author: Carpenter, J.

text:
    FERGUSON v. FERGUSON.
    1. Divorce — Alimony—Allowance—Amount— Determination-Circumstances of Parties.
    In determining what is a proper allowance for permanent alimony, due consideration must be given to “ the situation of the parties and all the other circumstances of the case” (§ 8638, 3 Comp. Laws), including the .wealth of complainant, especially when that wealth is derived from property transferred to complainant by defendant to compensate her in part for the very wrong for which the divorce is granted.
    2. Same — Estimate of "Wealth — Estate in Expectancy.
    In determining a husband’s wealth as a basis for an allowance of permanent alimony, an estate in expectancy should be valued at what a purchaser would presently pay for it, and not at the value of the entire estate less the present worth of the interest of the life tenant calculated from the mortality tables.
    Appeal from Wayne; Donovan, J.
    Submitted February 14, 1907.
    (Docket No. 140.)
    Decided March 26, 1907.
    Bill by Myra J. Ferguson against John G. Ferguson for a divorce: On settlement of the award of alimony, defendant appeals.
    Modified.

      Geer, Williams, Martin & Butler, for complainant.

      Fred C. Harvey (Dickinson, Stevenson, Cullen, Warren & Butzel, of counsel), for defendant.
   Carpenter, J.

This is the second time this case has been determined by this court. Our first decision will be found in 145 Mich. 290. We then affirmed a decree of divorce and remanded the case, with directions to the circuit judge to again determine the amount of alimony to be awarded. He has made that determination and awarded complainant the sum of $75,000. From that decree, defendant appeals, insisting that the amount allowed is excessive.

The testimony proves that the net value of defendant’s property is $160,455.13. (This does not, however, include the value of an estate in expectancy, which it is assumed defendant will enjoy on the death of his sister, Mrs. Cobb.) The testimony also proves that the par value of the stock of the Detroit Timber & Lumber Company, referred to in our former opinion, now owned by complainant, is $132,090, and its actual value is at least $170,000. In determining that $75,000 was a proper allowance for alimony, the trial court declined to consider that complainant owned the stock above referred to, and he valued defendant’s interest in the expectancy estate at $36,949.93. In each of these particulars the trial court erred. To decline to consider the wealth of complainant —especially when, as in this case, that wealth is made up of property and the proceeds of property transferred to complainant to compensate her in part for the very wrong for which the divorce was granted — is to disregard what the statute (section 8638, 3 Comp. Laws) says should be regarded, viz., “the situation of the parties and all the other circumstances of the case.”

It is equally clear that defendant’s interest in the estate in expectancy has not the value placed upon it by the circuit judge. The method by which that valuation was reached is shown by the following quotation from the record:

“Taking the $100,185.64 (this is the value of trust funds, the income of which is paid defendant’s sister, Mrs. Cobb), and multiplying it by 5 per cent., the legal rate of interest, gives $9,509.28, and based upon the fact that Mrs. Cobb is 57 years old (Cheever’s Probate Practice), the number of years purchase the annuity is worth is 8.343 years, making the present worth of Mrs. Cobb’s property, on her life estate, $79,335.85; and the total value being $190,185.64 and the present worth of her value in that estate being $79,335.85, the remainder is $110,849.79, of which Mr. Ferguson under the will is entitled to a third, or 136,949.93.”

Now, assuming, without deciding, that defendant has such an interest in the estate of Mrs. Cobb that he could sell the same — and,if he has not, it should not be considered —its value should be determined, not by the method above shown, but by what purchasers would pay for it. Prospective purchasers would take into consideration the possibility, perhaps the probability, that Mrs. Cobb might live beyond her expectancy of life. They would also take into consideration the chance that the fund might be diminished by unwise management or by changes of financial conditions. While we cannot say what amount they would be willing to pay — for there is no testimony bearing upon that subject — it is certain that it would be, and therefore the value of the asset is much less than $36,949.93.

Correcting these errors of the .circuit judge, and considering, as we should, the character and situation of the parties and their circumstances, it is clear that the award of $75,000 is excessive. That would make complainant worth $245,000, and defendant about $100,000. We think that an allowance of $30,000 is adequate, and that amount will be awarded. This award is in lieu of dower and all other claims of complainant, and is given her for her support and maintenance, and for the support, maintenance, and education of the two infant children of herself and defendant. It should be paid within 30 days from the signing of the decree of this court. Defendant may, however, provided he pay $5,000 within said 30 days, and within the same time secure the payment of the remainder and interest thereon at ■ five per cent., payable semi-annually, by a bond, with sureties approved by one of the circuit judges of the county of Wayne, have one year’s time in which to pay $10,000 of said amount and two years’ time in which to pay the remaining $15,000 of said amount. Until defendant has paid or,secured the payment of said award, he will be enjoined from selling or mortgaging all shares of stock and real estate owned by him, except for the purpose of obtaining means to satisfy this decree. The allowance in the decree appealed from for costs of the circuit 'court and for the services of complainant’s solicitor will not be disturbed. No costs or other allowance will be granted in this court.

The decree of the circuit court will be modified in accordance with this opinion.

McAlvay, C. . J., and Grant, Blair, and Montgomery, JJ., concurred.'


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BRAASCH v. MICHIGAN STOVE CO.
    1. Master and Servant — Personal Injuries — Youthful Employe — Statute—Application.
    Whether the employment of a boy under 16 to run an electric freight elevator is within the prohibition of section 3, Act No. 113, Pub. Acts 1901, as endangering life or limb, is a question for the jury.
    2. Same — Warning and Instructing Servant.
    In an action by a boy under 16 for injuries received in operating an electric freight elevator, evidence examined, and held, that whether he should have had other and further instructions as to the danger incident to his employment, and should have been warned of its dangers, were questions for the jury.
    Error to Wayne; Rohnert, J.
    Submitted February 18, 1907.
    (Docket No. 11.)
    Decided March 26, 1907.
    Case by Edward A. Braasch, by next friend, against the Michigan Stove Works for personal injuries There was judgment for defendant on a verdict directed by the. court, and plaintiff brings error.
    Reversed.

      William, Van Dyke (James H. Pound, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Moore, J.

It was the claim of plaintiff, aged 14 years, that he was first employed by the defendant between 7 and 8 a. m., September 27, 1902, at an emery wheel, and 20 minutes later placed at funning an electric freight elevator. He had no papers from his father consenting to his employment. The superintendent took him to the elevator, told the man in charge to show the boy how to run it. The man took the boy one round trip; the superintendent then taking the man away and leaving the boy in charge. It is also claimed the elevator began jerking and jumping; that the boy notified the man formerly in charge; that two men were sent to fix the elevator, and one, the electrician, told the boy to go on running it while it was being fixed; that the boy, complying, responded to a bell from the fifth floor — this was between 10 and 11 o’clock a. m. — that the elevator jerked up and down five or six inches, five or six times, throwing the boy forward, overbalancing him, while he, trying to get the cable and stop the elevator, had his hands lacerated by the cable, and all the toes of his foot torn off by being pinched between the floor of the elevator and the floor of the building, the elevator shaft not being wainscoted or othetwise shielded. It is further claimed the boy was neither warned nor instructed. No proof was offered by the defendant. The court directed a verdict for the defendant. The case is brought here by,writ of error.

Plaintiff claims (1) that employing a child contrary to section 3, Act No. 113, Pub. Acts 1901, to run an electric freight elevator, work dangerous to life and limb for a fourteen-year old child, is actionable; (2) to do so is in violation of the provisions of sections 5342-5346, 2 Comp. Laws as the father was unwilling to have his boy work at such employment; (3) that the boy should have been warned.

The case of Sterling v. Union Carbide Co., 142 Mich. 284, is authority for the proposition that this case should have been left to the jury to say whether it was within the provisions of section 8, Act No. 113, Pub. Acts 1901.

Allen v. Jakel, 115 Mich. 484, is authority for the proposition that the case should have been submitted to the jury for them to say whether the boy should have had other and further instruction as to the danger incident to his employment, and should have been warned of its dangers. These cases are so recent we shall content ourselves with simply citing them.

Judgment is reversed, and new trial ordered.

McAlvay, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


text:
      In re KENNEY.
    Criminal Law — Justices of the Peace — Criminal Jurisdiction —Assault and Battery — Sentence—Excessive Imprisonment —Effect.
    Under subdivision 8, section 1, Act No. 189, Pub. Acts 1899, a sentence by a justice of the peace of one convicted before him of assault and battery to imprisonment in the county jail for a period of nine months is not altogether void, but is valid to the extent of the justice’s jurisdiction, i. e., three months.
    Certiorari to Ionia; Davis, J.
    Submitted March 5, 1907.
    (Calendar No. 22,144.)
    Decided March 26, 1907.
    Habeas corpus proceedings by Henry Kenney to obtain his release from imprisonment in the jail of Ionia county. There was an order denying the writ, and petitioner brings certiorari.
    Affirmed.

      Laurence W. Smith, for petitioner.

      Henry E. Chase, Deputy Attorney General, and Dwight C. Sheldon, Prosecuting Attorney, for respondent.
   Moore, J.

The petitioner, Henry Kenney, was convicted on the 4th day of February, 1907, before a justice of the peace, of the charge of assault and battery, and was sentenced by said justice to the county jail of Ionia county for the period of nine months. On the 15th day of February, 1907, he made application for a writ of habeas corpus to the circuit court of Ionia county for the purpose of testing the legality of his imprisonment. After a hearing upon said petition, his application to be discharged from custody was denied, and he was remanded to the custody of the sheriff for a period of 90 days from date-of sentence. It is his theory that, as the magistrate imposed a sentence in excess of what he was authorized to impose, the sentence is void. It is conceded by counsel for the people that the sentence is excessive. See sections 1019, 1058, 1 Comp. Laws. It is contended, however, that the sentence was void for the excess only, and was good for three months, the extent of time to which the justice was authorized in his discretion to sentence him. This presents the only question in the case.

