author: Stone, C. J.

text:
    POWER SPECIALTY CO. v. MICHIGAN POWER CO.
    1. Constitutional Law — Interstate Commerce — Contracts—Interstate Business — Corporations.
    Where plaintiff agreed to sell and erect superheaters for defendant’s boilers, and there was no testimony to indicate whether or not the work of installation could be done by local workmen engaged in this State, but plaintiff carried out the agreement as to two of the attachments which it installed and which failed to conform to the representations that plaintiff’s salesman had made, by the terms of the contract, the same to be assembled by employees of plaintiff, and part of them to be connected before the boilers were bricked up, the agreement was not shown by sufficient evidence to be interstate commerce, nor was there sufficient proof to establish that plaintiff was transacting business in Michigan in violation of the State statute requiring foreign corporations doing business here to obtain a license.
    2. Same — Sales.
    The principal question was whether installing the super-heaters was such an essential requisite to the sale that it could be said but for plaintiff's installing them It could make no sale; plaintiff failing to prove that the necessity of its installing the superheaters was a requisite of their sale, did not bring itself within the rule relating to commerce between the States, and, therefore, was not entitled to a verdict in its favor.
    3. Same — Pleading—Declaration.
    But it was not necessary to plead in the declaration the necessity of furnishing an engineer or other expert to install the machinery in order to effect a sale.
    4. Same — Affirmative Defense.
    Under Circuit Court Rule 7 (e) as formerly in force, defendant was required to give notice that the contract was invalid under the statutes of Michigan.
    Error to Ingham; Collingwood, J.
    Submitted January 13, 1916.
    (Docket No. 36.)
    Decided March 31, 1916.
    Assumpsit by the Power Specialty Company, a foreign corporation, against the Michigan Power Company, a corporation, to recover the purchase price of certain superheaters. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Reversed.

      Oxtoby & Wilkinson, for appellant.

      Cummins, Nichols & Rhoads, for appellee.
   Stone, C. J.

This is an action of assumpsit by

a New York corporation to recover the price of six superheaters which plaintiff had agreed to sell and erect in defendant’s power plant at Lansing, Mich. The principal office of the plaintiff is located in New York City. It is engaged in the manufacture and sale of an appliance known as the “Foster Superheater,” designed to raise the temperature of steam used in power plants. This superheater consists of a number of pipes connected to other pipes called “headers,” all erected inside of a steam boiler in such a way that the hot gases superheat the steam as the latter passes to the steam engines.

Prior to November 6, 1912, the defendant was engaged in generating and furnishing electricity and steam heat in the city of Lansing, and at that time had in its plant six “Wickes” vertical water tube boilers. It was about to add to its installation two more such boilers.

The various parts making up thes.e superheaters were delivered by plaintiff to defendant, but were not erected, or set up by it, due, it is claimed, to defendant’s refusal to allow plaintiff to do so.

The declaration in the first count sets forth the written contract sued upon, alleges that the plaintiff delivered to said defendant, at Lansing, two of said Foster superheaters, and yerected the same in said defendant’s plant at Lansing in accordance with said agreement, and defendant paid for the same; that after-wards, and on, to wit, the 1st day of April, 1913, in accordance with said contract, and at the request of said defendant, the plaintiff delivered to said defendant at Lansing the balance, or remainder of said Foster ^superheaters mentioned and described in said agreement, and said plaintiff then and there offered to erect, and is still ready and .willing to erect, the said six remaining superheaters in said defendant’s plant aforesaid in accordance with its agreement, but that said defendant did not, or would not, suffer the plaintiff to erect said remaining six superheaters in .said defendant’s plant, and avers that it has done and performed all things by it to be done and performed under said contract, except as it has been wrongfully prevented by said defendant from doing. This count is followed by the common counts in assumpsit.

The bill of particulars of the plaintiff’s demand is for the price of six Foster superheaters at $1,125 per heater, with interest at 6 per cent.

The plea was the general issue with notice:

(1) That said plaintiff was a foreign corporation,, and at the time of the occurrence of the matters set forth in the declaration, and at the date of the alleged contract, had not complied with the provisions of the laws of Michigan with reference to foreign corporations, in that it had not procured from the secretary of State of Michigan a certificate of authority to carry on its business in the State of Michigan; that the contract declared upon not only contemplated that said plaintiff should manufacture, ship, and deliver the articles and things therein referred to, but also required and contemplated that plaintiff should erect the same in defendant’s plant at Lansing, said contract providing for erection, brickwork, superintendence of erection and work thereon in connection with the installation of the superheaters referred to in said alleged contract; and that said contract was not valid because it was entered into by plaintiff in violation of the laws of the State of Michigan, and that it is unenforceable against the defendant.

(2) That said contract contemplated that said .superheaters were to be installed and erected in certain boilers then in use, and in certain boilers to be thereafter erected at the defendant’s plant; that certain of said superheaters were to be located in defendant’s boilers then in use at its said plant and connected with the header pipes then in use by the defendant; that-plaintiff’s sales manager stated and represented to this defendant, before and at the time of the execution of said alleged contract, that said superheaters would work satisfactorily in connection with the cast-iron fittings of the main header pipe then used by defendant in its plant; that no changes would have to be made by defendant in its use of the cast-iron fittings of its 10-inch steam header pipe by reason of the installation of said superheaters, and said sales manager represented to the officers of the defendant that he was experienced in the installation of said superheaters and economies resulting from the use thereof; that he had particular knowledge in such matters; that the defendant had had no experience with said superheaters and their use and effect, and in executing said contract Relieved and relied upon the statements and representations made to it by said sales manager, and that but for such statements and representations the defendant would not have entered into said alleged contract; that said two superheaters so installed by the plaintiff in defendant’s two boilers did not work satisfactorily, and did not fulfill the guarantees contained in said alleged contract; that said two superheaters superheated the steam to about 150 degrees instead of from 90 to 110 degrees, resulting in the creation of dangerous conditions in defendant’s 10-inch steam header pipe; that said excessive head made said header pipe expand and twist so as to become dangerous, and liable to break and destroy the lives of defendant’s employees in its plant; that on one occasion said excessive superheat did cause a cast-iron fitting which formed a part of defendant’s steam header pipe to burst, but fortunately, at a time when defendant’s employees did not happen to be in the boiler room; that as a result of its bursting defendant’s plant became filled with steam, making it necessary to shut down the machinery; that the said representations made by said agent and representative of said plaintiff were untrue and fraudulent in law, and for this reason the said contract was and is void as to this defendant.

On November 6, 1912, plaintiff submitted to defendant its written proposition, which defendant accepted on the same date. The proposition and acceptance were as follows:

