text:
    STEELE v. CITY OF IONIA.
    1. Appeal and'Error — Admissions Otherwise Proved.
    If it was error for the trial court to refuse to receive in evidence the files of a chancery case, offered for the purpose of showing certain admissions of defendant in its answer therein, it was without prejudice where said admissions were either established by other testimony or ' are such that the conclusion of this court would not be changed thereby.
    2. Municipal Coeporations — Surface Waters — Flooding Lands —Torts—Liability.
    In this State a municipal corporation is liable, as is a private individual, for damages caused by concentrating and pouring surface waters upon the land of another through artificial channels in greater quantities and with greater velocity than would be natural.
    3. Witnesses — Adverse Witness — Defendant Entitled to Benefit of Undisputed Testimony.
    While a plaintiff is not bound by the testimony of an adverse witness called under the statute (3 Comp. Laws 1915, § 12554), but may dispute his testimony, yet such testimony as is undisputed, given upon his examination by defendant’s counsel, must be treated as though introduced by defendant from a witness originally called by him, and defendant is entitled to its benefit.
    4. Municipal Corporations — Waters and Watercourses — Surface Waters — Directed Verdict.
    Evidence examined, and held, insufficient to make out a case for the jury on the theory that by laying out its streets, paving them, and improving them, defendant city had caused the surface water to flow upon plaintiff’s land in excess of its flow in a state of nature.
    5. Same — Negligence—Evidence—Sufficiency.
    Evidence examined, and held, insufficient to go to the jury upon the theory that defendant city had been negligent in the construction and maintenance of a certain sewer.
    On liability of municipal corporation for damming back surface water by grading of street, see notes in 65 L. R. A. 250, and 29 L. R. A. (N. S.) 126.

      6. Nesiigence — Evidence—Sufficiency.
    In negligence cases tbe happening of the accident alone is not proof of negligence, and in order to recover there must be substantial proof of defendant’s negligence.
    Error to Ionia; Perkins (Willis B.), J., presiding.
    Submitted January-14, 1920.
    (Docket No. 86.)
    Decided April 10, 1920.
    Case by Nancy J. Steele against the city of Ionia for damages for an alleged flooding of plaintiff’s land. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Hawley & Eldred, for appellant.

      F. C. Miller (R. A. Colwell, of counsel), for appellee.
   Fellows, J.

Grand river pursues a somewhat sinuous course through the city of Ionia. It is some distance south of the tracks of both the Grand Trunk and Pere Marquette railroads. Plaintiff is the owner of two pieces of bottom lands denominated in the record the “west piece” and the “east piece.” They are some distance apart but of the same general character. The west piece lies between the right of way of the Grand Trunk and the river, and is bounded on the west by Steele street and on the east by lands of one Gresezkowiak. The east piece extends from the Pere Marquette right of way to the river and is bounded on the west by the river and Mill street and on the east by Cleveland street. On both pieces the land at the river bank is higher than it is away from the river and both pieces have a low portion,' spoken of by some as a “basin,” “bowl,” and like terms. Plaintiff’s lands were originally purchased by her husband in 1886, but were sold on 'mortgage foreclosure some time in the nineties and were bid in by her. Mr. Steele has had the management of them since she became the owner. The first street north of the Grand Trunk station grounds is Fort street; the next east and west street is Main street, the principal business street of the city. North of Main street are hills and bluffs, the testimony tending to show that the rise is quite marked and in some cases abrupt. There are several north and south streets running to or crossing Main and Fort streets and several other east and west streets in the city.

July 17, 1917, an extraordinarily severe storm visited Ionia. Both pieces of plaintiff’s low lands along the river had been planted to crops which she claims were damaged or completely destroyed, the crops that were drowned being mostly, if not entirely, those in the depressions or basins to which we have referred. This action is brought against the city of Ionia to recover for such damages, the theory of the plaintiff being that by the improvements which the city has made in its streets — paving them, constructing gutters and other improvements — it has caused the waters of the city to be cast upon her lands as such waters would not be cast in a state of nature and that under such circumstances the city is a trespasser; it is further insisted that the defendant is liable for the negligent construction, maintenance and operation of its Fort street storm sewer. At the close of plaintiff’s proofs the trial judge directed a verdict for the city and plaintiff brings the case here.

Plaintiff’s counsel assign one error upon the refusal of the court to receive the files in a certain chancery case. The balance of the errors assigned are upon the action of the court in directing a verdict for the defendant and refusing to submit the case to the jury. We shall first consider the ruling of the court refusing to admit the chancery files with a statement of some of the facts leading up to that case.

On or near the line between plaintiff’s west piece and the Gresczkowiak land is an old ditch called in the record and named on the maps “old open drain.” We do not find support in the record for the claim of . plaintiff’s counsel that this was at one time a natural water course, but the record does disclose that it has existed a great many years. The record likewise discloses that the Grand Trunk Railway Company and its predecessor maintained for a great many years and probably from the time the railroad was con-' structed either a wooden culvert or an iron pipe under its tracks for the purpose of draining off the surface water on its grounds; at one time it had two such openings under its track but at the time of this controversy one of these openings had been closed. The water from the opening or openings went into the old open drain and also upon the lands of both Gresczkowiak and plaintiff. The testimony shows that for a great many years plaintiff’s husband complained to the officers of the city against the flooding of plaintiff’s lands and on June 7, 1905, the council of the city directed the opening of a ditch across “Mr. Steele’s lands” south of the (then) D. & M. depot. The testimony fairly discloses that the parties had the old open drain in mind and that its cleaning out and deepening was in contemplation. Mr. Gresczkowiak, claiming that such action flooded his lands and brought down and deposited sewage of the city and created a nuisance upon them and did him irreparable injury, filed his bill for an injunction. To this bill the city made answer and the case went to a hearing upon its merits resulting in a decree for Mr. Gresczkowiak, granting an injunction, and requiring the city to fill up the ditch where it had been dug out. It should be stated for the purpose of completing the facts with reference to that litigation that after the entry of the decree in that case the city constructed the Fort street storm sewer for the purpose of taking care of the water in that part of the city. In the instant case plaintiff’s counsel offered the files in the Gresczkowiak case, the purpose being to show admissions of defendant made in the answer in that case. The trial judge refused to receive them and error is assigned on this action. A résumé of the pleadings and decree in that case appear in this record. We have examined it and do not find in the answer any ádmission by the defendant of any fact which the'plaintiff has not established upon the record in the instant case by other testimony or anything that would change the conclusion we have reached. Under such circumstances if there was error in this ruling of the trial judge, a question we do not decide, it was without prejudice to the plaintiff.

While defendant urged several grounds for its motion for a directed verdict, and as to certain of them counsel differ as to the applicable legal principles, they do not seem to disagree upon the rule that while one may dispose of the surface waters upon his land he may not concentrate the waters and pour them through artificial ditches in greater quantities and with greater velocity than would be natural, or as sometimes stated, one is entitled to receive the waters as they were wont to flow in their natural state. It also seems to be agreed that in this jurisdiction a municipal corporation is within the rule stated and is liable as is a private individual for casting surface water in violation of such rule. We need, therefore, spend no time in considering authorities upon these questions. What counsel disagree about is whether upon this record the plaintiff has made a case establishing liability on the part of the defendant under the rule which both parties seem to agree upon. In other words, Has the plaintiff by the testimony introduced shown prima facie that the defendant has cast water upon her lands to a greater extent than they would have been cast in a state of nature?