Subdivision 8 of section 1, Act No. 189 of the Public Acts for the year 1899, reads as follows:

“And all other offenses punishable by fine not exceeding one hundred dollars, or punishable by imprisonment in the county jail not exceeding three months, or punishable by both said fine and imprisonment: Provided, That, whenever, in any criminal case, tried before any justice of the peace, the defendant shall be adjudged guilty and punishment by fine or imprisonment shall be imposed in excess of that allowed by law, the judgment shall not for that reason alone be adjudged altogether void nor be wholly reversed and annulled, but the same shall be valid and effectual to the extent of the lawful penalty, and shall be reversed and annulled only in respect to the unlawful excess.”

See the construction put upon section 11984, 3 Comp. Laws, which contains similar provisions relating to cases tried in the circuit court. Brown v. People, 39 Mich. 57; People v. Parkhurst, 50 Mich. 389; People v. Town, 53 Mich. 489; People v. Ellsworth, 68 Mich. 502; People v. Harrington, 75 Mich. 112; People v. Cummings, 88 Mich. 263 (14 L. R. A. 285); People v. Farrell, 146 Mich. 264. We think it very clear that subdivision 8 of section 1, Act No. 189, Pub. Acts 1899, was enacted to meet just such contingencies as has occurred here; and, as the magistrate was entitled to sentence the petitioner not exceeding three months, the sentence is good for that time.

The judgment of the circuit court is affirmed.

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


author: McAlvay, C. J.

text:
    HENGESBACH v. DETROIT UNITED RAILWAY.
    Street Railr'oads — Injuries to. Travelers — Contributory Negligence.
    In an action against a street railroad company for injuries to a traveler at a crossing, evidence examined, and held, that whether plaintiff drove upon the track without looking for a car and was therefore guilty of contributory negligence was a question for the jury.
    Error to Wayne; Mandell, J.
    Submitted June 6, 1906.
    (Docket No. 3.)
    Decided April 2, 1907.
    Case by Christian A. Hengesbach against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      S. E. Engle, for appellant.

      Brennan, Donnelly <& Van De Mark, for appellee.
   McAlvay, C. J.

This is an action brought by plaintiff for damages claimed to have been caused by the negligence of the defendant’s servants in operating a street car in the city of Detroit. The case was tried, and, under the charge of the court, submitted to the jury. After being out for a time, the jury were recalled into court, and, upon being asked, announced that they had not agreed upon a verdict. In answer to a question by the court, it was stated that they did not agree upon the facts. The court then instructed the jury to return a verdict in favor of defendant, on the ground that plaintiff was guilty of contributory negligence. Following the direction of the court, the jury so found, and a judgment was entered for defendant. Error is assigned upon this instruction, and also upon rulings of the court during the trial in excluding and admitting evidence, and in refusing requests to charge.

The court, in directing a verdict, among other things said:

“ As I stated to you in the main charge, a man when about to cross a track owes a duty to himself, which, if he does not perform, makes him responsible for all damage that follows, and that duty is to stop and look along the line of railway just before he goes upon the track. This duty the plaintiff in this case did not perform. * * * It seems from his own uncontradicted statement that he started to go upon the track without looking to see if a car was coming, and if that is true, and he is entitled to recover at all, he must recover upon his own theory, and if by his own theory he was guilty of contributory negligence he cannot recover.”

We do not think the court was warranted in so holding. Briefly stated, the following appears from the record: Plaintiff was driving his horse and wagon, upon which was a high load over which he could not see toward the rear, and approached the street-car track about to cross in a diagonal direction. He testified he stopped when five feet into the roadway of Grand River avenue, and stood up looking both ways; that he could see 435 feet along the track in the direction from which this car came, and saw no car. He then proceeded to cross, going diagonally, and when the wagon got on to the track it was struck by the car. Evidence was introduced tending to prove these facts. This accident occurred in broad daylight at the intersection of Grand River and Washington avenues. The motorman saw plaintiff’s horse and wagon when the car was at Griswold street, 300 feet away. He testifies:

“He was on the east side of Washington, going what we call north. He was going out of the city. I was going in the same direction.”

There is a dispute in the testimony as to how the accident occurred and which' of the parties was in the wrong. The questions of the negligence of defendant and the contributory negligence of plaintiff were both for the jury to determine. The court was in error in directing a verdict for defendant. ' It is not necessary to discuss other errors assigned.

The judgment is reversed, and a new trial ordered.

Carpenter, Grant, Hooker, and Moore, JJ., concurred.


text:
    OWENS v. AUDITOR GENERAL.
    1. Taxation — Tax Sales — Degree—Collateral Attack.
    A decree for the sale of lands delinquent for taxes cannot be collaterally attacked.
    2. Same — Petition for Sale — Lands Included.
    Section 61 of the general tax law (Act No. 206, Pub. Acts 1893), providing that lands “ hereafter ” bid off in the name of the State and thus held shall not be included in the auditor general’s petition, has no application to a petition filed in 1894 to foreclose the lien of the taxes of 1892.
    3. Same — Degree—Setting Aside — Laches.
    Where a landowner has paid no taxes on his land for over ' twenty years, though residing in close proximity thereto, his petition filed more than ten years after the entry of a decree for the sale of the land for taxes wili not he entertained, no excuse for his laches being made.
    4. Same — Statute—Construction.
    Act No. 84, Pub. Acts 1903, has not the effect to excuse all laches and give the owner of the original title six months after said act took effect within which to attack previous tax sales, but was intended to fix a period limiting a time after which certain sales cannot be attacked.
    Appeal from Alpena; Emerick, J.
    Submitted June 15, 1906.
    (Docket No. 103.)
    Decided April 2, 1907.

      Bill by Peter Owens against Perry F. Powers, auditor general, Edwin A. Wildey, commissioner of the State land office, the Hecla Portland Cement & Coal Company and the Detroit Trust Company to set aside the sales of certain land delinquent for taxes, and to quiet title. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Henry K. Gustin, for complainant.

      John E. Bird, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for defendants Auditor General and Commissioner of the State Land Office.

      H H. Hatch (Sidney T. Miller, of counsel), for defendants Hecla Portland Cement and Coal Company and Detroit Trust Company.
   Moore, J.

In the matter of the petition of the auditor general of the State of Michigan, for and in behalf of the State, for the sale of certain lands for the taxes assessed thereon for the years 1887, 1888, 1889, 1890, 1891, 1892, and 1893, respectively; Peter Owens, petitioner. The following statement of facts is taken, in the main, from the brief of counsel for complainant:

‘ ‘ The complainant and petitioner, Peter Owens, is the owner of the original or government title, and he filed his bill of complaint for the purpose of having his title quieted from a certain cloud created by tax deeds.
“The defendants, the two corporations, claim title to the land through what is known as ‘ State Tax Homestead Deeds.’ The defendant the Hecla Portland Cement & Coal Company, having purchased this land from the commissioner of the State land office, subsequently gave a trust mortgage upon this land, with a great many other descriptions of land, to the defendant the Detroit Trust Company in trust for the benefit of its creditors. The State tax homestead deeds were based upon certain alleged tax titles for the taxes of 1884 to 1893, inclusive.
“ The complainant first commenced proceedings by filing a bill of complaint on March 14,1904, in which he asks, among other things, that the sales of said land, and the decree upon which they were based may be set aside and held for naught, * * * and that the cloud against the title of his land may be removed, and that the defendants be enjoined from claiming any right, title, or interest to the land.
“ To this bill of complaint, all defendants appeared in answer. As part of the tax titles upon which the State tax homestead deed is based were advertised, sold, and bid in to the State under the general tax laws of 1889 and 1893, which provide for proceeding in the courts of chancery, the solicitors for the complainants, in connection with and supplementary to the bill of complaint, filed on behalf of the complainant petitions in the original suits brought by the auditor general on behalf of the State for the sale of land for the taxes assessed thereon in the years 1887, 1888, 1889, 1890, 1891, 1892, and 1893. Each of' these petitions for their respective years asked, among other things, that the decree theretofore entered in the proceedings for each year may be set aside and held for naught. * * * To each of these petitions the defendants filed separate answers. * * *
“ Upon the hearing, the proof showed that Peter Owens was the owner of the original dr government title, having purchased the same in 1884; that the land was delinquent for taxes for 1884 to 1893, inclusive; that in 1896 the auditor general and the land commissioner, acting under section 127, Act No. 206 of the Public Acts of 1893, made this land State tax homestead land, and upon the lstday of December, 1896, the auditor general of the State of Michigan executed State tax homestead deed to the State of Michigan for the taxes of the years 1884 to 1893, inclusive; said land having been bid in to the State at the tax sales in the years 1886, 1887, 1888, 1889, 1890,1891,1892, in May, 1893, in December, 1893,1894, 1895, for the taxes assessed thereon, in the years 1884, 1885, 1886, 1887, 1888, Í889, 1890, 1891, 1892, and 1893, as appears by the deed.
“Upon the 20th day of February, 1903, Edwin J. Wildey, commissioner of the State land office, executed a deed to the Hecla Portland Cement •& Coal Company of the land in question. That afterward the Hecla Portland Cement ,& Coal Company executed mortgage to the Detroit Trust Company upon the 3d day of October, 1903.”

The court below granted a decree in favor of the complainant.

