text:
    ACME ELECTRICAL ILLUSTRATING & ADVERTISING CO. v. VAN DERBECK.
    Sunday Contract—Ratification.

       A contract void because executed on Sunday cannot be made valid by ratification.
    Error to Wayne; Erazer, J.
    Submitted April 18, 1901.
    Decided July 2, 1901.

      Assumpsit by the Acme Electrical Illustrating & Advertising Company against George A. Yan Derbeck to recover a balance due on a contract to install an electric plant. From a judgment for plaintiff, defendant brings error.
    Reversed.
    On Sunday, June 18, 1899, plaintiff and defendant executed the following written contract:
    “This agreement, made this --•, A. D. 1899, by and between the Acme Electrical Illustrating & Advertising Company, of Springfield, Mass., party of the first part, and G. A. