author: Hooker, J.

text:
    KNIGHTS OF COLUMBUS v. McINERNEY.
    1. Life Insurance — Beneficial Associations — Beneficiaries— Who Eligible.
    Under the charter of a beneficial association and the laws of Connecticut, the State of its domicile, benefits were payable only to some member of the immediate family of the member at the time of his death. An unmarried man became a member and accepted a certificate payable to his mother, provided that she was at the time of his death his lawful beneficiary under the charter, constitution, and laws of the order, and the laws of Connecticut. At the time of his death the member had a wife and children and his mother was not a member of his family. Held, that on the face of the contract, the mother was not entitled to the benefit.
    3. Courts — Rules of Decision — Laws of Sister State — Interpretation.
    An interpretation by the highest court of another State of the laws of that State with respect to the charter, laws, and contracts of a beneficial association organized there, is binding upon the courts of this State as to the construction of a similar contract which by its terms is subject to those laws.
    3. Life Insurance — Beneficial Associations — Beneficiaries— Payment of Assessments — Effect.
    The fact that a sister of a member of a beneficial association had been allowed to pay the assessments for several years, with the understanding and expectation on her part and that of the member’s wife that his mother, the designated beneficiary, was the lawful beneficiary, whereas the widow and children were the legal beneficiaries, amounts only to payment under a mistake of fact, and does not entitle the mother to the benefit.
    4. Same — Beneficiaries—Designation Out of Order.
    That the association had authority “for special” reasons to accept a designation out of order, did not require it to pay the fund to the member’s mother, the designated beneficiary, where the member designated her at a time when he had no family of his own and made no further designation; since on his death the right to the fund vested in his heirs and the association was powerless to change those rights by any action it might take in favor of another.

      5. Release — Life Insurance — Proceeds of Policy — Consideration-Necessity.
    That the widow of a member of a beneficial association, without consideration, and supposing that her husband’s mother, the designated beneficiary, was a legal beneficiary, and at the solicitation of the secretary of the association, whose officers hesitated to pay the mother, executed to the association a release of any claim to the benefit, could not afEect the right of the widow and her children to the fund, where the association, which interpleaded the parties, did not act upon the release, made no claim under it, and retained the fund in its hands for payment to those lawfully entitled to it.
    Cross appeals from Bay; Collins, J.
    Submitted February 24, 1908.
    (Docket No. 137.)
    Decided July 13, 1908.
    Bill of interpleader by the Knights of Columbus against Margaret E. McInerney and Louise B. McInerney, personally, and as guardian ad litem of Paul B. and Ruth M. McInerney, minors, to determine title to the proceeds of a benefit certificate. From the decree rendered, defendants appeal.
    Reversed, and decree entered for defendant Louise.

      De Vere Hall, for defendant Margaret McInerney.

      William J. Doyle and Gilbert W. Hand, for defendant Louise B. McInerney.
   Hooker, J.

The complainant is a nonresident fraternal beneficiary association, organized under the laws of Connecticut. On April 16, 1899, Cornelius J. McInerney was a member, and received a benefit certificate of that date for $1,000 payable, according to its terms, to Margaret E. McInerney, his mother, provided that she was at the time of his death his lawful beneficiary, under the charter, constitution, and laws of said order, and the laws of the State of Connecticut. At the time said certificate was issued, the member was an unmarried man residing with his parents. Louise B. McInerney is the widow, and Paul B. and Ruth M. Meinerney are the minor children, of Cornelius J. Mclnerney, deceased. A dispute having arisen over the right to the fund due upon this certificate, complainant filed a bill of interpleader and this controversy is between the defendants thereto. The learned circuit judge made a decree dividing the fund remaining, after payment of costs, between the mother, Margaret Mclnerney, and the children, in equal shares, and all of the defendants have appealed.

The mother bases her claim upon the fact that she was designated as beneficiary when the certificate was taken, and no other beneficiary has since been designated; the fact that for several years her daughter has paid the assessments, and the further fact that a release by Louise B. Mclnerney to the complainant of all her claims to the fund was given. Louise B. Mclnerney, on behalf of herself and her children as heirs of the deceased, claims that in accordance with the laws of the order, the laws of Connecticut, and the terms of the contract itself, Margaret Mclnerney is not entitled to the fund, not having been a member of the family'of her son at the time of his death, and that, according to the charter and laws of the order, she and her children are entitled to it.

The certificate provides:

“ The Knights of Columbus hereby promises and binds itself to pay to Margaret E. Mclnerney, provided such person is the lawful beneficiary of said member at the time of his death, a sum not exceeding $1,000, in accordance with and under the provisions of the laws of the Knights of Columbus.”

The charter in force during the life of the certificate provides the order in which beneficiaries shall be designated, as follows:

“Which said beneficiaries shall be specified only in the following order, to wit:
‘ ‘ (a) To such person or persons of the immediate family of said member as by him designated.
‘ ‘ (b) To such person or persons in default of such family of the blood relatives of such member as by him designated.
“ (c) In default of any designation by said member or out of the order named, except by the permission of the board of directors or their successors for cause shown, then such aid shall be rendered by said corporation, to such family or relatives who are heirs at law of such member, in the manner above arranged.”

The following laws of the order are applicable to this controversy:

“ Sec. 38. The board of directors shall have full power " and authority. * * *
“4. To determine to whom a death benefit shall be paid when non-beneficiary is designated; and, should a member in good standing die without having named and having had recorded in the books of the national secretary the name of any person or persons to whom the sum shall be paid, then to determine to whom said sum shall be paid, provided, however, that in all cases 'the beneficiaries shall not be in conflict with the provisions of the charter of the Knights of Columbus.
‘ ‘ Sec. 73. Upon the death of any member legally elected and in good standing at the time of his demise, the order of the Knights of Columbus shall pay to the beneficiary, person or persons named by the deceased prior to his death, and entered upon the books of the national secretary as the beneficiary, the person or persons to whom the death benefit shall be paid in case of his demise, such sum as the deceased may have been insured for, subject to the provisions of the preceding sections, and shall take duplicate receipts therefor, one of which the national treasurer shall retain and the other forward to the national secretary.
“Sec. 78. Should a member in good standing die without having named and having had recorded in the books of the national secretary the name of any person or persons to whom said sum should be paid, or the designation of the beneficiary is contrary to the provisions of the charter, or the beneficiary designated has died, then the board of directors, upon the advice of the national advocate of the order, shall determine to whom said sum shall be paid; provided, however, that in all cases the beneficiaries shall not be in conflict with the provisions of the charter of the Knights of Columbus. * * *
“ Sec. 80. A member desiring to change his beneficiary shall give written notice and surrender his benefit certificate to the financial secretary of his council, directing that a new certificate be issued to him, payable to such beneficiary or beneficiaries as such member may designate in accordance with the laws of the order.
“Sec. 82. No officer, employe or agent of the order, or any council thereof, has the power, right or authority to waive any of the conditions upon which benefit certificates are issued, or to change, vary or waive any of the provisions of the constitution or laws. Each and every benefit certificate is issued only upon the conditions stated in and subject to the constitution and laws of the order.”

The evident intent of the law of Connecticut is to secure to the immediate family of the beneficiary, at the time of his death, the benefit of financial aid generally necessary at such times. It endeavors to put it out of the power of the member to deprive his family of such aid, by means of a designation of others, by fixing the order of designation, and making payment contingent upon the continuance of the relation, and this design is emphasized by the contract, which contains a proviso that, to be entitled to payment, the proper relation must exist at the time of the death of the member. Plainly, on the face of the contract, the mother is not entitled to payment. A similar contract was construed in Knights of Columbus v. Rowe, 70 Conn. 545, a case closely resembling the present case, and it was held that the parent was not entitled to the fund, and that the widow and the infant were. This case interpreted the law of the State of Connecticut, which required the complainant to make contracts according to its terms, and we think where, as in this instance, the contract in terms is made subject to the law, i. e., charter, the construction of such law by the highest court of the State is conclusive here and we are bound to follow it, because it is the agreement of the parties, if for no other reason. The case of Larkin v. Knights of Columbus, 188 Mass. 22, is another similar case, where the same view hereinbefore expressed was entertained.

Some reasons are suggested for departing from the rule of the cases cited.

Payment of Assessment. It is claimed that a sister of deceased has been allowed to pay the assessment for some years, with the understanding and expectation on her part and that of the widow that the mother was a lawful beneficiary. There is nothing to show that such payment was more than this, and the widow is not, and certainly the infants are not, chargeable with any duplicity in the case. The sister simply paid money under a mistake of fact. It does not entitle her mother to the property of the widow and orphans, and the alleged equities in her favor are not conspicuously greater than those of her daughter-in-law and grandchildren, whose necessities are quite likely to be as urgent as her own. The record shows that her husband was not well off. But it is not a case in which necessity or apparent equity can be controlling. The question is one of legal rights.

Counsel assert that it was the duty of the complainant to pay the fund to the mother, they having authority, “for special” reasons, to accept a designation out of the order. There was no designation by the member after the first, and during his life the complainant did not act upon the subject. It was not asked to do so, and had it been, it could not have been compelled to do so. It is enough to say it did not. When the member died, the right to this fund vested in his heirs, and the complainant was powerless to change those rights by any action it might take in favor of another.