A great many interesting questions are discussed in the able briefs which have been presented by counsel; but, in our view of the case, it will not be necessary to discuss them. The tax titles based upon the taxes of 1892 are said to be void for the following reasons, we quote from the briefs:

(a) Tax titles for the taxes of 1892 were void because the figures in column 14, the amount decreed against the land, were not made up and filled out before the signing and entering of the decree; the amounts having been filled out by the county treasurer after the completion of the tax sale. Morgan v. Tweddle, 119 Mich. 350; First Baptist Church of Bay City v. Robert, 120 Mich. 704.
“(b) They are also void because of the violation of the auditor general of section 61, Act No. 206, Pub. Acts 1893, which declared that the land heretofore bid off in the name of the State and thus held shall not be included in such petition. Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444; Aztec Copper Co. v. Auditor General, 128 Mich. 615.”

As to “a:” The cases cited by counsel under this head are cases of direct attack made very soon after the decrees were entered. It has been repeatedly held that a decree of sale for the taxes cannot be assailed by a collateral proceeding, as in this case by a bill in chancery. See First Baptist Church of Bay City v. Robert, 120 Mich. 704; Wilkin v. Keith, 121 Mich. 66, and the many cases there cited. Carpenter v. Auditor General, 144 Mich. 251.

(b) Is the sale for the taxes of 1892 void because of section 61, Act. No. 206, Pub. Acts 1893 ? The language of the statute is not as stated in the quotation made above from the brief. It reads:

“ Lands hereafter bid off in the name of the State and thus held, shall not be included in such petition.”

We cannot do better than to quote from the brief of counsel for defendants:

“Th^t certainly has no application to the petition for the sale on account of the tax of 1892, because when that petition was made, in the fall of 1894, this land had not then been hereafter ’ bid off in the name of the State. All the bidding in the name of the State upon those lands had been at a prior date, before the amendment took effect. There was no such provision in the statute of 1891, ”

In Connecticut Mut. Life-Ins. Co. v. Wood, supra, in the opinion by Chief Justice Grant, the following language was used:

“It must be remembered that the act of 1893 does not exclude from the petition lands which had theretofore been bid in by the State, but only lands. which should thereafter be bid in and held.”

Can the complainant obtain relief against this tax of 1892, through the agency of his petition, filed March 17, 1904, in a proceeding which resulted in a decree made more than 10 years before ? No excuse is made for the laches of petitioner in not seeking to set aside this decree earlier. As already stated, the complainant became the owner of this land in 1884. From that time until he commenced this proceeding, 20 years later, he paid no taxes thereon. The land was assessed for taxes every year thereafter, and returned delinquent until the land was deeded to the State in 1896 for the taxes of 1884 to 1893, inclusive, and the taxes for 1894, 1895, and 1896 were canceled by the auditor general. After said deeds to the State, the land was not subject to taxation, until after it was sold by the commissioner of the State land office, under section 131, Act No. 206, Pub. Acts 1893. Mr. Owens, of course, knew that his land was subject to taxation, and if the taxes assessed were not paid the land would be returned delinquent, and sold by the State for the purpose of foreclosing its lien. He was a resident of the city of Alpena, in close proximity to the land in question, but did nothing toward paying what was due from him to the State. He seeks by his petition, filed more than 10 years after the decree is taken, to have it set aside. What was said upon the question of laches in Bending v. Auditor General, 137 Mich. 500, is applicable here. The laches in this case is more marked than in that case. See, also, Spaulding v. O’Connor, 119 Mich. 45; Cook v. Auditor General, 124 Mich. 430; Tromble v. Hoffman, 130 Mich. 676; Carpenter v. Auditor General, supra. We think it too late to entertain a petition to set aside a decree made 10 years before.

Counsel contend that by reason of the provisions of Act No. 84, Pub. Acts 1903, all laches are excused, and the owner of the original title is given six months after said act took effect in which to attack the sales. We do not so interpret the provisions of that act, but think they were intended to fix a period limiting a time after which certain sales cannot be attacked.

The decree is reversed, and one may be entered here, dismissing the bill of complaint and petitions, with costs of both courts.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    COLLIER v. TOWNSHIP BOARD OF ST. CHARLES.
    1. Townships — Bonds—Payment—Evidence—Admissibility.
    In an action brought in 1904 on a township bond, issued for volunteer bounty fund in 1864 and payable in one year, it appeared that the supervisor and clerk who signed it were dead, that the township records, except a few papers kept in a safe, had been destroyed by fire in 1882, and that two former officers of the township who had had access to its papers had had possession of the bond and demanded payment on it. Held, that whatever such officers did in connection with the bond was admissible as tending to show that it had been paid and had been wrongfully taken from the possession of the township by one of them.

      2. Certiorari — Review—Questions Considered.
    The office of the writ of certiorari is to review questions of law, the facts not being reviewable in such proceeding.
    3. Townships — Bonds—Payment—Evidence—Admissibility.
    On certiorari to review refusal by the circuit court to direct a mandamus to township officers compelling them to pay a township bond, evidence examined, and held, sufficient to support the finding that the bond had been paid.
    Certiorari to Saginaw; Gage (William G.), J.
    Submitted June 5, 1906.
    (Calendar No. 21,673.)
    Decided April 2, 1907.
    Mandamus by George W. Collier to compel tbe township board of St. Charles township to audit and allow the payment of a bond. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      F. F. Emerick, for relator.

      Snow & Snow, for respondent. ,
   McAlvay, C. J.

This is a certiorari to review mandamus proceedings had before the circuit court for Saginaw county. On December 23, 1904, relator applied to said court for a writ of mandamus to compel respondent township board to audit, allow, and issue to him a proper order to pay a certain bond for volunteer bounty fund issued to him September 5, 1864, for the sum of $300, due in one year, with interest at 10 per cent, per annum, upon which bond interest was indorsed paid in full to December 1, 1865. Respondent answered said petition, and, among other things, denied liability, and alleged that said bond had been paid in full, and also pleaded the statute of limitations. Relator joined issue by a replication, and upon his demand issues of fact were framed, against the objection in writing of respondent. These issues were tried before a jury, which rendered a verdict on all of them against the relator. The court afterwards entered a judgment denying the writ of mandamus, and dismissed the proceedings, with costs to respondent.

The two material questions discussed in the brief of relator are:

1. That there was no evidence properly in the case showing payment of the bond, and the court should have found for relator as a matter of law.

2. That the statute of limitations cannot be pleaded against this bond.

There is no dispute in the case but that in the year 1864 certain volunteer bounty fund bonds were issued to relator by this township, for cash paid by him, and among them was the bond in question. As far as the disputed facts of the case are concerned, the material one was whether this bond was taken up and paid by the township. The supervisor and township clerk who signed the bonds are dead. All the old books and records of the township, except certain vouchers and papers kept in a safe, were destroyed by fire in the year 1882. About 40 years had expired after the bond came due before relator made claim in August, 1904, that it had not been paid. Two other parties had claimed to own it shortly before that time, both of whom had been officers of the township, with opportunity to get access to the township papers. Both of these parties filed claims for it, and demanded payment. They were Horace W. Tinker, former deputy town clerk, and George Goodrich, former town clerk, also supervisor in 1884 and township treasurer in 1888 and 1889, who, while in office, used his own safe and kept the files and records of the township in it.

The bond first appeared in the hands of Goodrich in April, 1903., He showed it to William Rowlin, justice of the peace of the township, saying to him that it didn’t show that it had been paid, and that he found it in cleaning out his safe when moving. He also showed it to the supervisor, claiming that he had found it among his “plunder” when he moved, and said that some day he would collect some money on it. About two weeks later Tinker filed verified claim as owner of the bond, and demanded payment, which was refused.

In January, 1904, Goodrich made a similar claim and demand, and payment was refused. In August, 1904, relator presented his claim with like result. None of these parties appeared before the township board and urged their claims, and the bond was never presented to the board. Ample time elapsed between the filing of these claims and action taken thereon by the board to allow these parties a hearing if they desired. In the cases of Tinker and Goodrich this time was 60 days each, and in relator’s case 14 days. How Tinker got the bond does not appear. Relator received notice of its existence from Goodrich. He instituted these mandamus proceedings in December, 1904.

On the hearing of the case he testified, among other things, that he bought eight of these bonds, two for his mother-in-law, and six for himself; that the six were all $300 bonds; that he brought suit on one of them; that the rest were paid; that he missed this bond about 1870, when he lost it; that for 30 years he had hardly thought of this bond; that no one but he ever owned it, and it had never been paid; that it was brought to his attention by Goodrich, whom at that time he did not know, and did not know where Goodrich got it; that he did not know Tinker, and never saw him; never sold the bond to Tinker or Goodrich, and never knew that either of them presented it for payment; that Goodrich did not have the bond with him either time he came to see relator. He further testified: “ I haven’t got the bond now. Goodrich has it. I considered it out of my possession and couldn’t hold it;” that he was not instrumental in starting the suit;' “that was done by Goodrich;” that he never paid any of the expense of the suit, and had never been called upon to do so; that he never took any legal advice in regard to the bond after he lost it, and made no claim in regard to it, or attempt to collect it for all these years, or notified the township of his loss. He did not produce Goodrich or Tinker as witnesses.

The following are the issues of fact framed by the court upon motion of the relator, and the answers of the jury . thereto: ■

“1. Was the bond described in said petition issued by respondent township of St. Charles ?
“■A. Yes.
“2. Is relator George W. Collier, the ownerN of said bond and legally in possession thereof ?
“A. No.
“3. Has said bond, or any part thereof, been paid ?
“A. Yes.
“4. Was a payment of the interest upon said bond made as purporting to be indorsed thereon ?
“A. Yes.
_ “5. Was the obligee named in said bond ever engaged in the military or naval service of the United States in any rank or capacity ?
“A. No.”

