take notice of the limitations upon the powers of municipal bodies. Rens v. City of Grand Rapids, 73 Mich. 237; Bogart v. Township of Lamotte, 79 Mich. 294. In 1 Dill. Mun. Corp. (4th Ed.) § 457, it is said:

“The duties and powers of the officers or public agents of the corporation are prescribed by statute or charter, which all persons not only may know, but are bound to know. The opposite doctrine would be fraught with such danger, and accompanied with such abuse, that it would soon end in the ruin of municipalities, or be legislatively overthrown.”

See, also, Cooley, Const. Lim. (6th Ed.) 261; 1 Beach, Pub. Corp. § 217; Pettis v. Johnson, 56 Ind. 139; Niles Waterworks v. Mayor, etc., of Niles, 59 Mich. 311; City of Detroit v. Michigan Paving Co., 36 Mich. 335,

3. It follows that the ultra vires agreement to exempt the property of the plaintiff from assessment cannot bes made the basis of a recovery. There is no finding, sup-poi’ted by evidence, showing the actual value of the right conveyed by plaintiff, and it may not be profitable to inquire whether the city is liable for such actual value, as, if such liability exists, it is not based upon the contract, but, according to the better authorities, the recovery, if any, is upon quantum meruit. 1 Dill. Mun. Corp. (4th Ed.) § 444; 1 Beach, Pub. Corp. §§ 226, 227.

Judgment should be reversed, with costs, and a new trial ordered.


text:
    GREENLEY v. HOVEY.
    1. Equity Praotioe — General Demurrer — Appeal.
    The right of appeal from an order overruling a general demurrer to a bill in chancery, given by 2 How. Stat. § 6737, was not enlarged or abridged by Chancery Rule No. 9, requiring the reasons for the demurrer to be stated therein; and, upon an appeal from such order, the question for determination is whether the bill would, prior to the adoption of such rule, have been subject to a general demurrer for the defects stated.
    2. Void Tax Sale — Bill to Vacate — Parties.
    The auditor general, while a proper, is not a necessary, party to a bill to set aside an invalid tax sale.
    3. Same — Pleading—General Demurrer.
    The failure of the complainant in such bill to offer therein to refund the taxes paid by the purchaser is not such an omission as can be taken advantage of on general demurrer.
    Appeal from Kent; Grove, J.
    Submitted October 5, 1897.
    Decided January 18, 1898.
    Bill by Harlan A. Greenley and Ella J. Morse against Cyrus A. Hovey and Nathan Griffin to set aside a tax sale. Defendants appeal from an order overruling their demurrer to the bill.
    Affirmed.

      Earle & Hyde, for complainants.

      Cyrus A. Hovey, for defendants.
   Montgomery, J.

Complainants filed a bill of complaint, alleging that defendant Hovey became the purchaser, at the tax sale of 1895, of certain property, which the county treasurer assumed to sell for the taxes of 1893; that the certificate issued to Hovey on this sale was assigned to defendant Griffin, but that defendant Hovey is still the real owner; that the sale was void, for the reason that the lands in question were not included in the advertised list; and praying the cancellation of the certificate. Defendants interposed a demurrer, and, under Chancery Rule No. 9, stated the reasons for the same. The circuit judge overruled the demurrer, and defendants appeal. The two special reasons assigned in the court below, and which are urged in this court, are: First, that the bill contains no allegation of any tender of the taxes due on the property, nor any offer to pay; second, that the auditor general is not made a party.

The statute (section 6737, 2 How. Stat.) permits an appeal from an order overruling a demurrer. Chancery Rule No. 9 was not intended to enlarge or abridge this right. It follows, then, that the question for determination is whether, for the alleged defects, the bill would, prior to the adoption of this rule, have been subject to a general demurrer.

We think the auditor general, while a proper party, is not a necessary party, to this proceeding. Section 75 of Act No. 206, Pub. Acts 1893, contemplates that a sale may be vacated in a case to which the auditor general is not a party, and provides that the auditor general shall have notice of that fact.

