author: Grant, J.

text:
    KEWEENAW ASSOCIATION v. FRIEDRICH.
    Contracts—Offer and Acceptance—Surface Rights.
    One who has accepted an offer to sell him the “surface rights ’ of specified land, subject to a railroad right of way previously conveyed, for a specified amount, is justified in refusing to accept a formal contract reserving to the grantor the right to enter on the land, or any part thereof, at all times, to explore and mine for ores and minerals, and carry on the business of mining, and remove ores and minerals, and, for such purpose, to keep so much of the land, and for such time, as he shall deem expedient, provided that he shall pay the purchaser for such occupation a specified amount.
    Appeal from Dickinson; Stone, J.
    Submitted February 3, 1897.
    Decided April 27, 1897.
    Bill by the Keweenaw Association, Limited, against John Friedrich and others for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Complainant was the owner of the S. E. ¼ of S. W. ¼ of section 19, town 40 N., range 30 W., in the county of Dickinson. Defendants, desiring to purchase it, in June, 1891, made written application by letter through their agent, John Friedrich, to J. M. Longyear, agent of the complainant, who resided in Marquette. He forwarded the application to the office of the company at Newport, R. I. He received reply that the company would sell the surface rights in the land, payable $1,000 in cash, balance in three years at 7 per cent. On receipt of this letter, Longyear wrote the defendants’agent, John Friedrich, as follows:
    “In reply to your application of the 16th of June, I am directed to advise you that we will sell you the surface rights of SE—SW, Sec. 19, 40—30, subject to railroad right of way, heretofore conveyed, for $4,000, payable $1,000 cash, balance on or before three years, with interest at 7 per cent, per annum. All payments to be made in national bank drafts on New York to order of A. P. Bonney, treas. On receipt of the "cash payment, the company will make you a contract accordingly. This offer will remain open to you until the 10th inst.; after that date, price subject to change without notice.”
    On receipt of this letter, defendants wrote, July 9th, accepting the proposition, and remitting the $1,000. To this Longyear replied July 10th, acknowledging the receipt of the money, and stating that he had. sent for the contract. Complainant executed the contract in duplicate, sending both duplicates to J. M. Longyear. On August 4, 1891, Mr. Longyear forwarded one of the duplicates to the defendants for execution, saying that on receipt of the contract and note, duly executed, he would deliver to them the counterpart contract, which had been duly executed on the part of the association, the same being for surface fights. Complainant received no reply to this communication, nor return of the contract. Mr. Long-year, on behalf of the complainant, wrote several other letters, asking that the contract be executed and returned, to all of which no reply was received. Complainant thereupon filed this bill to enforce the contract and foreclose the same. December 24, 1894, after the bill was filed and the subpoenas served, the defendant McLaughlin wrote to Mr. Longyear, saying:
    “If I remember right, there was no contract made between the parties. We hold your receipt for $1,000, paid by us as part of the purchase price of said land. I paid of this amount $333.34, and am willing to quitclaim my interest for one-half that amount if settled out of court, and I think both Friedrichs will do the same, rather than have any further trouble in the matter.”
    The defendants filed an answer admitting the letters claimed to constitute the contract, and asserting as a defense that the contract afterwards sent for them to execute was not in accordance with the terms contained in the letter.

      This land was purchased for the purpose of platting into village or city lots. Defendants immediately took possession, did some clearing, employed surveyors, and staked the property into lots. They did some work upon it after the receipt of the contract which they now repudiate. The first intimation conveyed to complainant that defendants had any objection to the form of this contract was conveyed in their answer to the bill filed. The court entered a decree for the defendants upon the ground that the term “surface rights” is vague and indefinite; and that the minds of the parties had never met upon the precise terms of the contract.

      Ball & Ball, for complainant.

      Cook & Pelham, for defendants.
   Grant, J.

(after stating the facts). I think the proposition in the letter and defendants’ acceptance constituted a complete and definite contract. We are cited to no authority defining what is meant by the term “surface” or “surface rights” as applied to land. The agreement was to convey “all surface rights except those heretofore conveyed ” by the complainant to the railroad company mentioned in the letter. An owner of land may convey title in fee simple to the surface, or to the ores, minerals, and quarries beneath the surface. Defendant McLaughlin testified, “By ‘surface rights’ we mean the fee simple of the surface, and what is on the surface.” This is the plain meaning of the term, and was so understood by complainant. The contract proposed was not in compliance with the contract contained in the letter. It imposed conditions which interfered with the use and enjoyment of the surface. The defendants were under no obligation to accept it. It was, however, their duty to notify the complainant of their objections, and to ask for a contract in compliance with that established by the correspondence. If complainant had refused such a contract, undoubtedly the defendants could have treated the other as at an end, and could have recovered back the money-paid. They were entitled to a deed in fee simple of the surface rights. The complainant retained title to the ores, miherals, etc., beneath the surface, with such rights of removal as the law would give it if it or its grantees should undertake to remove them. What those rights are we need not determine. That question is not before us. The complainant saw fit to make a contract to convey in fee simple the surface rights of the land, without any other reservation or rights than the law gave it to what was beneath the surface conveyed.

We need not discuss the question argued by counsel for the complainant that extrinsic evidence would be permissible to define ambiguous terms, or to identify property conveyed. Complainant concedes that “the term ‘surface rights’ has a definite and well-understood meaning. It means the entire surface of the land, reserving the minerals to the grantor.” These surface rights were covered by the contract which was executed. Both parties so understood it. Defendants were entitled to a contract in accordance with the letter, and could have compelled complainant to execute it. There has been no refusal on the part of complainant to give such a contract. The original contract, therefore, stands intact, to be enforced by either party.

The decree should be reversed, and decree entered in this court in accordance with this opinion. Complainant should recover the costs of both courts.

Montgomery, J. In addition to the facts stated in the opinion of Mr. Justice Grant, it should be stated that the only written authority which J- M. Longyear, the agent of complainant, residing in Marquette, had for the sale of these lands, was a clause in a letter covering other topics, written by the chairman of complainant, which was as follows: “John Friedrich: We will sell him, surf ace rights SE—SW, 19, 40—30, at $100 per acre, payable $1,000 cash, balance three years at 7 per ct.” It should

also be stated as to the pleadings that the answer of defendants does not admit that the letters set forth in complainant’s bill constitute a contract. On the other hand, the answer denies “that said counter proposition [the letter signed Longyear] was signed by any person having authority to bind said complainant to sell said land in accordance with the terms thereof.” The answer further states that the defendants did not understand that said complainant would be so bound until after the execution by it of the contract referred to in said counter proposition, and the acceptance thereof. The circuit judge expressed a doubt as to whether the contract by complainant was void under the statute of frauds, as not having been made by any person lawfully authorized in writing, as required by 2 How. Stat. § 6181, and, while not expressly passing upon this question, held that the minds of the parties had not met upon the meaning of the term “surface rights.” The record presents three questions : First, whether the contract was valid under the statute of frauds; second, whether the minds of the parties met upon the terms of the contract; and, third, whether complainant has shown itself in a position entitling it to enforce the contract.

If the term “surface rights” has a definite meaning, as used in this agreement, it must be a right to a fee in the lands, subject to a reservation of the minerals in the grantor. A mere reservation of the minerals, standing alone, will not permit the surface to be disturbed. Erickson v. Iron Co., 50 Mich. 604. And yet, in the contract which complainant proposed and offered to the defendants for execution, it was provided that the grantor should have the right to enter upon the land, or any part or parts thereof, at all times, and “toexplore, search, dig, and mine for ores and minerals, and carry on the business of mining and removing ores and minerals, and, for such purpose or purposes, to take, use, and keep so much and such parts of said land, and for such term of time, as said party of the first part, its successors or assigns, shall deem expedient, without any let, hindrance, or interference by the parties of the second part, their heirs or assigns: Provided that, if said party of the first part, its successors or assigns, shall occupy the surface of said land, or any part thereof, for the purposes aforesaid, it or its assigns so occupying shall pay the parties of the second part, or those then having their estate in such land so occupied, all damages caused to them by such occupation, not exceeding, however, $100 for each acre of said land so occupied, and the actual cost of the improvements then thereon, and made by the parties of the second part, their heirs or assigns.” It is very clear that, if the contract embodied in the proposition and acceptance is to have the construction now contended for by complainant’s counsel, the complainant did not comply with its contract in the tender of the formal contract which it made. Furthermore, it will be observed that the so-called “acceptance,” purporting to be signed by Longyear as agent, did not follow the authority contained in the letter of the chairman of the complainant, from which we have quoted above. The terms of payment were different, and, this being the only written authority, it cannot be said that the agent had authority conferred by writing to make the contract which he assumed to make. Possibly, this difficulty might have been avoided by ratification, were it not for the fact that when complainant assumed to execute the contract, and to act upon the preliminary agreement, it so far departed from its terms that the defendants were justified in not accepting the formal contract tendered.

I think the correct result was reached by the learned circuit judge, and that the decree should be affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HIRSCHFIELD v. FRANKS.
    1. Trial—Terms of Lease—Evidence—Question for Jury.
    A party cannot complain of the action of the court in allowing the jury to determine the terms of a written lease from oral evidence, where he permitted such evidence to be introduced without objection, but caused the instrument to be excluded.
    3. Landlord and Tenant—Lease of Stairway—Recovery of Rent.
    One who lets the upper rooms of his store building under a lease which gives to the tenant full control of an adjacent stairway cannot recover rent of the adjoining proprietor for the use of the stairway during the continuance of the lease.
    Error to Wayne; Donovan, J.
    Submitted February 4, 1897.
    Decided April 27, 1897.