A Mr. Girard who had for 19 years been water commissioner of the city, having charge of its waterworks and sewers, was called by plaintiff as an adverse witness under the statute (3 Comp. Laws 1915, § 12554). After plaintiff’s counsel had completed his cross-examination, the witness was fully examined by defendant’s counsel before the motion for a directed verdict was made and much important testimony was given by him. We do not understand counsel to agree fully as to the force to be given this witness’ testimony. It will be sufficient that we say that under the terms of the statute plaintiff was not bound by the testimony of this witness and was at liberty to call such witnesses as she desired to dispute his testimony, but as to such testimony as this witness gave upon his examination by defendant’s counsel as is undisputed, it must be treated as though introduced by defendant from a witness originally called by him with the same benefit as though the witness was examined, in the first instance by defendant’s counsel. In other words, while plaintiff was not bound by anything this witness testified to, and could dispute all testimony given by him, this did not deprive the defendant of the right to examine him as its witness or to the benefit of the testimony given by him upon such examination. Such facts as were testified to by him upon such examination and which are undisputed must be given the same effect as though elicited from a witness originally called by defendant. All of the witnesses except Mr. Girard were of plaintiff’s selection.

A careful reading of this ample record (and it has been read a second time to insure that nothing has been overlooked), the undisputed physical facts which we are bound to consider, the maps which show the location of streets and sewers and open drains, all convince us that (1) not only has plaintiff failed to establish that the defendant city cast water upon plaintiff’s lands in greater quantities than would flow there in a state of nature, but that (2) the physical facts and the testimony affirmatively establish that within the memory of the witnesses who speak on the subject this bottom land of plaintiff has until the putting in of the Fort street sewer always been flooded, and (3) that the physical facts corroborate the testimony of two witnesses that much less water now goes down upon the plaintiff’s lands than flowed there in a state of nature and before the city put in a sewer system and thus made provision for the care of surface water.

The levels taken by plaintiff’s engineer corroborate ■the testimony of her witnesses that the natural drainage of the entire watershed was upon and over those bottom lands of which plaintiff’s lands form a part. Mr. Steele bought these lands in 1886 and testifies to putting in tile soon after that, but he does, not claim that he made any attempt to cultivate them until 1903, and his complaints to the city about the flooded condition of this bottom land were substantially contemporaneous with his efforts to cultivate them. The testimony of plaintiff’s witnesses, establish that before the installation of the Fort street sewer the lands of plaintiff and particularly those portions where the crops were destroyed by the rain of July 17, 1917, were grown up to willows, cattails and quackgrass and there is some testimony from these witnesses that water stood on such lands the entire year. The claim of the plaintiff that the excessive amount of water which came upon her land on this particular occasion in 1917 was due solely to the opening and improving of streets and the installation of gutters along their sides is met by the undisputed fact that these streets, improvements and gutters have existed for many years —25, 30, 40, 50, and even 60 years. During these .years the waters from this watershed have come upon plaintiff’s east piece through an opening under the Pere Marquette and upon the west piece through an opening under the Grand Trunk; and during the memory of all the witnesses who speak on the subject both of the pieces have been flooded, at least until the Fort street sewer was built. As applicable to the east piece the map showing the sewer system shows sewers upon the following east and west streets: LaFayette, Washington, Main and Bayard, and upon the following north and south streets: Cleveland, Jefferson and Mill streets, the Mill street sewer being very close to plaintiff’s east piece. The two maps submitted on the hearing both show a building erected on plaintiff’s east piece upon, and entirely obstructing, an old drain which was evidently used before plaintiff’s building stopped such use, to carry off surface water. As applicable to the west piece such map shows sewers on the following east and west streets: LaFayette, Washington, Main and Fort streets, and the following north and south streets: Rich, Kidd, Church alley, Depot street, First, and two alleys. Some of these sewers are open, some are storm sewers and some sanitary sewers. Their waters are taken by the Fort street, sewer to the Dexter street sewer from whence they flow into the Grand river some little distance west of plaintiff’s west piece. The undisputed testimony shows many catch basins along the route of the covered sewers which gather the surface water not only from the streets named but also from many others, many street crossings having as high as four catch basins, one at each corner.

Upon this testimony and with these physical facts in the case should the court permit the jury to speculate, conjecture and theorize that notwithstanding all • the provisions made by the city to take care of the surface water, nevertheless the city by laying out its streets, paving them, and improving them, had caused the surface water to flow upon plaintiff’s land in excess of its flow in a state of nature? We think not. Plaintiff failed to make out a case for the jury upon this theory.

Was there testimony justifying the submission, of the case to the jury upon the theory that defendant had been negligent in the construction and maintenance of the Fort street sewer? A witness was called by plaintiff who testified to some experience in constructing sewers and probably qualified himself to testify on the subject. He assumed that the Fort street sewer went into the Dexter street sewer at right angles, and that it curved around the Grand Trunk depot at an acute angle, and based upon such assumption testified that it was faulty construction; but upon cross-examination he testified:

“Q. You say you don’t know how they came together?
“A. Ditch was dug at right angles.
“Q. You don’t know how they came together or how they were put in?
“A. No, not really, I don’t.”

As against the testimony of this witness, who really did not know how the same was constructed, is the positive testimony of Mr. Girard who put in the sewer that' it “doesn’t turn at right angles. Sewers are never turned at right angles, turned with a curve,” and the map of the city engineer which shows the curve at the station to be as stated by Mr. Girard and as claimed by the defendant. There is some testimony that on occasions some of the gratings of the catch basins became, temporarily obstructed by articles coming down with the water in the street but there is no testimony that these conditions were anything but temporary happenings or that the gratings were stopped up long enough so that notice to the city could be presumed. In negligence cases the happening of the accident alone is not proof of negligence and before the defendant here may be called upon to respond in damages upon the theory that it has been negligent there must be something more substantial in the testimony than appears in this record.

We are persuaded that plaintiff has failed to establish a case under either theory and that the judgment should be affirmed.

MoGre, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    HARNAU v. HAIGHT.
    1. Fraudulent Conveyances — Debtor and Creditor — Preferring Creditor.
    In this State, laying aside the Federal bankruptcy act, a debtor has the right to prefer one creditor to another, to use his property for the payment of one debt or of many debts to the exclusion of one or many creditors.

      2. Same — Transfer of Property for Value — Judgment Creditor’s Suit.
    The transfer by a debtor of his property to a corporation, and the use by him of the preferred stock received in part payment therefor to discharge his valid indebtedness was not a fraudulent conveyance voidable at the suit of a judgment creditor whose judgment remained unpaid.
    3. Same — Corporations—Receivers.
    Nor was the appointment of a receiver of the corporation justified upon the record.
    4. Same — Transfer of Stock Without Consideration Void as to Creditors.
    Where a debtor transferred all of his property to a corporation, receiving stock therefor, and, after paying certain of his creditors with preferred stock, still retained $48,000 of common stock which he voluntarily transferred to his wife without consideration, such transfer was void as to his remaining creditors.
    5. Same — Voluntary Payment oe Debt oe Another Void as to Creditors.
    Where said stock was assigned to the trustee of a trust mortgage given by the corporation to secure the payment of its debts, for which neither the debtor or his wife were in any way liable, said assignment was void as to his creditors; the trustee and parties secured by the mortgage having knowledge of the facts and being parties to the suit.
    6. Same — Equity—Jurisdiction—Personal Property — Stock.
    While courts of equity are not inclined to assume jurisdiction where the question of fraudulent transfer of personal property is involved, yet where the court already has jurisdiction of the matter, and the property involved is not tangible personal property which the sheriff could take into his possession on an execution, nor upon which he could make a levy because said stock does not stand in the debtor’s name, the court will retain jurisdiction for the purpose of finally disposing of the matter by setting aside the transfer of said stock and placing it in the name of the debtor, after whieb an alias execution may be issued upon plaintiff’s judgment and levied upon said stock in accordance with the statute.
    Appeal from Muskegon; Lamb (Fred S.), J., presiding.
    Submitted January 9, 1920.
    (Docket No. 49.)
    Decided April 10, 1920.
    Rehearing denied June 17, 1920.
    Bill by Peter Harnau against Louis P. Haight and others in the nature of a judgment creditor’s bill, a bill in aid of execution and a bill for a discovery. From a decree for plaintiif, defendants appeal.
    Reversed, and decree entered.