Is relator’s contention correct that as a matter of law the court should have found in his favor ? The evidence objected to, and like evidence which would come under the same objection, was offered as tending to show that the bond in question had been paid and delivered to the township when the other bonds were paid, and that it was wrongfully taken from the possession of the township by Goodrich. Whatever Goodrich and Tinker did in connection with this bond was material as tending to show that fact.. We think it was proper for the purpose for which it was offered. The office of the writ of certiorari is to try questions of law. The facts are not reviewable. An examination of the testimony which is all returned shows that there was evidence properly in the case to be submitted to the jury and to be considered by the court tending to support the findings of the jury and the judgment entered.

It is not necessary to consider other questions.

The judgment is affirmed.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


author: McAlvay; C. J.

text:
    PARKEY v. GALLOWAY.
    1. Highways — Establishment—Prescription—Evidence—Sufficiency.
    Evidence that a logging road was opened in 1872 across unlocated public land and used continuously thereafter until 1905 as such and by the general public, that it was kept in repair chiefly by private parties using it to haul forest products over it, and that township officers expended money upon it, is sufficient to go to the jury on the question of highway by user, though the land was entered in 1902 by defendant as a homestead.
    2. Trial — Requests—Refusal.
    It is not error to refuse requests the substance of which is given in the general charge.
    3. Highways — Obstruction — Action — Officer as Witness — Weight of Testimony.
    It is not error in an action for obstructing a highway to charge that the testimony of the highway commissioner should be considered as that of any other witness, and that his opinions are not binding.
    4. Same — Evidence—Admissibility.
    In an action for obstructing a highway it is not error to permit a witness to state that he was employed by the highway commissioner after a storm to see whether anything was across the road and if so to take care of it, such testimony being material on the question of acceptance.
    5. Same — Appeal—Review—Questions Considered — Question not Raised Below.
    On error to review a judgment against defendant for obstructing a highway, claimed to be a highway by user, an assignment that the court erred in not instructing the jury that while the title to the land was in the Hnited States the township could not gain title by user will not be considered, the question not having been brought in any way to the attention of the trial court.
    6. Appeal and Error — Affirmance—Effect—New Trial — Motion after Affirmance.
    The circuit judge has authority to hear and grant a motion for a new trial on the merits, notwithstanding the judgment has been affirmed by this court.

      Error to Cheboygan; Shepherd, J.
    Submitted October 17, 1906.
    (Docket No. 88.)
    Decided April 2, 1907.
    Trespass quare clausum fregit by Joseph Parkey, highway commissioner of Burt township, against William J.' Galloway. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      William N. Cross and H. W. Harpster, for appellant.

      Frost & Sprague, for appellee.
   McAlvay; C. J.

This suit was brought in justice’s court by the commissioner of highways under section 4061, 2 Comp. Laws, against defendant, to recover damages for encroachment upon a certain highway which crossed land occupied by defendant in Cheboygan county. It was claimed that this was a highway by user. Defendant under the general issue gave notice that no public highway across his premises existed, and admitted on the trial that he had obstructed this claimed highway. Plaintiff recovered judgment, and the case was appealed to the circuit court for Cheboygan county, where it was tried by a jury, and defendant found guilty, and nominal damages were awarded. From a judgment entered upon this verdict, defendant has brought the case to this court by writ of error.

The question in dispute was whether this was a highway by user. This road, claimed to be a highway by user, was cut in 1872 as a logging road across this land, the title to which is in the United States, to enable those who were getting out forest products to get to the waters of Burt Lake.' The road extended from the timbered lands down to the lake shore, and no further. Other logging roads were from time to time cut out, extending from lands on each side of this logging road and running into it, making branches of it, which were used only for logging operations. About this there is no dispute. This was the ordinary logging road, made and kept in repair for many years by private parties for that purpose, and so used to the present time. This suit is instituted by the officer at the instance of private parties, who desire to haul forest products over it and are prevented by defendant, who in 1902 entered the land at the United States land office as a homestead, and has since occupied it as such. This suit was commenced in August, 1905. It is claimed on the part of plaintiff that from the time of the opening of this logging road it has been used by the public generally as a highway, and evidence was offered tending to show that fact, and that the township officers expended some money on the road.

At the close of plaintiff’s case a motion was made by defendant that the court instruct the jury that there was no evidence in the case that would warrant them in finding a public highway by user. The mption was denied, and an exception taken. Error is assigned upon the refusal of this motion. The action of the court was not erroneous. There was evidence properly in the case tending to support plaintiff’s claim at that stage of the case.

The substance of the three requests of defendant to charge the jury, upon the refusal of which error is assigned, as far as was proper, were given in the main charge.

The instruction of the court to the jury that the evidence of the highway commissioner should be considered as that of any other witness, and that his opinions were not binding, was not erroneous.

Nor was it error for the court to allow witness Enos Cobinaw to testify as to his employment by a highway commissioner and instructions to him to see whether anything was across the road after a storm and to look after it. This evidence had some bearing upon the question whether the public authorities had accepted the road as a highway. No error is assigned upon the charge of the court as to the effect of such evidence if believed by the jury, and the question is not before us.

Error is also assigned because the court did not instruct the jury that while the title to the land was in the United States government the township could not gain title by user; that the statute of limitations could not operate against the government. There was no request presented to this effect; nor does it appear that the question was raised at the time the motion was made to take the case from the jury, or that the attention of the court was at any time directed to the question. This court has frequently held that it will not consider questions raised in this manner for the first time in this court. Little v. Williams, 107 Mich. 652; Bokenfohr v. Bush, 117 Mich. 444. To allow this would be unfair to the trial judge, who has had no opportunity to pass upon the matter. "We express no opinion upon the merits of the question. If defendant’s contention upon this question is correct, it is evident that it should be brought to the attention of the trial judge by a motion for a new trial, on which motion the question may be considered. The trial judge has authority to hear and grant such motion, should he so determine, although the judgment has been affirmed by this court. Reynolds v. Newaygo Circuit Judge, 109 Mich. 403; Hayes v. Ionia Circuit Judge, 125 Mich. 277.

Other errors assigned need not be considered.

The judgment of the circuit court is affirmed.

Cabpenteb, Gbant, Blaib, and Moobe, JJ., concurred. .


author: Montgomery, J.

text:
    W. F. STEWART CO. v. CITY OF FLINT.
    1. Municipal Corporations — Public Improvements — Local Assessments — Oorreotion of Irregularities — Power of Legislature.
    It is entirely within the power of the legislature to correct any error in a local assessment which does not in effect work any injury to the taxpayer.
    2. Same — Special Assessments — Irregularities—Effect.
    Where, after the contract for the building of a sewer was let, a change in the depth of the sewer was made by reducing it and the contract price was proportionately reduced without any readvertisement, so that the question of the actual lawful cost of the sewer cannot be determined, the city is not entitled to a decree for the amount assessed to each of the several owners of land in the special assessment district, though the property is still subject to a new assessment if there can be found or provided legislative authority for ascertaining what in fact were the actual benefits of the property.
    8. Same — Assessments—Restraining Enforcement — Laches.
    Equity will not relieve from a special assessment a landowner who has stood by and permitted a local improvement to be made, knowing that such improvement was to be compensated by a special assessment upon a district in which his property is located.
    4. Same —Sewer—Public Improvement — Local Assessment — Benefits.
    That a sewer was carried to a point where turning it into the river would affect the public health as little as possible does not necessarily demonstrate that it was built for the protection of the publio health in the sense that it should become a public charge instead of its cost being assessed in part upon a special assessment district.
    Cross-appeals from Genesee; Wisner, J.
    Submitted January 23, 1907.
    (Docket No. 85.)
    Decided April 2, 1907.
    Bill by the W. F. Stewart Company and others against the city of Flint and Milton C. Pettibone, city treasurer, to restrain the collection of a sewer tax. Defendants filed an answer in the nature of a cross-bill asking for a decree for the amounts of the assessments against complainants. From the decree rendered, both parties appeal.
    Reversed, and bill and cross-bill dismissed.

      Durand & Carton and E. L. Bray, for complainants.

      Warren 8. Bundell (Geer, Williams & Halpin and Brown & Farley, of counsel), for defendants.
   Montgomery, J.

This is a bill filed by complainants to restrain the collection of a special assessment upon property owned by the complainants for the construction of the “ St. John Street Sewer,” so-called. The bill alleges many irregularities in the proceedings providing for the construction of the sewer. It also alleges that the sewer was constructed mainly in the interests of the public health of the entire community, and that, notwithstanding this fact, 75 per cent, of the entire cost of the sewer was levied upon property in the assessment district, and that this was fraudulent conduct on the part of the common council. The defendants filed a cross-bill, denying the charge of fraud, and asking that a decree for the amount of the assessment be made against the various complainants for the amount assessed to each. In the court below, a decree was entered, restraining the defendants from collecting the tax, and dismissing the cross-bill; the court, however, holding that the city had a right to levy an assessment against the local district. Both parties have appealed; the defendants from the decree entered, and the complainants from that part of the decree which holds that the city has a right to levy the assessment against the local district.

The irregularities in the proceedings are numerous, and it is not contended that the statute was in all respects complied with. The ordinance requires a yea and nay vote, determining the necessity of the public improvement, and providing for the assessment of the tax for the improvement. The action originally taken was not taken by a yea and nay vote. The contract, as originally let, was let to Lynch & Lynch for an aggregate sum of $26,153.30. It subsequently transpired that a sewer of six feet less depth than that originally contemplated would answer all requirements, and the contract with Lynch & Lynch was modified by reducing the contract price proportionately. Later on a new assessment was made, by which an assessment district was fixed. Seventy-five per cent, of the cost of the sewer was apportioned to the assessment district, and 25 per cent, was apportioned to the city at large. Commissioners were appointed to make the assessment, and this resolution was adopted by a yea and nay vote, as required by the charter.

Under section 9 of chapter 20 of the charter (Act No. 346, Local Acts 1901), any special assessment, which is in the opinion of the council invalid by reason of irregularity or informality in the proceedings, may be validated by a new assessment for the same purpose for which the former assessment was made. This statute is very broad. It is entirely within the power of the legislature to correct any error in an assessment which does not in effect work any injury to the taxpayer. Farr v. City of Detroit, 136 Mich. 200; 1 Cooley on Taxation (3d Ed.), p. 510. There would be little difficulty, therefore, in sustaining this reassessment as entirely valid, except for the fact that, in providing for a modification of this contract, in substantial respects the council exceeded its authority, and ignored the provisions of section 3 of chapter 20- of the charter. There is no doubt that, so far as the case is affected by the informality in the proceedings, the property is still subject to a new assessment, if there can be found or provided legislative authority for ascertaining what in fact were the actual benefits to the property within the assessment district from the construction of this sewer. But the failure to advertise and let the contract as it was modified leaves the question of the actual lawful cost of the sewer not susceptible of determination, and / for this reason the prayer of the cross-bill cannot be granted. See Auditor General v. Stoddard, ante, 329.

As to the relief asked by the complainants, the record discloses the fact that some of the complainants were very active in securing the action of the council in providing for this sewer. They were the proprietors of the Oak Park Subdivision, so-called, a portion of the city devoted to manufacturing, and it was thought to be exceedingly important that the séwer be provided for this district at as early a date as possible. With this in view, some of the complainants urged action by the council, and asked that this action be taken, even if it was thought necessary to provide for assessing the whole cost upon this Oak Park Subdivision, but with the understanding that the council would later take up and consider what was equitable and fair as between the different sections of the city, and apportion such part as should equitably be borne by the city at large to the whole city. It was in pursuance of this action, thus urged by the owners of property in Oak Park Subdivision, that the original action of the council was taken. Later on the subject came before the council, and it was then decided that the portion which the city should bear was 25 per cent., and the remaining portion should be borne by the special assessment district. Not only is this true, but the parties stood by, took no action until after the work was entirely completed, and then filed this bill. So far as the complainants’ right to invoke, this remedy is concerned, the question is ruled against them in various cases. Beginning with the case of Byram v. City of Detroit, 50 Mich. 56, this court- has steadily refused to grant relief to a complainant in equity who has stood by and permitted a special improvement to be made, knowing that such improvement is to be compensated by a special assessment upon a district in which his property is located. Lundbom v. City of Manistee, 93 Mich. 170; Goodwillie v. City of Detroit, 103 Mich. 283; Atwell v. Barnes, 109 Mich. 10; Farr v. City of Detroit, 136 Mich 200. The last cited case is controlling of the question of the'complainants’ right to the relief sought.

It is strenuously argued in this case that the assessment was fraudulent, for the reason that this sewer as laid was really laid for the benefit of the health of the city at large, and to avoid polluting the waters of Flint river. It is, doubtless, true that it was thought necessary to carry this sewer to a point where by turning it into the river the public health would be as little affected as possible; but it does not necessarily follow that the sewer was built for the protection of the public health, in the sense that it should become a public charge. It is true of all sewer construction that a public nuisance is to be and must be avoided, but this has never been thought to prevent the levying of a tax for its construction upon a special assessment district. In view of the previous history of the sewer construction in Flint, and in fact upon this whole record as made, we are not able to find any evidence of fraud, or even of unfairness, in the method adopted for providing for the payment for this sewer. The only reason why we are forced to withhold affirmative relief to the defendants is that we do not find the amount of the benefit to these various complainants to have been determined by the legal method pointed out by the statute. It is, no doubt, within the power of the legislature to provide a means for a determination of the benefits actually received, if, in view of this opinion, payment shall be withheld.

The complainants’ bill will be dismissed, and the defendants’ will also be dismissed, without prejudice to any further proceedings which may lawfully be had in the premises.

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


author: Blair, J. Blair, J.

text:
    TRADESMAN CO. v. SUPERIOR MANUFACTURING CO.
    1. Evidence — Parol Evidence — Written Contract — Admissibility.
    Parol evidence of fraudulent representations consisting of statements of the effect of a written contract and of the rights of the parties thereunder is inadmissible as tending to vary the terms of the written contract, and not being such false representations of existing material facts as to avoid the contract.
    2. Contracts — Rescission—Damages.
    A party to an executory contract may stop performance by the other party by a distinct, unequivocal and absolute renunciation thereof, and thereafter the right of such other party is limited to a recovery of damages for the breach of the contract involved.
    3. Same — Advertising Contract — Renunciation—Notice—Duty of Publisher — Lesséning Damages.
    Upon notice of renunciation of a contract for advertising space it is the duty of the publisher to use reasonable efforts to obtain other advertisements at the best price attainable, and the measure of damages is the contract price, less the amount obtained, or which might have been obtained for such other advertisements.
    4. Same — Burden of Proof.
    The burden of proof is on the party wrongfully repudiating a contract to show to what extent the damages were lessened or might have been lessened.
    ON MOTION- FOR REHEARING.
    Contracts — Advertising—Renunciation—Duty of Publisher.
    Where a purchaser of advertising space .repudiates his contract the publisher is under no obligation to split up the time or space covered by the contract in his effort to dispose of the space to lessen the damages, neither need he refrain from selling other unoccupied space to other parties and thereby deprive himself of the profits which, except for the violation of the contract, would have been secured.
    Error to Kent; Wolcott, J.
    Submitted January 23, 1907.
    (Docket No. 91.)
    Decided April 2, 1907.
    Motion for rehearing denied July 1, 1907.
    Assumpsit by the Michigan Tradesman against the Superior Manufacturing Company for breach of an advertising contract. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Murray & Storm ( Charles E. Ward, of counsel), for appellant.

      Hatch & Raymond, for appellee.
   Blair, J.

On the 5th day of January, 1903, the parties to this suit entered into the following contract:

“Ann Arbor, Mich., Jan. 5, 1903.
“We hereby authorize the Tradesman Company to insert our advertisement to occupy 24 inches on inside front page cover in the Michigan Tradesman, for 104 consecutive weeks and until further notice for which we agree to pay 55 cents per inch per week, payable monthly.
“ Extra space in anniversary issues to be $1 per inch.
“The Superior Manueg. Co., “Per H. H. Seeley.
“Accepted
“Tradesman Company,
“By Karl K. Alberts.”
Across the end of said agreement appears the following, “O. K., E. A. S.” On the back of said agreement appears the following:
“Advertiser to have the privilege of discontinuing this contract after one year from date, if desired.
“Albert.”

The letters “ O. K., E. A. S.”were placed on said contract by E. A. Stowe, president of the plaintiff. Defendant’s advertisement was published by plaintiff till April 29, 1903, when defendant ordered it discontinued, and refused to further recognize the contract. The space to which defendant was entitled was practically left vacant till June 3, 1903, from which time such space was occupied by other advertisements.

Among the findings of fact by.the court are the following:

“During the entire 52 weeks next following the first publication of defendant’s advertisement, the amount received by plaintiff for advertisements published in the Michigan Tradesman more than paid all the expenses of publishing the paper. If defendant’s advertisement had been published in the Michigan Tradesman for the 52 weeks called for in said contract, plaintiff’s profit from the carrying out of the contract would have equalled the entire contract price. ■
“During the whole 52 weeks immediately following the first publication of defendant’s advertisement in the Michigan Tradesman, plaintiff had for sale advertising space in said paper exceeding the space which would have been occupied'by defendant’s advertisement in addition to the space which would have been occupied by defendant’s advertisement, in case it had been published for the entire period of the contract. * * * The amount which would have been due from defendant to the plaintiff at the commencement of this suit, for the publication of said advertisement for 52 weeks, over and above all payments made for defendant’s advertisements published would be $488.40. Defendant received for other advertisements published in the space which would have been occupied by defendant’s advertisements if the contract had been carried out by defendant after the publication of defendant’s advertisement was discontinued, the sum of $326.26.
“After defendant ordered its advertisement discontinued the plaintiff tried to sell the space contracted to defendant upon a contract for a year at the same price provided in defendant’s contract, and would not cut the price for the purpose of selling the space. It did not attempt at all to sell the space for the balance of the unexpired year provided in the contract, nor to sell a portion of the space, nor to sell the space at a reduced figure.”

The court’s conclusion of law was as follows:

“ I find, as a conclusion of law, that the plaintiff is entitled to recover of defendant damages for the breach of said contract on the part of the defendant in ordering the plaintiff to discontinue the publication of its advertisement, and by reason of its failure to furnish the plaintiff under said contract, material for its advertisement. Such damages consist of the profit which plaintiff would have made out of the contract if it had been performed by the defendant, less the amount received by plaintiff for the publication of other advertisements in the space which it had agreed to give to defendants. Such profits amounted to $488.40. The amount received by plaintiff from other advertisements amounted to $326.26, leaving a difference of $162.14, which, together with interest at the rate of 5 per cent, per annum from January 1, 1904, the time when said contract should have been completed to the rendition of judgment, amounting to $19.34, making a total of $181.48, the plaintiff is entitled to recover of the defendant and judgment will, therefore be rendered in favor of the plaintiff, and against the defendant for that amount, and costs to be taxed.”

Defendant alleges that the court erred in excluding evidence of alleged fraudulent misrepresentations by plaintiff’s agent, relied upon as a justification for rescinding the contract, and set up in defendant’s notice under the plea of the general issue. The court held that such testimony was incompetent as tending to vary the terms of the contract, and in this, we think, he was correct. Cohen v. Jackaboice, 101 Mich. 409. The alleged fraudulent representations were, in substance, statements of the effect of the contract, and of defendant’s rights thereunder; the result of proof of which would be to make a different contract than that executed by the parties. They were not such false representations of existing material facts as to avoid the contract.