The failure to offer in the bill to do equity by refunding the tax paid is not, we think, such an omission as can be taken advantage of on a general demurrer. A general demurrer challenges the equity of the case made by the bill, and will be overruled if a case for equitable relief is set out, however imperfectly. Glidden v. Norvell, 44 Mich. 206; Wilmarth v. Woodcock, 58 Mich. 484; Cochrane v. Adams, 50 Mich. 16. The case stated by the bill was one of equitable cognizance, and complainants were, under the averments in the bill, entitled to some measure of relief. It is true, the court might require, as a condition to relief, the payment of the_ valid tax; but these matters can be taken care of on the hearing, or, at the most, should be made the subject of a special demurrer. See Sandford v. Flint, 24 Mich. 26, and cases cited in note 3 (Ann. Ed.); Shuee v. Shuee, 100 Ind. 477; Clement v. Everest, 29 Mich. 19; Thomas v. Beals, 154 Mass. 54. There is a distinction between a case like the present, which is in its nature a bill to quiet title, and such a case as Palmer v. Township of Napoleon, 16 Mich. 176, which was a bill to restrain the collection of a tax, and the bill wholly failed to show what was the legal and what was the illegal part of the tax.

The order will be affirmed, and the case remanded.

The other Justices concurred.


text:
    BEATH v. CHAPOTON.
    1. Notes — Duress of Imprisonment — Embezzlement.
    One who, having embezzled money from his employer, gives his promissory note in settlement and acknowledgment of the debt, cannot defend an action upon the note on the ground that his signature was obtained under duress, consisting of threats to arrest and imprison him for the crime.
    2. Same — Consideration.
    A note executed in settlement of a charge of embezzlement is valid in the hands of the payee only to the extent of the moneys misappropriated.
    3. Same — Fraud on Indorser — Knowledge of Payee.
    One who is induced to indorse a note, given in settlement of a charge of embezzlement, through the maker’s representation that the note is for the purchase of an interest in the payee’s business, is not liable to the payee if the latter knew of the means by which the indorsement was to be secured.
    Error to Wayne; Donovan, J.
    Submitted October 12, 1897.
    Decided January 18, 1898.

      Assumpsit by Thomas Beath against Louis C. Chapoton and Lewis C. Watson upon a promissory note. From a judgment for defendants, plaintiff brings error.
    Reversed.
    Plaintiff sued upon a promissory note for $675, made by defendant Chapoton, and indorsed by defendant Watson. Each defendant gave notice of special defenses: Chapoton, that his signature was obtained under duress, consisting of threats to arrest and imprison him for the crime of embezzlement; defendant Watson, that his indorsement was fraudulently obtained by representations of Chapoton that the note was for the purchase of an interest by Chapoton in plaintiff’s business, and that plaintiff knew of these representations. Defendants had verdict and judgment.

      Walter Barlow, for appellant.

      John Considine, Jr., for appellee Chapoton.

      Alfred Lucking, for appellee Watson.
   Grant, C. J.

(after stating■ the facts). 1. Complaint is made that the court erred in instructing the jury: “If you find that the note was obtained from Chapoton upon threats of criminal prosecution, plaintiff cannot recover.” Counsel for defendants cite only one authority to support this instruction, viz.: Hackley v. Headley, 45 Mich. 574. The action in that case was upon a promissory note. The defense was duress, in that the plaintiffs took an unconscionable advantage of defendant’s financial straits, thereby compelling him to accept $2,000 less than was his due. The defense was held bad. This case was approved and followed in Goebel v. Linn, 47 Mich. 489.

Chapoton had been for a long time in the employ of plaintiff, who claimed he had embezzled large sums of money. Plaintiff testified that Chapoton admitted the embezzlement; that it was agreed to amount to $2,700; that Chapoton agreed to give four notes of $675 each, to be secured by indorsements, in settlement of the claim. He denied any threats to prosecute, and any knowledge of representations made by Chapoton to Watson. The record states that—

“Defendant Chapoton gave evidence tending to show that, a short time before these notes were given, Beath claimed that he (Chapoton) had embezzled money from the said Beath, and that he threatened to prosecute him, and put him in jail, and disgrace him; * * * and that he would not have executed such notes except for the fear of criminal prosecution, and on account of the threats so made by said Beath.”