      Turner & Turner, for plaintiif.

      Carpenter & Jackson, for defendants.

      The material facts in this case are not seriously in dispute. Counsel do not agree, however, as to the inferences to be drawn from them. Defendant Louis. P. Haight for a number of years conducted a business of which he was sole proprietor under the name of “Muskegon Knitting Mills.” -The business grew and the amount of property used in the business increased. •In additipn to the property used in the business Mr. Haight had farm lands and other property. At times the business was prosperous and at other times it was operated at a loss. In 1914 Mr. Haight was considerably involved. He owed the Old National Bank of Grand Rapids, his father, the defendant A. S. Haight, his two brothers, the defendants F. E. Haight and C. S. Haight, and defendant C. B. Stowell, a friend, for borrowed money, and had in addition considerable commercial indebtedness. On October 27, 1913, the plaintiff suffered a personal injury due to the negligence of Mr. Haight. He brought a suit in the circuit court of Muskegon county and recovered a judgment of $3,000. Mr. Haight gave the usual bond and brought the case to this court where it was reversed (Harnau v. Haight, 189 Mich. 600). Upon the second trial plaintiff again recovered judgment which was not appealed from. In the fall of 1914, Mr. Haight consulted defendant Clay H. Hollister, president of the Old National Bank of Grahd Rapids, with reference to his financial matters. He had at that time practically decided to go into bankruptcy. Mr. Hollister advised against such move and it was finally arranged that a corporation should be organized to take over Mr. Haight’s business and property. The plan contemplated that Mr. Haight’s father, brothers and Mr. Stowell should accept' preferred stock of the corporation for their indebtedness, and that the bank should advance further credit to Mr. Haight, being secured for such advances and the amount then due by a trust mortgage to Mr. Hollister, as trustee, for its benefit and the benefit of Mr. Haight’s father and brothers who agreed to loan the company certain additional sums of money, the mortgage to cover the assets of the company. The plan was carried out and on November 28, 1914, the defendant corporation Muskegon Knitting Mills was organized with a capital stock of $100,000, divided into 1,000 shares of the par value of $100 each; $52,000 of preferred stock was provided for in the articles of association and it was subscribed for by Mr. Haight. Ten thousand dollars of this preferred stock was assigned to each of defendants A. S. Haight, F. E. Haight and C. S. Haight, and the balance, $22,000, was assigned to defendant Stowell in payment of their indebtedness. The common stock of $48,000 was subscribed for as follows: 48 shares to defendant Louis P. Haight, 480 to defendant Grace C. Haight, wife of Louis P. Haight, 1 to defendant Hollister, and 1 to defendant Foote. The shares issued to Hollister and Foote were qualifying shares and both have been surrendered. Some of the common stock issued to Louis P. Haight was after-wards transferred to his wife as trustee for their minor children and upon the trial Louis P. Haight claimed to be the owner of but one share of the common stock. After the organization of the corporation, Mr. Haight transferred to it all his property and' business. The trust mortgage to Hollister as trustee was afterwards executed.
    Plaintiff’s judgment upon the second trial was for $3,956.47. An execution' was issued upon it. Levy was made upon certain transferred real estate but the execution was returned wholly unsatisfied. Later this bill was filed. It partakes of the nature of a creditor’s bill, a bill in aid of execution and a bill for discovery. By it plaintiff seeks to subject the assets of the Muskegon Knitting Mills to the payment of his judgment and to avoid the transfer to it of Mr. Haight’s property. The trial judge who heard the case reached the conclusion that the transfer of Mr. Haight’s property operated as a fraud upon plaintiff’s rights and that a receiver should be appointed to take over the property of the corporation, to control and manage it as a going concern,—
    “* * * and to make use of the receipts and assets thereof for the following purposes and in the order given:
    “1. To take care of the running expenses of the plant.
    “2. To pay all legitimate expenses of the receivership.
    “3. To pay all claims and accounts secured and unsecured which have accrued subsequently to the incorporation of the Muskegon Knitting Mills, and now held by persons or parties who are not now, nor ever have been holders of any of the capital stock of the Muskegon Knitting Mills, either common or preferred and- who are strangers to this suit.

      “4. To pay the claims of the plaintiff in this case with interest and costs of suit to be taxed.”
    Defendants appeal from this decree.
   Fellows, J.

(after stating the facts). The case differs materially from that of Gr&nell v. Detroit Gas Co., 112 Mich. 70, which was much relied upon by the chancellor. In that case the Michigan Gas Company, against which complainant held judgment, transferred all its property to the defendant, which issued shares of stock to the stockholders of the old company. These shares were not used to pay the debts of the old company or any of them, and the corporation itself (Michigan Gas Company) received nothing for the transfer. In the instant case Mr. Haight transferred his property to the corporation for the shares of stock of the company. He was heavily in debt. Some of these debts the corporation assumed. In addition to the assumption of certain debts, he was paid for his property in stock of the corporation. The preferred stock of the corporation was issued to Mr. Haight and was used'by him to pay valid indebtedness. There is no question but that he owed his father, brothers and Mr. Stowell the amount he claims he did, and it is likewise beyond question that he used the preferred stock issued to him to discharge that liability. Under these circumstances the case cannot be distinguished from Scripps v. Crawford, 123 Mich. 173. In that case the trial judge made substantially the same decree as in this case, appointed a receiver to conduct the business of the corporation for the purpose of working off the debt of the judgment creditor; the defendant in that case had used the shares of the corporation to pay and secure certain of his individual creditors in preference to the complainant. In that case the court said, in reversing the decree of the trial court:

“The Union Trust Company accepted an assignment of the stock as collateral. It had a right to ask security and accept it, although the necessary and obvious consequences would be the delay of other creditors, if not their defeat. It might have done the same by taking a mortgage of the property before it was conveyed to the corporation, and other creditors could not have prevented it, or set aside the transaction as a fraud, so long as. there was no collusive attempt to aid Crawford in injuring others. It is not the province of a court to prefer creditors. That is a privilege of the debtor.”

And this but followed the settled law of the State, that, laying aside the Federal bankruptcy act, not there nor here involved, a debtor has the right to prefer one creditor to another, to use his property for the payment of one debt or of many debts to the exclusion of one or many creditors. Belding Savings Bank v. Moore, 118 Mich. 150, and authorities there cited; Gore v. Ray, 73 Mich. 385; Webber v. Webber, 109 Mich. 147; Kock v. Bostwick, 113 Mich. 302.

Unless we overrule the Scripps Cage and its sustaining authorities, we are bound to hold that the transfer by Mr. Haight of his property to the corporation, and the use by him of the preferred stock received in part payment therefor to discharge his valid indebtedness was not a fraudulent conveyance voidable at the suit of a judgment creditor whose judgment remained unpaid. We must likewise hold that the appointment of a receiver of the corporation was not justified. We have no disposition to question the holding- in the Scripps Case. It was correctly decided. It was followed and applied in Plaut v. Billings-Drew Co., 127 Mich. 11.