“Power Specialty Company, 111 Broadway, New York.
“Foster Superheater.
“Proposal and Specification.
“November 6, 1912.
“No. C — 1244—A.
“To The Michigan Power Co.
“We propose to furnish and deliver eight Foster superheaters guaranteed to raise the temperature of 12,000 pounds of steam per hour containing not more than 1% moisture at a pressure of 150 pounds per square inch to 465 degrees Fahr., corresponding to a superheat of 100 degrees when erected and operated in accordance with conditions hereinafter stated.
“The superheater will be of our standard composite construction. It will consist of a series of straight elements connected to steel manifolds and return headers, or a series of return bend elements. The joints between the elements and the headers will be metal to metal obtained by expanding the ends of the elements into carefully reamed holes in accordance with the most approved practice to insure tightness and durability.
“The elements will consist of bodies of seamless cold drawn steel tubing, to the outside of which are snugly fitted series of annular gill flanges placed close to each other and forming an external covering of cast iron for the protection of the bodies against the action of the heated gases.
“These annular gills form an extension surface for the absoiption of heat by the elements from the hot gases.' They provide a section of. great ultimate strength and absolute freedom from internal strains. They also provide a mass of metal which acts as a reservoir for heat to be imparted to the steam regularly and prevent fluctuations in the temperature of the hot gases from producing corresponding fluctuations in the superheat.
“In order to insure uniform distribution of steam throughout each element, and to effectually utilize all the heating surface, the elements are fitted with cylindrical cores of tubing closed at each end and centrally supported to provide a thin annular space for the passage of steam while receiving superheat.
“All parts of the superheater are easily accessible for inspection.
“The superheater will be designed for erection m eight 400 h. p. Wickes vertical water tube boilers, approximately as shown on accompanying blueprints No. MP4142.
“The arrangement is such that the hot gases will pass through superheater chamber and be brought closely in contact with superheater surface.
“The guarantee hereinabove made is based on the superheater being located and connected as shown in this drawing and the guaranteed superheat, if the superheaters are of the attached type, installed within the boilers, is to be obtained while the boilers are operating at their normal rated capacity, with feed water at 200 degrees F.
“It is understood that if the average superheat shown under full normal load is within 10 degrees of the amount stated on first page it will be considered as fulfillment of the guarantee.
“Delivery to be f. o. b. our works, Dansville, N. Y. Freight allowed to Lansing, Michigan, to suit customer’s requirements.
“Shipment to be to suit customers’ requirements, after approval of our drawings.
“Price for the above described apparatus: ($9,-000.00) nine thousand dollars, including: Operating instructions; thermometer; pipe connections from boiler to superheater and from superheater to a single outlet; doors for cleaning and inspection; supports. All fittings and flanges, unless otherwise specified, will be of semi-steel.
“Erection is included and brickwork.
“Superintendence erection is included.
“It is understood that erection contemplates continuous prosecution of work, and that all cost and expense of any interruption thereto caused by purchaser shall be added to and become a part of the contract price to be paid by the purchaser.
“Insurance. A policy of insurance will be furnished with each superheater.
“Payment to be made in New York funds, seventy-five per cent, upon delivery, and the balance within sixty days after shipment, unless shipment is delayed by purchaser, in which case the first payment of seventy-five per cent, of contract price shall be made when material is ready for shipment, and the balance within thirty days after shipment. Deferred payments to bear 6% interest.
“This proposal, if- accepted and approved, is contingent upon no strikes, fires or other delays, unavoidable or beyond our control occurring, and it is expressly understood that no promise or understandings not expressed in writing and attached to this proposal shall be considered.
“Power Specialty Company,
“R. B. Nutting, Chicago Sales Manager.
“Accepted Nov. 6, 1912.
“Michigan Power Co.,
“D. W. Low, Gen. Mgr.
“Shipping Instructions:
“Via Del — over M. C. or Grand Trunk.”

The plaintiff has at no time been licensed to do business in Michigan as a foreign corporation. It has never had an office in Michigan, and it has never had an agent in this State, except its traveling salesmen who travel through the State from its Chicago office, unless it may be said that the persons in its employ who erected and installed two of the superheaters in defendant’s plant were its agents.

The superheaters involved in this case were fully manufactured and made ready for shipment at the plaintiff’s manufacturing plant, located at Dansville, N. Y., and were shipped in a knocked down condition to the defendant’s plant at Lansing, ready to be put together and installed. Plaintiff set up the super-heaters in the two new boilers as they were being erected. In other words, the superheaters in these boilers were assembled by plaintiff and connected up before the boilers were bricked up. 'No brickwork was to be done by the plaintiff on these boilers, it being necessary for it merely to install its superheaters as soon as the steel work of the boilers was completed. In order, however, to install the superheaters in the six old boilers it was necessary for plaintiff to tear out the brickwork in front, assemble and connect up in their .proper places the pipes that made up the super-heaters, insert the doors at the proper place, tie the pipes so as to hold them in place securely, and then brick the boilers up again. The thickness of the brick wall surrounding the water tubes in the old boilers was about 18 inches. Owing to the space occupied by the superheaters when placed in position it was necessary, according to the plans, to make these brick walls in front of the superheaters thinner than the walls were before. In each boiler there were to be three doors set in frames, for the purpose of giving access for cleaning and inspection, which doors and frames were to be set up into the brickwork, and the brickwork, (cylindrical before the heaters were installed), brought, out square for a height of about two feet so as to form sides for the place where the doors were installed. The installation included these doors,, and the frames in which they were placed and the base on each side of which a cross steel beam was supported. The super-heaters were held in place by lugs furnished by plaintiff, which lugs were fastened to the upper boiler drum by bolts put into holes for that purpose. It might be necessary for plaintiff to buy some mortar and bricks at Lansing if the bricks taken out of the old boilers were not such that they could be used again, but the plaintiff did not contemplate buying any bricks.

There was evidence tending to show that the sales agent represented to the defendant’s manager that plaintiff’s superheaters could be safely and properly installed in connection with the header pipe which defendant was then using, and he claimed that this statement was based on his. experience, and knowing what plaintiff had done elsewhere. Said sales agent stated to the defendant’s manager, as his opinion based on experience, that it was a good, safe practice to use cast-iron fittings in connection with superheated steam; that his knowledge was such as he had derived from experience in connection with sales and knowing what his company had done; that he told defendant’s manager that it was unnecessary with steam at a pressure of 150 pounds per square inch and a superheat of 100 degrees, to replace defendant’s cast-iron fittings with steel fittings on account of the use of superheated steam; and that it was perfectly safe to continue the use of cast-iron fittings with that steam pressure and that degree of superheat under the conditions which obtained in defendant’s plant; that he also stated that ■defendant need have no apprehension whatever regarding continuing to use these cast-iron valves and fittings, in connection with the superheaters that plaintiff was to install; and that it was contemplated that the superheaters which plaintiff was to install in defendant’s plant were to be used in connection with the header pipe which defendant was then using.

Other evidence was given tending to support the second division of defendant’s notice under the general issue, and there was considerable testimony pro and con which we do not deem it advisable to here set forth. There was evidence to show that the various parts of the superheaters for the six old boilers were lying about defendant’s plant stacked up at one end of the boiler room; that while defendant had paid for the two superheaters which had been put in, it was its claim that it would not permit plaintiff to erect the .remaining six superheaters because it was unsafe to use them in connection with its main header pipe as equipped with cast-iron fittings.

At the close of the defendant’s case, the plaintiff moved for a directed verdict in its favor- for the purchase price of the remaining six superheaters not installed, less what it would have cost to install them, and less credit for certain freight bills paid by defendant. Plaintiff coupled its motion for a directed verdict with a motion to strike out the evidence for the defendant so far as it related-to the question of fraud, or the question of the operation of the boilers, of the impropriety of using cast iron, or installing superheaters in connection with cast iron, on the ground that there, was no evidence tending to show any such defense.

The defendant also made a motion for a directed verdict for the defendant, on the ground that the evidence which had been put in, and which supplemented the contract which was offered' in evidence, showed that the contract was entered into by the plaintiff in violation of the laws of the State of Michigan. Counsel said:

“My claim as to the invalidity of the contract applies both to the installation of the superheaters in the two new boilers which were then being installed, as well as to the installation of superheaters in the six old boilers. I submit, if the court please, that on both phases of the contract, taking them separately or taking them together, the contract was entered into by the plaintiff in violation of the laws of the State of Michigan.”

He further urged that upon the testimony it was the duty of the court to submit to the jury the question whether or not the statements and representations made by plaintiff’s sales agent to defendant’s manager were, or were not, such that he had a right to rely upon them; were, or were not, such as to amount to fraud in law, and as to whether the contract was a valid and binding contract between the parties in view of the testimony of defendant’s manager, that in entering into the contract he believed from the salesman’s representations that it was good practice to install the superheaters in connection with the steam header pipe which the company was then using, and which was equipped with cast-iron fittings.

The trial court overruled defendant’s motion for a direction of verdict' in its favor, and granted plaintiff’s motion, holding that there had been no evidence produced to show fraud in the inception of the cop-tract, and that the contract as it stood was a good contract; to both of which rulings defendant duly excepted. Whereupon the court directed a verdict for the plaintiff in the sum of $6,466.17.

Defendant has brought the case here for review. By appropriate assignments of error two questions are involved:

(1) It is the claim of defendant that the contract of November 6, 1912, by which plaintiff agreed to furnish, deliver, and erect eight superheaters in defendant’s boilers at Lansing, was a contract requiring the transaction of business within the State of Michigan, and, as plaintiff admittedly failed to comply with the provisions of law relative to foreign corporations, the contract was illegal and void, and plaintiff cannot maintain an action thereon.

(2) It is also the claim of defendant that there was sufficient evidence of fraudulent representations made by plaintiff to defendant in the inducement to the contract to warrant the submission of the question to the jury, and that the court erred in ruling to the contrary at the close of defendant’s case, and directing a verdict for the plaintiff.

In support of defendant’s contention upon the first point, counsel cite the following authorities: Haughton Elevator, etc., Co. v. Candy Co., 156 Mich. 25 (120 N. W. 18); Imperial Curtain Co. v. Jacob, 163 Mich. 72 (127 N. W. 772); Nernst Lamp Co. v. Conrad, 165 Mich. 604 (131 N. W. 120); Lange Medical Co. v. Brace, 186 Mich. 453 (152 N. W. 1026); Standard Fashion Co. v. Cummings, 187 Mich. 196 (153 N. W. 814).

In recognition of the rule that the question of what is interstate commerce is a Federal question, defendant’s counsel rely largely upon the case of Browning v. City of Waycross, 233 U. S. 16 (34 Sup. Ct. 578). This case is referred to as containing the latest statement made by the United States Supreme Court, of what constitutes intrastate and interstate commerce. In that case Browning, plaintiff in error, was charged with violating a municipal ordinance which imposed an annual occupation tax of $25 upon “lightning rod agents or dealers engaged in putting up or erecting lightning rods within the corporate limits” of the city of Waycross, Ga. Browning claimed that he was the agent of a St. Louis, Mo., corporation on whose behalf he had solicited orders for the sale of lightning rods; that he had received the rods when shipped on such order from St. Louis, and had erected them for the corporation. The price paid for the rods to the corporation included the duty to erect them without further charge. He asserted that this constituted the carrying on of interstate commerce, which the city could not constitutionally tax. The Supreme Court of the United States held that Browning’s business of erecting lightning rods within the corporate limits of Waycross as the agent of the nonresident manufacturer on whose behalf Browning had solicited orders for the sale of such rods, and from whom he had re«‘ved the rods when shipped into the State of Georgia such orders, might be subjected to the municipal license tax without violating the commerce clause of the Federal Constitution, although the contracts under which the rods were shipped bound the.seller, at his own expense, to attach them to the houses of the persons who ordered them. Chief Justice White, in the opinion, said:

“The sole question, therefore, here is whether carrying on the business of erecting lightning rods in the State under the conditions established, was interstate commerce beyond the power of the State to regulate or directly burden. The solution of the inquiry will, we think, be most readily reached by briefly reviewing a few of the more recently decided cases which are relied upon to establish that although the interstate transit of the lightning rods had terminated and they had been delivered at the point of destination to the agent of the seller, the business of subsequently attaching them to the houses, for which they were intended, constituted the carrying on of interstate commerce. The cases relied on are Caldwell v. North Carolina, 187 U. S. 622 [28 Sup. Ct. 229, 47 L. Ed. 336]; Rearick v. Pennsylvania, 203 U. S. 507 [27 Sup. Ct. 159, 51 L. Ed. 295]; Dozier v. Alabama, 218 U. S. 124 [30 Sup. Ct. 649, 54 L. Ed. 965, 28 L. R. A. (N. S.) 264].”

The court, after considering the cases cited and distinguishing them, said:

“It is evident that these cases when rightly considered, instead of sustaining, serve to refute, the claim of protection under the interstate commerce clause which is here relied upon since the cases were concerned only with merchandise which had moved in interstate commerce and where the transactions which it was asserted amounted to the doing of local business consisted only of acts concerning interstate commerce goods, dissociated from any attempt to connect them with or make them a part in the State of property which had not and could not have been the subject of interstate commerce. Thus, in Caldwell v. North Carolina, the court laid emphasis upon the fact that ft shipment of the pictures in interstate commerce in one package and the frames in another was not essential, but accidental, for the two could have been united at the point of shipment before interstate commerce began as well as be brought together after delivery at the point of destination. And this was also the condition in the Reariek Case. Indeed, it is apparent in all three cases that there was not the slightest purpose to enlarge the scope of interstate commerce so as to cause it to embrace acts and transactions theretofore confessedly local, but simply to prevent the recognized local limitations from being used to put the conceded' interstate commerce power in a strait-jacket so as to destroy the possibilities of its being adapted to meet mere changes in the form by which business of an inherently interstate commerce character could be carried on.
“We are of the opinion that the court below was right in holding that the business of erecting lightning rods under the circumstances disclosed, was within the regulating power of the State and not the subject of interstate commerce for the following reasons: (a) Because the affixing of lightning rods to houses was the carrying on of a business of a strictly local character, peculiarly within the exclusive control of State authority. (6) Because, besides, such business was wholly separate from interstate commerce, involved no question of the delivery of property shipped in interstate commerce or of the right to complete an interstate commerce transaction, but concerned merely the doing of a local act after interstate commerce had completely terminated. It is true, that it was shown that the contract under which the rods were shipped bound the seller, at his own expense, to attach the rods to the houses of the persons who ordered rods, but it was not within the power of the parties by the form of their contract to convert what was exclusively a local business, subject to State control, into an interstate commerce business protected by the commerce clause. It is manifest that if the right here asserted were recognized or the power to accomplish by contract what is here claimed, were to be upheld, all lines of demarkation between National and State authority would become obliterated, since it would necessarily follow that every kind or form of material shipped from one State to the other and intended to be used after delivery in the construction of buildings or in the making of improvements in any form would or could be made interstate commerce.
“Of cburse we are not called upon here to consider how far interstate commerce might be held to continue to apply'to an article shipped from one State to another, after delivery and up to and including the time when the article was put together or made operative in the place of destination in a case where because of some intrinsic and peculiar quality or inherent complexity of the article, the making'of such agreement was essential to the accomplishment of the interstate transaction. In saying this we are not unmindful of the fact that some suggestion is here made that the putting up of the lightning rods after delivery by the agent of the seller was so vital and so essential as to render it impossible to contract without an agreement to that effect, a suggestion however which we deem it unnecessary to do more than mention in order to refute it.”

In Hastings Industrial Co. v. Moran, 143 Mich. 679 (107 N. W. 706), this court held that the contract there clearly contemplated and included something more than interstate commerce; and that, we think, is the vital question here.

In discussing the Browning Case counsel for the plaintiff claim that it presented a case of “repeated sales.” This is probably true, but this court held in the Haughton Elevator Case, supra, that a “single transaction, if local business, is within the prohibition of the statute.”

It would seem that the decision in Browning v. City of Waycross contains a very clear definition of what constitutes interstate commerce, and what intrastate co'mmerce. While in that case the court was considering the validity of an ordinance taxing lightning rod agents, it decided the case, not upon, the theory that Browning was carrying on a business, or doing a series of acts, but upon the theory that when material is shipped from one State into another and there installed, such act is intrastate commerce, unless it can be claimed that the case falls within the exception, viz.:

“After delivery and up to and including the time when the article was put together or made operative in the place of destination in a case where because of some instrinsic and peculiar quality or inherent complexity of the article, the maldng of such agreement was essential to the accomplishment of the interstate transaction.”

It is asserted by counsel for appellee that “it is a very long jump from lightning rods to superheaters,” and that these superheaters were manifestly not simple appliances which defendant might readily have installed, or have had installed by local workmén. We have examined this record with great care and have been unable to find any testimony in support of this statement. We are constrained to say that plaintiff failed to show by evidence whether or not purchasers might, or might not, themselves readily install these superheaters, or have them installed by other local workmen. On the other hand, it is asserted by ap-. pellant that mechanics and engineers could be found in the city of Lansing competent to install these super-heaters, and that the installing of them was a far less complicated piece of work than the installing of a steam or hot water heating system in an ordinary house. There is no evidence upon that subject.