It is also contended that the court erred in determining the measure of damages. As we have heretofore held, a party to an executory contract may stop performance by the other party by a distinct, unequivocal and absolute renunciation thereof, and thereafter the right of such other party is limited to a recovery of damages for the breach of the contract involved. Wigent v. Marrs, 130 Mich. 609. See, also, William, E. Peck & Co. v. Corrugating Co., 96 Mo. App. 212; D. O. Haynes & Co. v. Nye, 185 Mass. 507. It was the duty of plaintiff, however, upon notice of renunciation of the contract by defendant, to use reasonable efforts to obtain other advertisements at the best price attainable, and the measure of damages would be the contract price less the amount obtained, or which might have been obtained for such other advertisements. Hopkins v. Sanford, 41 Mich. 243; William E. Peck & Co. v. Corrugating Co., supra. The burden of proof is on the party wrongfully repudiating the contract to show to what extent the damages were lessened or might have been lessened. Cases last cited; and Farrell v. School District, 98 Mich. 43; Carver v. School District, 113 Mich. 524.

The price charged by plaintiff for the space contracted for by defendant, if for a year, was 55 cents per inch; if for a shorter period, it was proportionately larger. The regular charge for inside space was 40 cents per inch, and if plaintiff had made no effort to obtain the 55 cent rate, the testimony of the president indicates that he might have filled the defendant’s space at the 40 cent rate. If plaintiff had filled the space during the entire time at the 40 cent rate, it would have received $336 instead of $336.36, which it actually did receive. There was no testimony tending to show that the plaintiff should have received more than it actually did receive, and the court’s conclusion of law is sustained by the evidence.

The judgment is affirmed.

Montgomery, Hooker, and Moore, JJ., concurred. Ostrander, J., concurred in the result.

on motion for rehearing.

Blair, J.

The only reason assigned in the motion, which, in our opinion, requires consideration is the following :

“1. Because the court is in error in holding in the last paragraph of its opinion that the rate for inside advertising was 40 cents per inch, since the record ( page 16, line 5) shows it to be 50 cents per inch, and which, estimated upon the same basis computed by this court, of 34 inches, at 50 cents per inch per week, for 35 weeks, would make a total of $420.00 instead of $336.00, or a difference of $84.00 in defendant’s favor.”

It is true', as alleged, that the regular charge for inside space was 50 cents per inch, but the advertising with which defendant’s space was filled was not published at that rate.

“Q. And you say you would not let it go because you would not get the price ?
“A. We never deviate from our rate card.
Q. Yet didn’t you tell us this morning that you had lots of advertising in this particular space for which you only obtained forty cents per inch ?
“A. Yes, sir.
‘ ‘ Q. And put it in this space that you say has a value of fifty-five cents ?
“A. Yes, sir.
Q. To the defendant in this case ?
“A. Yes, sir.
Q. Well, now, wasn’t that a cut in the price ?
“A. No.
Q. It occupied this space, you say ?
“A. Yes.
Q. .And was for forty cents?
“A. Yes, sir.
Q. And yet you contend that was not a cut in the price ?
“A. No, sir. We never have made a cut of less than the regular rate for the inside cover page, nor did we ever take a contract at forty cents for such space. But it is our custom never to raise the price on a customer as long as he stays with us, so that we have some taken many years ago at thirty-two cents. * * * It was not a cut in the price for us to print these other advertisements on that page at forty cents ‘ because the advertisements were not contracted for that particular space.’ They were contracted for run of paper.”

Other advertisements were published in defendant’s space at 50 cents, some at 53, some at 55, some at 77, some at 42. Plaintiff’s manager testified that possibly this space might have been taken by some of their new customers at inside page rates.

“ So the probabilities are that you could have filled this space with advertising if you had not felt obliged to tell the advertiser that he might have to vacate that space ?

“A. Possibly by splitting it up into smaller spaces.”

The plaintiff was under no legal obligation to split up the time or space covered by the contract; neither was he under obligation to refrain from selling other unoccupied space to other parties, and thereby deprive himself of the profits, which, except for the violation of the contract by defendant, would have been secured. The burden of proof was on the defendant to show that the plaintiff could have obtained more for the space than it actually did obtain, and we are still of the opinion that the defendant failed in this regard. The defendant received credit for all that the plaintiff received for this space, which, under its proofs, was all that it was entitled to.

■ Motion denied.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Blair, J.

text:
    KENDALL v. CHAPEL.
    1. Master and Servant — Action for Services — Appeal and Error — Estoppel to Allege Error.
    Where, in an action to recover for services, no requests to charge were presented and no intimation given to the court that counsel claimed that the jury might consider the contract price in determining the value of plaintiff’s services, but counsel agreed with the court that, if the contract was as defendant claimed, plaintiff could only recover what his services were worth, plaintiff cannot allege error on an instruction that in that case the contract compensation cut no figure.
    2. Same — Instructions—Construction.
    Where, in an action for services rendered under a contract to pay therefor a percentage of defendant’s receipts, the court charged that if the jury found the contract as stated by plaintiff he could recover his commission, but if they found it as claimed by defendant he could not recover his commission, but only what his services were worth, that the question of commissions was out of the case, such charge did not say to the jury that they could not consider the contract price in determining the value of plaintiff’s services.
    3. Same — Contract of Employment — Construction.
    A servant agreeing to work a year for a percentage of the master’s receipts, and leaving before the year is up, cannot recover more than the proportionate part of the entire year’s receipts, though he worked that part of the year when the receipts were the greatest.
    Error to Kent; Perkins, J.
    Submitted January 25, 1907.
    (Docket No. 116.)
    Decided April 2, 1907.
    Assumpsit by Eugene L. Kendall against William A. Chapel for work and labor. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      G. G. Turner, for appellant.

      McKnight & McAllister, for appellee.
   Blair, J.

Plaintiff brought suit on the common counts to recover for services rendered to an architect under an express contract, stated by him in his testimony, as follows:

“This was a proposition I went and made to Mr. Chapel myself voluntarily, and I continued there from time to time as I have stated. I had a talk with Mr. Chapel in December, 1900, and agreed to stay the next year and work for him, do such work as he had there in the office, that he would pay me ten per cent., and that is what he stated to me at that time, and I went along and did the work there as I have stated, and in addition to what I did as an apprentice there, as an office boy, I did some copying, copied some on the typewriter. Mr. Chapel made up the specifications that I had to copy from, and I did some copying on the tracing after he made the original, and looked after the office and attended the telephone, and made myself generally useful.
Q. And that is what he wanted you there for, and you agreed to stay with him that next year on that basis ?
“A. It run along through 1901, and I continued along in 1902 doing the same work and on the same arrangement, and in March, 1903, I had a talk with Mr. Chapel, and he agreed to give me fifteen per cent., commencing from January for that next year, but there was no reference to time made. There was before that time; there was when I first entered the office. I began in 1901 on the ten per cent, basis for that year, and I continued the next year on the same basis. I started in on the third year on the 21st day of March, was to have the ten per cent., and I continued on the fourth year as I have stated. I commenced on the 21st day of March, 1903, on the fifteen per cent, basis, and I continued on the fourth year, as there was nothing said about time at all. All that was said I have stated it. He was not hiring for a day, I don’t suppose. * * * There was nothing said about the time. There has never been anything said only relative to the time the first year. * * * I was to receive ten per cent, for 1901, if I stayed there the whole year.”

According to defendant’s testimony, the contract was:

“ The next year I figured I could give him ten per cent, of the earnings, as I wanted somebody in the office all the time to attend telephones and matters as much as he could when I was away. The matters that I wanted him to attend to, the telephone to answer, and to get plans and show to contractors if they came in for information, and to be there to do general office work; If I left any drawings there for a contractor to get, I wanted him to be there to deliver them. My business required me to be out of the office a great deal of the time superintending constructions, etc. That year I made a proposition to him to pay him ten per cent., providing he stayed the whole year and could depend upon him, and he agreed to do it. It run along 1901 and 1902; there was nothing more said until the last of 1902 or the first of 1903. I told him he could do a little better, and I would give him fifteen per cent, on the same basis if he remained the year out, so I could depend on having a man for a year. * * * He came back March 15, 1904, and remained until about the 1st of June, on the same basis, and that is all the work he did for me in 1904. He came back on the same arrangement as before.”

The court submitted the case to the jury to determine what the contract was, and instructed them as to the measure of damages. The jury found for the defendant, and plaintiff brings the case to this court by writ of error.

The assignments of error relate to the charge, and only three of them- are relied upon in appellant’s brief. The portions of the charge complained of relate to the measure of damages, and are quoted in appellant’s brief, as follows :

“ ‘ On the other hand, if you find the contract to have been as the defendant claims, namely, that the plaintiff was to receive the compensation named only on condition that he remain throughout the year and perform the services required of him and agreed upon, then under the admitted facts in this case, the plaintiff is entitled to recover only such sum as his services actually rendered are reasonably worth. Should you find for the defendant as to the contract, you will ascertain under the evidence the amount and value of the plaintiff’s services over and above any páyments shown to have been made, and render your verdict for such balance.’ * * * Again, the court said: ‘ On the other hand, if the time was fixed and it was employment from year to year, it is conceded he did not stay the year, then if you so find, he would be entitled to recover what his services were reasonably worth, as you may find the amount to be from the evidence in the case.’ And then again: ‘ I think it is clear, just one question, what was the contract? The measure of damages in the one case will be according to the compensation agreed upon for work done while in the defendant’s employment, and, in the other case, question of commissions does not cut any figurej it is only what his services were reasonably worth.’”