But we do not think the plaintiff is without remedy in this proceeding. Mr. Haight transferred all his property to the corporation, not only that which was necessary for corporate purposes, but a considerable amount not needed or useful for the purposes for which the corporation was organized. He furnished all the assets of the corporation and was entitled to all the stock of the corporation in payment therefor. As we have shown he took and used $52,000 of preferred stock to pay certain of his creditors and the corporation assumed payment of certain other debts. But the legal title to the $48,000 of common stock he diverted from himself and now has but one share which stands in his name. We are satisfied that the transfer to his wife of the common stock was without consideration and purely voluntary. By this transaction he has divested himself of the title to his tangible property, and the $48,000 of common stock received as part payment therefor has been voluntarily transferred to his wife. The result of these manipulations is to leave him without property upon which an execution could be levied — to make him execution proof. We are convinced that this was what he designed to do and that the purpose was to prevent plaintiff from realizing on his claim. We do not overlook the fact that Mr. Haight some months before the organization of the corporation gave the' usual stay bond on the first judgment. We must assume that he had some assurance from his attorney that there was reversible error in the proceedings or he would not have brought that case here. When the corporation was organized some months after the stay bond was given Mr. Haight so placed the common stock that in case of a reversal, and a judgment on a second trial, he would hold in his own name no property upon which a levy could be made. While Mr. Haight had the right to prefer one creditor over another and to use the stock received by him to pay bona, fide creditors in preference to liquidating plaintiff’s claim, he could not give his property to his wife without consideration to the detriment of those having valid claims against him.

We note from one of the exhibits in the record that the common stock has been assigned to the present trustee of the trust mortgage executed by the corporation. But neither Mr. nor Mrs. Haight was obligated in any way for the payment of any of the indebtedness secured by that instrument. The debts were the debts of the corporation either because originally contracted by it or because assumed. The trustee and parties secured by that mortgage all had notice of plaintiff’s claim, none of them can claim or do claim that the transfer of the stock by Mrs. Haight to the trustee gave them the rights of a bona fide holder; they are all parties to this case and before the court. Before this stock may be used to secure the debt of another for which neither Mr. nor Mrs. Haight is liable it should be applied to the payment of Mr. Haight’s'Valid debts.

We recognize that courts of equity are not inclined to assume jurisdiction where the question involved is one of fraudulent transfer of personal property. But under the peculiar facts of this case we think it should be exercised. The court has jurisdiction of the case and should retain it for the purpose of finally disposing of the claims of the parties. The property here involved is not tangible personal property which the sheriff could take into his possession on an execution, nor may he make a levy on any stock which does not stand in the name of Mr. Haight. Feige v. Burt, 118 Mich. 243. Under these circumstances we think the court should retain jurisdiction for the purpose of finally disposing of the matter.

The transfer of all the common stock is set aside .and the stock will be returned to Mr. Haight and will be placed in the name of Louis P. Haight upon the books of the corporation. Upon that being done an ialias execution may be issued upon plaintiff’s judgment and levied upon such stock in accordance with the statute.

It follows from what has been said that the decree of the court below will be set aside and one here entered in accordance with this opinion. The plaintiff will recover costs of both courts against Louis P. Haight and Grace C. Haight. The other defendants will recover costs of both courts against the plaintiff.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    GRUND v. FIRST NATIONAL BANK OF PETOSKEY.
    1. Appeal and Error — Equity—Disputed Facts — Duty Off Supreme Court to Determine Facts.
    While the Supreme Court, in considering a chancery case where the facts are in dispute, should, and does, give due weight to the findings of the trial judge, yet, hearing the case de novo, it is in duty bound to examine and determine the facts as well as the law.
    2. Trusts — Accounting—Evidence—Burden op Proof.
    In proceedings for an accounting by a trustee, where the trusteeship is admitted or established, it is the duty of the trustee to account for the trust funds received by him, and the burden of proof is upon him to establish the correctness of the account.
    3. Same.
    But where the existence of such trust relation, claimed by plaintiff, is denied by the defendant, the burden is upon the plaintiff to establish such relation before the burden of accounting is cast upon defendant.
    4. Same.
    In proceedings for an accounting for a sum of money borrowed from, and placed in trust with, defendant with which to pay for certain timber lands purchased by plaintiff, where it was plaintiff’s claim that defendant should stand the loss occasioned by a defective title, because he failed to hold the entire sum and pay only on delivery of deeds conveying a good title and an abstract showing that fact, while defendant claims that plaintiff knew that the title was in different parties and that it was agreed that as fast as deeds were procured they were to be paid for, evidence examined, and held, to sustain the claim of defendant.
    5. Same.
    Held, that plaintiff cannot complain of the fact that defendant took title to the land in his own name, where the testimony clearly establishes that it was agreed he was to do so, and hold the same as security for the money he had advanced to pay for it.

      6. Same.
    The holding of the court below that defendant was liable for certain of the defects in the title, held, not supported by a preponderance of the evidence, and decree entered in this-court dismissing the bill.
    Appeal from Charlevoix; Mayne (Frederick W.), J.
    Submitted January 28, 1920.
    (Docket No. 96.)
    Decided April 10, 1920.
    Bill by William Grund against the First National Bank of Petoskey and Chalmers Curtis for an accounting. From a decree for plaintiff, defendant Curtis appeals.
    Reversed, and bill dismissed.

      Mesick & Miller, for plaintiff.

      B. H. Halstead, for appellant.
   Fellows, J.

When this case was here on motion to dismiss the bill, we held that the bill set up a cause of action for equitable relief. Grund v. First National Bank of Petoskey, 194 Mich. 299. The case has since been heard upon its merits and is now here on appeal from a final decree. By this decree the bill was dismissed’ as to defendant bank and relief was granted against defendant Curtis. In considering a chancery case where the facts are in dispute, this court should, and does, give due weight to the findings of the trial judge. He sees the witnesses, notes their appearance on the stand, and his conclusions are always helpful to the court. But this court hears chancery cases de novo, and is in duty bound to examine and determine the facts as well as the law. If after fully considering the record and giving the findings of the trial judge due weight, we are satisfied that the controlling facts are otherwise than as found by him, it is as much our duty to reverse as though we conclude the law of the case is. otherwise than as found by him. Where a trustee is. called upon in a court of equity to account for the funds received by him as trustee, and the trusteeship, is admitted or established, the duty rests upon the trustee to so account, and the burden of proof is upon him to establish the correctness of the account; but where a plaintiff claims the trust relation exists, and this is denied by the defendant, or the plaintiff claims a certain contract was. entered into which, if entered into, would establish a trust relation, and the defendant denies such contract was entered into but insists that another contract was entered into, one which did not create the trust relation, in such case the burden is upon the plaintiff to establish the trust relation, or the contract creating such trust relation, before he casts upon the defendant the burden of an accounting. In other words, plaintiff cannot by claiming that the trust relation exists cast the burden of proof upon the defendant. We make these statements preliminary to a consideration of the facts of the case in view of the discussion of the effect to be given the findings of the trial judge and the burden of proof, both of which subjects ate treated at some length in the briefs.

The plaintiff was a,lumberman operating at Walloon lake in Charlevoix county in 1908. He had in view the purchase of a piece of timber land. In conversation with Phil B. Wachtel, who was an insurance agent and real estate dealer, plaintiff learned that Wachtel knew the owners of the land. Plaintiff says, “He told me the French people. He mentioned Roy French as the owner.” Plaintiff requested Wachtel to ascertain the lowest figure the land could be bought for. Later Wachtel informed him the land could be bought for $8,500. Plaintiff then owed the defendant bank three or four thousand dollars. He applied to the bank for a further loan of $3,500 with which to make the purchase, but the loan was refused. He then asked the defendant Curtis, who was connected with ■ the bank, to personally take the loan. As a result of some negotiations Curtis agreed to furnish the amount required. A note was executed to the bank for $3,750 with plaintiff's brother as an indorser. Plaintiff claims the extra $250 was a bonus; defendant Curtis that it was payment for his guaranty to the bank of plaintiff’s indebtedness. As a matter of fact Curtis did execute to the bank an agreement guaranteeing the payment, of plaintiff’s indebtedness to the amount of $10,000. If should be stated that the question of usury is not here involved, the parties having had litigation heretofore in which that question was involved and which litigation was adjusted. Nor does plaintiff claim that the $250 was for any other services than those in procuring the loan. In the fall of 1910 Curtis made the final payment of $1,000 on the purchase price of this land. The crucial question in the case is, What was the agreement between plaintiff and Curtis with reference to the payment of the money? Plaintiff claims that it was to be paid only on delivery of deeds conveying a good title and an abstract showing that fact,, while defendant claims that it was known to plaintiff that the title was owned by different parties and that it was agreed that as Wachte] procured these various titles payment should be made for them. We quote sufficient excerpts from the testimony of each of the parties to show their respective claims. The plaintiff testifies:

“Of course, the talk was that the land was being bought from the French people through Phil Wachtel, who was acting for me as representative to get their lowest price and after I had been advised of their lowest price by Mr. Wachtel, I made an arrangement with Mr. Curtis to get the $3,500. I borrowed $3,500 from Mr. Curtis and gave my note and John Grund’s note for $3,750. I gave instructions at that time to Chalmers Curtis and the First National Bank with reference to paying this $3,500 and to whom to pay it. I advised Phil Wachtel to have Roy French send his deed and abstract for this property to the First National Bank and that they would pay them over the money upon receipt of a good title. I also advised Sir. Curtis that this deed was to come from Roy French and on receipt of an abstract showing a good title to pay him -the money — to pay Roy French the money. I had been advised by Mr. Wachtel that Roy French was to send the deed. That was the arrangements I made with the First National Bank and Chalmers Curtis as its representative. Chalmers Curtis agreed to that. He accepted it and understood it that way, I presume. I never heard anything to the contrary. * * *
“In reference to turning over this money, the $3,-500, I told Mr. Curtis that I was getting this land and timber for $3,500, and the deed was coming from Roy A. French, and on receipt of a warranty deed with an abstract, showing a good title, he was to pay the money — $3,500. Mr. Curtis said that he would and that he would take care of it. I certainly expected that he would examine the abstract and pass upon the title for me. He said he would not pay the money out unless he got a good title and abstract; that was along in December. * * *
“In January, 1909, Mr. Curtis told me that he had gotten part of the title in and paid part of the money out. I don’t think I am mistaken about that being January, 1909. We started right off the following month to lumber the piece and we put in about forty acres of the piece that winter. So I don’t see how I could be mistaken on it.”

Defendant Curtis testified as follows:

“That was Mr. Grund’s instruction — when he (Wachtel) brought in the deeds and asked for the money, I was to pay him the money. The deeds were to come in installments. Before the deeds or any of them came, when I and Mr. Grund were talking about it first, his instructions to me were that probably the deeds would come in installments, and I was to pay over such money as he needed for that particular branch. Without an abstract I could not tell what the interest of Mr. Grund was, whether one-third or one-fourth; I relied entirely upon him (Wachtel), as a competent man. I was simply to pay the money when I got the deeds. The title was not to be all cleared up at once. I wouldn’t know that it was to be one deed or twenty —well—I did know that it was to be more than one. I knew that they were to come in installments. Mr. Grund informed me that Mr. Wachtel was looking after it for him; that he had made all his bargain with him. . * * *
“I didn’t know anybody at all in .this transaction besides Phil Wachtel and William Grund. I supposed that Mr. Wachtel was going to do the whole thing. He bought it, or Mr. Wachtel made all the arrangements. My information was that Mr. Wachtel was doing the whole business; he was to get the titles, he was to bring them to me; I was to advance him such sums as would cancel these particular deeds to those heirs, whoever they were. * * *
“I was to deliver the $3,500 as Mr. Wachtel brought in those deeds, as he could acquire them. I was to look .them over and see that they were correct — as to execution — receive them, pay him out the money so he could settle with the heir. Nothing at all was said with reference to my examining the abstracts and passing upon the title, or having them examined. I am in the banking business. I am not a practicing lawyer. I have been admitted to the bar but I never practice except to foreclose a real estate mortgage by advertisement. I do not hold myself out to be a practicing or counseling lawyer. * * *
• “At this time when I made this payment, he (Wachtel) came and said that he had received the final deeds, that he had the final, deeds. I said, ‘Phil, is this the complete wind-up?’ ‘Yes,’ he said. Then I said, ‘You have all the deeds to complete the title?’ He said, ‘Yes,’ and I gave him this check making full payment of $3,500.”

Early in 1915 it developed that the grantor in one of the conveyances to Roy A. French, one Julius Earl French, was a minor when he executed the deed, and that one Molly French claimed a dower right. The plaintiff adjusted their claim by paying $1,050. Defendant Curtis offered to pay $500 of this sum, but upon plaintiff’s charging him with embezzling the fund he withdrew his offer and refused to pay anything under such charge.

Mr. Wachtel had died before the claims of Julius Earl French and Molly French were made known. Some of his acts in connection with this transaction are subject to severe censure, but as they have no bearing on the question before us, they will not be detailed. He had stood high both at Petoskey and in the State at large, and neither of the parties to this litigation knew of any facts showing that he was not entitled to their entire confidence. That Wachtel was employed by plaintiff in some capacity is admitted. The extent of his employment is in dispute. Plaintiff claims it was limited to ascertaining the price at which the land could be bought. This only involved an inquiry of the real estate agent who had the land for sale or a letter to French at Pittsburgh. Plaintiff admits that Wachtel rendered him a bill of $100 for services and that he paid it. It seems quite improbable that Wachtel would render, or plaintiff pay without protest, such a bill for so slight a service. It seems much more probable that Wachtel’s services for which he was paid this sum included looking after the matter for the plaintiff. That plaintiff asked Wachtel to perform other services after the price had been obtained, his own testimony discloses. Nor does it seem reasonable or probable to us that defendant Curtis assumed and agreed without compensation that the title should be. perfect, that all grantors in the chain of title were of age when they executed the various deeds, that all dower interests were acquired, and that no defects existed in the title. While he had been admitted to the bar, he was not a practicing attorney, and it is undisputed upon this record that the law business of the bank, including the examination of titles, was turned over to Halstead & Halstead, the bank’s attorneys. Plaintiff himself testifies that as early as January, 1909, before he had commenced his operations, Curtis informed him that he had gotten part of the title and had paid out part of the money. So far as is disclosed by this record, no protest was made by him that Curtis was then violating his instructions, no claim was then made that Curtis was not acting in strict accordance with the understanding. This circumstance is in consonance with the claim of Curtis as to what the understanding was, and is out of accord with the claim most earnestly pressed in plaintiff’s behalf that Curtis is liable because he did not hold the entire sum of $3,500 until the title was perfected.

Considerable is claimed for the fact that defendant Curtis inserted his own name as grantee in the deeds, the deeds as delivered having left a blank for the name of the grantee to be inserted, and the trial judge seems to have been impressed with this claim. But the testimony clearly establishes that the title was to be taken in the name of Curtis, and he was to hold the lands as security. After the timber had been cut from the land and as plaintiff sold it, defendant executed quitclaim deeds of various parcels to plaintiff and the proceeds of such sales were largely applied on the indebtedness. Plaintiff knew from the first that Curtis had taken title in his own name, and, so far as we are able to discover from this record, never questioned the right of Curtis to take such title in his own name until this litigation arose.

Two opinions were filed by the trial judge. The record does not disclose whether this was occasioned by a reargument of the case or not. In the first one he concluded that defendant Curtis was not liable for the defect of title caused by reason of the minority of Julius Earl French but was liable for other defects. In the second one he concluded that defendant Curtis was liable for the amount paid by plaintiff to obtain the title of Julius Earl French and Molly French together with his expenses, but did not allow for other defects claimed to exist in the title. We are constrained to differ from both of these conclusions. When we weigh and measure the testimony in this record, take into consideration the surrounding circumstances, the reasonableness and probabilities of the claims asserted, as we must do in a chancery case, we feel bound to conclude that the preponderance of the convincing testimony and circumstances are with the defendant. It results from this conclusion that the decree appealed from must be vacated and one here entered dismissing; the bill. Defendant will recover costs of both courts.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Brooke, J.

text:
    PECK v. EBERT.
    1. Pleading — Amendments—Variance.
    In an action for a claimed balance due plaintiff for his services in building a house, where the declaration charged that plaintiff was to receive, in addition to $6 per day, '6 per cent, of the total cost of the material used, while his claim on the trial, supported by evidence, was that he was to receive 6 per cent, of the cost of the labor as well as material, an amendment to the declaration to include the cost of the labor was justified.