We think the vital question upon this point is whether the installing of these superheaters by plaintiff was such an essential requisite to the sale of them that it can be said that but for the installation by the plaintiff it could make no sale. The reading of this record demonstrates what counsel on both sides have asserted — that at the trial- they had not before them the case of Browning v. City of Waycross. It is very evident that the principle of that case was not present in the minds of counsel in the examination of witnesses along this line. It is possible that upon a new-trial there may be evidence pro and con upon this question, and it may become one of fact to be submitted under proper instructions by the court. We think that the plaintiff has failed to show the necessity of itself installing these superheaters as an essential requisite to the sale of them. ' If such were the case, then, clearly, the State could not hamper or place it in a strait-jacket so as to destroy the possibility of itself doing business of an inherently interstate commerce character.

Counsel for plaintiff have called our attention to Davis v. Commonwealth of Virginia, 236 U. S. 697 (35 Sup. Ct. 479), wherein Mr. Justice Holmes said:

“It often has been pointed out that commerce among the States is a practical not a technical conception” —citing the Browning Case.

We think that the question we are here dealing with is a practical one and one founded in reason.

We cannot see that, whether the thing sold is stock or material from which a structure or a machine is to be made, or is the structure or machine itself, can make any difference as to its interstate character.

In the case of York Manfg. Co. v. Colley (172 S. W. 206), the court of civil appeals of Texas, after quoting the language from the Browning Case which we have referred to, said:

_ “This language suggests that the court may recognize exceptions in cases in which the facts show agreements to supervise the erection or to erect machinery of such a complex character that the sale thereof is impossible, unless such agreement is made. But if such exceptions are recognized by that high court, and must therefore be permitted by the State courts, the facts creating same ought to be alleged and proven. When a foreign corporation is not content with the privilege of having its agents come into this State and take orders for its goods, ship same to our citizens, and collect therefor in our courts, but contends that it has the further right to transact the business of installing machinery sold by it, so as to connect it with, and make it a part of, the property in this State which was not the subject of interstate commerce, the burden certainly rests upon it of showing that, if it be prohibited from transacting such local business, such prohibition will, on account of the complex character of its machinery, affect the sale thereof to such an extent as to be a restriction or regulation of its right to sell such machinery. In this case appellant has not pleaded or proved that the contract to install or to furnish an engineer was necessary to enable it to make the sale to appellees.”

It is urged here by counsel for appellant that the declaration in this case should have alleged such necessity, and the plaintiff should have proved it upon the trial. Under our practice we do not think that such allegation is necessary in the declaration. Pittsburgh Coal Co. v. Northy, 158 Mich. 530-541 (123 N. W. 47), citing Prussian National Insurance Co. v. Eisenhardt, 153 Mich. 198 (116 N. W. 1097).

Under subdivision “c” of former Circuit Court Rule 7, it is provided that:

“Whenever it shall be claimed in defense that any written instrument set forth in the plaintiff’s declaration is void or voidable, or cannot be recovered upon by reason of any statute, * * * the facts upon which such defense is based shall be set forth in a notice added to the defendant’s plea.”

The giving of such notice by defendant has been the practice in this State. Neyens v. Worthington, 150 Mich. 580 (114 N. W. 404, 18 L. R. A. [N. S.] 142; Lange Medical Co. v. Brace, supra.

There is certainly a necessity for' evidence as indicated above to bring a case within the interstate commerce rule. This renders it necessary for us to send the cáse back for a new trial.

Upon the question of fraudulent representations, we are not prepared to say in the condition in which the record appears, that the trial court conimitted any error in striking out the evidence upon that subject. We have looked in' vain for any evidence showing a rescission or disaffirmance of the contract, and there is no claim for recoupment. It is the claim of defendant that the letter written on April 24, 1913, by the general manager of the defendant company to the plaintiff, was evidence of a rescission of the contract. We cannot so construe that letter, and we have been unable to find any evidence to support the allegation of the rescission of the contract, unless the refusal to allow installation amounted to a rescission, and this may have been a mere breach of the contract. These matters may be remedied upon a new trial, and we only refer to them because of the peculiar state of the record upon the subject.

We recognize the rule contended for by defendant’s counsel, that it is not necessary in order to constitute fraud that a person making the statement should either know that it is untrue, or be recklessly and consciously ignorant of whether it be true or untrue, but it is sufficient if the representation be false in fact, and the person making it is a party to the contract and profits by the other’s loss. This doctrine is clearly asserted in Aldrich v. Scribner, 154 Mich. 23 (117 N. W. 581, 18 L. R. A. [N. S.] 379); Yanelli v. Littlejohn, 172 Mich. 91 (137 N. W. 723); Hubbard v. Oliver, 173 Mich. 337 (139 N. W. 77).

For the error pointed out the judgment of the circuit court is reversed, and a new trial granted.

Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    McCUE v. McCUE.
    1. Divorce — Extreme Cruelty — Evidence—Sufficiency — Harsh Conduct.
    Where the principal charge of complainant, in a proceeding for separate maintenance, was that her husband was harsh, profane, and unkind, that he threatened to break 1 her neck and sometimes indulged in similar violent and threatening language, though there was slight evidence of physical cruelty towards complainant, who was a refined woman, and feared him because of his threats of violence, the trial court was not in error in finding defendant guilty of extreme cruelty.
    2. Same — Grounds of Divorce.
    Extreme cruelty is not confined to physical violence, but ' any such continued course of conduct as renders the marriage relation intolerable, and drives- the wife away from home, is sufficient as a ground for a decree.
    3. Same — Separate Maintenance — Absolute Decree — Discretion.
    The court may, if it deems it expedient, grant an absolute divorce, rather than a separate maintenance as prayed for in the bill, and, held, under the evidence, that the decree of the lower court should be so modified as to grant a divorce on the ground of cruelty.
    Appeal from Menominee; Flannigan, J.
    Submitted January 20, 1916.
    (Docket No. 104.)
    Decided March 31, 1916.
    Bill by Matilda McCue against William H. McCue for divorce; amended on the hearing to ask for separate maintenance only. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Sawyer & Saioyer, for complainant.

      Michael J. Doyle, for defendant.
   Stone, C. J.

This is a divorce case. The parties were married on the 25th day of December, 1882, at the city of Menominee, and they had lived and cohabited together as husband and wife nearly all of the time between that date and a few days prior to the filing of the bill of complaint, which was on December 6, 1913. They have two children, both boys, now grown to manhood. Ernest A., the elder son, was 29 years of age when the bill was filed, and was married and living in Menominee. The younger son, Ellis R., was 23 years of age at that time. Early in his married life the defendant was a millwright by trade, and worked in and about sawmills at good wages for a number of years. -

The bill of complaint is very lengthy, and sets forth many grounds of complaint against the defendant, charging him with extreme cruelty and failure to properly support the complainant. A few acts only of personal violence are alleged in the bill; but it is claimed that the defendant by a long course of harsh conduct, in which he had been rough, profane, and threatening, has brought about such a condition of things that complainant war afraid of him and feared personal violence. The complainant, while not highly educated, is a woman of refinement and good character.

In her testimony at the hearing the complainant went into great detail as to the conduct of the defendant toward her, and toward the boys when they were living at home. There is no doubt that the defendant has been severe and unkind to his wife, but the evidence shows very little of personal violence. Some of the threats and vile language claimed to have been used by the defendant toward complainant were made and used some years before the final separation; but it is urged that because of his subsequent conduct it became proper for complainant to show these things, and that the circumstances were such that the original offenses were revived, and might be used as a ground for divorce. See Eistedt v. Eistedt, 187 Mich. 371 (153 N. W. 676), and cases there cited.