The gist of plaintiff’s complaint of the charge is that the court erred in charging the jury that, under the defendant’s theory of the case, the commission provided for in the contract cut no figure in determining what the plaintiff’s services were reasonably worth. In support of his contention, counsel for plaintiff cites Gage v. Meyers, 59 Mich. 305, Fuller v. Rice, 52 Mich. 437, Howell v. Medler, 41 Mich. 643, and other cases. See, also, Sheldon v. Leahy, 111 Mich. 29. Whether or not there was technical error in the portions of the charge quoted, we do not think plaintiff should be permitted to question them, because:

1. Plaintiff’s counsel agreed with the court that the rule stated in the two excerpts first quoted was the correct rule, and warranted the court in believing that he consented that the rule stated in the third excerpt was the same as that stated in the first and second. On the trial, the following occurred:

The Court: That is a question of fact for the jury to determine. If the jury should find the contract as Kendall claims it, then Kendall is entitled to the compensation he claims; if they should find that the contract was as the defendant claims it, then Kendall is entitled to recover only so much as his services were worth.
“Mr. Turner: That is true.”

No requests to charge were presented and no intimation was given to the court that counsel claimed that the jury might consider the contract price in determining the value of plaintiff’s services. Furthermore, the circuit judge did not say to the jury that they could not consider the contract price. In effect, what he said was that, in the one case, plaintiff would recover hia commission or percentage; in the other, he could not recover his commission, but only what his services Were reasonably worth; that the question of commissions was out of the case.

3. Plaintiff, under the contract, as stated by defendant, was entitled to a percentage of the gross receipts for the entire year by working the entire year, and, if he could recover at all on the basis of commissions for a service of two months and a half, he could only recover the average rate for the entire 13 months. He could not select the period when the receipts were greatest and make such receipts the basis of computing his percentage. Defendant testified:

“In 1903 the earnings were $1,150; fifteen per cent, of that would be $173.85; average per month of '$14.84. Kendall claimed $30.73; deducting, for the lost time, $3.48, would leave a balance overpaid of $13.83 for 1903; that is, overpaid Kendall on account. 1904 the earnings were $1,701.67; that is, for the whole year. Total at fifteen per cent, would equal $355.34; average per month $31.36. Kendall worked for two months and a half; would equal $53.17; paid Kendall on account in' 1904, $60.55, which would leave a balance overpaid on 1904 of $7.58. Overpaid Kendall, taking the totals overpaid of $13.73 and $7.50, would make $30.33, and deduct from that what he did owe him in 1903, $16.83, I make out that he is indebted to us $3.48. That is a correct statement of my books, and of the business I did, taken right off the books. That is the book of my accounts, and Mr. Kendall had access to it, and that is the total amount that he received.”

The plaintiff put in no testimony as to the value of his services apart from the contract provision, and, under the testimony of the defendant, he got all the benefit he was entitled to of that provision.

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Hooker-, J.

text:
    CHASE v. ANGELL.

    1. Appeal and Error — Review—Questions Considered — Immaterial Matters.
    Where, on a bill for dissolution of a partnership and for an acoountimg, this court finds that the proof sustains the claim of copartnership, the question whether the fact of partnership is settled by an interlocutory decree of the circuit court from which no appeal was taken, will not be decided.
    2. Partnership —Existence oe Relation — Evidence — Sufficiency.
    On a bill for dissolution of a partnership and for an accounting, evidence examined, and held, to show that the parties agreed to go into partnership upon equal terms in the business of platting, improving, and selling lots from a tract owned by one of them, and that they actually entered upon the business of the partnership, each doing work, putting in funds, and incurring joint indebtedness in the firm name.
    3. Statute of Erauds — Contracts for the Sale of Land— Partnership — Part Performance.
    Where a parol partnership to plat, improve, and sell lots from a tract of land owned by one of the parties has been in part performed by the parties entering upon the business of the partnership, each doing work, putting in funds, and incurring joint indebtedness in the firm name, the statute of frauds is not an insuperable objection to treating the lands as a part of the assets of the partnership.

      4. Partnership — Dissolution—Accounting—Equities.
    Where upon an accounting between partners in the business of platting and selling lands it appears that they agreed orally that a certain lot might be withheld from the partnership control upon fair terms, equity requires that the arrangement be carried out upon a reasonable division of values as they then existed, though the terms of withdrawal of the lot were never agreed upon.
    5. Dower — Inchoate Right — Lands Subject — Partnership Property.
    Where prior to the time the parties to a parol partnership to plat and sell lands belonging to one of them entered upon performance thereof, necessary to take it out of the statute of frauds, the partner owning the land acquired a domicile in this State, his wife had an inchoate right of dower in the lands, notwithstanding the partnership.
    6. Same — Right to Dower — Estoppel by Acts op Husband.
    Representations by a husband before the board of review, though improper, can have no effect as an estoppel of his wife to claim dower in lands of which he is seized.
    7. Same.
    The husband cannot, by any act of his, prejudice his wife’s right of dower.
    8. Partnership — Lands—Assets—Title.
    Where each of the partners of a firm has a legal title to land owned by them as part of the firm assets, such land is held in common subject to a liability to have it applied to partnership obligations and accounting, each having a lien on the interest of his copartner for any balance due him.
    9. Same — Partition.
    On dissolution of a partnership, real estate constituting part of the firm’s assets, may be divided by compulsory partition, if it be shown that it will not be required to satisfy liabilities of the firm.
    10. Same — Compelling Conveyance.
    A partner holding the legal title to land constituting part of the assets of the firm holds it in trust for the uses of the firm, its creditors, and his copartner, and equity will compel such conveyance as the necessities of the business and the rights of his copartner require.
    11. Same — Dower — Partnership Property — Satisfaction op Dower.
    Where on dissolution of a partnership it appears that land constituting part of the firm’s assets is subject to a prior right of dower in behalf of the wife of the partner holding the legal title to the land, a case is presented for the application of section 11100, 3 Comp. Laws, authorizing the court in partition proceedings to determine the value of the dower interest, and pay or secure it to the person entitled to it.
    12. Same — Dissolution—Distribution of Funds.
    Defendant, owning land subject to purchase money mortgages, entered into a copartnership with complainant to subdivide, improve, and sell it, and subsequently a bill was filed for dissolution of the partnership and an accounting. Held, that defendant’s wife’s inchoate right of dower was only in the equity of redemption, and that in the partition proceedings, provision must be made for (1) the mortgage; (2) the dower interest; (8) the payment of the debts of the partnership; (4) the balance which should be found between the accounts of the copartners; and (5) a division of the fund or land remaining (if all is not sold) between the copartners.
    Cross-appeals from Ingham; Wiest, J.
    Submitted February 8, 1906.
    (Docket No. 105.)
    Decided September 20, 1906.
    Bill by Charles H. Chase against Horace B. Angelí and Clara E. Angelí for the dissolution of a partnership and for an accounting. From the decree rendered, both parties appeal.
    Affirmed, and remanded for settlement of decree.

      Lyon & Moinet ( William A. Fraser, of counsel), for complainant.

      James G-. Kress and Kelly 8. 8earl, for defendants.

       Rehearing denied April 17, 1907.

   Hooker-, J.

The bill in this cause was filed to obtain the dissolution of a copartnership, and an accounting. Both parties have appealed. The learned circuit judge who heard the cause, heard proofs in open court, upon the subject of the existence of the copartnership, and rendered an interlocutory decree, determining that the relation existed, and referred the cause to a commissioner to take proofs and make a report upon the account. The report being filed, exceptions were taken by both parties, and, upon a final hearing, a decree was made settling the account and directing a sale of the copartnership property.

Before stating the questions that we are called upon to decide, a brief outline of facts will be made. The defendant Angelí, while a resident of Seville, in Gratiot county, Mich., concluded to rent his farm, and take his family to the State of New York, which he did. Subsequently he purchased a parcel of land,near the Agricultural College, at Lansing, Mich., with the design of platting and putting it upon the market. He negotiated with the complainant with a view to forming a copartnership in this venture, and the complainant came to Lansing and engaged with him in carrying out the project. The business was done in the name of Angelí & Chase. A disagreement finally resulted in the filing of the bill.

The questions discussed are the following:

(1) Must the question of the existence of the copartnership relation be considered settled by the interlocutory decree, no appeal being taken therefrom, within the statutory period computed from the time of its entry ?
(2) If not conclusive, was there a copartnership ?
(3) If the parties were copartners, was any of the land included in the partnership assets ?
(4) If so, was lot 80 included, and if not, upon what basis should it be excluded ?
(5) Has Clara E. Angelí an inchoate right of dower in the premises, as against the complainant ? This is alleged to turn upon the place of residence of the defendants, at the time the copartnership relation is said to have been formed, which is in dispute ?
(6) Whether a modification of the provisions for the sale of the property should be made ?
(7) The allowance of $1,800 to the complainant for personal services is questioned.
(8) The right of defendant Horace Angelí to the allowance of certain items relative to changes in a septic tank and sewer.
(9) Certain items of account which need not be here specified.
(10) Additional solicitor’s fees to complainant.

In discussing these various questions the testimony will be referred to so far as deemed necessary, to make clear the facts found, upon which legal conclusions are based.

The Interlocutory Decree. The interlocutory decree, after reciting that the cause had been heard and argued, contains the following :

“And it appearing to the court that a partnership existed since July 1, 1901, and exists between Charles H. Chase and Horace B. Angell, and that an accounting ought to be had,” and decreed a reference to a commissioner to take an account and report, “reserving to the court the right to declare the particular rights of the parties in said partnership until the making and entry of the final decree in said cause.” The complainant asserts that the first decree, although in some respects interlocutory, is final upon the question of copartnership. As we have found that the proof sustains the claim of copartnership, it is unnecessary to consider that question.