This statement is the sole foundation for claiming duress.

If Chapoton had embezzled money, and notes or other evidences of debt, with security, were given by Chapoton in settlement and acknowledgment of the debt, he could not defend upon the ground that plaintiff threatened criminal prosecution if his honest debt was not acknowledged and secured. Wolf v. Troxell's Estate, 94 Mich. 573. The law does not permit a criminal, who has stolen property, to defend against the debt, or its written acknowledgment, on the ground of threatened prosecution or imprisonment. Such a rule would often be attended with disastrous results. A party might settle his peculation by giving his notes, payable after the statute of limitations could be pleaded in bar of the original debt. If, instead of an indorsed note, Chapoton had given a note and mortgage for $2,700 (and he admits that he agreed to this amount, and to give four promissory notes therefor), would he be permitted to avoid his just liability by saying, ‘ ‘ True, I owed it, but plaintiff threatened to prosecute me if I didn’t pay it, and therefore I secured my honest debt?” The consideration for the note in such cases is not the avoidance of a criminal prosecution, but the just debt.

A. was convicted of larceny, and sentenced to pay a fine of $1,000, and was confined in prison. He executed a mortgage to the county for $1,000, in condition of which he was pardoned. He filed a bill in equity to set aside the foreclosure sale on the ground of duress. Decree was entered for the amount actually due. Rood v. Winslow, Walk. Ch. 340, 2 Doug. 68. Where W. gave a mortgage for $5,000 to settle a charge of adultery, the same defense was interposed. The securities were held valid to the amount actually due, viz., $2,000. Briggs v. Withey, 24 Mich. 136. B. paid license taxes under threats of prosecution from the village attorney. The taxes were void. Held, that they were not paid under duress. Bett v. Village of Reading, 93 Mich. 77. See, also, Cribbs v. Sowle, 87 Mich. 347, and authorities there cited.

“Duress hy threats exists, not wherever a party has entered into a contract under the influence of a threat, but only where such a threat excites a fear of some grievous wrong, as of death, or great irremediable injury, or unlawful imprisonment.” 6 Am. & Eng. Enc. Law, 64.

Threats of criminal prosecution, unaccompanied by threats of immediate imprisonment, do not constitute duress. Harmon v. Harmon, 61 Me. 227 (14 Am. Rep. 556); Buchanan v. Sahlein, 9 Mo. App. 552; Bodine v. Morgan, 37 N. J. Eq. 426; Dunham v. Griswold, 100 N. Y. 224. “Threat of legal process is not duress, for the party may plead, make proof, and show that he is not liable.” Preston v. City of Boston, 12 Pick. 14. In Bodine v. Morgan, supra, the defendants, father and son, were charged with fraudulently taking and appropriating business orders. The father settled, and gave a mortgage of $5,000. His defense was substantially the same as that here set up. The court used the following language:

“ But, further, the threat to arrest him for his unlawful appropriation of their orders and goods to his own use unless he should indemnify them, constituted, if it was made, no duress; and, if the mortgage had been given under the pressure of such a threat, it would not have affected its validity.”

It was incumbent upon defendant Chapoton to establish two facts, — the illegality of the demand and the duress. Buchanan v. Sahlein, supra. Defendant Chapoton was under no physical restraint. According to his own statement, plaintiff had previously made the claim of embezzlement, and threatened prosecution if it was not settled. Chapoton telephoned to his friend Watson, requesting him to call at plaintiff’s store. Watson complied, and while the three were there together the notes were executed. There is no evidence of any threats or restraint at that time, no prosecution had been commenced, nor was there any statement that any had been commenced, and he was free to go and come as he chose. It therefore appears that Chapoton, after the alleged charge and threats were made, took ample time to consider it, and then voluntarily settled by giving these notes. This is not the course pursued by a man conscious of his innocence, and in the possession of his faculties. There is nothing to show that he was young or old, inexperienced, feeble in body or mind, or unable to indignantly deny and resist a false charge of embezzlement and felony. Under this record the only question to be submitted to the jury with regard to him was whether there was a failure of consideration, in whole or in part, for the notes. . Under the above decisions, he was liable upon them to the extent of moneys appropriated by him, if any were so appropriated; and it was the province of the jury to determine the amount. If he had appropriated none of the plaintiff’s money, of course the notes were without consideration, and void.