We shall not here attempt to set forth the substance of the testimony. The following, however, is a fair sample of the conduct of the defendant, as testified to by the complainant at great length. She testified as follows:'

“I went over to see a dentist one day — this was two years ago — and my husband promised then he would give me money the 1st of the month; so I went over and I had my teeth fixed, and when the 1st of the month came he refused to give me the money. The bill came in, and he looked at it and said it was my bill ? he wanted me to pay it. He said I should get that money from the boys. Then I mentioned it a couple of times, and the last time I spoke of it he wanted to know if I had paid it, and I told him, ‘No,’ I didn’t have the money, and he said I should get it from the boys, and he came out in the kitchen where I was washing dishes, and he said if I would give him much of my lip — He swore, and said he would break my neck. He said: ‘If you give me much of your lip, I’ll break your God damned neck.’ When he told me that, he was very cross, and came right for me, and I went outdoors, and I called up my son and told, him what had happened — my son Ernest, who was at that time working for the J. W. Wells Lumber Company. I said to my son: ‘Now, if you will tell me you will be here, I will come back in the house. Otherwise I am afraid to come iñ.’ I was afraid because of the way he acted.”

There was no evidence of'any extravagance on the part of complainant. As tending to show his.conduct to humiliate her, she testified as follows:

_ “We used to trade with Mr. Bruce, the grocer. One time we ran out of potatoes. We used to get potatoes from the farmers mostly, and Mr. McCue said . he wanted to get them from the farmers. I thought it was all right if he wanted to, but we had been without potatoes several days, and I thought I would just go to Mr. Bruce and get a half bushel, and later we would get some from the farmers. I got the potatoes, and some days later Mr. Bruce told me that Mr. McCue had told him not to let me have anything more unless I would pay for it myself. All the words I had with Mr. McCue about this was he was sitting on the porch when I came home, and I guess he mistrusted I had been down there, and he says: ‘Well, you didn’t find it so very easy this time; it wasn’t quite so nice this time, was it?’ I didn’t make him any answer.”

Complainant further testified:

“About six or seven years ago Mr. McCue went West. He was gone several months. He made no provision for any support while he was gone. He put in the papers a notice that he wouldn’t pay any bills contracted without an order from him. At that time Ernest was in Chicago working for Marshall Field & Co., and Ellis was at home. I think Ellis was in school yet.”

The following was the notice published at that time:

“Notice.
“All persons holding a charge amount against Wm. H. McCue must present an order for same with the bill, or the account will not be paid. I will pay no account without an order attached.
“William H. McCue.”
After complainant left the home, and immediately before the bill was filed, defendant published the following:
“Trust Her Not.
“Whereas my wife, Matilda McCue, has left my bed and board without just cause or provocation, this is to warn all persons not to trust her on my account, as I will pay no bills of her contracting after this date.
“Menominee, Mich., Dec. 5, 1913.
“William H. McCue.”

Complainant testified that about three years before that time defendant kicked her out of bed. She testified:

“Q. In the night?
“A. Well, I guess it was in the morning. I think early in the morning.. The occasion of his becoming angry was I wasn’t well at the time, and wasn’t able to meet his demands. Not being able to meet his demands, he got angry. It was in cold weather. The room was cold. He pushed me clear out of bed. I got cold and chilled, so I didn’t feel well for a good many weeks after.
“Q. Were you sick?
“A. I was not well at that time.
“Q. State whether or not from that time you took separate rooms.
“A. Well, he told me to take separate rooms until he told me to come back.
“Q. Did you?
“A. I did so at his request.”

An instance was testified to of defendant’s rough conduct towards his youngest son in the presence of complainant. When the son Ellis was 15 years of age defendant locked him out of the house one night because he came home a few minutes late, and the boy was kept out all night. Complainant testified that defendant when angry would frequently call her “a son of a bitch.” She also testified that when angry at her one .night he said that he hated her so that he could not bear to look at her; that she had better look out; that she would not be safe there; that he could split her in two like he would a rail; that he also said, “I don’t see how you stand it the way I treat you and the names I call you; you are the biggest fool to stand it”; that she had better see a lawyer; that he had his lawyer already; that he would follow her all right; that she could not get much; that she could not get out of the house, and if she did get out it would be in a box, the both of them, but he said he did not want to put his hands on her, but, when he did, it would be all' off with both of them, and that she was in danger. The foregoing is but a small part of the testimony of the complainant. In much of it she was corroborated by the testimony of her sons. Some of these instances were denied by the defendant, and some of them- he attempted to modify or explain. There was a conflict in the testimony of the parties, but, in our opinion, the trial court was in better position than we are to pass upon this conflict, as he saw the witnesses and heard them testify. The court below found that the defendant was guilty of extreme cruelty as charged in the bill, and that he, being of sufficient ability to provide a suitable maintenance for the complainant, had grossly refused and neglected to provide for complainant a suitable maintenance. It was the claim of complainant that she lived in fear of the defendant, because of his repeated threats to do her bodily injury.

A reading of the record shows that much of the trouble between the parties grew out of financial matters. That the defendant was penurious and small in his treatment of complainant clearly appears; yet it cannot be said that she suffered for the absolute necessaries of life. As a rule, the house was properly supplied with provisions; yet he was niggardly in his personal treatment of complainant, in those little, common, everyday matters that go so far in making married life pleasant and comfortable.

In her bill of complaint the complainant claimed that defendant had property amounting in value to $40,000. In his answer he claimed that he did not have property to exceed in value one-fifth that amount, and upon the hearing he claimed that he was not worth to exceed $4,500. Complainant testified that defendant threatened to so dispose of his property as to leave her without any apparent means of support. This was a disputed question upon the hearing.

After most of the testimony was taken the circuit judge attempted a reconciliation, and in a measure succeeded.. The complainant returned to live with defendant for a number of weeks. But soon the old troubles were revived. They were evidently far apart, and complainant testified that defendant again angrily ordered her out of the house, and said, “You get out of here just as quick as God will let you,” and she went. It is evident that defendant has great animosity toward the complainant and the two sons. A subsequent assault upon the older son and his letters to his wife in which he said he hoped he would never see her again, and that she and the boys could take one side of the world, and he would take the other — all of these things and many others indicate that the parties are too far apart to ever become reconciled. That the use of profane language by a husband toward a refined wife constitutes extreme cruelty and is a ground for divorce has been frequently held by this court. Emery v. Emery, 181 Mich. 146 (147 N. W. 452), and cases there cited.

' We are satisfied from the evidence that in the use of threatening and violent language, harshly scolding and reprimanding the complainant, the conduct of the defendant has been such as to render him guilty of extreme cruelty. It is well settled in this State that extreme cruelty is not confined to physical violence. And any such continued course of conduct which, without fault of the wife, results in making the marriage' relations unbearable and in driving her from her husband’s home, is extreme cruelty under many of our decisions. We are not disposed to disturb the finding of the circuit judge upon the subject of extreme cruelty. We are somewhat in doubt as to whether a case for failure to support was made by the evidence.

As was said by this court in Utley v. Utley, 155 Mich. 258 (118 N. W. 932):

“We agree with the learned circuit judge in finding that the charges of cruelty are sustained. These are charges of personal violence and of threats to do eompainant personal injury, the effects of which are to make her nervous and constantly afraid. We are impressed that the parties should be relieved entirely of the relations entered upon with their marriage, and [hat a disposition of the property should be made which will render personal relations of any kind unnecessary and unlikely to occur.”

The bill of complaint, as originally drawn, prayed for a divorce a vinculo and for alimony. By application of complainant’s counsel in open court pending the hearing the prayer of the bill was amended so as to ask for separate maintenance only, instead of a decree for divorce. The court below granted a “divorce from bed and board forever, but not otherwise from the bonds of matrimony, and that the marriage between said parties be and remain otherwise in full force, and that the said complainant is entitled to separate' maintenance from said defendant.”

No finding was made relating to the value of the personal property of the defendant, and we take it from the record that the court did not find that the defendant was possessed of any considerable amount of personal property, nor do we so find. The entire value of the real estate of the defendant, including the value of the homestead, which is owned jointly by the complainant and defendant, aggregated $4,425. The ■value of the homestead, as found by the court, was $1,300. The court decreed that the parties were to own each an undivided half interest in the homestead, but that the defendant should have possession thereof, paying to complainant a rental of $7.50 per month for her undivided one-half, and to keep the same in proper repair. The court assigned to complainant a house and lot valued at $550, and another parcel valued at the sum of $800.