      2. Trial — Issues oe Fact — Instructions.

      Meld, that the charge of the trial judge presented the one disputed question of fact, viz., what the actual contract between the parties was, fairly and without favor to either party.
    3. New Trial — Weight of Evidence.

      Meld, that the verdict was not so strongly against the weight of the evidence as to require reversal.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted January 22, 1920.
    (Docket No. 31.)
    Decided April 10, 1920.
    Assumpsit by Charles E. Peck against Louis S. Ebert for an amount due under a building contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Elmer II. Groefsema, for appellant.

      Charles Bowles, for appellee.
   Brooke, J.

In the spring of 1917, defendant, desiring to erect a house on Puritan avenue in the city of Detroit, made a contract with plaintiff with reference thereto. This suit between the parties grows out of a difference between them as to what the contract was. It is the claim of the plaintiff that defendant agreed to pay him for his services, as superintendent and otherwise in and about the erection of said building, the sum of $6 per day, to be paid weekly, and 6 per cent, of the total cost of the labor and material entering into said building, payable upon the completion thereof, whereas defendant claims that plaintiff’s services were to be rendered for the sum of $6 per day only and that no mention was made of any percentage to be paid to plaintiff in addition to said daily stipend.

The declaration charged an agreement to pay “6 per cent, of the total cost of material used in and about the construction of said building.” • Plaintiff having testified that the 6 per cent, was to be paid from the cost of labor as well as material, an amendment to the declaration in that regard was permitted over defendant’s objection. Plaintiff testified that the building cost “about $10,000.” Defendant’s testimony was that it cost $9,939.55: The verdict of the jury, after a full hearing upon the merits, was in favor of plaintiff for the sum of $604.55.

Upon motion for a new trial, the same was denied, on condition that plaintiff remit the sum of $60 from the verdict rendered. A remittitur having been filed, a judgment was rendered for the balance which is now reviewed in this court.

There are 13 assignments of error. The first two relate to the admission of testimony. We perceive no reversible error therein. The third is based upon the ruling of the court admitting the amendment to plaintiff’s declaration. Inasmuch as plaintiff swore positively that the contract was that he should receive 6 per cent, on the cost of labor as well as material, we think the amendment justified. Assignments 4 to 12, inclusive, are based upon alleged erroneous instructions to the jury. No requests to charge were preferred by the defendant. We have read the charge carefully and are of the opinion that it presented the one disputed question of fact, namely, what the actual contract between the parties was, to the jury, fairly and without favor to either side.

The last assignment is based upon the refusal of the court to grant a new trial upon the ground particularly that the verdict was against the great weight of the evidence. The court said:

“1. That the verdict was not so heavily against the weight of evidence as to convince the court that it should be set aside.
“2. That while the court may not have agreed with the jury upon its version of the transaction, the court is not convinced that the evidence was so strongly preponderating in favor of the defendant that the verdict should be set aside and a new trial granted.”

It is sufficient to say that we agree with the court in this conclusion. A single sharply contested question of fact was presented for the consideration of the jury, which they have determined in .plaintiff’s favor. No legal questions are involved.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    BURMAN v. SAKARI.
    Equity — Trust—Evidence—Sufficiency.
    In a suit to establish a trust in certain shares of stock, and for an accounting, where plaintiff’s version was supported only by his own testimony, and defendant’s version was supported by two other witnesses, the conclusion of the court below, that plaintiff had failed to establish his case, held, supported by the evidence.
    Appeal from Houghton; O’Brien (Patrick H.), J.
    Submitted January 8, 1920.
    (Docket No. 28.)
    Decided April 10, 1920.
    Bill by Victor M. Burman against Henry Sakari to establish a trust in certain shares of corporate stock, and for an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Stone ■& Schulte, for plaintiff.

      B. H. T. Burritt; for defendant.
   Brooke, J.

For several years, commencing in 1906, plaintiff was engaged in selling stock in the Alta & Hecla Mining & Milling Company and in the South Columbus Mining Company on commission. In such transactions, plaintiff acquired upwards of 20,000 shares of stock in one or the other of these companies. A consolidation was effected between the two companies and one or more smaller companies under the name of the South Hecla Mining Company.

In 1907 the company was in difficulty and plaintiff conceived the idea of selling treasury stock to several of those to whom he had sold some of the earlier issues. The purchasers were unable to pay for the same, and raised the money necessary for the purchase by making a joint note, which was discounted at a local bank. After a time, the holder of the note required better security and plaintiff approached the defendant, asking him to indorse a note for $5,000, which the bank had agreed to accept. This defendant did and received from plaintiff at the time upwards of 20,000 shares of the mining stock as security for his said indorsement. Other sums were raised at various times thereafter, until the amount of paper upon which defendant was indorser with others, reached the sum of $8,300.

Some time prior to the year 1914 the plaintiff had secured possession of this stock so deposited with the defendant as collateral security, and had sold, from time to time, certain amounts of it to meet his own necessities. The mine did not prove a success, and in January, 1914, an assessment of 6 cents per share was levied upon all outstanding stock. At that time defendant had either paid, or become obligated to pay, on account of his indorsements, upwards of $8,000, and held no security therefor. When the assessment was levied, plaintiff was without funds to pay the amount thereof, and he approached defendant with the proposition that he (defendant) and two or three of his associates should pay the assessment. The plaintiff claims that the defendant agreed to advance the assessment, simply making it a further lien upon the stock; while defendant claims, that the plaintiff represented that he was absolutely unable to pay the assessment himself and would lose the stock in any event, and urged the defendant to pay the same and so save himself from financial loss as far as possible.

At that time, it is further the plaintiff’s claim that he mailed to defendant 27,500 shares of the stock, whereas defendant asserts that no stock was mailed to him but that plaintiff delivered to him 12,994 2/3 shares, under the conditions above stated.

At about the same time, plaintiff secured an option from the company on 15,000 shares of assessment stock at the price of 6% cents per share. He claims to have urged defendant to purchase these 15,000 shares on the same terms as he had asked him to pay the assessment of 6 cents per share on the amount of stock which he delivered. Defendant admits that plaintiff urged him to buy the 15,000 shares at 6% cents, upon which he held an option, but asserts that there was no understanding that the plaintiff should have any interest in the stock so purchased. As a matter of fact, defendant and his associates did buy 8,000 shares of the 15,000 shares and stock certificates were issued by the company directly to defendant and his associates, according to their several contributions to said purchase. Some time later, and about the year 1917, the stock became more valuable, selling upon one occasion as high as $1.55 per share.

The bill is filed for the purpose of having defendant declared to be a trustee for plaintiff of all the shares claimed to have been deposited by plaintiff with defendant as security, and for an accounting. A full hearing was had in open court. Thé plaintiff’s version of the affair is supported only by the testimony of himself. Defendant’s version is supported by the testimony of J. H. Bousu and Walfred Bousu. There is a simple question of fact presented upon the record.

The learned circuit judge, who saw and heard the witnesses, in concluding an exhaustive opinion, covering the facts, said:

“I am not convinced by a fair preponderance of the evidence that the plaintiff has established that either the so-called ‘option stock' or the ‘assessment stock’ was to be held by the defendant as security. On the other hand, I am of the opinion that the defendant has purchased and held the stock in all respects exactly as he claims. The plaintiff waited until the stock had risen in value and the defendant and his friends had become liable for and had actually advanced a large sum of money in acquiring the stock. The defendant gave him a fair opportunity to purchase it back at any time before it went above the amount of the liability. Of this opportunity, the plaintiff did not see fit to avail himself. He waited until the mine was an unexpected success and then sought, to profit upon the risk assumed by the defendant. If the stock had decreased in value he would not have asked to redeem it. He would have been content to allow the defendant to pay the notes and the interest, which he was unable to pay. Under the circumstances, the bill of complaint is dismissed with costs to the defendant.”