2. Complaint is made of the following instruction:

“It is not necessary that Beath shóuld have known exactly the fraudulent representations made by Chapoton in order to get Watson to indorse the note. If he (Beath) had sufficient knowledge to put him upon inquiry, so that he could have found out that Watson had been so induced by fraudulent representations, then the plaintiff cannot l’ecover.”

If there were no evidence in the case to which this instruction was applicable, it would be error under the rule In Cristy v. Campau, 107 Mich. 172. The record, however, states that there was “evidence tending to show that plaintiff heard the conversation [between Chapoton and Watson], and the false and fraudulent representations, and at one point acquiesced in them; and that plaintiff suggested to Chapoton that he (Chapoton) should tell his proposed indorsers that the notes were to be given for acquiring an interest in the business.” In view of this evidence, the instruction was correct. If plaintiff had knowledge that Chapoton intended to make false representations to secure indorsers, he could only relieve himself from the consequences of such representations by informing the indorser of the true state of affairs. Of course, the converse of the proposition should be given to the jury, because the plaintiff denied any knowledge of the false representations.

Judgment reversed, and new trial ordered.

The other Justices concurred..


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    PRESTON NATIONAL BANK v. MICHIGAN MUTUAL FIRE INSURANCE CO.
    Trial — Instructions—Preferred Requests — Prejudicial Modification.
    For the trial judge so to modify requests to charge bearing upon a controlling issue as to give the jury an impression of his personal opinion upon the subject is reversible error.
    Error to Wayne; Donovan, J.
    Submitted October 13, 1897
    Decided January 18, 1898.

      Assumpsit by the Preston National Bank against the Michigan Mutual Eire Insurance Company on a policy of insurance. Erom a judgment for plaintiff, defendant brings error.
    Reversed.

      Bacon & Palmer, for appellant.

      Julian G. Dickinson, for appellee.
   Moore, J.

Plaintiff recovered a judgment for a fire loss upon a policy of insurance issued by defendant, from which judgment defendant appeals. It is claimed by defendant that the policy of insurance was issued upon an application signed by the Preston National Bank, applicant, by O. J. Watkins, and that the application stated that the building insured was upon a brick foundation, when in fact it stood upon posts. When the policy was issued, there was a mortgage, owned by Mrs. Cochrane, upon the property, and the loss was made payable to the mortgagee as her mortgage interest was made to appear. This mortgage was afterwards foreclosed, and the property was bought at the, foreclosure sale by Mr. Parsons, who borrowed $2,000 of the bank, and gave a mortgage for that amount to the bank upon the same property. The bank delivered the policy of insurance to Mr. Parsons for the purpose of enabling him to have the property insured for his benefit. Mr. Parsons took the policy, with others, to Mr. Watkins, and claims that he told Mr. Watkins about the foreclosure of the mortgage* his purchase of the property, of his giving the $2,000 mortgage to the bank, and that the bank was willing to have the mortgage slip taken off the mortgage; and that Mr. Watkins procured the assignment to Mr. Parsons of the policy by the bank, and the consent of the company to the assignment. Afterwards the property was burned, the policy was assigned by Mr. Parsons to the bank, and it brought the suit. It is the claim of the plaintiff that it knew nothing of the making of the application purporting to be signed by it; that Mr. Watkins was the agént of the defendant, and that his knowledge was the defendant’s knowledge.