      Assumpsit by Charles B. Hirschfield and another against Frederick B. Franks for rent. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Adam E. Bloom, for appellants.

      George Cox, for appellee.
   Montgomery, J.

This action originated in justice’s court. The claim is for use a,nd occupation and lease of stairway of premises No. 18 Monroe avenue, Detroit, for the month of June, 1895. The jury found for defendant, and the plaintiffs bring error.

It appears that plaintiffs were lessees of that portion of the block known as “No. 18 Monroe Avenue,” and defendant was in occupancy of No. 16, and sublet a portion of the three upper stories. There was no access by stairway to these three upper stories, except by using the stairway of No. 18. Plaintiffs claim that in March, 1895, defendant desired to obtain the right to use the stairway of No. 18 for himself and tenants, and that, after some talk, it was agreed that he might use the stairway on paying $20 per month for one year; that defendant paid rental for the months of April and May, and refused to pay for the month of June. Defendant testified that there was no agreement between the parties about the use of the stairway, but that he paid for the use during the months of April and May, and that, when the receipt for the April payment was brought in, one of the plaintiffs brought a written agreement for a year, which he (defendant) refused to sign, and that plaintiff then said, “The only way you can have it is to pay your rent, and, if you do not pay the rent, I will lock the door,—$20 per month.” The defendant states that he gave the plaintiffs a check, and that he also paid in May.

It appears that, before the 1st of June, one McNair had obtained from plaintiffs the three upper stories of No. 18, but whether this included an exclusive lease of the stairway is not altogether clear on the proofs. It also appears that defendant thereupon went through the form of leasing No. 16, above the first story, to McNair, and of re-leasing portions of it from him. This would manifestly give him no greater rights than he could have acquired by attorning directly to McNair, and this he might doubtless have done if plaintiffs’ rights in the stairway had been transferred to McNair. As before stated, the rights which McNair had in the stairway, under his lease, do not appear as clearly as might be desired. But for this condition of the record the plaintiffs are mainly responsible. The defendant offered a written lease made by plaintiffs to McNair, and this was excluded on plaintiffs’ objection, and does not appear in the record. One of the plaintiffs testified, however, as follows:

“Our lease to McNair was for three years, and Franks then went to McNair and rented from him; so he claimed.
Q. This lease is still in force to Mr. McNair ?
“A. So far as I know, it is.
Q. You have received $30 a month for this part, haven’t you ?
“A. Yes, sir; we have.
Q. Well, McNair gave a lease, too?
- “A. Yes, sir.
“ Q. He had possession, and was paying you $30 a month?
“A. It was under his control.
Q. Didn’t you tell Mr. McNair that you wanted to have control of that stairway ?
“ A. Yes, sir.
Q. And did he not tell you that he would not take the rooms if you were to retain control of the stairway?
“A. He did.
Q. This lease was for three years ?
“A. Yes, sir.”

The circuit judge charged the jury as follows:

“Now, according to the testimony on the plaintiffs’ side (the plaintiffs and their witnesses), they made a contract for a year to lease the stairway,—a ‘verbal contract,’ as- they call it; that is, an oral, a spoken, contract, which would be legal if they had made it,—at $30 a month, or $340 a year, payable monthly, in advance. If they made that contract, and if they made it for a year, they could not break it midway in the year, or at any time in the year. It would take the same two parties to unmake it as to make it; that is, if they made it. It would be just as binding if they made it for a year as though they put it in writing for one year; but whether they made it or not is for you, and not for the court. You have seen the witnesses, you have heard what they swore to, you have been paying attention all the way through, and that is the part you are to decide. You are the judges of that. It is not necessary to even recall the names of the witnesses. The defendant claims (Mr. Franks) that the plaintiffs have even since that time leased to a Mr. McNair,—to have leased, not only the adjoining side, but leased the stairway and everything,—and they have no connection. The plaintiffs say, ‘We did not lease without reserve;’ they leased their right, but did not release Franks by it, stiff claiming that they held the same right on Franks; and, unless they interfered with Franks, unless they interfered with him by a lease to somebody else, unless they interfered in some way, it would not hinder their recovery. But if they took it entirely away,—if, after having leased to Franks the stairway, and' given him the right to go up, they took it away, and gave it to somebody else,—that would break the lease, and release the tenant from paying the rent. I state that repeatedly. That is, you could not have two tenants, and derive the revenue for the same thing, without the consent of the other, and in any way interfere. If you, in other words, rent a barn from a man, and during the year he used the other side without your consent,—leased the other side;— he could not draw rent of the party without your consent.”

Complaint is made of these instructions, and two grounds are urged: First, that the instruction leaves out of consideration the fact of a letting from month to month; and, secohd, that the court, after excluding the written lease of No. 18 to McNair, left it to the jury to determine the terms of the lease without the aid of such testimony.

It may be said, as to the alleged letting from month to month, that there was no proof showing such a letting. Plaintiffs’ testimony, if believed, showed a letting for a year. Defendant’s showed an agreement more in the nature of a license, terminable without notice, on failure to pay rent.

As to the error claimed in submitting the terms of the letting to McNair to the jury, the plaintiffs do not occupy a position entitling them to complain. The oral testimony was not objected to by their counsel, while the written lease was. We are not prepared to say that the jury were not justified in drawing an inference that the complete control of this stairway was given to McNair by the lease. If it was, the defendant was no longer hound to pay plaintiffs for its use.

We think no error of which the plaintiffs are entitled to complain was committed. Judgment will be affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    BARNARD v. BROWN.
    1. Title to Land—Vendor and Purchaser—Contracts.
    A purchaser under a land contract which requires the vendor to execute and deliver a good and sufficient warranty deed of the land, “so as to convey the same in fee, and unincumbered,” is entitled merely to a good and marketable title, and he cannot demand a title perfect upon the record.
    2. Same—Marketable Title—What Constitutes.
    ,A marketable title is one which is free from incumbrance, and which is of a character to assure to the vendee the quiet and peaceable enjoyment of the property.
    3. Same—Adverse Possession.
    A title by adverse possession is a marketable title.
    Error to Saginaw; Kendrick, J.
    Submitted February 9, 1897.
    Decided April 27, 1897.

      Assumpsit by Arthur Barnard against Addison T. Brown and another to recover the balance due upon a land contract. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      William H. Sweet (G. W. Davis, of counsel), for appellants.

      Hanchett & Hanchett, for appellee.
   Long, C. J.

The plaintiff contracted in writing, May 26, 1890, that, when the defendants should pay him the full sum of $5,400, he would execute and deliver to them a warranty deed, so as to convey to them in fee, unincumbered, the title to the lots described in the contract. Defendants made payments thereon aggregating $3,196.72. The balance of the moneys becoming due, plaintiff tendered a deed to the defendants, and demanded the balance of the contract price, which was refused, whereupon plaintiff brought this action, and on the trial in the court below recovered damages. On the trial the plaintiff made a prima facie case by introducing the contract, and showing the .default of defendants in making the payments provided for therein, and a failure to pay the taxes, and that nothing further had been paid up to the time of suit, and that tender had been made of the deed, and a demand for payment of the balance due on the contract. Defendants then sought to prove that the record title of plaintiff was defective, and now insist that the title is defective. This question will be considered later.

It appeared that the plaintiff’s title depended largely upon adverse possession for a continuous period of more than 15 years. His father, Newell Barnard, was shown to have occupied the premises, continuously from about 1870 down to the time of his death, which occurred July 9, 1883. He left no will, and the only members of his family were his son, Arthur, the plaintiff here, and his daughter, Lelia, both of whom were of age. It was shown that the plaintiff had been in possession in behalf of his father prior to his death, and, that he continued in possession after his death for himself and for his sister until he acquired his sister’s interest, and had continued in possession down to the time he made the contract with the defendants. The records of the probate court produced in evidence show that all the property of the estate which remained after the payment of the debts was assigned to Arthur and Lelia as sole heirs of Newell Barnard; that on February 16, 1885, Lelia conveyed her interest in this and in all real property in Michigan to her brother; that all this property, except a small part, was assessed to the Barnards, and from 1870 down to the time of the contract it was known as the Barnard Property.” Testimony was also offered showing that the possession of Barnard was open, notorious, hostile, and continuous during all those years.

Defendants’ contention was that the burden of proof was upon the plaintiff to show an absolute title, and that a'title obtained and held by adverse possession was not such a title as the contract called for. Defendants requested the court to charge upon that subject as follows:

“The defendants, under the law and by their contract, are entitled to a good, marketable title to the land, and every part thereof; and' the plaintiff, having only attempted to show ,a title, claimed to have been acquired by adverse possession for a period of 15 years,—a title which can be determined or established only by judicial inquiry and decision, dependent wholly upon facts resting in parol,—-has not shown such a title as his contract called for, or such as the defendants are bound to accept; and plaintiff cannot recover.”