Pelease by Widow. The widow, without consideration, and supposing that the mother was a legal beneficiary, and at the solicitation of the secretary of the company, whose officers hesitated to pay to the mother, executed to it a release of any claim to the fund. We do not see that the release affects the question. The mother certainly secured no rights under it and lost nothing by it, and the complainant did not act upon it, and makes no claim under it. The fund is still in the hands of the complainant, and it is willing to pay it to those lawfully entitled to it. We are of the opinion that the entire fund should be paid to the widow, one-third in her own right as heir and the remainder as guardian for the two children, each of them being entitled to half of the remaining two-thirds. Defendant Louise, in her own right and as guardian, is entitled to costs of both courts against defendant Margaret Mclnerney. The decree of the circuit court will be modified in accordance with this opinion, a new decree to be entered in this court.

Grant, C. J., and Moore, Carpenter, and McAl-VAY, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    ANDERSON CARRIAGE CO. v. PUNGS.
    1. Appeal and Error — Decisions on Former Appeals — Law of the Case.
    A determination, on a former appeal that plaintiff made a case for the jury, approved upon a second appeal, will be followed upon a third appeal, the record being in legal effect the same.
    2. Same — Decision—Retrial—Law of Case.
    Where it is contended that a ruling of this court on a former appeal as to the admissibility of certain evidence was used upon the retrial as an opportunity to introduce immaterial and damaging evidence, but an examination of the record satisfies the court that the trial court kept within the ruling, no error appears.
    3. Trial — Instructions—Modification—Propriety.
    A modification of a requested instruction, to the effect that the question presented by the instruction is an academic one, in view of the issues and evidence, is not prejudicial error, where the record warrants the charge as given, and the claims of the parties are clearly stated in other portions of the charge.

      4. Same — Charge as a Whole.
    An assignment of error to a segregated portion of a charge will not be sustained on the ground that the agreement described therein did not constitute the agreement declared upon, where it is apparent from a reading of the entire paragraph that the court referred to the agreement relied upon.
    Error to Wayne; Hosmer, J.
    Submitted February 28, 1908.
    (Docket No. 20.)
    Decided July 13, 1908.
    Assumpsit by the Anderson Carriage Company against William A. Pungs for the breach of a contract to convey certain patents. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Dwight C. Bexford, for appellant.

      Bussel, Campbell, Bulkley & Ledyard (Harrison Geer, of counsel), for appellee.
   McAlvay, J.

This is an action in assumpsit brought by plaintiff against defendant to recover damages for an alleged breach of contract between them. This is the third time the case has been before this court upon writs of error. The case is reported in 134 Mich. 474, and 140 Mich. 437. The statement of facts made the first time the case was considered by this court, supplemented by a further statement made the second time the case was before us, relieves the court from making any statement of such facts at this time. For such statement, reference is had to the volumes cited above.

Defendant, under the writ of error by which the case is brought here, has assigned numerous errors. The case is one which involved controverted questions of fact; the principal one of which was whether an oral agreement, as claimed by plaintiff, was made between the parties in January, 1898. The questions of law involved in the case have been settled in the former decisions, and there would appear to be no new questions before us except such as are incidental to every trial relating to the matter of admitting or rejecting evidence and the charge of the court.

In his brief, the attorney for defendant states:

“ This third record now here shows a materially different state of facts from what appeared in either of the two previous records. These differences will be particularly mentioned later on. They relate to the evidence as to the alleged agreement, and as to damages; also to various matters permitted * * * to be shown as his (defendant’s) motive for making the alleged agreement, and also to differences in the court’s charge to the jury.”

In this opinion we will consider the case presented on this record by defendant, and his claims, in the order above stated, as near as may be, and we must compare the voluminous records in the three cases and determine whether these claims are well grounded.

It was decided upon the first review of the case, and approved upon the second review, that defendant’s contention that a verdict should have been directed for him was not tenable. The same contention is again made, and supported by the same arguments as on the two former hearings, upon practically the same record. The court adheres to its former decision upon the question.

What has been said as to the previous contentions of defendant regarding the proof as to the contract may also be said upon the question of damages. Upon this question no material difference appears in the present record. The same arguments were urged on the first review. The question was passed upon at that time and is not an open one.

Upon the second review, a question was before the court upon the admission of evidence relative to representations made by defendant to plaintiff “in regard to his business which it was proposed to contribute to the consolidation. ” This evidence was excluded by the trial court. This court held in that case that the court was in error, that evidence bearing upon that proposition was-material, not as bearing upon defendant’s liability, but upon the probability of the agreement having been made. The case was reversed for that reason. The trial court, following the indication given by this court, upon the last trial admitted such evidence. It is strenuously urged by defendant that the ruling of this court was used by plaintiff as an opportunity to get into the case a large amount of immaterial and damaging evidence. An examination of the evidence complained of satisfies us that the trial court kept within the ruling of this court upon that proposition, and that no error was committed.

It is claimed that portions of the charge of the court are not the same as approved by this court upon former hearings. The claim of defendant as to the agreement plaintiff relies upon has been, that, as proved, it was an agreement with the individuals Anderson and Locke, and not with the company. This court has held in a former decision of the case that this was a question of fact for the jury. A request to that effect was presented by defendant and given, with the added statement:

“ I think so far as this case is concerned that request is a proper request, but to a certain extent it is rather an academic question, because there is no contention in this case that the promise was made otherwise than for the benefit of the corporation on the part of the plaintiff; and, so far as the defendant is concerned, there is an absolute denial that any promise was made, so that in no case could there be anything more, I think — anything further or other than a purely academic question.”

This is complained of, as informing the jury that it was a matter of no importance in the case, and that they need not give it serious attention. The court had charged clearly that the promise, as claimed by plaintiff, must be proved by a preponderance of evidence, and that it must have been a promise to plaintiff company and not a promise to these persons as individuals. In view of the state of the testimony, what the court added, which is quoted above, was to the effect, that, under the evidence, if any promise was proved, it was a promise to the company, for the reason stated in the charge. This we do not think was error, certainly no prejudicial error. The record warranted this charge.

Much testimony was put in the case bearing upon the motive for the promise it was claimed defendant had made. The charge of the court started out with such a statement and carefully called the attention of the jury to this testimony, and confined its purpose to that question alone. He then stated plaintiff’s claim in the case as to the promise of defendant which was relied upon, to which portion of the charge there is no objection made. The court then proceeded to state what defendant had requested to charge relative to the fact that it was not possible for Anderson to close up the business at that time, as he had stated to defendant, and that there was no legal ground for such interference. The court then said:

“ Be that as as it may, if Anderson had offered or proposed at the time, or Mr. Locke, or one or both of them, to withdraw their services from the corporation, and to go out and found a new corporation, or to make an effort to do that thing, I think that in itself, if they refrained from so doing, by reason of any promise which Mr. Pungs might have made in consideration of their remaining, would form a good consideration for such promise, if such promise were made.”

So much of this portion of the charge as is just quoted verbatim is excepted to and error assigned thereon, on the ground that this did not constitute the agreement declared úpon. A portion of a paragraph of the charge is segregated and claimed to be erroneous.

This court has said too often to be under the necessity of repeating, that the charge must be taken as a whole and dealt with in fairness. Had the entire paragraph been quoted, it would have been apparent to any fair-minded person that the court referred to the agreement relied upon. The quotation concludes at the end of a clause, in the middle of a sentence. The sentence proceeds,

“And whether .there was a promise made at all, because it is strenuously denied by Mr. Pungs that any promise was made of the character which plaintiff claims, and as it is asserted on behalf of plaintiff, becomes, gentlemen of the jury, a question * * * solely for your determination.”

This charge was not erroneous. The other questions raised upon the charge necessary to refer to have already been disposed of, as stated above, on the former hearings.

Exceptions were taken to statements of counsel upon opening the case, and on the argument. We have examined the statements made, and hold them not to have been prejudicial. The record discloses no error.

The judgment is affirmed.

Grant, C. J., and Hooker, Móore, and Carpenter, JJ., concurred.


author: Carpenter, J. Grant, C. J.

text:
    BOUSSNEUR v. CITY OF DETROIT.
    1. Municipal Corporations — Opening Streets — Condemnation Proceedings — Irregularities—Effect—Special Assessments.
    Where such proceedings to open a street were taken under chapter 90, 1 Comp. Laws, as resulted in a determination of ■ the necessity of the improvement by one jury, and an assessment of the value of the property and of the benefits by another, and the award of the second jury was accepted by the owners of the property and paid by the city, there was a waiver by the only parties directly interested of the irregularity of submitting the questions to two juries, and persons whose only relation to the proceedings was their liability for benefits could not enjoin the collection of the special assessments because of the irregularity complained of. Grant, C. J., and Blair, J., dissenting.

      2. Same — Award—Acceptance—Time.
    That the award was not accepted by the landowners, nor the money paid by the city, until after the bill was filed in this case, did not affect the right of the parties to waive the irregularities, nor to show such acceptance as evidence of waiver, since if the parties had a right to waive the irregularities, complainants could not deprive them of it by filing a bill.
    3. Same — Assessments—Omission of Property — Relief.
    Whether property within a special assessment district belonging to a church, and omitted from the assessment on the theory that it was exempt, should have been included, cannot be decided on a bill to enjoin the collection of the special assessment, since if the property should have been included the only relief available to complainants would be a reduction of their assessments, and to entitle them to that they should tender their proportionate share of the taxes and point out the extent of their reduction.
    Appeal from Wayne; Mandell, J.
    Submitted April 16, 1908,
    (Docket No. 109.)
    Reargued June 2, 1908.
    Decided July 13, 1908.
    Bill by John N. Boussneur against the city of Detroit and Thomas M. Lucking, receiver of taxes, to enjoin the collection of an assessment. Horace H. Dickinson and others intervened as parties complainant praying the same relief. From a decree for complainants, defendants appeal.
    Reversed, and bill dismissed.

      Keena, Lightner & Oxtoby, for complainants.

      Denton Guinness (Timothy E. Tarsney, of counsel), for defendants.
    In 1902 proceedings were instituted in the recorder’s court for the city of Detroit for the opening of Hancock avenue from Fourteenth avenue to Grand River avenue. The jury duly impaneled in that case determined that it was necessary to have this avenue opened and valued the property to be taken at $18,356.05. The judge of the recorder’s court before whom the proceedings were had confirmed that portion of the verdict finding the necessity and set aside that portion of the verdict valuing the property. Subsequently, in 1906, a second jury was called for the purpose of assessing the value of said property. They assessed the value at $13,150. These proceedings were confirmed by the common council of the city of Detroit, and that body, acting in pursuance of the authority given it by the charter, directed a portion of the amount found by said jury — two-thirds—to be assessed against property in the locality of the proposed improvement specially benefited. A certain piece of land belonging to St. Leo’s parish, which would otherwise have been included, was omitted from the assessment district because it was used for church purposes. Complainant and the intervening complainants are the owners whose property, is made subject to said local assessment. They seek an injunction prohibiting the enforcement of said assessment upon two grounds:
    (1) That the recorder’s court lost jurisdiction by having one jury determine the question of necessity and another assess the value of the property taken.
    (2) That the common council had no right to leave out of the assessment district the property of the Catholic church above mentioned.
    Defendants answered and the case was heard in the lower court on pleadings and testimony taken in open court. It appeared by this testimony that the owners whose property was taken for the proposed improvement accepted the compensation awarded them by the second jury. The learned trial judge gave complainant and the intervening complainants a decree. Defendants appeal.
   Carpenter, J.

(after stating the facts). The first question for our consideration is that raised by the contention of complainants that the recorder’s court had no jurisdiction because the questions of necessity and valuation of property were determined by two different juries. It is by no means clear that either the Constitution or statutes of this State forbid the practice complained of. In City of Detroit v. Beecher, 75 Mich. 454 (4 L. R. A. 813), in an appeal from proceedings instituted for the purpose of opening a street, this court affirmed the judgment with the exception of the valuation of three parcels of land owned by appellant. As to this, it directed an appraisement by another jury. Thus the questions of necessity and the valuation of the property were in that case, by the judgment of this court, determined by two different juries. Assuming, however, but not deciding, that such practice is forbidden, it by no means follows that complainant and the intervening complainants can raise the objection. The parties to the condemnation proceedings, viz., the city on the one hand and those whose property is taken on the other, do not raise it. On the contrary they acquiesced in the proceeding.

They treated the judgment as a valid and binding judgment. The city paid the award and the property holders accepted it. This affords conclusive evidence that any departure from proper practice was consented to by the parties directly interested in the proceedings. They had a right to consent to this departure and the judgment rendered under these circumstances would be just as binding upon them as if the proceedings had been regular in every particular. The property was therefore taken for street purposes just as effectually as it possibly could be taken under any condemnation proceedings that might be instituted.

Complainant and the intervening complainants are specially benefited by the taking of this property and they are therefore taxed to pay a portion of its cost. They are not affected by any irregularities in the taking of that property which did not affect those whose property was taken. As the proceedings were sufficiently regular to take the property, they are sufficiently regular to be the basis of proceedings to raise a tax to be used in paying for it. Complainant and the intervening complainants cannot escape taxation by reason of the non-prejudicial irregularities of which they complain.- This is settled by our decision in Borgman v. City of Detroit, 103 Mich. 361. There, in a street opening case, by consent of all parties to the proceedings, a jury of 11 instead of 13 determined the question of necessity and assessed the value of the property taken. This was clearly a departure from the method provided by the Constitution and statutes. We held that, as this irregularity was waived by the parties to the proceeding, it was not open to objection by those whose property was assessed for the improvement, and a bill filed by them to restrain the enforcement of such an assessment was dismissed. See, also, Scotten v. City of Detroit, 106 Mich. 564; Brown v. City of Saginaw, 10? Mich. 643. I am therefore of the opinion that complainants’ right to relief cannot be based upon the ground that the proceedings in the recorder’s court were fatally defective.

On the reargument of this case — which took place after the preparation of this opinion — the point was made by complainants’ counsel that the payment and acceptance of the award cannot be considered, since that took place after the institution of this suit. There might be force in this contention if this opinion proceeded upon the ground that the payment of the award was what passed the title to the condemned property. But the opinion does not proceed upon that ground. It proceeds upon the ground that the condemnation proceedings were valid and effectual because any departure from proper practice was consented to by all the parties interested therein. The payment and acceptance of the award is used merely as evidence of that consent, and I think it might be said it only corroborates other evidence contained in the record. If, however, we assume the payment and acceptance of the award to be the only evidence of consent found in this record, we affirm our right to use it as such evidence, and to hold it conclusive in this case. Under this assumption, at the time this suit was instituted — for it was instituted before the lapse of the time given the city to pay the award — the parties to the proceeding had a right either to raise objections or to waive all irregularities occurring therein. Surely complainants By commencing this suit could not deprive these parties of their right to waive said irregularities. They had just as much right to waive them after this suit was commenced as before, and such waiver cured all irregularities in the proceedings, and, under the reasoning of this opinion, made them valid and effectual for all purposes.

The effect of exempting the property of St. Leo’s church property. The city authorities exempted this property because they thought they were required to do so by section 3825 and subd. 5 of section 3830, 1 Comp. Laws. Whether or not they were right in this, we are not called upon to determine. If they were wrong it would not entitle complainant and the intervening complainants to relief in this case. For in that case their property should still be assessed for a smaller amount, and, therefore, all they could claim would be a reduction in the amount of their taxes. They make no such claim. To entitle them to equitable relief in such a case, they should have tendered their proportionate share of the taxes and pointed out the extent of their reduction. This they did'not do. They claim relief upon no such ground, and we cannot give it to them. See Grand Rapids, etc., R. Co. v. City of Grand Rapids, 137 Mich. 596, 597.

If I am right in the foregoing views, the decree of the circuit court should be reversed and a decree entered in this court dismissing complainants’ bill, with costs of both courts.

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

Grant, C. J.

(dissenting). In 1902, proceedings were instituted by the proper authorities of the city of Detroit for opening Hancock avenue from Fourteenth avenue to Grand River avenue. A jury was impaneled and on September 13, 1902, they rendered a verdict finding that the necessity existed, and assessing damages to those whose lands were taken for the street. The court confirmed the verdict, finding that the necessity existed for opening the street, but set it aside as to the assessment of the damages. No further proceedings were taken until in January, 1906, when another jury was impaneled to assess damages. The jury duly rendered a verdict which was afterwards, on January 19, 1906, confirmed by the court.

On May 29, 1906, the common council, by appropriate resolution, fixed and determined the property benefited by said opening and assessed upon said property $8,766.67, and that the balance of said award should be paid by the city. On June 26th an assessment roll was presented to the council and duly confirmed/ A protest was afterwards entered before the .common council against the city’s action, which was denied. Complainant, whose land was assessed, promptly thereafter filed this bill in chancery to set aside the verdict and judgment of the recorder’s court on the ground that it was absolutely void. The case was heard upon pleadings and proofs taken in open court, and a decree entered for the complainant.

These condemnation proceedings were taken under chapter 90, 1 Comp. Laws. Sections 3898 and 3399 are the ones before us for construction. 'Section 3398 provides that the jury shall be sworn to determine two facts, —(1) whether a public necessity for the improvement exists ; and (2) if they so find, to ascertain and award the just compensation to the owners of the land.

Section 3399 reads as follows:

“ The jury shall determine in their verdict the necessity for the proposed improvement and for taking such private property for the use or benefit of the public for the proposed, improvement and in case they find such necessity exists they shall award to the owners of such property and others interested therein such compensation therefor as they shall deem just.”

Can two juries be summoned to determine the two questions provided in the statute ? To hold that the statute so provides would do violence to plain language. The statute provides for one jury to determine two questions. If the necessity is found to exist, the jury must determine the value of the land then, and not at a time in the past or future. Years afterwards the land may have appreciated or depreciated in value. As the learned circuit judge well said:

“If the public authorities, having obtained a verdict as to a necessity, can wait three years before having an assessment of value, they can as well wait thirty years.”

What is a necessity at one time may not be a necessity years afterwards. The statute contemplates one proceeding at one and the same time to determine both questions. Trials cannot thus be conducted in piecemeal. If there is error upon the trial the entire case must be retried. It follows that the proceedings are absolutely void.