On the pajt of the defendant, it is claimed that Mr. Watkins was not its agent, but was an insurance broker; that in procuring the insurance he was acting for the bank, and in procuring the assignment of the policy and the consent of the company he was acting for Mr. Parsons. The defendant claims further that, when the company consented to the assignment of the policy, it had no knowledge of the' $2,000 mortgage, but was told by Mr. Watkins that Mr. Parsons owned the property free of incumbrances, and would not have consented to the assignment to Mr. Parsons if it had known the bank held a $2,000 mortgage on the property. Defendant urges that there was no testimony which should have been submitted to the jury that Mr. Watkins was acting for the company, and the court should have directed a verdict in favor of the defendant. We think there is some testimony tending to show agency, and the case was a proper one for the jury. • »

It will be seen by the statement already made that the important question in the case is, For whom was Mr. Watkins acting, — for the insured, or for the insurer? That was a question that should have been submitted to the jury under proper instructions, free from any intimation by the judge as to what his opinion was of the fact. Cronkhite v. Dickerson, 51 Mich. 177. Certain requests to charge were offered on the part of the defendant, which will be found in the margin. The judge modified these requests by adding thereto the words printed in italics. The defendant was strenuously insisting that there was no testimony tending to show that Mr. Watkins was acting for it. We think these statements of the judge were well calculated to give the jury an impression of the opinion he entertained of the disputed question, and were prejudicial to the defendant. Letts v. Letts, 91 Mich. 596; Valin v. McKerreghan, 104 Mich. 313.

The other assignments of error have been considered. They are either not well taken, or are not likely to occur again on the new trial, and it will not be necessary to discuss them.

Judgment is reversed, and new trial ordered.

Montgomery, Hooker, and Long, JJ.,-concurred. Grant, C. J., did not sit.
      Defendant requested the court to charge as follows:
      “2. It appears from the undisputed evidence in this case that at the time the policy of insurance was presented to the agent of the Michigan Mutual Fire Insurance Company, to consent to the assignment of the policy from the Preston National Bank to James W. Parsons, the agent was informed that there was no incumbrance on such property, when in fact it appears from the undisputed testimony in the case that a mortgage was executed by James W. Parsons to the Preston National Bank, bearing date the 14th day of April, A. D. 1896, for §2,000, covering this property, and that the insurance company never had any notice, of the existence of this mortgage; and, the representation being false, the policy is avoided, and defendant is entitled to a verdict.
      “8. It appears from the uncontradicted testimony in this case that, after this policy was assigned by the Preston National Bank to James W. Parsons, a mortgage for §2,000, covering the property insured, was executed and delivered by James W. Parsons to the Preston National Bank, and that the insurance company had no knowledge of the execution and delivery of such mortgage; and the giving of such mortgage without notice to the insurance company rendered the policy void, and your verdict should be for the defendant.
      “4. It appears from the uncontradicted testimony in this case that the application on which this policy was issued contains a statement that the building insured had a brick foundation, when, as appears from the plaintiff’s testimony, it stood on posts; and such representation contained in the application was false, and related to a material fact, and avoided the policy, and your verdict should be for the defendant.

        “5. It appears from the uncontradicted testimony in tins case that Ollie J. Watkins was not an agent for the Michigan Mutual Fire Insurance Company, but was the agent, and acted for and in behalf of, the Preston National Bank, in procuring the policy of insurance, and also as agent for and in behalf of James W. Parsons in obtaining the consent of the company to the assignment of the policy, and that the plaintiff in this case and James W. Parsons are bound by his statements made to the company and to the agent in regard to this property. * * *
      “8. It appears from the uncontradicted testimony in this case that the application of the Preston National Bank for the policy of insurance was signed in its behalf by Ollie J. Watkins; and the Preston National Bank, by accepting and insisting on the policy issued on such application, ratified and adopted the acts of the said Ollie J. Watkins in obtaining said policy, and all statements made by him, contained in such application, and in relation thereto, and are bound by such statements.
      “9. It appears from the uncontradicted testimony that James W. Parsons delivered the policy in question to Ollie J. Watkins, and requested Mm to have it transferred from the Preston National Bank to Mm (Parsons ), and to obtain the consent of the company to such transfer; and I charge you that in obtaining this transfer, and the consent of the. company to the same, Watkins was the agent of James W. Parsons, and Parsons was bound by the acts and statements made by him in obtaining such transfer, and the consent of the company to the same; and if statements were made by Watkins to the agent of the company that there was no incumbrance on such property, when in fact there was an incumbrance, such representation would be false, and would avoid the policy, and defendant is entitled to a verdict.
      “10. Under the undisputed testimony in this case, I charge you that Ollie J. Watkins, in obtaining the consent of the insurance company to the assignment of the policy from the Preston National Bank to James W. Parsons, was the agent of James W. Parsons, and Parsons is bound by the acts and representations of said Watkins in obtaining the consent of the company to such assignment.”
      These requests were modified and given as follows:
      “3. It appears from the uncontradicted testimony in the case {I will leave out the word ‘ uncontradicted,’ because I think the testimony was disputed). It appears from the testimony of the defendant that this policy was assigned by the Preston National Bank to James W. Parsons; that a mortgage for §2,000, covering the property insured, was executed and delivered by James W. Parsons to the Preston National Bank; that the insurance company had no knowledge of the execution and delivery of said mortgage (Parsons says he told them about it; that is, he told Watkins); and the giving of such mortgage without notice to the insurance company would render the policy void, and the verdict would be found for the defendant.
      “4. It appears from the defendant’s testimony in the case that the application upon which this iDolicy was issued contains a statement that the building insured had a brick foundation (J think it does; it is in the handwriting of Mr. Watkins), when, as appears from the plaintiffs testimony {Mr. Parsons), it stood upon xwsts; and such representation in the application, if made by the bank, I will say, would be false, as it would relate to a material fact, and avoid the policy. On that question the bank has not testified at all. The application was made by Mr. Watkins, and I will leave it to you whether Mr. Watkins, under all the circumstances, was the agent of the Preston National Bank or the agent of the company. He seems to have been doing some business for the company, but I will leave that for the jury.