The court below, while acceding to the fact that the defendants were entitled to a good and marketable title, said to the jury:

“A marketable title is one of such character as to assure to the vendee a peaceable enjoyment of the property. If you find that the plaintiff and his father were in actual, visible, continuous, notorious, distinct, and adverse possession of the property sold to the defendants for a period of 15 years and more prior to the time that the contract was made with the defendants, the plaintiff would be the absolute owner of the property. If you should find that these elements have been complied with, and that he has been in possession continuously by himself and his ancestors, he is the absolute owner of the property, as much as though he had record title, and could convey such title as the defendants had a right to receive under this contract.”

The court was not in error in this charge. The contract provides that—

“Forthwith, after the full payment of the purchase money, interest, and taxes, and performance of this agreement by the second parties, the said party of the first part shall execute or cause to be executed and delivered to the parties of the second part a good and sufficient warranty deed of said land, so as to convey the same in fee, and unincumbered, to said parties of the second part,” etc.

By this contract the plaintiff was not to convey a title which was perfect upon the record, but was bound to convey a title in fee and unincumbered, and therefore defendants were entitled to a marketable title. A marketable title, however, is one of such character as should assure to the vendee the quiet and peaceable enjoyment of the property, and one which is free from incumbrance. We think it is well settled that when such a title as that is obtained by adverse possession it is sufficient to meet the requirements of such „a contract as this. In O’Connor v. Huggins, 113 N. Y. 521, after describing the features of adverse possession shown by the plaintiff, the court said:

“There is no proof nor pretense of any other title to the property, lying either in grant or in claim; nor does anything appear to disturb the conclusiveness of the presumption of a valid grant which arises from an exclusive and uninterrupted possession of the property, under a claim of title founded on a conveyance, for a period extending far beyond the length of time mentioned in the statute of limitations. Such a presumption will always displace objections based on flaws in the proceedings in which the title has had its source, and protect the title from- being injured or affected by their disclosure.”

In Foreman v. Wolf, 29 Atl. 837, the supreme court of Maryland say:

“It appears from the record that the appellee has been in the exclusive possession of the property in dispute for over 20 years, and, even if the objection urged by the appellant was tenable, the title of the appellee would be a good and marketable one by adverse possession, under the statute of limitations. It is well settled that a title by adverse possession for over 20 years, where the only persons who could claim were all under no disability, is marketable, and such as a court of equity will compel a purchaser to take.”

In Tewksbury v. Howard, 138 Ind. 110, it was claimed that a title obtained by adverse possession is not a marketable one. In answer to this, it was said by the court:

“The principal argument is that the decree quieting title came too late to support this suit, but incidentally it is said that a title by adverse possession is not a marketable title. If a marketable title, it is manifest that the decree so alleged was only in confirmation of the title so held, and the tardiness in procuring it would not defeat the action. Title by adverse possession is as high as any known to the law. * * * A marketable title cannot be said to be more.”

In the recent case of Elder v. McClaskey, 17 C. C. A. 251, 70 Fed. 529, was involved a title by adverse possession under the Ohio statute. Of that Mr. Justice Taft said:

‘ ‘ Under the construction put upon this statute by the supreme court of Ohio, an open, notorious, exclusive, and adverse possession of land for 21 years, with or without color of title, whether continuous in the first possessor or tolled in persons claiming under him, and whether with or without knowledge of the existence of a better title, confers upon the original possessor, or those claiming under him, an indefeasible title in fee;” citing Paine v. Skinner, 8 Ohio, 159, and several other Ohio cases.

It is well settled in Michigan that title by adverse possession need not be based upon color of title. Campau v. Lafferty, 50 Mich. 114; Sanscrainte v. Torongo, 87 Mich. 69. That a title acquired by adverse possession is sufficient to meet a contract of such character as should assure to the vendee a quiet and peaceable enjoyment of the property, and one which is free from doubt, is also settled in Bicknell v. Comstock, 113 U. S. 149; Leffingwell v. Warren, 2 Black, 599; Murray v. Harway, 56 N. Y. 337; Shriver v. Shriver, 86 N. Y. 575; Ballou v. Sherwood, 32 Neb. 666; Schall v. Railroad Co., 35 Pa. St. 191; Moore v. Luce, 29 Pa. St. 260 (72 Am. Dec. 629); Hodges v. Eddy, 41 Vt. 485 (98 Am. Dec. 612); Crowell v. Druley, 19 Ill. App. 509; Ottinger v. Strasburger, 33 Hun, 466; Simson v. Eckstein, 22 Cal. 580; Clancey v. Houdlette, 39 Me. 451; Walker v. Ray, 111 Ill. 315; De Long v. Mulcher, 47 Iowa, 445; Thacker v. Booth, (Ky.) 6 S. W. 460; Lurman v. Hubner, 75 Md. 268; Ford v. Schlosser, (Com. Pl.) 34 N. Y. Supp. 12; 1 Am. & Eng. Enc. Law (2d Ed.), 883, and cases cited; Dupont v. Starring, 42 Mich. 492; Bunce v. Bidwell, 43 Mich. 542.

It is contended, further, that the plaintiff promised to furnish an abstract of title, and that the contract implies that a perfect record title was to be given. The contract contains nothing on the subject of an abstract, or the kind of title to be given. We have already recited what the conveyance was to be, and, in order to fulfill the conditions of the contract, it was not necessary that a perfect record title should be conveyed.

Some other questions are raised by this record, which we do not deem important to discuss. They are fully answered in the brief, of counsel for plaintiff, and, inasmuch as there, was a full and fair trial of the questions raised, and the court below having stated the law correctly upon those questions, we think it will not benefit counsel or parties to enter upon a discussion of them.

The judgment must be affirmed.

The other Justices concurred.


text:
    GRADY v. SULLIVAN.
    1. Pleading—Bill of Particulars—Contracts—Damages.
    An item in a bill of particulars, in an action commenced before a justice of the peace, claiming damages for injury-done to lots by defendant in lowering the same, by the removal of gravel, below the street and alley grade, in violation of the contract under which the gravel was sold, is sufficient to-permit a recovery in the circuit court of the cost of refilling the lots; and such cost, and not the depreciation in the value of the lots, is the proper measure of damages.
    2. Justices of the Peace—Right to Act as Attorney.
    Since the justices of the peace elected under the act “relative to justices’ courts in the city of Grand Rapids” (Act No. 306, Local Acts 1893, as amended) hold separate courts and have separate records, neither is disqualified, by virtue of his office, from acting as attorney in the circuit court in an action appealed from the other justice.

    Error to Kent; Grove, J.
    Submitted February 10, 1897.
    Decided April 27, 1897.

      Assumpsit by Mary Grady against John Sullivan and others upon a contract for the sale of gravel. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      McBride & McBride, for appellants.

      E. J. Doyle (Charles A. Watt, of counsel), for appellee.

       By section 11 of the act, said justices are prohibited from acting as attorney in any suit or proceeding "within the jurisdiction of said courts.”

   Long, C. J.

The plaintiff was the owner of two lots and a house on Butterworth avenue, and three vacant lots on Gunnison street, in Grand Rapids. Upon, these lots was a quantity of valuable gravel, which the defendants desired to purchase. On October 28, 1893, they entered into a written contract with plaintiff for the gravel on the lots on Butterworth avenue, for which she was to receive $300, of which James Grady was to be paid $100, and the balance to be paid her in installments as defendants received their pay from the city for grading West Wealthy avenue, and the balance when the grading was done; and, in addition to these payments, defendants were to move the building owned by James Grady about 20 feet, and rebuild the stone wall the same size and dimensions. They were also to lower two dwelling houses, to establish a grade as given by Mrs. Grady, and to furnish 50 loads of top earth to cover the lots; all work to be done in a good and workmanlike manner. About the same date the parties entered into an oral contract by which the defendants purchased from the plaintiff the gravel on the Gunnison-street lots at eight cents a load; they to take the lots down to a grade even with the alley in the rear, and to stop taking gravel therefrom when directed by the plaintiff. This suit is brought to recover the price of the gravel, and for the failure of defendants to fulfill the terms of the contract, and for damages to one of the dwelling houses and the lots mentioned. The bill of particulars filed is as follows:

Balance due for gravel sold defendants............. $74 00
Damage done to dwelling house by defendants in moving and lowering same...................... 45 00
Damage done to lots by defendants in lowering same below the street and alley grade, and in leaving the surface of same irregular and uneven________ 40 00
For sidewalk-------------------------------....... 15 00
$174 00

Defendants pleaded the general issue, and gave notice of set-off, filing a bill of particulars of the same.

The claim of the plaintiff on the trial was that defendants, where they found a vein or layer of gravel, would excavate to great depth, and, where no gravel was found, would not work it, so that it left the lot uneven and hilly; that, in moving and resetting the house, the work was carelessly and hurriedly done; that a large piazza, which had been separated from the house before moving, had been moved back against the house, leaving it loose and not level, and carelessly propped up with temporary supports; that the house was improperly supported 'with walls and underpinning, letting the floors sag and remain loose; that the fences, sidewalks, and cellar' stairs were destroyed, the rear piazza or platform left hanging without supports, and other defects of like character; that, while matters were in this condition, defendants informed the plaintiff that the contract was completed, and presented her with a statement which brought her in debt to them in the sum of $11.24. As to the Gunnison-street lots, plaintiff claims that the work had not been fully completed, in that many places had been excavated much deeper than should have been, and that defendants had neglected to refill properly with earth.

The suit was commenced in justice’s court, and there tried, and on appeal to the circuit, before a jury, a verdict was rendered in favor of the plaintiff for the sum of $128.