The case of City of Detroit v. Beecher, 75 Mich. 454 (4 L. R. A. 813), affords, in my judgment, no justification for the proceedings in this. I have examined the briefs in that case and find that no such question was raised. The statute had been fully complied with in submitting both questions, namely, the necessity and the value, to the same jury. The statute was attacked as unconstitutional, and numerous objections were raised to the proceedings. It was also alleged as error on the part of the court to instruct the jury that they could award only nominal damages for three pieces of land, which formed a private alley. This was the only error in the case, and it was affirmed in all other respects and a new appraisement ordered as to those parcels. For aught that appears in the record, briefs, or opinion of the court, that course may have been assented to by the respondents. Be that as it may, I do not think it can be taken as authority for holding that one jury may be summoned to ascertain the necessity, and, years afterwards, when conditions in cities are quite sure to have changed, another may be summoned to determine the value of the land taken.

It is, however, urged that the validity of the recorder’s court proceedings cannot be attacked in a collateral chancery proceeding, and that the complainant’s remedy was by appearing before the reviewing authorities to have his assessment corrected. Complainant was not a party to the condemnation proceedings, and there was nothing then to indicate that he ever would become interested therein. To deprive him of some opportunity to appear before some tribunal would be to deprive him of his property without due process of law. The board of review is not clothed with authority to set aside the judgment and decrees of courts of record. It is not an appellate court to sit in judgment upon the proceedings of the constitutional courts of the State. They have jurisdiction to correct assessments and review the action of the assessors. There their jurisdiction begins and ends. The judgment of the recorder’s court was void upon its face. It is not a mere irregularity which ,may be ignored where the taxpayer has suffered no injustice. Complainant acted with due promptness in applying to the court to prevent a cloud upon his title. A chancery court has jurisdiction in such cases. Steckert v. City of East Saginaw, 22 Mich. 104; Twiss v. City of Port Huron, 63 Mich. 528; Beider Manfg. Co. v. City of Muskegon, 63 Mich. 44.

I do not think that it is settled by the case of Borgman v. City of Detroit, 102 Mich. 261, that a proceeding void upon its face is conclusive upon the taxpayers who were not parties to the litigation. The sole question in that case was whether the parties in the condemnation proceedings might waive a jury of 12 men and proceed with a jury of 11. In all other yespects the statute was fully complied with, and the same jury determined both questions.

In Scotten v. City of Detroit, 106 Mich. 564, the only error alleged was that the mayor did not sign the resolution adopted by the common council, — a technical error, and one which did not at all affect the merits of the case.

The decree should be affirmed, with costs.

Blair, J., concurred with Grant, O. J.


author: Blair, J. Montgomery, J.

text:
    MINER v. FARMERS’ MUTUAL FIRE INSURANCE CO. OF MANISTEE, BENZIE AND MASON COUNTIES.
    1. Fire Insurance — Mutual Insurance Companies — Notice of . Assessments — “ Issuing.”
    A provision in the charter of a mutual fire insurance company requiring the payment of assessments within 30 days after the “issuing” of the notice of assessment, means within 30 days after the giving or delivery of such notice. Montgomery, Hooker, and Carpenter, JJ., dissenting.
    2. Same — Sufficiency of Notice.
    Where the charter of a mutual fire insurance company provides the notice of assessment that shall be given to members, a member can only be put in default by the notice provided for, and his knowledge otherwise acquired is not sufficient.
    3. Same — Mailing Notice — Question for Jury.
    In an action on a policy issued by a mutual fire insurance company on which plaintiff had failed to pay an assessment, testimony tending to show that the notice of assessment required by defendant’s charter had not been received was some evidence that the notice was not mailed, and raised an issue of fact which should have been submitted to the jury.
    Error to Benzie; Chittenden, J.
    Submitted April 16, 1908.
    (Docket No. 112.)
    Decided July 13, 1908.
    Assumpsit by James J. Miner against the Farmers’ Mutual Fire Insurance Company of Manistee, Benzie and Mason Counties on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      D. Gf. F. Warner, for appellant.

      Pratt & Davis, for appellee.
   Blair, J.

This is an action on a policy issued by defendant to plaintiff, a member of the company, covering property which was destroyed by fire on the 8th day of November, 1905. Defendant pleaded the general issue with notice—

“That at the time of the loss mentioned in plaintiff’s declaration, said policy of insurance was without force, in that said plaintiff was in default in the payment of his dues and assessments, and had neglected to pay such dues and assessments within thirty days after the notice of the same had been issued as he wás required to do by the constitution of defendant association.”

Sections 18, 19, 20 of the defendant’s charter, which were printed on the policy, were as follows:

“Section 18. Whenever the board of directors shall order an assessment in accordance with section 17 of this charter, the secretary shall execute the same, which shall be signed by a majority of the board of directors and secretary and placed on file in said secretary’s office and such assessment so signed shall be evidence in courts and all other places that the sums assessed are due and payable to the company from the person against whom the same are respectively made. Every member shall be equitably and ratably assessed in proportion to the amount of his or her insurance as stated and fixed in the severable agreements and schedules of insurance.
“ Sec. 19. When such assessment shall have been completed according to section 18 of the charter, the secretary shall prepare a written or printed circular, a copy of which he shall direct to each member of the company to his or her last known post-office address, setting forth to such members the arñount of such member’s assessment, and each member shall pay his or her assessment to the president or his receiver within thirty days after the issuing of said notice, and in default thereof his or her insurance shall be suspended and shall henceforth have no claim against said company for losses sustained until his or her assessment is paid. The assessment roll shall be evidence in all courts of law that the sum assessed is due the company and payable by the person assessed.
“ Seo. 20. If any member of the company shall neglect or refuse for the space of thirty days after the date of such circular as provided for in section 19 to pay the assessment therein made, the secretary may proceed forthwith to collect the same by due process of law, adding 25 per centum to the amount of said assessment of each said
delinquents, and such delinquents shall be liable for all demands due from him or her to said company, and no insurance policy shall be binding until the actual payment of the premiums.”

An assessment was made on the members in August, 1905. An employe of the secretary testified that it was her duty to send out notices of the assessments, and for that purpose she had the assessment book containing, among other names, that of plaintiff:

“ I made out all of the assessments and Mrs. Griffin folded them and put them in the envelopes and Mr. Griffin and I carried them to the post office all at once; these were the notices of assessment. The list covered the entire list in this book. The notices were partly written and partly printed. I took the number of the policy from the big book, put it on the notice, also on the envelope. The number 1947 was the number of Mr. Miner’s policy. I placed it on the envelope, also on the notice of assessment. The envelopes had a return notice upon them, if not called for in, return to John Griffin, Scottville, Michigan, that was on the upper left-hand corner. I wrote the name of the party on the assessment and on the envelope. I did it in relation to all these parties whose names appear upon the assessment. * * * The assessment was completed and the notices mailed the first week of September, 1905.”

In response to a question by the court, witness said:

“I remember Mr. Miner’s name on the book is all, but I don’t remember sending a notice to him in particular.”

Plaintiff testified:

“Up to the time of the fire I had paid all the assessments brought to my notice. I paid one assessment after the fire on November 9. I didn’t know it was due until I went over to see Mr. Fitts. I think I heard about it the day before the house burned, I was helping my brother and he told me that there had been an assessment made. That is the only way I knew, the day before the fire. The day after the fire I went to Mr. Fitts and he told me the amount of the assessment and that is the first I knew what the assessment was. I then paid the assessment. I had not received any notice of any assessment that I had not paid. * * * I am positive that I got no written notice of the assessment prior'to my fire.”

Steve Miner, a brother of plaintiff,"testified to a conversation with plaintiff:

“ My time book shows that it is the day we finished digging potatoes, which was the 7th day of November. We were working together and I asked him if he had paid his assessment to the Farmers’ Mutual Fire Insurance Co., and he told me that he hadn’t paid it. He says it is just a little past due, isn’t it ? It is due the 1st of November. I told him no, it is due the 1st of October. He told me he hadn’t received any notice.”

At the conclusion of the testimony, the court directed a verdict for defendant', stating his reasons therefor as follows:

“ Gentlemen of the jury, in this case, under the ruling of the court in regárd to this notice, the court held that this notice must come home to Mr. Miner. On reviewing the testimony more carefully, I find that one of the plaintiff’s witnesses testified that Mr. Miner, in conversation with him, on the 7th day of November, told him that he understood that the payment was — but I will read from the testimony of Stephen Miner: ‘He said it is just a little past due, isn’tit? It is due the 1st of November.’ That would be conclusive proof, as long as the testimony is not disputed, that this plaintiff new that this assessment was past due and therefore he was in default. And while he may not have received the notice from the company as testified to by him and as we have every reason to believe he did not from' his testimony, nevertheless he had other notice and the court'holds that he did and that he was in default and your verdict, gentlemen, will be no cause of action.”

Plaintiff brings the record to this court for review, alleging, among other assignments of error, that:

“ The court erred in refusing and not submitting the case to the jury on its merits under a proper instruction from-the court.”