      “5. It appears from the defendant’s testimony in this case that Ollie J. Watkins was not the agent for the Michigan Mutual Fire Insurance Company (we will leave that to the jury, whether he ivas or not, because agency is a matter of fact, and not a matter of law; but he half disputes it, and half admits that he was doing both for them and for some other company), and that he acted in behalf of the Preston National Bank in procuring the policy of insurance, and also as agent for and in behalf of James W. Parsons in obtaining the consent of the company to the signing of the assignment of the policy, and that the plaintiff in the case and James W. Parsons would be bound by the statement made to the company, and by the agent of the bank, if he was the agent of the bank, and the agent of Parsons, if he was the agent of Parsons. * * *
      “8. It appears from the defendant’s testimony that the application of the Preston National Bank for the policy of insurance was signed in its behalf by Mr. Watkins. Whether he had authority to sign for them, or not, or was signing for the company, it is immaterial. I will leave it to the jury. And the Preston National Bank, by accepting and insisting upon the policy as issued upon the application, ratified and adopted the acts of said Ollie J. Watkins in obtaining said policy, and all statements made by him in such application and in relation thereto, and are bound by such statements.
        Whether or not the company is equally bound, having thus acted upon his acts and treated him, will be a question I will leave to the jury. He did something for the company as well as for the bank, at least.

      “9. It appeal’s from the defendant’s testimony that James W. Parsons delivered the policy in question to Ollie J. Watkins, and requested him to have it transferred from the Preston National Bank to him (Parsons), and to obtain the consent of the company to such transfer, in which he, in obtaining this transfer and the consent of the company to the same (Watkins), was the agent of James W. Parsons. Well, he was the broker of the company, and the agent of both of them in that transaction. Parsons was bound by the acts and statements made by him in obtaining such transfer, and the consent of the company to the same; and if the statements were made by Watkins to the company that there was no incumbrance on such property, when in fact there was an incumbrance, such representations would be false, and would -void the policy, and the defendant is entitled to a verdict. That is to say, if Parsons aided in concealing anything. A man must treat the company in good faith. But unless Parsons aided in it, if you find Watkins to be the agent of the company, and he concealed that fact, and he concealed the fact about the foundation, and that he knew of it, and that he deceived his own company, then you could not bind the insured by acts of his. He certainly had something to do with the company.”