1. Defendants contend that no evidence was admissible as to the damages to the Gunnison-street lots, as they are not mentioned in the, declaration and bill of particulars. The declaration in justice’s court was oral, and is not to be very strictly construed; but, whatever defects there may have been in that regard, we think the bill of particulars sufficiently specific to enable the plaintiff to recover on the Gunnison-street lots.

2. It is contended that no evidence was produced by the plaintiff in support of the item in her bill of particulars as “balance due for gravel sold defendants.” We think there was some evidence to go to the jury on that question.

3. It is contended that, in regard to the filling of the lots, the measure of damages is not the value of the material it would take to fill them up even with the alley, as graded, but the depreciated value of the property, if any. This contention cannot be sustained. Defendants had agreed by their contract to refill these lots, or, rather, to grade them down to the alley grade, and to do it in a good and workmanlike manner. This, the plaintiff contends, they failed to do. They did not restore the lots to a level, as was their duty under the contract, and the plaintiff’s damages would be what it would cost to put the lots in the,condition in which the defendants agreed to leave them. This was the measure applied, and, we think, properly.

4. But defendants contend that there is no item in the bill of particulars setting, forth anything but damage to the lots by reason of lowering them below the alley and street level. We think the pleadings were specific enough to allow a recovery for the cost of leveling the lots.

5. It is contended further that the plaintiff received payment in full for all gravel taken from these lots, and now claims damages for taking it below a certain grade; that she cannot accept payment in full for gravel taken below grade, and also claim damages for not refilling, unless she relies on the contract to refill, and that, if she does so rely, she fails, because she has neither declared on that latter contract, nor included a claim therefor in her bill of particulars. We think this claim is covered by the third item of the bill of particulars, and that defendants cannot have been taken by surprise upon the trial by the demand made.

6. It is contended that the declaration and bill of particulars do not cover the Gunnison-street lots at- all, as no allegation of said oral contract, or any breach thereof, is made. As we have said upon the other claim, the third item of plaintiff’s bill of particulars must have referred to the Gunnison-street lots as well as to the others. It is general in its items, and charges damages for lowering the lots below the street and alley, and leaving the surface irregular and uneven. There was evidence given by the plaintiff which tended to support plaintiff’s several claims, and we think the court properly submitted them for the consideration of the jury.

7. One further claim is made. It appears that one Charles A. Watt assisted counsel for the plaintiff in the trial of the case. At the commencement of the trial, counsel for defendants objected to Mr. Watt’s appearing in the case, as he was one of the justices of the police court and justices’ court of the city of Grand Rapids. The specific objection made was that the justices’ court is a combined court of two justices, and that this cause had been tried before the other justice. This objection was overruled, and upon that ruling defendants assign error. It does not appear that there is any provision of the statute prohibiting justices of the peace from engaging in the trial of causes. It did appear that the two justices held separate courts and had separate records, and it was not claimed that Mr. Watt had anything whatever to do with the trial of this case in justice’s court. The court very properly overruled this objection.

From a full examination of the record, we are satisfied that the case was fairly tried and submitted, and the judgment must be affirmed.

The other Justices concurred.


text:
    BROOKS v. LEATHERS.
    1. Contracts—Conversations—Question for Jury.
    Where a real-estate agent claimed that certain conversations with the owner of land constituted a contract whereby he was to receive commissions upon its sale, and the language employed was susceptible of such construction, it was proper •to submit the testimony to the jury for them to determine whether or not contract relations were in fact established.

      % Real-Estate Agents—Commissions—Evidence.
    The testimony of a real-estate agent, in an action for commissions, that he had several conversations relative to the purchase of the land with the officers of a corporation in which the person to whom the property was finally sold was a stockholder, that on two occasions the conversations were with the subsequent purchaser, and that he communicated the same to the owner of the property, who shortly afterwards himself effected the sale, raises a question for the jury as to whether the agent’s efforts were the moving cause in the transaction, even though the purchaser fails to recall the conversations, or that he was influenced by the plaintiff.
    3. Same.
    A real-estate broker employed to sell land, who negotiates with a corporation for its purchase, is entitled to commissions on a sale made by the owner to one of the stockholders, where the latter was influenced to purchase by the broker’s efforts to sell to the corporation.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted February 6, 1897.
    Decided April 27, 1897.

      Assmnpsit by James F. Brooks against Don J. Leathers for commissions on the sale of real estate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fitz Gerald & Barry (Francis A. Stace, of counsel), for appellant.

      Sweet, Perkins & Judkins, for appellee.
   Montgomery, J.

This is an action to recover commission on a sale of real estate of which defendant was half owner. It appeared by the testimony offered on the part of the plaintiff that prior to July 18, 1893, plaintiff had been acting as agent for defendant, and that on that date defendant addressed him a note as follows:

“James F. Brooks, Esq.
“Dear Sir: Inasmuch as there are no prospects of closing a sale through you, to any of your customers, of our Ionia-street property, Mrs. Hastings and myself have given the option for a time to other parties, for the price of $31,000. We thought best to notify you, so that you may act accordingly. I remain,
“Very respectfully,
“Don J. Leathers.”

The plaintiff’s testimony further tends to show that after the receipt of this letter he saw defendant, and asked him if he had placed the property with Bliss & Co., and that he said he had. Plaintiff then asked him if he had said-anything to Bliss & Co. about Clark and Jewell. Defendant replied: “Yes; that is all right. If you sell it to them, you will get your pay for it. ” Plaintiff then went away. Clark,and Jewell were stockholders in the I. M. dark Grocery Company, and it seems that plaintiff had previously had negotiations with Jewell, acting for the company. He testifies that after the conversation referred to, and about the 1st of September, he received another offer from Mr. Jewell, which he submitted to defendant, and he further testifies as follows: “Mr. Leathers at that time told me that he thought that if I could get Clark and Jewell to pay them $27,500 for the property, and if I would accept $500 as my pay for selling it, he could induce Mrs. Hastings to sell. I then told him, right there, that in any event of his selling the property on any proposition that I submitted, that he accepted, I would do the work for $500; that I would sell it for $500; that I was to have that much; and he said, ‘All right.’ ” Plaintiff further testified that after this, from time to time, he called upon the grocery company, his negotiations being chiefly with Mr. Jewell, but that during the negotiations he on two occasions talked with Mr. Clark on the subject; that on the last of these occasions he was referred to Mr. Jewell. It also appears that he communicated the talk that h'e had had with Clark to the defendant. On .the 8th day of January, 1894, defendant, Leathers, sold the property to M. J. Clark, who at the time was the holder of one-third or more of the stock of the I. M. Clark Grocery Company. Mr. Clark’s testimony as to the manner in which the sale was effected is as follows:

“ I had no more idea of buying it, any more than I had of being called here as a witness before this trial commenced. lie came in to show me about the land, and finally, before he went out, he said, ‘You ought to have that corner down there.’ I said, ‘That is true, if I could buy it right.’ He said, ‘You ought to buy it yourself.’ Says I, ‘All right; may be I will some time, but I don’t want to buy it now.’ Says he, ‘You dassent make me an offer.’ I says, ‘Yes; I dare make you an offer.’ So I made him an offer of $25,000, and he took me up.”

The testimony further shows that the property is now being improved for the occupancy of the grocery company. The defendant’s testimony contradicts the plaintiff’s in several important particulars, and, in addition, defendant testified that, when informed by the plaintiff that the I. M. Clark Grocery Company was a customer, he told plaintiff that he had had previous negotiations with M. J. Clark, and that, if the sale was made to him, he would not be entitled to a commission, as he was the defendant’s customer. This was denied by the plaintiff. As the case was put to the jury, the question to be determined was whether he was a customer of the plaintiff. The court charged the jury as follows:

“ This is an action to recover a commission of $500 on the sale of a tract of real estate owned by the defendant and another person, and by them sold and conveyed to one M. J. Clark. The plaintiff sets up a special contract whereby he claims that, if the land was sold to any of his customers, he was to receive from the defendant a commission of $500. It is necessary, therefore, that the plaintiff prove to your satisfaction, by a preponderance of evidence, first, that he made such a contract with the defendant, and that at the time of the sale such contract was still in existence and in full force between them. He . must also prove that Melvin J. Clark, the person to whom the land was sold, was one of the plaintiff’s customers ; and by ‘ customer ’ I mean a person who has been found or negotiated with by the plaintiff, and has by the plaintiff’s efforts been induced, and has-agreed, to purchase the property at a price and on terms satisfactory to the defendant, and that the plaintiff must have been the controlling cause of the purchase by that person; and, if he has failed to prove either of these propositions, your verdict must be for the defendant. * * * A contract with the plaintiff, in the manner claimed by him, would not prevent either defendant or Mrs. Hastings from selling the land themselves; and, if they sold the land to any person not a customer of the plaintiff, he could not recover any commission, and such sale would of itself terminate the contract. If the plaintiff had desired to prevent the defendant from selling the property, he should have made a contract with him to that effect. The arrangement between them does not bind the plaintiff to do anything. He is not bound to search at all for a purchaser, and the defendant did not put it out of his own power to sell the property to a purchaser procured by himself under such circumstances. * * * If you find that the plaintiff was employed to sell the land by defendant, and that, at the time he was first spoken to about selling it, it was said, in substance, that he should not recover a commission if the sale was made to M. J. Clark, then the plaintiff cannot recover. * * * The I. M. Clark Grocery Company, and the stockholders of the corporation, is a different party from M. J. Clark, the individual, and a good-faith sale to M. J. Clark, one of the stockholders, in his individual capacity, would not be a sale to the I. M. Clark Grocery Company; and if a sale was made by Don J. Leathers to M. J. Clark, and was consummated and brought about without any aid, assistance, or influence of the plaintiff materially affecting the sale, then in that case the plaintiff cannot recover.”