In support of this assignment of error, counsel for plaintiff contends that the only notice of assessment sufficient to work a suspension or forfeiture of his policy is the written notice provided for in the charter, and that such notice must be not only made out, but mailed to, and received by, the plaintiff to be effective.

Although the evidence indicates that the assessments during the six years plaintiff had been a member had been uniformly made prior to, and notice thereof mailed during, the first week in September, section 17 of the charter provided for making them “from time to time as may be necessary,” and the provisions as to notice are to be construed with this in mind.

The purpose of the notice is to inform the member that the assessing officers, who may act at'any time, have acted at a certain time, and that his obligation to pay the particular assessment has arisen. The verb, “to issue,” includes among its meanings, “to deliver by authority.” 17 Am. & Eng. Enc. Law (2d Ed.), p. 539; 23 Cyc. p. 358; Thomas v. Abbott, 105 Mich. 687.

Construing section 18 with reference to its manifest purpose of notifying the member of the happening of an indefinite event, I think the provision “within 30 days after the issuing of said notice ” should be read as meaning within 30 days after the giving or delivery of said notice.

While the provisions of section 19 imply that the notice is to be mailed to the members, it is worthy of note that in fixing the beginning of the period for payment the provision is not that the member shall pay within 30 days after the mailing of said notice, which would have been the obviously natural expression, if such was the intention.

Plaintiff could only be put in default by the notice provided for in the charter, and his knowledge otherwise acquired was not sufficient for that purpose. Castner v. Insurance Co., 50 Mich. 273; Miner v. Benefit Ass’n, 63 Mich. 338; Warner v. Life Ass’n, 100 Mich. 157; Shelden v. Accident Ass’n, 122 Mich. 403.

I am also of the opinion that the testimony that the notice was not received was some evidence that the notice was not mailed, and raised an issue of fact which should have been submitted to the jury.

Judgment reversed, and new trial granted.

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

Montgomery, J.

The facts are sufficiently stated in the opinion of Mr. Justice Blair, and the provisions of the company’s charter relating to assessments are there set out. It seems to be conceded that there was evidence that the notice provided for by section 19 of the charter was in fact prepared and mailed to the post-office address of the plaintiff. But it also appeared that there was evidence tending to show that the plaintiff never in fact received the notice mailed, and the question is whether, in such a case, the suspension of plaintiff’s policy became effective after the lapse of the regular time from the service made of the_ notice, or whether it is required that, before there can be any suspension of the policy, the notice must actually have been received by the insured. To sustain the view that such notice must actually be received, four cases are cited: Castner v. Insurance Co., 50 Mich. 273; Miner v. Benefit Ass’n, 63 Mich. 338; Warner v. Life Ass’n, 100 Mich. 157; Shelden v. Accident Ass’n, 122 Mich. 403. All these cases are clearly distinguishable from the present.

In Castner’s Case, the charter provided that the member was to be notified by the secretary or otherwise, either by circular or verbal notice. It was held that, in view of the consequences to flow from this notification, it should be strictly construed, and that actual receipt of the notice was what was intended. It was said by the court:

“The provision is not that notice or information shall be mailed or sent or forwarded. The members are to be * notified,’ that is, informed; to have made known to them the fact of the assessment.”

In the present case, however, the method of service of notice is distinctly pointed out, to wit, a written or printed circular directed to each member of the company to his or her last known post-office address, and the provision is that each member shall pay his or her assessment to the president or his receiver within 30 days after the issuing of said notice.

Miner v. Benefit Ass’n turned upon sufficiency of the notice in form. The Warner Case was similar in all respects to the Miner Case.

In Shelden’s Case, it was held that, under an article of the association which reads:

“Any member failing to pay his assessment or dues within thirty days after having been notified shall forfeit all his right to benefits. Mailing a notice to his post-office address as shown by the books of the association shall constitute such notification.”

the payment was made within time. The facts were that the notice was mailed from Des Moines, Iowa, on the 29th of August and reached the place of residence of assured on the 1st day of September. The 30 days would not have expired until midnight of October 1st if the date at which the notice would in due course reach the assured was taken as the date of notification, and, if this were the proper date, the payment was made within time. The contention of the plaintiff was that the 30 days allowed for payment meant 30 days after he had actually received the notice, or 30 days after notice mailed to him would reach him in the ordinary course of the mails, and not that he should have only 30 days after the mailing of the notice. It was held that the payment on October 1st was in time after the notice was received. It was recognized as the correct rule that where service is the principal thing, and it is provided in the charter or by-laws that service may be by mail, then, that so depositing the paper addressed to a member will be sufficient notice.

The case of Ross v. Insurance Co., 83 Iowa, 586, was cited with approval. In that case, a provision of the charter that “such notice may be served either personally or by registered letter addressed to the assured at his post-office address named in or on the policy,” was construed, and it was held that the service was complete, and that the 30 days for payment began to run as soon as the letter was mailed as provided by law. The provision for forfeiture in the case was that “no policy of insurance shall be suspended for nonpayment of such amount until thirty days after such notice has been served.”

It is not easy to distinguish that case from the present, which provides precisely what the secretary shall do in making service, and then provides that if payment is not made within 30 days from the issuing of said notice, the insurance shall be suspended. There is no other provision contained in the charter for issuing a notice except that of mailing the same, and the only notification which the charter provides for is the notification by this means.

It would seem that the case is distinguishable from any of those relied upon in the opinion of Mr. Justice Blair, that the service was complete upon the mailing. I agree that the plaintiff’s testimony to the effect that the notice was never received was sufficient, under the circumstances of this case, to present a question of fact for the jury.

Hooker and Carpenter, JJ., concurred with Montgomery, J.


author: McAlvay| J.

text:
    WALSH v. COLBY.
    1. Appeal and Error — Review—Extent—Interlocutory Orders.
    An appeal from a final order confirming a commissioner’s corrected report of sale in chancery foreclosure proceedings, and ordering the execution of a new deed for the purpose of correcting a clerical error in the previous one, brings up the order vacating the order nisi confirming the original report, and all intermediate proceedings.
    2. Courts — Records—Correction—Powers.
    Authority to correct purely clerical errors in their records is inherent in courts of general jurisdiction.
    3. Mortgages — Foreclosure—Sale—Report—Deed — Clerical Errors — Correction.
    Where, in a chancery foreclosure, the commissoner’s report of sale and deed by reason of a clerical error fails to correctly describe the property, the description being correct in all proceedings prior to the report, the court has authority, upon due petition and notice, to vacate the order nisi confirming the report, and to correct the subsequent proceedings.
    4. Same — Sale—Separate Parcels — Presumptions. •
    Where a decree for foreclosure of a mortgage upon several adjoining lots was drawn in conformity with the statute (section 528, 1 Comp. Laws), it will be presumed that the commissioner making the sale under the decree followed its mandate, and there being no showing on exceptions to the report of sale that this was not done, or that the property could be sold in parcels without injury to the interests of the parties, objections to the confirmation of the report on the ground that the property should have been sold in parcels are untenable.
    5. Same — Commissioner’s Deed — Correction—Filing.
    Where a commissioner’s deed, executed in chancery foreclosure proceedings, was duly filed with the register of deeds within the time provided by law, an objection to the execution of a new deed, correcting a clerical error in the previous one, apparent on the face of the record, on the ground that it cannot be filed within 20 days after the sale as provided by law, is not well taken, the sale not being disturbed, the time for redemption not being lengthened or shortened, and defendant making no showing of injury.

      Appeal from Wayne; Hosmer, J.
    Submitted April 17, 1908.
    (Docket No. 117.)
    Decided July 13, 1908.
    Bill by John H. Walsh, trustee, against Sheridan J. Colby and others to foreclose certain mortgages: On petition of complainant to correct a clerical error in the commissioner’s report of sale. From a decree for petitioner, defendant Colby appeals.
    Affirmed.

      Shaw, Warren, Cady & Oakes, for complainant.

      Jasper C. Gates, for appellant.
   McAlvay| J.

Upon a bill filed by complainant to foreclose certain mortgages in the Wayne circuit court, in chancery, a decree was granted in his favor June 16,1902. This decree was affirmed by this court as to defendant and appellant Colby. Walsh v. Robinson, 135 Mich. 16-22.

This decree ordered the premises described in the mortgages to be sold in the usual manner. The sale was made by Samuel L. May, circuit court commissioner, on March 29, 1906. His report was filed March 31, 1906, and September 19, 1906, an order nisi was entered confirming this report. In this report of the > commissioner and in his deed a clerical error was made in describing the property sold. The correct description, as given in the mortgages, the decree, and notices of sale, is:

“All and singular * * * lots numbered consecutively from seventy-four (74) to ninety-three (93) both inclusive.”