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    O’TOOLE v. HURLEY.
    1. Accounting — Trusts—Statute of Limitations — Laches.
    A copartnership and an individual became the owners of a vessel, in the proportion of three-fourths and one-fourth, respectively. The partners received the entire proceeds of' the vessel for several years, kept all of the books, and, when the vessel was sold, collected the purchase price. The relations of the former owners continued for some years after the sale, until the adjustment of certain litigation against the vessel. Upon a bill for an accounting as to the one-fourth interest, which set up the foregoing facts, and averred that defendants, although frequently promising to render an account, had deferred doing so on various pretexts, defendants pleaded the statute of limitations, claiming that complainant’s right to an accounting was complete more than six . years before, when the proceedings against the vessel were settled. Held, that the plea was properly overruled; that a trust relation existed between the parties, which, in the absence of an account, had never been changed to the relation of debtor and creditor; and that the question whether complainant was, independent of the statute, guilty of such laches as would deprive him of relief in equity, was properly left to be determined from the proofs.
    2. Same — Estates of Decedents — Presentation of Claims.
    The failure of a cestui que trust to present within the statutory period a claim against the trustee’s estate for moneys received by the deceased by virtue of the trust relationship, concerning which all information had for years been withheld from the beneficiary, and no account had ever been rendered, cannot be pleaded by the administrator as a bar to a bill for an accounting, since the rendition of an account was necessary to the determination of the amount of the claim.
    Appeal from Wayne; Carpenter, J.
    Submitted October 13, 1897.
    Decided January 18, 1898.
    Bill by Martin O’Toole against Timothy Hurley and Mary A. Hurley, administratrix of the estate of. John Hurley, deceased, for an accounting. From an order overruling their pleas to the bill, defendants appeal.
    Affirmed.
    The material averments in the bill of complaint are as follows: Complainant and defendant Timothy Hurley and John Hurley, deceased, in January, 1881, purchased the steamer Empire, for $7,500, the Hurleys owning three-fourths, and complainant one-fourth, each paying his proportion thereof. The Hurleys were partners. While so owned, the said vessel was engaged in the carrying trade upon the Lakes from 1881 to 1887, inclusive. The vessel was sold in 1887 for $12,000, and the money received by said copartnership. By the agreement, said copartnership acted as the agent of the vessel, to collect and receive all her earnings, make all necessary disbursements, and keep all the books of account. Said copartnership did receive all the moneys so earned for the benefit of the owners. The amount so received exceeded the sum of $95,000, as complainant is informed and believes. The receipts exceeded the disbursements, but by what amount complainant cannot state. The relations of complainant and said copartnership, as owners, continued until 1892, when they were finally ended and closed by the adjustment of certain litigation pending in the United States admiralty court against the said vessel, known as the “Joy Litigation,” in which said steamer was held liable for $1,200 and expenses of litigation. Complainant acted as master and general manager of said vessel until the fall of 1886, when he was discharged. He kept an accurate book of accounts, showing all sums collected and disbursed by him, and at the end of each year turned the said books over to said firm, and has not since seen them. Said co-partnership has never rendered an account to complainant, although frequently requested so to do. It admitted his right to such accounting, and promised at various times to render a statement, but put it off on various excuses, one of which was that he should wait until this suit for damages was closed. Finally, in 1894, said copartnership rendered an account in lump sums, and not in detail, showing a balance due him. .The estate of John Hurley has, by agreement between Timothy Hurley and the administratrix of John’s estate, been kept open and unsettled on account of the unsettled claim of complainant. Said firm refused permission to complainant or his attorney to examine the books containing said account. The prayer of the bill is for an accounting.
    To this bill defendants interposed a joint plea, setting up the statute of limitations, and a joint answer in support of said plea, in both of which they aver that the litigation in the United States court was settled and closed in May, 1890. Defendant Mary A. Hurley interposed a separate plea, to the effect that John Hurley died May 28, 1892; that she was duly appointed administratrix; that commissioners on claims were duly appointed August 29, 1892, and their report filed June 16, 1894; that complainant presented no claim against said estate; that her administration has been closed, and the estate distributed, except a certain amount in litigation, for which she reserved a sufficient amount if that claim should be sustained. In support of this plea she also filed an answer. The case was heard upon pleadings, and the pleas overruled; the court holding that the bill “makes a case of actual trust, resting upon mutual confidence,” and that, therefore, the statute of limitations did not apply.

      Wisner & Harvey, for complainant.