The jury returned a verdict for the plaintiff, and the defendant brings error. The assignments of error are numerous, but have been grouped under a few heads, and the contentions made by defendant are, mainly:

First. That there was no contract shown.

Second. That, if it be assumed that the talk between the parties constituted a contract, performance by plaintiff has not been shown.

Third. That it was error to permit evidence of the relations of M. J. Clark to the I. M. Clark Grocery Company.

The language employed by the parties in an oral conversation is to be construed by the jury, and, if it is susceptible of a construction which indicates that the minds of the parties have met upon an understanding, of agreement, it would be error for the court„to "withdraw such testimony from the jury. We think there was enough of the conversation testified to by-plaintiff to justify the conclusion that the minds of the parties met upon the proposition to employ plaintiff, or at least to compensate him for the services which, he might render in furnishing a customer for the property. It is suggested that the plaintiff himself was not bound to do anything. The answer is, if he did not do anything defendant was not bound to pay anything. The promise was conditioned upon his rendering the service.

But it is said that the testimony shows that nothing that the plaintiff ever said or did had any influence on the acts of .Clark, and that the sale was not made on any proposition made to plaintiff by him and reported to defendant. . This question is not altogether clear, upon the proofs; but we think, in view of all the circumstances surrounding the case, it became a question for the jury as to whether the negotiations which plaintiff had had with the I. M. Clark Grocery Company, including the conversations with M. J. Clark, were a moving cause in effecting the sale. It is true, Mr. Clark’s recollection of the transaction is that he was not influenced by anything the plaintiff had said; but he also failed to recollect, at the time of his examination, the conversations which plaintiff testified he had with him. The jury evidently accepted the plaintiff’s testimony upon this branch of the case, and it was within their authority to determine ■whether in fact the negotiations which Clark had had with the plaintiff resulted in the sale.

We think, also, that it was competent evidence to show the relations of Clark to the grocery company. It is true,' the effort of plaintiff was to sell to the grocery company as a corporation; but had Clark, pending these negotiations, said to the plaintiff that the grocery company would not undertake to purchase, but that he would, it could hardly 'Pe-gaid that, because he had not been solicited as an individual to'purchase, the influence of plaintiff in the negotiations had not produced the result. This is precisely what occurred, except for the fact that defendant intervened, and called the attention of Clark again to the subject to which it had been directed by plaintiff, and added the words, “You ought to have‘the property for yourself.” We think it was for 'the jury to say whether the influence of plaintiff remained, or whether the sale was effected by defendant independently of him. In view of the fact that plaintiff had had these previous interviews with Clark, and had notified defendant of them, it would not be wholly unreasonable for the jury to find that the suggestion of defendant to Clark that he. ought to buy the property for himself was made in view of the previous negotiations, and based upon them. At all events, we think this was a question for the jury; and we think it was competent to give in evidence the relations of Clark to the grocery company, for similar reasons.

Some other minor questions are presented, but ail examination of the briefs of counsel has convinced us that no error was committed to the prejudice of defendant.

The judgment will be affirmed.

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


text:
    FRAZER v. JUDGE OF RECORDER’S COURT.
    Criminal Law—New Trial—Statutory Limitations.
    The limitation imposed by 2 How. Stat. § 9576, empowering the trial court to grant a new trial in a criminal cause at the same term at which the trial is held, or at the next term there, after, cannot be avoided by the entry' of orders extending the time in which the motion for new trial may be made. So held, at least, where the orders did not show that the prosecuting attorney consented to the proposed extension, and where no reason appeared why the motion might not have been made and disposed of within the statutory period.

      Mandamus by Allan H. Frazer, prosecuting attorney of Wayne county, to compel William W. Chapin, judge of the recorder’s court of Detroit, to vacate an order granting a new trial.
    Submitted February 9, 1897.
    Writ granted April 27, 1897.

      Allan H. Frazer, in pro. per.

      George X. M. Collier and John Atkinson, for respondent.
   Grant, J.

One Harry Dale was on May 18, 1896, convicted of a felony, and sentenced to imprisonment in the state prison. On January 6, 1897, his attorney made a motion for a new trial, which, on January 26th, was granted. The relator insists that the court had no jurisdiction to grant a new trial at the time, on the ground that the 'statutory limit had expired.

2 How. Stat. § 9576, is as follows:

“The court in which the trial of any indictment shall be had may, at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct.”

The statute fixes the terms of the recorder’s court of the city of Detroit on the first Wednesday of January, March, May, July, September, and November, being six terms a year. The respondent returns that, at the date of the conviction, he entered an order granting 90 days in which to move for a new trial, and 60 days after th'e expiration of said 90 days in which to settle a bill of exceptions; that on May 20th’ respondent went away, returning September 10th; that on September 2d an order was entered in said court extending the time to move for a new trial and settle the bill of exceptions 45 days after August 15th; that on September 21st another order was entered, further extending the time 60 days; that the prosecuting attorney then said he had no objection to said order; that on November 20th the time was again extended 60 days for the like purposes; that the assistant prosecuting attorney was then present in court, and made no objection. Three full terms of court had passed between the date of the conviction and the date of the motion.

New trials are purely statutory, and courts have no right to annul the statute. At the common law there was no new trial. The statute was before this court in People v. Marble, 38 Mich. 309, and that case is decisive of the question. Under that decision, the order was without the jurisdiction of the court, and is void, unless jurisdiction is saved by the entry of the several orders extending the time. No reason appears why the motion might not have been made and disposed of within the statutory time. The fact that Judge Chapin was absent did not prevent-the making or hearing of the motion. Another judge occupied the bench, and had jurisdiction to act. The orders do not show the consent of the prosecuting attorney, and it does not appear that the’ last order extending the time was made by his assent, unless his silence gave consent. We do not think that the statute should b& so lightly set aside, and be rendered nugatory. The motion, was not made until seven months and a half after the conviction, and sentence. It is a matter of common knowledge in criminal cases, especially in large cities, that witnesses go beyond the jurisdiction of the court, and it is difficult, and sometimes impossible, to produce them upon a subsequent trial long after the first one. It was the evident purpose of the statute to require these motions to be promptly made and promptly decided. Prompt action is no hardship to those convicted of crime, and is a wise provision for the protection of the public.

The writ must issue, vacating the order, and directing the prisoner to be returned to the state prison if he has been taken therefrom for the purpose of a new trial.

The other Justices concurred.


author: Moore, J.

text:
    BAXTER v. REYNOLDS.
    1. Evidence—Promise to Pay.
    Evidence that defendant in an action to recover a bill for printing looked over the plaintiffs books containing the items embraced in the bill of particulars, and agreed on the amount due, and promised to pay it, is admissible, although no mention of an account stated is made in the bill of particulars, where defendant claims that the printing was done for and credit extended to another, and not to himself.
    2. Same—Books oe Account—Foundation for Admission.
    The testimony of a witness that he made entries in an account book as original entries taken from the job or order book, and that he knew they were correct, is sufficient to admit the book in behalf of the one for whom the entries were made,.—especially where there is evidence that the adverse party had agreed to settle the account as contained in such entries.
    Error to Ingham; Wisner, J., presiding.
    Submitted February 11, 1897.
    Decided April 27, 1897.

      Assumpsit by Charles H. Baxter and another against DeElbert A. Reynolds to recover a bill for printing.
    From a judgment for plaintiffs, defendant brings error. Affirmed.

      William A. Fraser, for appellant.

      F. S. Porter, for appellees.
   Moore, J.

Plaintiffs sued defendant to recover a bill for printing, which they claim was to be paid by him. It was the defendant’s claim that the printing was done for the Ancient Order of Loyal Americans, and that the credit was extended to that order, and not to the defendant. The case was tried by a jury, who rendered a verdict in favor of the plaintiffs. Defendant appeals.

Plaintiffs filed with their declaration a bill of particulars. They were allowed on the trial to show that, after all the work was done, the defendant looked over their books containing the items embraced in their bill of particulars, and agreed upon how much was due, and the defendant agreed to pay it. It is said this is error, because it is an attempt to show an account stated, which is not mentioned in the bill of particulars. We think the testimony was competent, for two reasons: First, to show that defendant had received the items charged; and, second, to show his recognition of his liability for them.

Plaintiffs were allowed to introduce two or three pages of their books of account in evidence. This is assigned as error because the proper foundation had not been laid. Before they were received, the witness testified that he made the entries, that they were the original entries as taken from the-job or order book, and that he knew they were correct. It also appears from the record that plaintiffs claimed defendant had agreed to settle the account as contained in these entries. It was not error to admit the testimony. Montague v. Dougan, 68 Mich. 98; Seventh-Day Adventist Publishing Ass’n v. Fisher, 95 Mich. 274; Lester v. Thompson, 91 Mich. 245.