The error consisted in inserting in such description the number “ seventy-nine (79)” instead of the first number seventy-four (74). ”

The complainant, who was the purchaser at the sale, discovering this error, filed his petition in the cause, together with an affidavit -and notice of hearing, praying that the order nisi confirming the commissioner’s report of sale be vacated for the purpose of allowing the correetion of said clerical error in the description. On the hearing of this petition, notice of which was given to all parties interested, defendant Colby appeared and contested. The court made an order granting the petition and correcting the error, on November 22, 1906. From this order defendant Colby appealed to this court. This appeal was dismissed January 4, 1907, on the ground that the order was not a final one. On February 8, 1907, Commissioner May filed another report of sale correcting the error above described. This report was filed nunc pro tunc, by order of the court, as of March 31, 1906, which was the date of the first report. An order nisi for the confirmation of such report of sale was made and entered and within eight days the defendant filed exceptions to such report, which were overruled by the court upon a hearing, and on January 9, 1908, an order to that effect was entered, said report being ratified and confirmed and the commissioner ordered to prepare a new deed for the purpose of correcting the description in the first deed and canceling the same. Defendant Colby, who is the only defendant interested in these proceedings, and who since the decree first named has been in possession and received the rents from said premises, has appealed from this last order and decree of January 9, 1908, including in his claim an appeal also from the former order of November 22, 1906.

The final order appealed from is so closely connected with the order of November 22,1906, that an appeal from it brings all of the proceedings which led up to said finaL order before the court for consideration.

Defendant urges that through the operation of the order nisi the sale had become final and conclusive, and that the court possessed no power to disturb it. He relies upon the provisions of Chancery Rule 19b and decisions of this court relative to it. It seems to us that defendant has misconceived what was sought to be done by complainant. The decree of the court in the foreclosure case was not to be disturbed, nor the sale of the property described in that decree and actually sold under it. A clerical error (not disputed by this defendant) had occurred in the report of the sale, and also in the deed, in the number of a lot in the description, an error which was apparent from the face of the record. The application to correct this error was in fact not to disturb the decree and proceedings under it, but to make the record state the actual facts and conform with and speak the truth. For this purpose a petition was filed with supporting affidavit showing the facts, a hearing and a judicial determination in which this defendant participated was had, and the prayer of the petition granted. It was not contended at that time, and is not contended now, that the record as it now stands does not speak the truth.

The cases defendant cites in support of his contention are not in point. He refers us to no case, and in our investigation we have been able to find none, in which the right of a court to correct a purely clerical error in its records is disputed or denied. The authority to do so has been recognized as inherent in courts of general jurisdiction. 17 Enc. PI. & Prac. p. 912 et seq., and notes. In the notes to this reference, citations are made from the Federal court and nearly all of the State courts in support of this proposition. This court has recognized and affirmed this doctrine. Jerome v. Seymour, Walk. Ch. (Mich.) 359; Bates v. Garrison, Harr. Ch. (Mich.) 221; Emery v. Whitwell, 6 Mich. 474; Souvais v. Leavitt, 53 Mich. 577.

The court had ample authority to make this order of November 22d, and the proceedings to do so were regular.

Defendant contends that the court erred in confirming the report and sale for the reason that the 20 lots were not sold separately but as one parcel, contrary to section 528, 1 Comp. Laws.

The decree was drawn in conformity with the statute, and the sale was made under the decree. The presumption is that the commissioner followed its mandate. No showing was made on the hearing of the exceptions that this was not done, or that the premises could be sold in parcels without injury to the interests of the parties. Complainant’s brief states that the commissioner, “first offered the property in parcels, and, receiving no bid, offered and sold the same in entirety.” This is not contradicted or challenged as it would have been had it been ■ false. The statute was intended to require a sale to be made in such manner as would realize most to the parties interested. The sale as made conformed with the statutory provisions.

It is further contended that the order of January 9, 1908, is void because of the requirement of law that the deed on such sale must be filed with the register of deeds within 20 days after the sale and indorsed when the same shall become operative. The record shows that the first deed was duly filed within the time prescribed by law. The records in the cause showed that the premises actually sold were the premises described in the mortgage and the decree. The clerical error in the description contained in the report of sale and the deed was apparent upon the-face of the record. This second deed recites that it is given for the purpose of correcting the former deed. The sale has not been disturbed. The time for redemption has not been extended or shortened. Defendant Colby makes no showing that he has' been in any manner injured. In fact, from the record it appears that the delay in finally terminating this litigation is not chargeable to complainant, and that defendant Colby has profited by such delay.

The circuit court was not in error in overruling the exceptions of defendant Colby and in ratifying and confirming the commissioner’s corrected report of sale hereinbefore mentioned and described, and in ordering the commissioner to make, execute, and file a proper deed.

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

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


text:
    ARNOLD v. WHITE.
    1. Sales — Warranty—Breach—Form of Remedy.
    For a breach of warranty of title to personal property, recov,i ery may be had either in case or assumpsit, case being preferable where the breach has occasioned damages in addition to loss of the property.
    2. Same — Pleading—Amendments —Propriety —New Cause of Action.
    Where the declaration, in an action on the case for false war-' ranty of title to personal property sold, claimed damages actual and consequential, the allowance of an amendment counting on an oral agreement made some time after the sale, by which defendant agreed to make good to plaintiff any loss he might sustain by allowing a mortgagee to take the property, was improper, as introducing into an action sounding in tort a causé of action upon which recovery could be had only in assumpsit.
    Error to Lenawee; Chester, J.
    Submitted May 4, 1908.
    (Docket No. 84.)
    Decided July 13, 1908.
    Case by Edward B. Arnold against Elmer J. White for a breach of warranty in the sale of certain horses. There was judgment for plaintiff and defendant brings, error.
    Reversed.

      John L. O’Mealey and Bird & Sampson, for appellant.

      Smith, Baldwin & Alexander, for appellee.
   McAlvay, J.

Plaintiff brought suit in an action on

the case for damages for a breach of warranty in the sale of a team of horses and set of double harness purchased by plaintiff from defendant in March, 1905. The declaration filed in the case, omitting the formal entitling, was as follows:

“Edward B. Arnold, plaintiff herein, by Smith, Baldwin^; Alexander, his attorneys, complain of Elmer J. White, the defendant herein, of a plea of trespass on the case. Suit having been commenced by summons.
“ For that whereas: on to wit, the 15th day of March, A. D. 1905, at the said county, in consideration that the plaintiff, at the request of the defendant, would buy of the defendant a certain span or team of horses, one a grey gelding of the age of six years, the other a brown mare of the age of ten years, and a certain double harness with brass trimmings all for a certain price, $200, to be paid by the plantiff to the defendant, he, the defendant, undertook and then and there represented, warranted and promised plaintiff that the said horses and harness were free and clear of all claims, liens, mortgages and incumbrances of every name and description, and were the sole and absolute property of the plaintiff.
“And plaintiff avers that he relied upon said promise, agreement and representation and was induced thereby to purchase and did buy and purchase the said horses and harness, and did pay to defendant then and there said sum of money.
“Yet, the said defendant, disregarding his said representation, promise and warranty, fraudulently deceived and defrauded plaintiff in that said horses and harness were not free from all mortgages, incumbrances, claims and liens of every description, and said horses were mortgaged and said harness was mortgaged, and there were liens and incumbrances upon'said property, and said property was not the sole and absolute property of the said defendant, and said mortgages, incumbrances and liens were equal to and in excess of the value of said property and of the amount so paid by plaintiff, to wit, $200. All of which was contrary to the said defendant’s warranties, representations, promises and undertakings; and by reason of such incumbrances, mortgages, liens and claims plaintiff has been wholly deprived of said property and the use thereof.
“Further avers that on to wit, the 19th day of August, 1905, said horses were taken from him under chattel mortgage and by virtue of a lien and incumbrance thereon, so that said plaintiff has wholly lost said horses and the use thereof from said time on.
“ Further avers that he bought said horses for use upon a farm which he was working and that for said purpose said horses were valuable to him, and the use valuable to Mm. That had said horses been free and clear from all incumbrances, as represented by defendant, they would have been worth to him and all others a large sum, to wit, the sum of $800, and their use for the balance of the season would have been worth to him a large sum, to wit, $200.
“ Further avers that by reason of being deprived of the use of said horses he has been unable to carry on his business without material damage and injury to him and for , the want of such horses has suffered large damages for the want of the use thereof, to wit, in the amount of $200.
“Also avers that he has been put to large cost and expense in time and money in attempting to learn the facts as to said incumbrances upon said horses and property and in the investigation of his rights, to wit, the sum of $50.
“ Further avers that said defendant well knew at the time he made said representations that the same were untrue and that said property was incumbered for full value thereof.
“And plaintiff avers that by reason of the said fraudulent promises and representations of the defendant he has suffered large damage, in all to the amount of $500, whereby a cause of action hath accrued to the plaintiff to have and recover in an action on the case, against the defendant, his damages, as aforesaid, in all to the sum of $500 and therefore he brings suit.”

The plea was the general issue with notice, to the effect that the mortgage under which the team was taken was void and of no effect and was no lien, and that, if plaintiff carelessly permitted the horses to be taken from his possession and out of the State, the defendant could not be charged with any loss or damage resulting therefrom. The substance of the pleadings is given because of an amendment to the declaration allowed by the court upon the trial against the objection of defendant.