While we are not inclined to disturb the conclusion of the court below in finding that the charge of cruelty against defendant was sustained by the proofs, yet we are not satisfied with the disposition which the court made of the case. There is abundant proof to show that these parties have become so estranged that it will be impossible for them' to resume their relations as husband and wife. We think that this record presents a case for the exercise of the discretion conferred by the statute to grant to complainant a divorce from the bonds of matrimony, and deem it for the interests of the parties so to do. We think that under the provisions of Act No. 324, Pub. Acts 1907 (3 Comp. Laws 1915, § 11399), it is the duty of this court to grant to the complainant an absolute divorce, following the practice of this court in Horning v. Horning, 162 Mich. 130, 132 (127 N. W. 275), and Coon v. Coon, 163 Mich. 644 (129 N. W. 12).

The decree below will also be modified in this regard: The homestead, consisting of lot 1 of block 10 of N. Ludington Company’s First Addition to Menominee, will be assigned and decreed to the said complainant as her sole, separate, and absolute property in fee. This provision is made in lieu of the dower of the wife in the real property of the defendant, and such provision shall be in full satisfaction of all dower and other claims that complainant may have in any property or real estate which the defendant owns,- or may hereafter own, or in which he may have any interest.

Pending the appeal in this court the defendant has been paying by our order to the complainant the sum of $25 per month since the date of the decree of the court below. The decree of this court will provide that the defendant shall hereafter until further ordered pay to the complainant the monthly sum of $20, the exact time of payment to be fixed by the decree, and for the payment of the same complainant will have a lien upon all the remaining real estate of the defendant. It will be observed that this provision will release to the defendant the other real estate set over to the complainant by the court below.

After the case reached this court $100 was allowed for solicitor’s fees and expense of appeal. A further solicitor’s fee of $30 in this court will be paid to complainant’s solicitor by the defendant, and the same will be provided for in the decree.

The decree below, as thus modified, will be affirmed.

Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    SERRILL v. OXTOBY.
    1. Wnxs — Trusts—Estates op Decedents.
    In a suit to require trustees under the will of Thomas McGraw to account to the complainant beneficiaries for certain bequests, payable after all debts and demands of every kind against the estate had been fully paid, as declared by the terms of the bequest, which was contingent on the estate having sufficient property left after paying the claims and an annual allowance to the wife and daughter, held, that, by the provisions of the testament a certain office building known as the McGraw building was intended by testator to be maintained and improved and if its maintenance or development required additional incumbrances, which operated as an indebtedness, or if the payment of claims made it necessary to increase or renew the mortgage already existing against the building, it should be treated as debts or demands against the estate within the intent of said legacy; and as the mortgage had heen re-funded for such purpose complainants could not recover their bequests. Also, held, that the execution of the will required the trustees to continue to act and supervise the management of the building and other property.
    2. Same — Construction.
    The intent of the testator should be discovered from the four corners of the will, and all provisions be harmonized, if possible. Its construction may not be affected by events that transpire after its execution.
    Appeal from Wayne; Hosmer, J.
    Submitted January 17, 1916.
    (Docket No. 86.)
    Decided March 31, 1916.
    Bill by Jeannette Serrill and others against James V. Oxtoby and others, trustees under the will of Thomas McGraw, deceased, for a decree construing the will of said Thomas McGraw, for an accounting, and for further relief. From a decree for defendants, complainants appeal.
    Affirmed.

      Lewis A. Stoneman (Orla B. Taylor, of counsel), for complainants.

      Oxtoby & Wilkinson, for defendants.
   Stone, C. J.

This is an appeal from a final decree of the circuit court of the county of Wayne, in chancery, dismissing the bill of complaint. The bill of complaint states that Thomas McGraw, a resident of Detroit, died October 11, 1897, leaving a last will and testament and two codicils thereto, which were duly admitted to probate. The will is a very lengthy instrument, and we content ourselves with giving an abstract of it as stated by counsel for appellants:

Testator in paragraph 1 of the will, after vesting his property in the trustees named, directs the trustees, out of the proceeds of the sale of his property (excepting the McGraw Building and the homestead) and from the income of the estate, as follows:

“* * * Said trustees shall until all debts and claims against my estate are fully settled and paid pay quarterly to my beloved wife, Sarah I. McGraw, at the rate of three thousand dollars ($3,000.00) per annum for her support and maintenance, and shall pay quarterly to my daughter, Ivy F. McGraw, or to her guardian for her, if she shall then be a minor, at the rate of fifteen hundred dollars ($1,500.00) per annum, for her education, support and maintenance,” etc.

The wife’s annuity was increased by codicil made one week after executing the will to $5,000 per annum. The testator in the same paragraph directed the trustees to pay several other small annuities, and keep up the law library in the McGraw Building, pay pew rent to St. John’s Church, pay the taxes and keep up the necessary repairs on the homestead and the McGraw Building, and provided that the provisions in favor of his wife, daughter, and the other annuitants named were to be personal, and to cease as to each of them with her or his death.

Paragraph 2 authorized the erection of a monument by the trustees, at such cost as their judgment should dictate, to be paid for out of the income of his estate, and as part of the expenses for administering the same.

Paragraph 3 referred to the care and management of the estate, and suggested that Homer McGraw should devote his time to its management.

Paragraph 4 authorized the trustees, in their discretion—

“to erect one or more additional stories upon the top of the said McGraw building, this to be done out of a fund to be accumulated out of the net income, and they are at liberty for this purpose, if in their judgment it shall be best, to delay the payment of the principal of the incumbrances on said premises; my present judgment is that probably within say five years after my decease such erection would be profitable, but with this suggestion, I leave the matter in the discretion of my said trustees are hereby authorized to rebuild or be destroyed, or partly destroyed by fire, or otherwise, my said trustees. In case said McGraw building shall reconstruct the same.”

Paragraph 5 is as follows:

“The residue of the proceeds of said sales, and the net income of said estate, shall be used to pay all my just debts, and upon the payment of all other debts, the same shall be applied as fast as may be, and set aside and accumulated to be applied as fast as may be, to the payment of all mortgages and incumbrances which may exist on said McGraw building property, and on my said homestead.”

Paragraph 6 related to the erecting of a memorial fountain—

“after all my debts and mortgages and all incumbrances on my estate are fully paid, and when the net income of my estate shall have reached the sum of my said trustees shall set aside at least twenty-five twenty-five thousand dollars ($25,000.00) per annum, hundred ($2,500.00) a year until the sum of about fifteen thousand dollars ($15,000.00) shall be accumulated” for such purpose.

Paragraph 7 related to the use of the homestead by the wife and daughter. It provided for the free use-of the same until the death of both of them, and then to go to the children of the daughter. This paragraph was changed by the second codicil dated August 15, 1896, which provided that upon the death of the wife the homestead should at once fall into and become a part of the residuum of the estate, to be treated and disposed of as such.