The other errors assigned, demanding attention, relate to the charge of the court. Defendant requested the court to charge “that, as a matter of law, all testimony tending to show a settlement between the parties to this suit cannot be considered by you, as it is not in conformity to the plaintiffs’ bill of particulars.” The court refused to give this request. His refusal is said to be error. We have already disposed of this assigned error by what we have said in relation to the admission of the testimony.

The questions involved between the parties were questions of fact. An-inspection of the record shows that the rulings of the trial court in relation to the admission of evidence were fully as favorable to the defendant as they should have been. He also charged the jury fully, carefully, and accurately as to the law of the case applicable to the claims of the respective parties. The propositions involved are not new, and it would not be of interest to discuss them in detail.

The judgment is affirmed.

Long, C. J., Grant and Montgomery, JJ., concurred with Moore, J. Hooker, J., concurred in the result.


author: Hooker, J.

text:
    DOWNING v. BIRNEY.
    1. Deeds—Construction—Words of Inheritance.
    The word “children,” when used in a deed, applies primarily to> a specific and determinable class, and will not, in the absence of words in the instrument or of extraneous circumstances showing such to have been the intent, be construed as a word of inheritance synonymous with “issue” or “heirs.”
    2. Same—Estates in Land.
    Under a deed which does not in the granting clause state the duration of the estate conveyed to the grantee, but provides in the habendum clause that she is to hold the property to herself, tó the children of her body begotten'by her present husband, to her heirs, executors, and to the assigns of herself and husband,'’the grantee takes a life estate, with an estate in fee in expectancy to her or her.heirs, or to the assigns of herself and husband, subject to a contingent life estate in the children.
    Error to Bay; Wilber, J., presiding.
    Submitted February 11, 1897.
    Decided April 27, 1897.
    Ejectment by Parmelia Downing and others against Henry Birney and another. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Reversed.

      Simonson, Gillett & Courtright (E. A. Cooley and George P. Cobb, of counsel), for appellants.

      James Van Kleeck, for appellees.
   Hooker, J.

On February 6, 1851, James G. Birney made a deed of the premises described in the declaration, of which the following is a copy of the important part, viz.:

“ And Lorainie Spicer, wife of Ezekiel Spicer, of the same place, of the second part, witnesseth, that, in consideration of one hundred dollars paid by the said Ezekiel Spicer to the parties of the first part, they have bargained and sold and do hereby convey to the said Lorainie Spicer the lots known as numbered eight and nine (8 and 9) in square numbered forty-eight (48) in the village of Lower Saginaw, above mentioned, according to the lithograph map of it published by Green and McGowan. To have and to hold the said lots to the said Lorainie, to the children of her body begotten by the said Ezekiel, to her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, forever; and the said James G. Birney, for himself, his heirs, executors, and administrators, hereby covenant and agree that he will at all times defend the lawful title hereby conveyed, to the said lots, of the said Lorainie, to the children of her body begotten by the said Ezekiel, to her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, against the claim or claims of all persons whomsoever.”

The plaintiffs are three of four children of Ezekiel and Lorainie Spicer, two of whom were born after the deed was made, and, of two living at the time, one is a plaintiff, and one died leaving no issue; and it is claimed by the plaintiffs that they and Lorainie Spicer, their mother, inherited each one-fourth of this share, i. e., one-sixteenth of the entire premises, and they have joined as plaintiffs, claiming the undivided fifteen-sixteenths. The defendants are in possession under a deed purporting to convey the entire title, from Lorainie Spicer, made after the death of Ezekiel Spicer; and, she having married again, her husband joined in the conveyance. The claim of the plaintiffs is that this deed from Birney conveyed a life .estate to Lorainie, with remainder in fee to the children of herself and Ezekiel, while the defendants claim (1) that this deed attempted to create an estate tail, and therefore Lorainie took title in fee simple, by virtue of the statute (2 How. Stat. § 5519); and, failing in that contention, (2) that the land was conveyed in fee, and in moieties (or at least in fifths), to her and the children of her body, by Ezekiel, as a class.

We may dispose of this second suggestion first. It is noticeable that in its premises the deed makes Lorainie Spicer the only grantee, and the grant, being without words of inheritance or express limitation, would, if nothing further appeared in the deed, be construed as conveying to her a life estate. But the habendum is not silent, and was undoubtedly designed to qualify or supplement the premises in some way, which it may legally do, even to the enlargement of the estate granted, or the creation of new estates in new parties, who may be introduced by the habendum for that purpose. Brit it is said that a party thus introduced cannot take as grantee, being a stranger to the premises (i. e., not mentioned in the granting clause of the deed), but he may take by way of remainder. 3 Leon. 60, cited in Blair v. Osborne, 84 N. C. 420. If this is so, it would be conclusive upon the moiety question; for, although the habendum may be said to couple the name of Lorainie Spicer with the class called her ‘ ‘ children, ” the estate conveyed would be a remainder, and not, like her own, an immediate estate. Again, to sustain this theory we should have to make a change in the person and number of the personal pronoun, .in the words of inheritance, by substituting “their” for “her.” - But, again, we are of the opinion that it was not the intention of the grantor to dispose of the land in this way. We have no doubt that it was designed that Lorainie should have a life estate, at least, in the entire premises. Everything indicates it. First, we have the grant, which, standing alone, is clearly that; second, the clause in the habendum mentioning the children contains no words of inheritance, which would be necessary to give them a fee simple; and, third, it seems to have been contemplated that Lorainie and her husband might, in some contingency not clearly indicated, dispose of the premises, while such a provision as to the right of the children is significantly wanting.

So we may first inquire whether we may find a life estate in Lorainie, with a remainder, or must say that the deed was an attempt to create an estate tail, which, under the statute, vested the fee in her. If we should say that the effect of the grant was to convey a life estate to Lorainie, and that the habendum introduced the children for the purpose of giving them a remainder, it becomes important to know what the nature of that remainder is. If we should conclude that it was intended to give to the children an absolute fee after the termination of Lorainie’s life estate, it would be difficult to avoid the conclusion that an estate tail Was the object of the deed, and it could only be avoided, if at all, because they were introduced by the habendum instead of the grant. If, on the other hand, we can say that the estate conveyed to the children was not designed to be an estate of inheritance, it would strengthen the claim that theirs was a second life estate. There are two ways in which a design to give them an inheritance might appeal’: First, by the introduction of words of inheritance, following the words “children of her body begotten,” etc., distinctly applied to them, or, what would amount to the same thing, construing the words “her heirs” to mean “their heirs;” second, by construing the words “children of her body” to mean “heirs of her body,” or “issue.” There are no words of inheritance distinctly and clearly appearing to have been intended to apply to the “children,” and we think that there are obstacles to a construction of the words “her heirs ” that would supply the want of them. What, then, is meant by the words “children of her body begotten by the said Ezekiel ? ”

It seems to be conceded that whatever estate was conveyed to the children, intentionally or through the futile attempt at an entail, if it were such, was not to the exclusion of the children subsequently born. Counsel for the defendants necessarily take that view when they argue that this was an estate in tail. The plaintiffs’ counsel unqualifiedly admits it in his brief, and apparently supports it by the argument that inasmuch as their estate is not a grant, but a remainder, the rule that would have excluded them if described in the grant does not apply, and, as unborn children may take an estate in remainder with others, it follows that such must be the effect; citing 2 Bl. Comm. 170. Whether this necessarily follows when the terms used here appear in the habendum, we do not find it necessary to determine; but assuming, as counsel do, that all of the children shared in whatever estate followed Lorainie’s life estate, we will proceed to inquire concerning its nature.

As intimated, unless the word “children” is to be construed as synonymous with “issue” or “heirs,” they took no estate of inheritance. There might possibly be circumstances where “children of her body begotten” might be held to mean lineal descendants of any degree; but, without' words in the instrument or extraneous circumstances tending strongly to show an intention that such meaning should be given, it would do violence to the common understanding of both words “children” and “begotten.” The word “children” usually means “descendants of the first degree,” and “to beget” is to procreate, as a father or sire. The word ‘ ‘ children ” is usually confined to immediate descendants,—those of the first generation. It includes neither grandchildren nor more remote descendants. See authorities cited in 3 Am. & Eng. Enc. Law, 231. And it is said that “the word ‘children’ may acquire a more extensive meaning only from the context in which it occurs, or from its use in a case where the person using it must know that there neither then is, nor can afterwards be, any person within the first generation to whom it can be applied.” Willis v. Jenkins, 30 Ga. 167; In re Chapoton’s Estate, 104 Mich. 11; Tillinghast v. D’Wolf, 8 R. I. 69. The instances are perhaps more common where the word “heirs” or “issue” is construed to mean “ children.” Such a case is Tucker v. Tucker, 78 Ky. 503, cited by counsel, where the meaning is obvious from the context, though in these cases it is probable that •the same rule (i. e., necessity or obvious intent) applies. It has been said that: ‘ ‘ The word ‘ children, ’ being confined to issue in the first degree, consequently, when used in a deed or will, applies primarily to a specific and determinable class. It is designatio personae, and indicates, not heritable succession, but individual acquisition. It is a word not only of limitation, but of purchase.” And to this rule it is said: ‘ ‘ There is no exception in the case of deeds. ” Therefore the term “children of her body” should not be considered “words of inheritance.” See 3 Am. & Eng. Enc. Law, 232, note 1. See, also, Ross v. Adams, 28 N. J. Law, 171, 172. In the case before us, if we have a conveyance to Lorainie Spicer for life, and to certain children of her body, not named, but classified, and, as already shown, there are no words of inheritance expressed, or that may be implied, which can make their estate one of inheritance, upon the death of Lorainie Spicer they would, come into possession, according to the terms of the deed, as life tenants. Such a case was Blair v. Osborne, 84 N. C. 420. There the grant was to Araminta Blair, habendum to her and the children begotten upon her body by S. M. Blair, forever. It was held that in such a case the children (of the first generation) took a remainder for life, as joint tenants. By referring to the deed in the present case, it may be said that Lorainie Spicer was granted a life estate. The children were introduced as life tenants in remainder, in the habendum, as was done in the case of Blair v. Osborne. The only difference would be that under our statute (2 How. Stat. §§ 5560, 5561) the children would take in common, and not as joint tenants. Mullreed v. Clark, 110 Mich. 229.