The facts necessary to be stated are, that this property was purchased in Lyons, Ohio, by Adelbert Wilbur from one A. R. Chandler, August 23, 1904, and, to secure the payment of the purchase price, Wilbur gave Chandler a chattel mortgage upon this and other property, which mortgage was duly filed where the mortgagor lived. About September 1, 1904, Wilbur brought the property into Michigan, and sold it to defendant for cash, warranting his title. White had no notice or knowledge of this mortgage. White retained and worked the horses until March following, when he sold them for $200 to plaintiff, in good faith warranting his title. Neither party to this suit had notice or knowledge of this mortgage until August 19, 1905, when the mortgagee came from Ohio and claimed the property under it. The mortgage was never filed in Michigan. Both plaintiff and defendant were good-faith purchasers for a valuable consideration without notice. The mortgagee first went to defendant, and with him went to plaintiff, demanded the horses, and, after some delay, by consent of plaintiff, took the horses away with him, and during the night crossed the State line into Ohio with them. What occurred at that interview between these three parties is in dispute. The plaintiff’s claim is that defendant advised him to surrender the horses to the mortgagee in order to save costs and expenses, and that he agreed if plaintiff did so to make good any loss and damage he might sustain; that, relying on this agreement, he surrendered the horses to Chandler. It also appears that he consulted his attorney, who advised him to the same effect, and that he could look to defendant for damages. Defendant denies that this agreement was made. During the trial of the case, these facts appearing, plaintiff asked leave to amend his declaration so as to set forth this claimed promise made at the time the horses were taken away from plaintiff. This amendment was granted over defendant’s objection that it was stating a new and different cause of action. The case was tried and submitted to the jury solely upon the question as to whether this promise was made. The record shows that the attorneys for both parties and the court all agreed that the lien of this mortgage was of no force and effect in Michigan as against this property in the hands of this plaintiff, a bona fide holder. The question is whether the amendment allowed by the court stated a new and different cause of action from that set forth in the declaration.

Plaintiff could have brought his action either in trespass on the case or in assumpsit. The pleader elected to bring an action sounding in tort. The declaration is in trespass on the case .for false warranty, for which damages, actual and consequential, are claimed. Carter v. Class, 44 Mich. 154, and cases cited.

The course taken in this case is indicated as the preferable one, where the breach of warranty has occasioned damages in.addition to the loss of the property. 30 Am. & Eng. Enc. Law'(2d Ed.), p. 189.

The amendment allowed by the court, and upon which recovery was had, was upon a state of facts occurring six months after the warranty, upon a parol agreement entirely different from the original warranty, and upon which recovery could be had only in assumpsit. This court has held repeatedly that an amendment which changes the form of action from one sounding in tort to assumpsit, or vice versa, is not allowable. People v: Wayne Circuit Judge, 13 Mich. 206, and cases cited in nóte; Doyle v. Pelton, 134 Mich. 398. The amendment should not have been allowed.

The judgment is reversed, and a new trial ordered.

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


author: Hooker, J. Carpenter, J.

text:
    PEOPLE v. NORTH.
    1. Intoxicating Liquors — Offenses—Malt Liquor — What Constitutes.
    Engaging in the business of selling a malt liquor containing about two per cent, of alcohol without having paid the tax constitutes a violation of sections 5379, 5380, 2 Comp. Laws. Per Hooker, J., Grant, C. J., and Montgomery, J.
    2. Criminal Law — Right to Jury Trial — Constitutional Law —Direction of Verdict — Coercion.
    Though the trial court in a criminal case may inform the jury that, under the evidence, they should render a verdict of guilty, he may not compel them to render such a verdict; and an instruction that “you should find a verdict of guilty as charged, without leaving your seats, and the clerk will take the verdict,” violates the constitutional right of trial by jury. Hooker, J., Grant, C. J., and Montgomery, J., dissenting.
    Exceptions before judgment from Ingham; Wisner, J., presiding.
    Submitted May 7, 1908.
    (Docket No. 87.)
    Decided July 13, 1908.
    George North was convicted of violating the liquor law.
    Reversed.

      L. B. Gardner and Richard Raudabaugh, for appellant.

      Walter S. Foster, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of being engaged in the business of unlawfully selling malt, brewed, vinous, and fermented liquors, at retail, without having paid the tax required by law. The testimony was undisputed. At its conclusion the learned circuit judge said to the jury:

“ In a case wnere the facts are undisputed and sufficient of them are undisputed to make a case in favor of the people, then it is the duty of the court to tell the jury so, and to ask them to find a verdict in accordance with that fact. * * * Now, as I understand the law, gentlemen, the sale of that mixture is a violation of it, and the respondent himself having testified that he knew what it was, having testified that he knew that it contained some alcohol, that he must answer to the law for these sales, it appearing there is no testimony that he made more than one sale, furnished three glasses at the request of the officer, three glasses at the request of somebody else, making two sales, and making enough, under the law, as I understand it, to constitute him a dealer or a person engaged in the business. * * * I think it is my duty, and I instruct you that you should find a verdict against this respondent of guilty as charged, without leaving your seats, and the clerk will take the verdict.”

Two questions are raised: First, whether the sale of malt liquor containing about two per cent, of alcohol was within the statute; second, whether it was error to direct the jury to find a verdict of guilty without leaving their seats. Sections 5379 and 5380, 2 Comp. Laws, justify the conclusion of the circuit judge upon the first question, and while the question was not discussed in People v. Wilcox, 152 Mich. 39, it was necessarily involved in that case. The charge of the court was not erroneous, being sustained by former adjudications cited in People v. Gardner, 143 Mich. 104, and People v. Neal, 143 Mich. 271. The former case distinguished the case of People v. Collison, 85 Mich. 105. See, also, People v. Elmer, 109 Mich. 493; People v. Schottey, 116 Mich. 1.

It is suggested that this record shows that the jury were not permitted to render a verdict of not guilty. If that is true, there was error, and the case should be reversed, but that is not to be presumed; it must appear from the record. We have quoted what was said by the learned circuit judge. He did not say to the jury, “You must render a verdict. ” On the contrary, he said by implication, in the first paragraph, that it was his duty to tell the jury that the undisputed proof made a case for the people and to ask them to find a verdict in accordance with that fact. He explained the situation at length in the second paragraph, and in the third he said: “I instruct you that you should find a verdict against this respondent of guilty as charged, without leaving your seats.” The vice in this instruction, if there is vice in it, consists of the direction that it was their duty to find a verdict of guilty “without leaving your seats.” It is no unusual thing for a jury to render a verdict, even in criminal cases, without leaving their seats, and in the absence of some indicated unwillingness to follow the instructions (which were clearly justified by the proof), there is no reason for thinking any juror was coerced into an unwilling verdict, and to reverse this case upon this ground is to overturn the conviction on a technicality. The cases of People v. Warren, 122 Mich. 504, and People v. Remus, 135 Mich. 632, 633, are relied on as condemning the practice followed in this cause. It must be admitted that as to the former there was a clear case of coercion of the jury into the rendition of a verdict against their convictions. In charging the jury that it was their duty to render a verdict of guilty, and sending them out to deliberate, the trial judge followed a practice which has been repeatedly sustained. But they returned into court manifestly unwilling to comply, and what occurred there conclusively shows that the verdict was the result of subsequent emphatic statements by the judge that they had no legal right to disregard his instructions. The entire court concurred in holding this to be error. We say, in substance, in that case, that it is settled in this State that a judge may direct a verdict of guilty, but may not compel it; a proposition the latter part of which has never been questioned in any of the cases decided in Michigan.

In People v. Remus, supra, the trial judge directed a verdict, and, after being out all night,.the jury returned into court, and said that they were unable to agree, when the court said:

“Gentlemen of the jury, it is your duty to return a verdict of guilty in this case. Now you will return to your room, and you will come in, under these instructions, and bring in a verdict of guilty.”

This they then did and the court denied the demand of defendant’s counsel that the jury be polled. That this was error is apparent, and we so held, and the language used may be reasonably construed as applicable merely to such a case as was then made, and not necessarily applicable to a case where indications of coercion are wanting.

I assume that in all cases of misdemeanor it is proper to direct a verdict of guilty upon admitted facts or where the offense is conclusively proved by uncontradicted testimony. If this is so, this case differs from the many where directed verdicts of guilty have been sustained, only in the fact that the judge told the jury that it was their duty to render such a verdict “ without leaving your seats.” We should not assume that this was any more coercive than as though he had omitted the direction as to leaving their seats, and they had at once, and without leaving their seats conferred together and rendered such a verdict. Neither should we assume that they did not so confer together, before rendering the verdict and agree, nor that the clerk in taking the verdict omitted to take it in the manner required by law and in accordance with the form books, viz., “Gentlemen, have you agreed upon a verdict ? ” “ What is your verdict ? ” “ Listen to your verdict as recorded. You do say upon your oaths,” etc. Had there been a deviation from this, it should have been made to appear in the bill of exceptions as it was in People v. Collison, 85 Mich. 107, and not so appearing we will not assume any deviation from the forms of law, especially in a substantial particular, and in face of the decision in the Collison Case, supra, with which the trial judge was doubtless familiar. Error is not to be presumed even in a criminal case.