The Copartnership. In the brief statement made we have not attempted to discuss the testimony, or indicated our conclusions upon disputed questions. The first important inquiry is whether a copartnership ever existed, defendant’s claim being that what passed in relation thereto amounted to no more than an agreement that the parties should at some future time enter into a copartnership, the terms of which were never settled. Angell purchased the premises on a contract May 2, 1901. He obtained his deed May 10th, and recorded it May 14th, of the same year. Prior to July 12, 1902, Chase lived in Ithaca, Mich., where he owned and published a newspaper.

In May or June, 1901, Angell who had known Chase from boyhood, called upon him and told him of his investment, that it was near the Agricultural College, and that he contemplated platting the property, and improving it with a view to the sale of lots. Early in June they had another talk and a proposal of copartnership was made. Subsequently they met at Lansing, and talked the matter over, and there is evidence that the terms of a copartnership were agreed upon. This was disputed by the defendant, but the circuit judge was convinced of its truth, and we are of the same opinion. He fixed the date of the agreement as July 1, 1901. From that time conferences were frequent, and correspondence voluminous in regard to the project. Some time was spent over the question of sewers for the territory. Complainant visited Lansing several times in relation to the work of platting the premises, and went to Detroit in the effort to negotiate a copartnership loan on the premises. He moved upon the premises, and began work in clearing them up, and in building a store, ice-house, and other buildings at joint expense. They made a lease of the store in the name of Angelí & Chase, and did many other things for the common interest, among which were their dealings and loans made at the City National Bank at Lansing under the same name. They filed a bill as co-partners in relation to a controversy with the college authorities, and this bill alleged that they were copartners. We need not further quote the evidence which leads to the conclusion stated. In short, we are of the opinion that the parties not only agreed that they would go into partnership upon equal terms, but that they actually entered upon the business of the copartnership, each doing work, putting in funds, improving the premises, and incurring joint indebtedness in the firm name. That they understood that they were copartners in a general way, is not inconsistent with an intention to put their arrangement in writing, with such modifications as they should afterward agree upon, and, like any other partially performed oral contract for the sale of lands, the statute of frauds is not an insuperable objection to treating the lands as part of the assets, under such circumstances as have been shown in this cause.

Lot 80. Among the lots platted was a tract of 15 acres or so, called “ Lot 80,” and at one time Mr. Angelí expressed a desire to withhold that from copartnership control. Mr. Chase replied that he thought that could be arranged, but the terms were never agreed upon. While this is true it is obvious that the complainant consented to its withdrawal, upon fair terms, and while these were never agreed upon, equity requires that the arrangement be carried out, upon a reasonable division of values, as they then existed. From our examination of the testimony we conclude this to have been of more than the average value per acre of the lands, and we are not satisfied that the decree of the circuit judge should be modified in this respect.

Items of Account. The decree as to items allowed for the team furnished by McCloskey, for time spent by complainant when upon trips, and the disallowance of defendant’s claim for board furnished to complainant’s wife, will be affirmed. We think that his conclusions in relation to allowance to be made for the services rendered by the respective parties is a reasonable and just one, and that it should not be disturbed. No deduction will be made from the items allowed defendant for changes in the septic tank and sewer.

Dower. We are also of the opinion that the court did not err in holding that Mrs. Angell had an inchoate right of dower in said lands, not only upon the ground which he decided it, but for the further reason that before the parties fairly entered upon the performance of the agreement, which alone could take the contract out of the statute of frauds, Angell had again taken up his residence in Michigan and reacquired a domicile here if he ever lost it. Angell’s representations before the board of review cannot have the effect of an estoppel, or otherwise affect the rights of his wife, if there was anything improper in it, which may be doubtful.

Homestead. The defendants’ brief makes claim for an allowance by wáy of homestead, it appearing that Angell and wife resided in temporary quarters upon the premises on their return from New York. The decree is silent upon the subject, leading us to infer that the question was not raised in the circuit court, but neither answer makes such a claim, and we find no proof warranting the belief that a homestead was established before the parties entered upon the performance of the copartnership agreement.

The result of the foregoing discussion is the affirmation of the decree of the circuit court in the matter of accounting. It leaves the disposition and division of the property to be determined. The learned circuit judge was of the opinion that it was not advisable to attempt a partition of the premises, and decreed that the premises be sold subject to the rights of dower in Mrs. Angelí. It is contended by defendants’ counsel that the interest of Mrs. Angelí cannot be divested through the husband’s alienation of an undivided interest in the land and that the law does not permit of the application of the doctrine of commutation of dower in this case. It is a general rule at common law that the husband cannot, by 'any act of his, prejudice his wife’s right of dower, and this rule has been adhered to in Michigan. In several cases it has been held, and such is believed to be the rule generally adhered to in the United States, that land owned by copartners, as part of their firm assets, where each has a legal title, is held in common subject to a liability to have it applied to partnership obligations and accounting, each having a lien on the interest of his copartner for any balance due him, and that when the firm is dissolved, or can no longer continue business, real estate constituting part of its assets may be divided by compulsory partition, if it be shown that it will not be required to satisfy liabilities of the firm. Roberts v. McCarty, 9 Ind. 18; Danvers v. Dorrity, 14 Abb. Prac. (N. Y.) 208; Patterson v. Blake, 12 Ind. 436; Jackson v. Deese, 35 Ga. 88.

And in Gray v. Palmer, 9 Cal. 639, it was held that a surviving copartner might, by one suit in equity, obtain a decree declaring realty, the title to which stood in the name of his deceased copartner, ■ to belong to the copartnership, directing a sale of so much thereof as'was necessary to pay partnership debts, and making a partition of the remainder. Upon this subject, the court say:

“As between the partners, the partnership property-may consist either of real or personal estate, or of both, and in each case their ultimate rights are the same. And it does not matter in whose name the real estate may be held, he is only a trustee for the partnership, and the real estate, for the purpose of disposal and distribution, is to be treated as personal estate. An exception may be stated, as where there are no partnership debts to pay, in which case the real estate should be partitioned if practicable. (Story on Partnership, §§ 83, 92, 93.) And this being the true character of partnership real estate, the surviving partner has an equitable lien upon it for his indemnity against the debts of the firm, and for the balance that may be due to him from the firm. (Collyer on Partnership, § 135 and note.) For the same reason, the widow and heirs have only an interest in the net partnership property after all the partnership debts are discharged.”

For a general discussion of the subject, see Freeman on Cotenancy and Partition, § 443.

In Tenney v. Simpson, 37 Kan. 353, it was said that upon dissolution of the partnership and a full payment of its debts, the partners became tenants in common of its real estate, and the. court will decree a partition.'

In this case, while these parties are not technically cotenants in a legal title, in equity, they are such to all intents and purposes. While the legal title is in Angell, he holds it in trust for the uses of the firm, its creditors, and his copartner, and equity will compel such conveyance, as the necessities of the business, and the rights of his copartner require. We have two statutes that confer the power upon courts of justice, to compel persons having dower interests, to be satisfied with a provision in lieu thereof, first, 3 Comp. Laws, § 8953, which applies to proceedings instituted by widows, to recover dower in lands which the husband has conveyed without his wife’s concurrence, and second, 3 Comp Laws, § 11100, which covers cases of sales under judgments or decrees for partition. It provides:

“11100. Sec. 88. In all cases of sales under judgment or decree in partition, where it shall appear that any married woman has an inchoate right of dower in any of the lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgment or decree such sale is made, to ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate, according to the principles of law applicable to annuities and survivorships, and to direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties.”

Were this a case where Angelí had deeded a half inter-: estin the land to Chase and Chase had filed a bill for partition, it would have been within the terms of the statute, and the court would have authority to sell the property, giving full title, and providing for Mrs. Angell’s contingent interest, in one of the methods mentioned in the statute. We are of the opinion that this is none the less a case for partition, because it is based upon an equitable right which the court may compel Angelí to turn into a legal title by conveyance. Equity has authority to partition equitable estates as well as legal. See 17 Am. & Eng. Enc. Law (1st Ed.), p. 684. No reason occurs to us for holding that section 11100 should not apply to a case where the bill is filed to partition equitable titles, and to compel conveyance to carry out the decree. The situation is such that a sale subject to dower rights would be likely to materially lessen the price obtainable for the land, for, in the hands of any one except Angelí, the outstanding contingent estate would be an obstacle to the sale of lots, which would practically prevent it. This would give to Angelí such an advantage at the salo as to enable him to deprive complainant of much of the profit on his venture, which should arise out of the increase in value of the property.

It is therefore, in our opinion, a proper case in which to apply this statute. The land was bought and, we assume, is still to be held, subject to purchase-money, and possibly other mortgages, which underlie the right of dower. Mrs. Angell’s right, therefore, is only in the equity of redemption, and it is upon this basis, and its value on July l,1901,thatthe compensation must be made. It follows that some method must be devised to provide for (1) the mortgage; (2) the dower interest as it shall be ascertained; (3) the payment of the debts of the copartnership; (4) the balance which shall be found between the accounts of the copartners; (5) a division of the fund or land remaining (if all is not sold) between the copartners.

We are not sure that the record contains the testimony required to make the necessary computations, certainly we can obtain little aid from the briefs as to some of them. We think, therefore, that the case should be remanded for the circuit court to consider the proofs and such other testimony as may be offered, pertinent to such questions (provided that it shall deem any further testimony necessary, and permit it to be introduced), and make such other, and further decree, not inconsistent with the decree of this court, as shall be just to the parties, unless upon the settlement of a decree in this court counsel can agree upon one, which will end the litigation-here with the approval of this court. The complainant is entitled to the costs of both courts against the defendant, except such as apply solely to the partition proceedings, which should be paid from the property.

The prayer for enlarged solicitor’s fees will be denied.

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