The eighth paragraph of the will was as follows:

“After all debts and demands of every kind against my estate are fully paid, said trustees shall pay 1 percent. of my annual net income to each of the following institutions of the city of Detroit, viz.: St. Luke’s Hospital, Harper Hospital, Home of the Friendless and Woman’s Hospital and Foundling’s Home, to be used and applied solely for purposes as follows, viz.: To fully defray the expenses so far as the same may go of one or more indigent and deserving persons, as the officers of said institutions shall respectively select; of the remainder of the annual net income of my estate, if the same shall be but ten thousand dollars ($10,000.00) or less, my said trustees shall pay three-fifths (3/5) thereof in quarterly payments to my said wife during the term of her life, and two-fifths (2/5) thereof in quarterly payments to my said daughter during the term of her life; if the said remainder of my annual net income be over ten thousand dollars ($10,000.00) said trustees shall pay quarterly to my said wife during her lifetime at the rate of five thousand dollars ($5,-000.00) per annum, and as much more as shall with said five thousand dollars ($5,000.00) equal one-third (1/3) of the net yearly income of my said estate, and pay quarterly to my said daughter, Ivy F. McGraw, during her lifetime at the rate of five thousand dollars ($5,000.00) per annum, and as much more as shall with said five thousand dollars ($5,000.00) equal one-third (1/3) of the net income of my said estate, and until the final distribution of my estate as hereinafter provided shall continue the payments of the annuities to the said Elizabeth Ford, Mary Ann Williams and James Henry Selden in amounts and manner as above provided and in the event of the death of the said Elizabeth Ford, the annuity payable to' her shall be paid to her daughter, Mary Ford, if living, and in the event of the death of said Mary Ann Williams the annuity payable to her shall be paid in equal shares to such of her daughters, Jane, Arvilla, Robie and Josephine as shall be then living.
“The above provisions in favor of my wife are intended to be in lieu of her dower interest in my estate, and are to be received and accepted by her in lieu thereof and in full of all her claims against my said estate.
“The payments above provided to be paid out of the income of my estate to my said daughter, Ivy F., shall be payable only to her or her legally constituted guardian and shall in no event be assignable by her, and an assignment by her of any portion of such income shall render null and void to that extent the provision of this will for the payment thereof to her. and the same as to the payments above provided to be made to the said James Henry Selden.
“Upon the death of my said wife said trustees out of the gross income of said estate shall pay the expenses of her funeral and burial in proper and fitting manner and of the inscription of her name upon the monument above provided for.”

Paragraph 9 directs that the estate shall not be closed until the death of the wife and daughter, and in case of the death of the daughter before the death of the wife, it provides that during the remainder of the life of the wife the annuity provided for the daughter shall be divided among her children# share and share alike.

Paragraph 10 provided that upon the death of both the wife and daughter, and after the payment of all his debts, the estate is to be distributed, provided for the disposition of his law library, and directed that 1 per cent, of the residue be given to each of four hospitals, and one-third of the remainder to the children of his daughter, and of the residue Homer McGraw is to receive one-third, and the remainder divided into five parts, to be given to other devisees named.

Paragraph 11 referred to the appointment of his trustees, and in case of vacancy in the trusteeship provided for filling the same.

The twelfth paragraph nominated the executors, .who were the same persons that had been named as trustees.

Testator’s widow, Sarah I. McGraw, is still living, and 92 years of age. His daughter, Ivy McGraw Serrill, died March 8, 1913. The estate therefore is still vested in the trustees, and- will remain so until the death of the widow. The complainants are the children of said daughter, Ivy McGraw Serrill, and Joseph M. Serrill, her husband, who is the administrator of her estate. The defendants are the trustees, and the other annuitants and residuary devisees named in the will.

Upon the admission of the will and codicils to probate Homer McGraw, Hoyt Post, and Charles E. Swales, the executors named therein, qualified and continued to act as such, with the exception of Charles E. Swales, who died in August, 1905, until discharged as hereinafter stated. The executors filed an inventory of the estate in the probate court on November 15, 1897, showing assets to amount of $297,403.59.

The property of the estate so inventoried consisted of real estate in Detroit, including the McGraw Building and the lots upon which the same stands, at the southwest corner of Griswold street and Lafayette boulevard, the homestead at 1085' Woodward avenue and some vacant lots, as well as a considerable amount of personal property. Commissioners on claims were appointed, and later made a report, wherein claims to the amount of $197,867.45 were allowed. The report of the commissioners shows that all the mortgage indebtedness of said deceased, and particularly a claim of $125,000, and accrued interest due on a mortgage on the McGraw Building, and a claim for $7,500, and accrued interest due on a mortgage on the homestead, were presented as claims against the estate, and all such mortgage indebtedness, with accrued interest, was duly allowed by said commissioners as claims against the estate. After the executors took possession of the estate in Novembér, 1897, they proceeded to pay the debts of the deceased, and the claims allowed against the estate by selling some of the property and using some of the assets, and the income of the estate for that purpose. On april 17, 1899, the executors filed a petition in the probate court in which they stated that personal estate to the amount of $111,-019.41 had come into their hands. Of this amount $60,000 of property remained undisposed of, consisting partly of the McGraw Library, about $50,000 of capital stock of the Globe Tobacco Company, some Union National Bank stock, and bills receivable, and represented to the court that it was not a favorable time to dispose of the personal property without considerable loss, for the purpose of paying the outstanding just debts of the deceased, the balance pf which then amounted to $184,507.96, and that the charges of administering the said estate would amount to $6,-673.50, and showed to the court that it was necessary for the purpose of paying the outstanding debts and charges against the estate to raise the sum of $165,000 by mortgaging the real estate, or some part thereof of which the deceased died seised. The petition represented that on the parcel known as the “McGraw Block” there was a mortgage of $125,000, of which $50,000 fell due December 1, 1897, and the residue December 1, 1899, and that the same bore interest at 5 per cent, per annum; that the additional $40,000 proposed to be raised was for the purpose of paying certain other claims therein named, some of which bore interest at 5 and some at 6 per cent. Said petition contained the following statement:

“Your petitioners have an opportunity now to borrow on said ‘McGraw Block’ the sum of $165,000 for five years, at the rate of 41/2 per cent, interest, payable quarterly, with the privilege of paying installments of principal on any interest day. This will enable your petitioners to fund nearly all the debts of said estate at a low rate of interest, and to hold all the personal estate until the most favorable time to dispose of the same, and to use the proceeds of any sale within a short time after the same may be made to decrease the principal of said mortgage.” ,

Notice of hearing of this petition was duty, advertised, and on May 9, 1899, upon the hearing thereof, the probate court granted the executors license to raise said sum of $165,000 upon the bond of said executors, secured by a mortgage upon the McGraw Building, for the purpose of paying the debts of the deceased and the charges of administering said estate. The executors immediately borrowed the said sum of $165,000 by bond and mortgage upon the McGraw Building, and paid all of the remaining debts and claims against said estate which were allowed by the commissioners on claims, including the $125,000, and accrued interest, due on mortgage on the McGraw Building, and the claim of $7,500, and accrued interest, due on mortgage on the homestead.

After all the debts and claims against the estate as allowed by the' commissioners had been settled and paid, the executors continued to act as such until January, 1909. On January 13, 1909, the executors filed their petition in the probate court, in which they stated that they had filed their final report,/and asked that the residue of the estate be assigned to them as trustees. On January 15, 1909, the final account of the executors was approved, the estate closed, and an order was entered in the probate court reciting the facts that upon hearing, it appearing that the debts and legacies of said deceased, the funeral charges, and ex-' penses of administration having been paid in full and the said estate fully administered, the residue of the estate be assigned to the trustees in accordance with the provisions of the will.

Homer McGraw and Hoyt Post qualified as such trustees under the will, and the residue of the estate was assigned to them, as the survivors of the trustees named in the will. They'took possession of the said estate for themselves and their successors in trust, and the management thereof, without filling the vacancy caused by the death, of Charles E. Swales until the death of Hoyt Post in January, 1912. Thereafter William H. Brace and James V. Oxtoby were appointed and qualified as trustees to succeed Charles E. Swales and Hoyt Post. Upon the death of William H. Brace in January, 1915, Kalph Stone was appointed and qualified as his successor. Homer McGraw died in January, 1915, and since then no one has been appointed Ms successor, and therefore the estate is now managed by the defendants Oxtoby and Stone.

Since the death of Thomas McGraw the executors, until the year 1909, when the residue of the estate was assigned to the trustees, and since then the trustees, have paid to Sarah I. McGraw, the widow of the deceased, the sum of $5,000 per annum, and to Ivy Mc-Graw Serrill, daughter of deceased, until her death in 1913, and since then to her children, the sum of $1,500 per annum; these being the annuities provided for by the provisions of paragraph 1 of the will and the first codicil. The complainants contend, however, that the provisions of paragraph 1 of the will, which provided for such annuities “until all debts and claims against my estate are fully settled and paid,” etc., became inoperative after the payment of all claims and demands against the estate as allowed by the commissioners on claims in 1899, and that since that time the provisions of paragraph 8 of the will, which provides for the payment of increased annuities “after all debts and demands of every Mnd against my estate are fully paid,” became operative, and that the increased annuities as provided for by paragraph eight should have been paid. The bill of complaint was filed to secure the proper annuities which complainants claim are due them' under the provisions of said paragraph 8.