In the case of People v. Neumann, 85 Mich. 98, it is inferable that the jury did not leave the court-room, yet the judgment was affirmed. Mr. Justice Morse concluded his opinion in that case as follows:

_ “But in this State, where a judge has directed a verdict of guilty, and the jury have followed such direction and the facts are admitted or undisputed, and the only-question is one of law, applied to such facts, a new trial will not be granted, if the judge was right in his application of the law. No injustice can be done the accused in such case, as it is not to be presumed that a jury will find in opposition to the law from mere whim, caprice, or prejudice, although they may have the right to do so.
“ In this ruling we do not intend to encourage the practice of directing a verdict against the accused in criminal cases. In all such cases the jury should be permitted to retire to the jury room, and there deliberate, and the trial judge should content himself by stating the law as applied to the facts, and with an admonition to the jury of their plain duty in the premises.
“ The conviction in this case is affirmed.”

It immediately preceded the Collison Case, both cases being submitted and decided on the same days. The Neumann Gase does not go the length of saying expressly that a verdict of guilty may, or that it may not, be directed. The former is clearly implied, however, by the affirmation of the judgment, and it has been expressly so held since, as it had been before. People v. Richmond, 59 Mich. 573; People v. Hawkins, 106 Mich. 479; Peoples. Neal, 143 Mich. 271; People v. Gardner, 143 Mich. 104, 116.

We find no error, and the judgment should be affirmed.

Grant, O. J., and Montgomery, J., concurred with Hooker, J.

Carpenter, J.

The facts in this case are stated in the

opinion of Justice Hooker. I think there should be added, however, at the conclusion of his quotation from the charge of the court, this:

“Now, gentlemen, if you want to lodge exceptions before sentence, I will give you the opportunity to do so, that you may go to the Supreme Court to see whether I am right or not.”

This addition serves to indicate, what perhaps might otherwise clearly appear, that the charge was not intended to give the jury any responsibility respecting the rendition of the verdict. Nor do I understand that the jury actually did render a verdict. I infer that the clerk took their verdict as a mere matter of form. I find it impossible to reconcile this practice with the rule laid down in People v. Warren, 122 Mich. 504, followed by People v. Remus, 185 Mich. 629-634. I think that from People v. Warren, supra, and the cases there cited, it may be said that a trial court may inform a jury in a criminal case that they should render a verdict of guilty, but he cannot compel them to render such a verdict. I think that in this case they were compelled to render such a verdict, and that for that reason we must set aside the conviction.

Blair, Ostrander, Moore, and McAlvay, JJ., concurred with Carpenter, J.


text:
    PEOPLE v. WHITE.
    1. Burglary — Breaking—What Constitutes.
    If any force at all is necessary to effect an entrance into a building, through any place of ingress, usual or unusual, whether open, partly open, or closed, such entrance is a breaking sufficient in law to constitute burglary if the other elements of the offense are present.
    2. Same — Raising Window.
    Raising the sash of a window, not shut down close, and held down by its weight only, far enough to admit respondent’s body, constitutes a sufficient breaking to render the subsequent entry burglarious.

      Exceptions before judgment from Clinton; Searl, J.
    Submitted May 7, 1908.
    (Docket No. 126.)
    Decided July 13, 1908.
    Edwin L. White was convicted of burglary.
    Affirmed.

      William M. Smith, for appellant.

      Dean W. Kelley, Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was convicted in the circuit court for Clinton county of breaking and entering in the night-time a store building not adjoining to or occupied with a dwelling house, with intent to commit the crime of larceny, being charged under section 11547, 3 Comp. Laws. The case is before us on exceptions before judgment. The following taken from the record will indicate what occurred upon the trial material to the question now before the court:

“To the foregoing information the respondent pleaded not guilty, and by his attorney in open court at the beginning of the trial said respondent admitted that he was guilty of the larceny of'the goods in question, but denied that he was guilty of the burglary contained in the information.
“ Said cause was tried in open court before a jury chosen and sworn on the 10th day of December, A. D. 1907, and upon said trial said respondent took the stand in his own behalf and testified that on or about the night in question, he, while intoxicated, walked along the street which passed in front of the store in question, and that he left said street and passed along the side of the said store building to a point about sixty feet from the said street and there saw a window of said store raised about a couple of inches so he could put his hands under the window, which window was held down by its own weight only, and that he did put his hands under the window and pushed it up far enough so that the opening would admit his body, and that he crawled through said window into the store. He also testified that he was drunk at the time, and did not before he went into the store through the window, or at the time he was going into the store through the window, have any intention of stealing anything in the store, but he admitted that after he went into the store he did steal, take and carry away a horse blanket and a fur overcoat. The respondent further testified that he and another workman had been working in and about the said store building in repairing the same on two different days a few days previous to the night in question, and that in doing their work they had occasion to and did raise this window, and the testimony in the case on behalf of the people tended to show that the window had stops or plugs for the purpose of holding the same in place, and that as far as the proprietors of the store had knowledge the window had not for a long time been oponed or raised previous to the time respondent worked at repairing the building; and they had no knowledge that it was raised on that occasion, and that the proprietors of the store building in question had no knowledge that said window was opened to any extent on the night in question, and that as far as they had knowledge the window was closed completely in the usual manner prior to and at the time respondent gained entrance into the building as testified to by him. The testimony of the people showed, however, that an employé, who was deceased at the time of the trial, had charge of the room and window in question on the day preceding the entering into the building by respondent, and no person on the part of the people testified positively that the window was not open on the night in question as testified to by respondent.
“The testimony of the people was to the effect that said horse blanket and said fur overcoat were worth less than $25.”

Upon the theory that such an entering as was testified to and admitted by respondent did not in law amount to a burglarious breaking and entering, his attorney presented four requests to charge the jury to the effect that respondent could not be found guilty of burglary, and that under the evidence he could be convicted of no graver offense than larceny. The court refused to charge the jury as requested, and upon the point at issue charged as follows:

“Now you will notice that the charge here in this information says that the respondent feloniously did break and enter this building with intent to commit the crime of larceny therein. Under the evidence which is undisputed as to the material points in that regard, the court has assumed the burden and now instructs you that as to the breaking and entering the court charges you that -under the evidence there was such a breaking and such an entering as satisfies the law so far as committing this offense was concerned in this case.
“ In other words, the manner in which the respondent himself says' that he. went through the window and entered the building, the court thinks as a matter of law, and now instructs you, is a sufficient breaking and entering to constitute the crime of burglary, providing'the other elements that are necessary to make up the crime are found to exist, so that you need not take up any time in the jury room in passing upon the question of breaking and entering.”

The errors alleged are that the court erred in refusing to give the requests, and in charging as above quoted. The only matter for the court to determine is whether the admitted f^cts in the case constitute a burglarious breaking and entering.

It is insisted upon the part of the respondent that the lifting of a window which is partly open, in order to make an aperture large enough to admit the intruder, is not a breaking. Several eminent text-writers and decisions of courts of other States are cited in support of this contention. The tendency of the courts of late has been to hold that but the slightest force is necessary to constitute a breaking. For example: pushing open a closed door; opening a screen door which is held by its springs, the door of the house being open; removing a screen; entering through an unfastened transom which hung in place by its own weight; entering a mill through a hole cut for the purpose of allowing a belt to run, by pushing aside the belt; entering a mill house through a small hole under the sill; taking goods from a building by thrusting the arm through an opening either made or enlarged for the purpose; entering a house by coming down through the chimney; lifting a cellar door; raising the sash of a window, shut down close, but not fastened; pulling down an upper sash; all have been held to be a sufficient burglarious breaking.

In this State the same tendency appears. It was held that the removal of an iron cellar-window grating was a breaking within the statute (People v. Nolan, 22 Mich. 229); also pushing open a closed but unfastened transom swinging horizontally on its hinges. (Dennis v. People, 27 Mich. 151). It was held that the fact that a respondent slightly raised a window in the daytime, so that the bolts which fastened it down would not be effectual, would not divest his subsequent breaking and entering through the window in the night-time of the character of burglary. People v. Dupree, 98 Mich. 26.

Respondent urges that because this window was raised two inches there was no “breaking,” but admits in his brief that had the window been closed and he had raised it, although it was not fastened and it was necessary to overcome but its weight, it would have constituted a “breaking.” As stated above, such reasoning is supported by respectable authority. This, however, does not appeal to our judgment as sound reasoning. We think the rule adopted in the instances above quoted is a reasonable one. It is, in effect, that if any force at all is necessary to effect an entrance into a building, through any place of ingress, usual or unusual, whether open, partly open or closed, such entrance is a breaking sufficient in law to constitute burglary, if the other elements of the offense are present. We think such holding is in harmony with Dennis v. People, and People v. Dupree, supra.

A recent Tennessee case is exactly in point. The respondent entered a house in the night-time through a window found partially raised from the bottom, which he opened sufficiently to admit his person. In this case the court considers many of the instances referred to in this opinion, and cites the cases. The opinion concludes:

“It seems to us a useless refinement to hold that the various instances above cited are sufficient evidence of breaking, and that the further raising of a window partly open is not sufficient evidence, when the opening in the window is enlarged by the person entering so as to make the aperture sufficient to admit his body. Here is a. material change of the status, and the change is accomplished by the application of force.” Claiborne v. State, 113 Tenn. 261 (68 L. R. A. 859), and cases cited.

The circuit was not in error in holding the acts of re- • spondent a sufficient breaking and entering. The conviction is affirmed. The cause will be remanded to the court below for the entry of a judgment in accordance with the verdict, and respondent will be brought before that court for sentence.

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