After a careful perusal of the evidence offered, we have no hesitation in agreeing with his conclusion.

The decree is affirmed.

Moore, C. J., and Steere, Fellows, Clark, Bird, and Sharpe, JJ., concurred. Stone, J., did not sit.


author: Stone, J.

text:
    BECKMANN v. BECKMANN.
    X. Divorce — Domicile—Evidence—Sufficiency.
    In proceedings for divorce brought by the husband, testimony as to plaintiff’s domicile, while not very satisfactory, held, sufficient to sustain the conclusion reached by the circuit judge that he had been domiciled in Michigan for two years, and that the case was properly brought in this. State.
    2. Same — Desertion—Elements.
    To make out a case of desertion there must be satisfactory proof of three things: Cessation of cohabitation, an intent in the mind of the defendant to desert, that the separation was against the will of the plaintiff.
    3. Same — Good Faith — Evidence—Sufficiency.
    Where plaintiff left defendant against her will, and after-wards wrote her asking her to come to him and resume marital relations, but a perusal of the correspondence is convincing that said offer was not made in good faith, but was made for the sole purpose of obtaining ground upon which to base an action for divorce, held, that plaintiff is not entitled to relief upon the ground of desertion.
    4. Same — Husband’s Arrest for Nonsupport — Extreme Cruelty.
    Where plaintiff left defendant against her wishes and without just cause, and defendant had no funds available with which to pay the board of herself and child, statements made by her to the public authorities which resulted in plaintiff’s arrest and conviction for nonsupport, held, not to constitute extreme cruelty within the meaning of our statute.
    5. Same — Extreme Cruelty — Charoes of Nonsupport.
    Charges of nonsupport or abandonment, made by a wife against the husband, in order to constitute extreme cruelty, must not only be false, but also malicious.
    6. Same — Evidence—Burden of Proof.
    Where the record is convincing that the plaintiff has not sustained the burden of proof necessary to obtain a divorce upon the grounds alleged, desertion or extreme cruelty, and it appearing that the defendant at no time has desired a divorce, the decree of the court below in favor of plaintiff will be reversed, and the hill dismissed.

      On refusal of wife to follow husband on change -of domicile, as desertion, see note in 4 L. R. A. (N. S.) 145.
    On failure to furnish support as ground of divorce or separation, see notes in 29 L. R. A. (N. S.) 618, and 43 L. R. A. (N. S.) 255.
    On separation as grounds for divorce, see note in 49 L. R. A. (N. S.) 1034.

      Appeal from Genesee; Black (Edward D.), J.
    Submitted February 10, 1920.
    (Docket No. 111.)
    Decided April 10, 1920.
    Bill by Frank H. Beckmann against Julia A. Beckmann for a divorce. From a decree for plaintiff, defendant appeals.
    Reversed, and bill dismissed.

      William V. Smith, for plaintiff.

      A. J. Michelson (John A. Larimore, of counsel), for defendant.
   Stone, J.

The bill of complaint herein was filed February 8, 1919, by the husband, to obtain a divorce from the wife upon the grounds of desertion and extreme cruelty. The parties were married at Menominee, Wisconsin, on June 11, 1910. At that time defendant was a physical training teacher, and plaintiff was a student. The parties lived at various places in the States of Washington, Utah and California until about June, 1913, when the plaintiff entered the employ of the Beaver Board Company as a traveling salesman. The early relations of the parties seem to have been reasonably pleasant. The only child of the parties, Robert, was bom on July 13, 1914. He is living with the defendant at Minneapolis, Minnesota.

In May, 1915, the plaintiff was by his employer transferred to the Minneapolis office of said company, ■and the parties then took a furnished apartment in that city. After occupying the apartment for a short time they took rooms and boarded with Dr. and Mrs. ;Saucier in that city. Defendant’s claimed reason for moving was, that the apartment was not a suitable place for the child. Plaintiff testified that the reason given by defendant was that she did not have time to take care of the apartment and the child also. The parties lived together at Dr. Saucier’s until December 9, 1915. • The defendant testified that she began to-notice that plaintiff was indifferent toward her and the child, staying at home as little as possible, and that on several occasions, upon returning to the city from business trips, he stayed at a hotel instead of coming home.

Dr. Saucier testified that plaintiff told him he was going to leave; that he said:

“I cannot live with Mrs. Beckmann any longer. I want to tell you confidentially that our temperaments are not adapted to each other; we can’t live congenially and happily together.”

That he said as far as Mrs. Beckmann was concerned, she was an awfully good woman; he had nothing against her; could say nothing against her in any way whatever; but it was simply a question of temperament, that was all, and that he could not stand it any longer; that he thought it best for both of them: that he leave. This separation affected the defendant very seriously, and to the extent that she was confined to her bed and was hysterical with grief. Dr. Saucier persuaded the plaintiff to return, but in a few days, and on December 9th, he left again, and. the-parties have not lived together since. There is no doubt that plaintiff left against the wishes of defendant.

He testified that he did not think Dr. Saucier’s a proper place to live, although he “never discussed it with her, for he wished to save her feelings.” The plaintiff claims that when he left defendant on December 9th he made arrangements with her to pay $1,000 a year in semi-monthly payments for the support of herself and ehild, and that a certain check in evidence for $41.67 was given her in pursuance of that agreement. There was testimony that this check was to pay board then due the Sauciers, and defendant testified that plaintiff deserted her, and left her without funds, and without any reasons for believing that he would provide in the future -for her and the child.

After plaintiff left, defendant made purchases of certain necessary clothing for herself and child at two different stores where the plaintiff had an account. Defendant claims that she had no means of providing future sustenance for herself and child; and, not having heard from the plaintiff, she, about two weeks later, took the matter up with the city attorney of Minneapolis, and complaint for nonsupport was filed on December 22, 1915, and plaintiff was arrested on December 29th. The case was heard before the municipal court of Minneapolis. Plaintiff was represented by an attorney. A hearing was had and plaintiff was found guilty of nonsupport. He did not appeal. Sentence was stayed on plaintiff’s agreement to pay $125 per month (which was about one-half of his then salary) for the support of his wife and child.

In June, 1916, the probation officer reported that the payments were not being made, and plaintiff was arrested on a bench warrant. On learning that plaintiff was in the workhouse, defendant, through Dr. Saucier, deposited a cash bail of $250, which sum she had saved to pay on furniture which she had bought, and the plaintiff was released on this bail. He was put on probation for one year on his promise to pay $50 per month for the support of defendant and the child, with an increasing scale as his salary increased. Plaintiff made these payments until December, 1917, the last payment being made on December 18, 1917.

It is undisputed that from December, 1917, to May, 1918, plaintiff made no payment whatsoever for the support of defendant and the child. The defendant then, upon the advice of the public officers, went before the grand jury of Hennepin county, Minnesota, on March 20, 1918, and gave testimony of these facts. Plaintiff in the meantime had gone to Buffalo, New York, where his employer had an office. He was extradited from New York and brought back to Minnesota on May 19, 1918. There is testimony that when defendant, learned the plaintiff was in jail she made an effort to get him out. The plaintiff, on being arraigned, pleaded not guilty, and he was represented by an attorney. Arrangements were then made whereby the plaintiff was to pay defendant for the support of herself and child $50 per month, with an increasing scale as his salary increased. The case was continued, and finally nolprossed on December 27, 1918.