This brings us to the other clause of the habendum, viz.: ‘ ‘ To her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, forever.” We have indicated that we think that this refers to Lorainie Spicer. It is her heirs and her executors, and the assigns of herself and Ezekiel, who were apparently in the mind of the grantor. Were these words omitted, the conclusion that Lorainie, and the class described as her children, would have taken successive life estates, is irresistible; and that the donor would have owned the reversionary interest is plain. It is equally clear that, but for the provision regarding the children, the introduction of these words of inheritance would have enlarged the estate granted to Lorainie to a fee simple. So we have reduced the case to this narrow question,— whether they could have that effect, and thereby cut off the estate attempted to be conveyed to the children.

In determining the effect of a habendum upon a grant, we should do violence to the settled rules of construction were we not to determine the meaning of the conflicting provisions of the habendum by determining the intent of the grantor, as expressed in the habendum, so far as it could be determined from the instrument; and, having done this, we would then determine its effect upon the grant. To our minds, it is obvious that the first object was to secure to Lorainie Spicer an estate for life, and, second, that the children should enjoy a life estate in remainder; and we will not be justified in holding it to have been defeated by so technical a rule as that suggested above, unless it cannot be legitimately avoided. Following the discussion of the grantor’s intent into the realm of reasonable speculation, it would seem plausible that he wished to provide for a full enjoyment of the estate by Lorainie when the time should arrive (if it ever did) that the possibility of issue begotten by Ezekiel should be extinct. This might obviously happen through the death, or possibly the divorce, of Ezekiel without such issue living, or the subsequent death of such children. If the habendum had stopped at the word “heirs,” this deed would have created an expectant estate in fee simple in Lorainie Spicer’s general heirs (2 How. Stat. § 5544; Defreese v. Lake, 109 Mich. 415), to become operative upon the termination of the life estates of the children (see 2 How. Stat. § 5544; Defreese v. Lake, 109 Mich. 415), and could not be said to have been an enlargement of the life estate granted to Lorainie. This would have cut off the reversion. But apparently the grantor sought to do more, and convey an estate to Lorainie in fee after the possibility of the second life estate extinct, and, in addition to that, to allow Lorainie, with the consent of her husband, Ezekiel, to convey the expectant estate in fee to the exclusion of her general heirs.

There are two ways in which the plaintiffs can sustain their title: (1) By saying that Lorainie’s life estate and the estate in expectancy merged in her, to the exclusion of the intermediate life estate, which has already been discussed. (2) By saying that the deed from Lorainie Spicer conveyed nothing, as in such case her estate in expectancy, if she had one, descended to them, provided that they were her only heirs; and, if she had not, such estate came to them as her general heirs, under the terms of the Birney deed. We are of the opinion that it was competent to create an estate in fee in expectancy, and had the habendum read, “To said Lorainie Spicer, to the children of her body begotten by the said Ezekiel, to her, and her heirs, executors, and assigns,” we should have no doubt that the grantor had intended to convey to her the estate that would have otherwise reverted to him at the expiration of the life estates. This estate might be contingent under 2 How. Stat. § 5541; and it would be alienable and descendible under 2 How. Stat. § 5551. But the language was not that, and we must either hold that the intent failed, so far as she was concerned, and that the estate went to her heirs, or that the obvious intent was to convey to her, her heirs, executors, etc. This latter construction is supported by the fact that the deed professed to give to her the power to assign,—coupled with the requirement that Ezekiel Spicer should join, it is true, but dependent upon title. If she had no title, she would have nothing to assign, nor would Spicer. Upon the other hand, it may be said that, if she had title, Spicer certainly had nothing to assign, and it was therefore superfluous to mention him. This is perhaps true, though we should not overlook the fact that the married woman’s act was not in force at the time that the Birney deed was made, and that unSer the common law the husband, by virtue of the marriage, acquired a life interest in the property; and, furthermore, she was incapacitated by coverture, and could not convey her real estate by deed, except as she joined her husband in such conveyance. Again, 2 How. Stat. § 5770, which was in force at the time this deed was executed, made a radical innovation on the husband’s rights as tenant by curtesy. It does not appear whether Lorainie had children by a former husband, but, if she had, it was possible that she might at her death leave issue who would take the estate discharged of the estate by the curtesy, thus excluding Ezekiel, whose money actually paid for the property. These reflections suggest possible reasons for a supposed necessity for the mention of Ezekiel. It is true that we need not concern ourselves with these, for they do not strengthen the plaintiffs’ claim that the children took an estate in fee by way of remainder. To so hold, we must construe the deed as reading, “to the children of her body and their heirs,” and we would be obliged also to hold that this did not constitute Lorainie a tenant in tail. In our opinion, it was the obvious intent of the grantor to give to Lorainie Spicer the fee of this estate, subject to a contingent life estate in a certain class of her children. To more certainly accomplish this, and avoid the statute docking entails, the conveyancer sought to create two successive life estates, with an estate in fee in expectancy. In the ordinary course of events, it would be expected to go to Lorainie’s general heirs, if she did not convey the expectancy in fee; but, in case of her living after possibility of issue (by Ezekiel) extinct, this estate would merge with her life estate still existing, and give her the fee in possession. In this connection we do not overlook some provisions of the statute which might be of interest, notably sections 5533 and 5546, but they are unimportant under the view we take of the case.

It follows that the plaintiffs, or some of them, are own•ers of a life estate in these premises, while the defendants own a remainder in fee in expectancy.

The judgment must be reversed, and the plaintiffs allowed a new trial. Ordered accordingly.

The other Justices concurred.


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    OLIVER v. OLMSTEAD.
    1. Lease—Ice—Right oe Removal.
    The right to cut and remove ice may be leased by the owners of the bank adjoining the stream on which it forms.
    2. Partnership—Dissolution—Renewal oe Lease—Statute oe Frauds.
    A surviving partner has no power to renew a lease, executed by the firm, for a term of years, unless such action is necessary to close out the partnership business; and his attempt to do so without written authority from the heirs of . the deceased partner is invalid.
    Appeal from Shiawassee; Smith, J.
    Submitted February 11, 1897.
    Decided April 27, 1897.
    Bill by Hiram E. Oliver against Fred C. Olmstead and another to restrain the cutting and removal of ice. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Lyon & Hadsall, for complainant.

      Watson & Chapman, for defendants.
   Moore, J.

The bill in this case is filed for the purpose of settling the ownership of the ice which forms on a portion of the Shiawassee river. The river is a meandered stream. Dewey & Stewart were the owners of the land on the north side of the stream. August 18, 1890, they gave Oliver & Dudley a written lease to cut all the ice on that portion of the stream owned by them for the period of five years. This lease was afterwards renewed for another five years, and Oliver succeeded to the rights, of Dudley in it. The consideration for the lease was the supplying of the families of Dewey and Stewart with ice. It is claimed that when the lease was renewed Stewart was dead. The ice was furnished to Stewart as long as he lived, and after his death it was furnished to his heirs,, who had attained their majority. In the fall of 1895 the defendants made a verbal contract to buy about one acre of land of Dewey and the Stewart heirs, and paid $50 on the agreement. At this time, they claim they did not know of the complainant’s lease. In November, the land having been surveyed, they entered into a written contract for the land. At this time they knew of the existence of the lease, but were told by Mr. Dewey that Oliver would release his lease, so far as their land was concerned. The defendants made preparations to cut the ice, and this bill was filed to restrain them. In their answer, defendants denied that Dewey & Stewart had any title in the stream, or to the thread of the stream, or to the ice that formed on the surface of the stream. They also denied any knowledge of the lease when they made their purchase. The circuit judge dismissed the bill of complaint. Complainant appeals.

We have no doubt of the right of Dewey & Stewart, the owners of the bank of the river, to the ice that might form upon its surface. Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); People’s Ice Co. v. The Steamer Excelsior, 44 Mich. 229 (38 Am. Rep. 246); Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227 (47 Am. St. Rep. 516), and the many cases cited therein. This was a right they could lease to another. The testimony is somewhat conflicting as to when knowledge of the existence of the lease came to the defendants, but the testimony is conclusive that before they had obtained the written contract which gave them an interest in the land they had such notice of the lease that they were bound to take notice of its terms.