There is necessarily involved an interpretation of the terms of the will, and, should the will be construed as contended for by complainants, there must follow an accounting by the trustees in order to determine what the net income of the estate has been since the time the claims and demands as allowed by the commissioners have been paid. No question is raised as to the jurisdiction of the court.

Counsel for complainants say in their original brief r

“The vital question in this case is whether or not the provisions of paragraph 8 of the will have become operative, and, if so, at what time. The complainants contend that paragraph 1 of the will, under provisions of which they have- been receiving an annuity of $1,500 since the death of Thomas McGraw in 1897, ceased to-be operative upon the payment by the executors in 1899 of all the just debts of the deceased which were allowed by-the commissioners on claims, and that since the payment of those debts the provisions of paragraph 1 of the will ceased to be operative, and that thereafter the provisions of paragraph 8 of the will became operative; that since the year 1899 testator’s daughter, Ivy McGraw Serrill, and her children since the time of her death, should have received the annuity provided for by paragraph 8 of the will, namely, two-fifths of the annual net income if the same was $10,000 or less, and one-third thereof if the same was more than $10,000.”

Counsel for complainants urge in argument that testator had a twofold plan in mind in making his will; that it was his intention to give the bulk of his estate to certain persons named in the will as the residuary devisees after the death of his wifé and daughter, but during the lives of the wife and daughter he intended that each of them should be provided with an annuity out of the income of his property; that it was not the intention of the testator in making his will to create a trust for the payment of his debts; that his mortgage indebtedness might be proven as a-claim against the estate, as happened, and have to be paid, or the estate might vest subject to the mortgage indebtedness; that he did not intend to create a trust for the payment of the debts, and thereby increase the body or capital of the estate by reducing the indebtedness for the benefit of the residuary devisees and at the expense of the life beneficiaries or annuitants, but that it was his intention that the residuary devisees should take the same body or capital of the estate that existed at the time of his death, unless it would be increased by the application of the residue of the net income of the estate after the provisions of paragraph 8 of the will were complied with; that it was the testator’s dominant purpose to provide for the comfortable support and maintenance of his wife and his daughter during their lives, and for the children of his daughter in case of her death during the life of Mrs. McGraw, and also to provide small annuities for his sisters and their children, and for his stepson; and that this dominant purpose to provide so particularly for the comfort and maintenance of the wife and daughter is apparent, as upon the death of both the trust terminates, and the estate is to be distributed. In very lengthy and able briefs and in oral arguments counsel for both parties have called attention to, and have discussed the different paragraphs of the will.

On behalf of the trustees, after referring to the placing of the new mortgage of $165,000 by license from the probate court, counsel say:

“The issue in this case is whether by this action of the executors ‘all debts and demands of every kind’ against the estate were fully paid within the meaning of paragraph 8 of the will, so that increased annuities to his widow and daughter were thereby made payable, or whether the debt secured by the mortgage was a debt or demand within the meaning of the will. * * *
“The questions involved in this case are to be . determined by testator’s intention, as evidenced by his will. His wishes expressed or necessarily implied are to be carried out.
“The trustees claim that when the $165,000 mortgage on the McGraw Building was given, and the old mortgages on the building and homestead, and the other debts were paid from its proceeds, testator’s debts had not been paid within the meaning of the will.
“The trustees claim, further, that what the executors did by way of raising money by mortgage to pay debts has no bearing on the construction of the will; that the will must be construed independently of what the executors did; that the respective rights of life beneficiaries and remaindermen cannot be affected by the fact that the executors paid off claims allowed by the commissioners with money -borrowed from other sources, instead of paying them from the income and sale of property as directed by the will. * * *
“But it is not merely the debts of the deceased which are required to be paid before the annuities are to be increased. The expression in paragraph 8 ‘all debts and demands of every kind against my estate’ is of broader significance. The ‘estate’ of a deceased person means the property, real and personal, of the deceased, and the title by which it is held, but particularly the property itself. Debts and demands against an estate are all those items which are a charge against the property, and are payable out of it, or the income or proceeds of it. The expression in paragraph 8 included, therefore, not only the debts of the testator, but also all charges or incumbrances lawfully created by the executors or trustees in the administration of their trust.”

Counsel then call attention to authorities to the effect that the word “demand” is more comprehensive than any other word in the law, with the exception of the word “claim,” with which in its broader sense it virtually corresponds, and that the addition of the words “of every kind” in the will indicates that the word “demands” is to be given its broadest signification, citing 9 Am. & Eng. Enc. Law, 198; State v. Baxter, 38 Ark. 467; Bouvier’s Law Dict.; Wiseman v. Wiseman, 73 Ind. 112-116 (38 Am. Rep. 115) ; Mayberry v. McClurg, 51 Mo. 256-261; and other authorities.

It is urged that the $165,000 mortgage securing an obligation (bond) executed by the executors falls within the expression “demands of every kind against my estate,” and that, if any personal element is required to fill out the definition of the word “demands,” this is supplied by the obligation signed by the executors, and which was secured by the mortgage. Counsel for complainants argue that it was not testator’s intention “to create a trust for the payment of his debts.”

Counsel for the trustees reply:

“We claim to the contrary. The trust created by the will was both a trust to provide for his wife and daughter, and also to provide for the payment of debts. In so providing testator had in mind first the care of his wife and daughter. Their annuities were to be paid first. The trust was to continue only during two lives. It was not to continue after their death, even though debts were still then outstanding.”

It is a significant fact that the second codicil was made in 1896. At the date of this codicil (which operated as a confirmation of the will except as modified) testator knew that of the mortgage on the McGraw Building $50,000 would fall due in one year, and the remaining $75,000 in two years thereafter, and that the executors would possibly find it necessary to replace this mortgage with a new one. He accordingly, in the direction in paragraph 5 relative to the “payment of all mortgages and incumbrances which may exist,” probably had in mind that these “mortgages and incumbrances” might consist of renewed mortgages.

In considering this will the intent of the testator must be gathered from the four corners of the instrument, and the court should harmonize all of its provisions, if possible, to carry out the intent of the testator. Wales v. Templeton, 83 Mich. 177 (47 N. W. 288); Stebbins v. Stebbins, 86 Mich. 474 (49 N. W. 294); Gregory v. Tompkins, 132 Mich. 205 (93 N. W. 245); Foster v. Stevens, 146 Mich. 131 (109 N. W. 265). Another well settled rule is that the constructión of* the will should not be varied by events subsequent to. the execution of it.

Manifestly, testator contemplated that there might be mortgages upon the property after the trustees were in charge. He evidently did not expect that the mortgages would be presented as debts to the commissioners on claims. They were presented and they constituted a debt which he owed at his death. The new mortgage placed by the executors , constituted a demand against the estate.

An examination of the will satisfies us that one of the dominant purposes of the testator was to keep the McGraw Building in proper condition, and to improve and preserve it, and to pass it on to the residuary devisees and he authorized its rebuilding in case it was destroyed by fire or otherwise. If in its improvement it became necessary to postpone the payment of the principal of the incumbrances, he authorized that to be done. It will be remembered that the complainants, who are the children of Ivy McGraw Serrill, are entitled to share in the residue of the estate to the extent of 32 per cent, thereof. It cannot be said that testator did not have that fact in mind.

After duly considering the entire case, we are led to agree with the circuit court, wherein it found that all debts and demands of every kind against the estate of Thomas McGraw, deceased,

“are not fully settled and paid within the meaning of the terms of said will, and that the increased annuities provided for in paragraph 8 of said will to Sarah I. McGraw (the widow of said testator), and to Ivy Mc-Graw Serrill (and her children) are not yet properly payable by the trustees under said will, and that complainants are not entitled to the accounting prayed for in their bill.”

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

Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.