      John C. Shaw and Wm. B. Cady, for defendant Timothy Hurley.

      John Miner, for defendant Mary A. Hurley.
   Grant, C. J.

(after stating the facts). Counsel cite many authorities in support of the following propositions:

1. Equity applies the statute of limitations by analogy.

2. Where the jurisdiction is concurrent, the statute of limitations is a bar in equity as well as at law.

3. In cases of frauds in trusts, the statute does not apply.

4. It does not apply to continuing and subsisting trusts.

These propositions are well established. Their application affords the only difficulty. An early and leading case is Kane v. Bloodgood, 7 Johns. Ch. 90 (11 Am. Dec. 417). Chancellor Kent,- in that case, in an able and exhaustive opinion, reviews the authorities. After reviewing them, and stating the well-established rule to be that the statute of limitations is a good plea in equity as well as at law, he says:

“A pure plea of the statute is no bar where there are circumstances stated in the bill which take the case out of it, as an offer to account, an acknowledgment of the debt, a promise to pay, or to do what was right and just, or a promise to pay when assets came to hand, unless the plea be accompanied with an averment or answer destroying the force of these circumstances;” citing several authorities.

He also says:

“Lord Manners intimated in Barrington v. O’Brien, 1 Ball & B. 178, that to persuade a party not to prosecute, .by holding out promises until the debt is barred by the statute, was a fraud, and that a plea of the statute ought not to be sustained.”

The authorities make a distinction between a trust constituted by the act of the parties and one founded on fraud or the like. In Baxter v. Moses, 77 Me. 481 (52 Am. Rep. 783), the court quote with approval the proposition as stated in Wood on Limitations (section 215): “One who is not actually a trustee, but upon whom that character is forced by a court of equity only for the purpose of a remedy, may avail himself of the statute,” and add: “The doctrine could not be more satisfactorily stated.” In German American Seminary v. Kiefer, 43 Mich. 112, this court says, after stating the rule: “There is a well-understood exception, in the case of actual trusts, founded on and resting upon the mutual confidence of the parties.” Where a receipt was given for notes for collection, the proceeds to be applied on other notes given by the plaintiff, and to pay over or account to him for the balance, held, that “the receipt established the relation of principal and agent in respect to the collection and disbursement of the moneys, which could only be changed to the relation of debtor and creditor by a demand,” and that the statute did not apply. Kimball v. Kimball, 16 Mich. 211, 219.

The relation between these parties was one of trust, and very similar to that of partners. The proper remedy is in equity, for an accounting. No obligation to pay existed until the Hurleys had settled the business of the concern, the Joy litigation was ended, and that debt paid. It was their duty to change the relation from trustee and cestui que trust to that of debtor and creditor, by rendering an account. They aver in their pleas and answers that they have rendered no account. Their duty to account is not denied. It would be' a harsh rule to apply in this case that complainant is barred by the statute or by laches, if it be true that he was lulled to sleep by the representations of the Hurleys. For years they received the entire proceeds of the business and of the sale of the vessel, and kept the books. It was their duty to account. Whether their excuses for rendering no account amounted to a fraud will depend upon the proofs. Whether complainant is guilty of laches in sleeping upon his rights without showing excuse, under the doctrine in Miles v. Vivian, 25 C. C. A. 212, 213, 79 Fed. 853? and authorities there cited, will also depend upon the proofs. Upon this point, see Kobogum v. Jackson Iron Co., 76 Mich. 498; Compo v. Jackson Iron Co., 49 Mich. 39.

As to the separate plea of the administratrix, it- is sufficient to say that the estate is not closed. A discovery and accounting are asked. The result may show that there is no money claim to be presented to the commissioners. All the books and accounts are in the hands of the defendants, and they have withheld all knowledge from complainant. Without a discovery and accounting, he could not make out a claim to present against the estate. In such case equity is the proper forum. Possibly complainant may be barred by laches, but that will depend upon the proofs-.

We think the court was right in overruling the pleas. When the proofs are before the court, the rights of the parties can be determined according to the rules of law and equity.

Decree affirmed, and case remanded for further proceedings.

The other Justices concurred.