It is objected that the renewal of the lease was invalid, because Mr. Stewart was dead. The record discloses that the land was partnership land. The lease was renewed in the name of Dewey & Stewart; the signature thereto being made by Mr. Dewey, the surviving partner. After its renewal, Mr. Dewey and all the heirs of Mr. Stewart received one year’s rent. It does not appear that the renewal of the lease was necessary to close out the partnership business. The law is well settled that the death of a partner dissolves the partnership. The law is also well settled that a lease for more than one year is void unless in writing, signed by the party by whom the lease is made, or by some person lawfully authorized by writing to make it. 2 How. Stat. § 6181; Chesebrough v. Pingree, 72 Mich. 438. Mr. Dewey was not authorized in writing by the heirs of Mr. Stewart to renew the lease, and we think his attempt to do so was invalid. It is probable that the acceptance of the rent by Mr. Dewey and the heirs of Mr. Stewart for the year in which the lease was attempted to be renewed would make the renewal good for that year. If so, complainant would be entitled to cut the ice crop for that year. It does not appear from the bill of complaint that any injury which the complainant might suffer if prevented from gathering the crop for one year would be sufficient to give the court jurisdiction to grant the relief he seeks, and it certainly would not .justify the court in enjoining defendants from gathering ice for a longer period than the one year. We do not think the judge erred in dismissing the bill of complaint.

The decree is affirmed, with costs.

The other Justices concurred.


author: Per Curiam.

text:
    KROLIK v. WAYNE CIRCUIT JUDGE.
    Injunction—Mandamus.
    An application for mandamus to compel the circuit judge to vacate an order refusing tp dissplve an injunctipn was denied.

      Mandamus by Henry A. Krolik and others to compel Norman W. Haire, presiding circuit judge of Wayne county, to vacate an order refusing to dissolve an injunction.
    Submitted March 9, 1897.
    Writ denied April 27, 1897.

      Sloman & Groesbeck, for relators.

      Frank S. Pratt, for respondent.
   Per Curiam.

This is an application for mandamus to compel the respondent to vacate an order refusing to dissolve an injunction issued at the suit of Mary B. Miller against these relators, restraining the relators from enforcing certain chattel mortgages executed by Isaac Shulman.

We have looked into the record sufficiently to satisfy us that the court was not without jurisdiction in granting the injunction, and we are not disposed, upon this application, to interfere with the discretion exercised by the respondent.

The application will be denied.


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    W. H. H. PECK CO. v. GORDON.
    Principal and Agent—Contracts—Payment.
    A wholesale house which makes a shipment of goods upon the advice of its traveling agent that the .purchaser will turn over in payment, instead of cash, the note of a third person, naming the maker and indorser, and suggesting that the latter’s financial standing be ascertained by the house through a mercantile agency, cannot thereafter insist that the note received is insufficient because indorsed by the purchaser without recourse.
    Error to Midland; Dodds, J.
    Submitted February 11, 1897.
    Decided April 27, 1897.

      Assumpsit by the W. H. H. Peck Company against Stewart B. Gordon and another for goods sold and delivered. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Lee E. Joslyn and M. J. Gue, for appellant.

      Gordon & Reardon, for appellees.
   Long, C. J.

This action was brought to recover the cash price for certain goods sold by the plaintiff to the defendants, amounting to $519.78. It appears that one A. B. Love was a traveling salesman for the plaintiff. Defendants were merchants, doing business at Midland, this State. Love called upon them at their store, and there an arrangement was made by which the defendants agreed to take from the plaintiff certain goods, on condition that they could turn out a certain note they had against other parties; and defendants contend that in turning out the note they were not to become liable thereon, but were to turn it out as cash. After the first visit of Mr. Love to the defendants, he wrote the plaintiff in reference to the talk lie had had with them about the sale of. goods, and on November 19, 1894, the plaintiff answered him, as follows:

“ Yours of 17th, from Adrian, at hand, and we are glad to hear from you. Beg to say we hope you will get a nice large order from Gordon & McCann for goods in our line, and, if you do, the same will be all satisfactory if it is settled for on the basis you write us, provided the notes have good indorsement; and their indorsement, we believe, is all right. We hope, however, you will be able to arrange it so that they could pay part cash and part in these notes which you speak of,” etc.

On the 24th of November, Mr. Love wrote the plaintiff in answer:

‘ ‘ Inclosed please find order from Gordon & McCann, of Midland, Mich. You will remember I wrote you about this deal with Gordon & McCann, in reference to their turning out notes to you instead of cash,—notes that they took in the way of trade; and in view of their enlarging their business, and wanting a large purchase of goods, and not wishing to feel in debt for them, is why they want to turn over the notes now. Usually they hold the notes themselves until they mature, and it is not likely they would want to give them out this way for future purchases; so I think you had better take the notes this time, and thereby secure a good customer. The notes bear 7 per cent, interest, are drawn by the Cleveland Wooden Ware Company, of Midland, Michigan, are signed by W. B. Remington as president, and are also indorsed by W. B. Remington personally. Now, W. B. Remington has a large amount of stock in the Cleveland Wooden Ware Company, of Midland, is interested in the Saginaw Box Company, of Saginaw, and is also the Remington of the firm of Remington & Horton, of Grand Rapids; so you can look him up at each of these three places through the agency. And in the meantime please be getting the orders out at once,—the very quickest you can,—and, when you ship, send a tracer after, to hurry the goods forward. I fully expect that you will find the notes acceptable, so do not delay getting the goods out while waiting for reports. It is fully understood that the notes must be such as you will approve,” etc. -

The goods were shipped to the defendants, and received by them, and they in turn sent the note forward which the agent of plaintiff had selected, and to which he referred in the letter above quoted. On December 26th, the plaintiff acknowledged reeeipt of the note for $500 and a post-office order for $4.62, and wrote in reference to this note:

“The understanding between us and Mr. Love and between you and him, according to the way he wrote us, was that we were to accept this note from you, made out as this one is, providing said note or notes were acceptable to us; so we again repeat that they are acceptable to us, except that we want your indorsement, properly made, as well as Mr. Remington’s. ”

Plaintiff returned the note, as well as the post-office order. It appears the defendants had indorsed the note “without recourse.” Plaintiff thereafter, contending that the Cleveland Wooden Ware Company and Mr. Remington were irresponsible, brought suit against the defendants. No demand was made by the plaintiff for the return of the goods before suit brought, but it proceeded upon the theory that it had the right to i’ecover the cash price as upon a cash sale. Defendants contend: First, that Love had authority to make the arrangement which was made to receive the note in payment of the goods, well knowing that they did not intend to pay cash, but to turn the note out in payment; and, second, that the plaintiff was informed by the letter of November 24th, written by Love, just what the character of the note was; and that, after receipt of this letter, the plaintiff shipped the goods, and thereby accepted the terms of the contract made by its agent. It was further claimed upon the trial by plaintiff that Mr. Love, at the time of taking the order from the defendants, delivered a copy of the same to them. This was denied by the defendants. It seems this order contained the words: “Terms cash, or approved notes, bearing 7 per cent, interest.” The jury, upon the special question submitted to them, found that no copy of the order was ever shown the defendants.

The court, in its charge to the jury, directed them, after reading the correspondence between the parties, that—

“If the contract made by Love with the defendants was as claimed by the plaintiff, and the notes were to be subject to the approval of the plaintiff, it is entitled to recover in this case the amount of $519.78, with interest at 6 per cent, from the 24th day of January, 1895; but, if the contract made by Love and the defendants was as claimed by the defendants, I think it was the duty of plaintiff, upon receipt of the letter of December 24th, reading as follows: ‘ Inclosed you will find note of $500 and post-office order $4.62 to pay our bills to date. This is the arrangement made with your Mr. Love; we to receive 2 per cent, off the bill, and you to receive note drawing 7 per cent. That is the terms from the other houses he represented. We inclose you statement of the same. Please send us receipt for the same,’—to have repudiated the contract made by Love, if plaintiff did not intend to stand by it. It could not, without doing so, sue and recover from the defendants the value of the goods. No fault is found by the plaintiff with the note, except that to the indorsement the defendants added the words ‘ without recourse,’ which indorsement was sufficient to pass title to the note, but did not make the defendants liable thereon. But, if the contract was as claimed by the plaintiff, the note in question does not fulfill the conditions of the contract to be performed by the defendants, and in such case it had a right to approve it or not. On being advised by the defendants that they insisted that the note sent was sufficient, on tendering it back plaintiff had a right of action as claimed by it in this case; so that, if you find the contract to be as claimed by plaintiff, your verdict should be for it for the amount I have stated.”

Certainly this charge was as fair to the plaintiff as it was entitled to. The letter from its agent, November 24th, advised it fully that the note he was taking was given by the Cleveland Wooden Ware Company, signed by Mr. Remington as president, and indorsed by him personally. Plaintiff was advised of Remington’s business, and it was further advised to look him up at the three places through the agency. There was nothing in the letter indicating that defendants were to be liable upon the note. It showed only that they were turning the note out in payment, and was a sufficient notification to plaintiff of just what the arrangement was which its agent, Love, had made with the defendants; and plaintiff shipped the goods afterwards with full knowledge that the note was to be received in payment. Not until the goods had been shipped, and the note received, did it raise any question that defendants were to become personally liable upon the note. We are of the opinion that when the plaintiff accepted the order, having the information it had at the time from the letter of Mr. Love, and shipped the goods to the defendants, it was an acceptance and approval of the note, and ratified the entire contract; and that when the defendants sent the note to the plaintiff it fully satisfied the latter’s claim.

The judgment must be affirmed.

The other Justices concurred.