As already stated, the plaintiff alleged, as grounds for the divorce, desertion by the defendant; and extreme cruelty, in instituting the above proceedings against the plaintiff. At the hearing of the instant case an issue was made upon the question whether the plaintiff had been domiciled in the State of Michigan for two years so that he could maintain a bill in this State. The trial court found that he was so domiciled, and that the case was properly brought in this State. While the testimony, as appears in this record, is not very satisfactory upon that subject, we are inclined to agree with the conclusion reached by the circuit judge upon the question of domicile.

Upon the merits of the case, has the defendant been guilty of statutory desertion as claimed in the bill of complaint? The trial court declined to grant a decree upon the ground of desertion. We fully agree with the court below upon that subject. We think the evidence shows that the plaintiff left the defendant and did not sincerely desire to resume marital relations with her; and it sufficiently appears that he left against the wishes of the defendant, who did not want the separation. The record shows that the plaintiff has acted in this matter upon the advice of counsel, and we are satisfied from the tone of numerous letters written by him to her (many of them , through the advice of counsel), that by offering her a home he has sought to take legal advantage of the defendant without any bona fide intention on his part to resume marital relations with her. The record contains a number of letters wherein plaintiff requested the defendant to resume marital relations with him at Buffalo, New York. As a reason for not accepting these offers defendant answered that she was not convinced of the sincerity of his letters. In answering one of his letters she, on December 8, 1916, said:

“There is nothing in that letter which gives me any assurance that the move to Buffalo would be a wise one. I might again, find myself in a strange city without friends or funds and deserted by you, so I am giving the matter my most careful consideration. The fact that you care nothing for Bobbie and me, also points to a most unhappy existence under your roof. Then, too, the fact that you have the services of a lawyer goes, to prove that you are not seriously endeavoring to establish a home in which we can be happily reunited.”

Under the date of May 31, 1917, she wrote him, among other things, saying:

“It seems a strange thing to me, Frank, that you can drop in for a hurried call and never care to talk about a reconciliation and then expect me to believe through your letters that you really want us.”

On November 28, 1916, he wrote defendant asking her to*come and live with him in Buffalo. 'It nowhere appeared that he had already prepared a home, but he had simply promised her to do so. The rule seems to be well established that where the husband has not provided a home at the new domicile selected by him, the wife is not guilty of desertion in refusing to follow him. Such offers should always be made in good faith, and it should not appear that they were made for the purpose of obtaining an advantage, or a right to a decree for desertion. That he was acting under the advice of counsel in making these self-serving of-, fers is quite apparent from the record. Under date of. December 19, 1916, the plaintiff received a letter from his attorney in which the latter says:

“I received the two letters you sent me and also the letter which you wrote your wife and will reply to the same. . *■ * * You ask whether it is better for you to apply for a divorce or to wait until she does so. * * * As you stated in your letter, you asked her to return to you and live with you in February, but- she refused to do so. So, according to your statement, you could not start your action until after a year has passed from said date, because I believe the only ground you have for divorce, is desertion. I suppose if she is desirous of . starting an action she can do so in January, since you deserted her at that time.”

On September 24, 1917, plaintiff again wrote defendant stating that he wished to resume marital relations with her. On that same day he wrote his attorney a letter enclosing a copy of the same. Replying to his letter the attorney said:

“I received your letter of September 24th along with exhibits a, b, c, and d, and have noted the contents thereof. * * * But as long as you are sending her letters of the kind and character you sent her on the 24th of September, I do not believe they will be able to get very far on the desertion charge.”

' Finally, when defendant showed a disposition to come to Buffalo, the plaintiff, under date of September 1, 1917, wrote her a letter in which he stated:

“At the present time there are certain conditions that make it seem unwise for you to move. There is a possibility of my being called on the draft, and while they have missed me to date, I am liable to be called at any time. If you came here and it was necessary for me to go into training, you would be inconvenienced more than under your present circumstances.”

A perusal of the correspondence leads us to the conclusion that the plaintiff was not sincere when he •asked defendant to resume marital relations, and that he was aiming solely at obtaining grounds upon which to base his own action for divorce. To make out a case of desertion there must be satisfactory proof of three things: (1) Cessation of cohabitation. (2) An intent in the mind of the defendant to desert. (3) That the separation was against the will of the plaintiff. Rose v. Rose, 50 Mich. 92; Cooper v. Cooper, 17 Mich. 210. That the separation in this case was not against the will of the plaintiff is very apparent, and the plaintiff is entitled to no relief upon the .ground of desertion.

But the principal ground upon which plaintiff claims relief, and on which he was granted relief in the court below, was that the defendant was guilty of extreme cruelty in instituting the actions in the Minnesota courts for the maintenance of herself and child. Three separate acts of cruelty are alleged:

(1) The nonsupport proceedings in the municipal court of Minneapolis on December 22, 1915.

(2) The arrest of plaintiff on a bench warrant out of the same court, issued in June, 1916, when he had failed and neglected to keep up his payments.

(3) The extradition of plaintiff in May, 1918, from New York to Minnesota on the charge of deserting his wife and child.

As we have said, the trial judge found that the defendant was not justified in taking these proceedings, and that her action in instituting them constituted ■extreme cruelty.

A good deal of time and space are taken up in defendant’s briefs citing authorities, upon the proposition that a judgment of a court of competent jurisdiction, finding plaintiff guilty of nonsupport cannot be attacked collaterally. ■ We have examined some off the authorities, but do not think it is necessary to comment upon them, for assuming that the judgment could be collaterally attacked, we are satisfied that the defendant was- justified in instituting, in so far as she did institute, those proceedings. In order to be guilty of extreme cruelty it must appear that the-charges made by the defendant were not only false,, but were malicious. Statements made in good faith charging failure to support, or abandonment, do not constitute extreme cruelty. Plaintiff left defendant against her wishes, and without just cause, on December 9, 1915. We think it appears by a clear preponderance of the evidence that defendant had no money at the time, and had no funds available with which, to pay accruing board of herself and child. Under these circumstances she applied to the public authorities, and followed the advice of the public authorities,, to wit, the city attorney and the county attorney,, from that time forward. It cannot be said that when, a wife in good faith makes such a complaint to the-public authorities (especially where such charges are-sustained) she is guilty of extreme cruelty within the meaning of our statute. We can find no authorities to that effect.

The evidence on the part of the plaintiff in this, case consisted solely of his own testimony, and the letters to. his wife (and some of her replies thereto) „ copies of which he had saved and introduced in evidence.

The defendant did not attend the hearing,' but her-testimony and that of her witnesses was taken in-Minneapolis. Hjer testimony is corroborated by that. of a number of witnesses. It finally appears that as late as January 15, 1919, and about three weeks before he filed his bill, the plaintiff wrote his wife importuning her to get a divorce from him, offéring to pay the expense thereof. In that letter, among other things, he said:

“I am to blame for the trouble that has come to me, Julia. I admit that, but please don’t cause me failure and distress, just because I was a fool. I caused you a. lot of trouble, too. I know it now, but realizing all that does not help it, that is past history. * * * There is not one thing written in this letter which is meant to show one speck of bitterness, Julia. You are not blamed for anything. My conscience tells me to say that. -There is no' resentment left. Some day when this whole affair is settled and I come through Minneapolis, I am going to tell you a true story. No one ever guessed the truth, and when I tell you, you will-pity me. I’ll tell you now that it was not your fault, nor an outside influence. I swear it. * * * No appearance will be made against you, either personally or through counsel:”

We are by this record clearly convinced that the plaintiff has not sustained the burden of proof necessary to obtain a divorce upon the ground of desertion, or of extreme cruelty, and it appearing that the defendant at no time has desired a divorce, we think it our duty to dismiss the bill of complaint and leave the parties where the law has placed them. We do not think it a case where the court should grant any relief to the plaintiff. The decree below will be reversed, and the bill of complaint dismissed, with costs of both courts to the defendant.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.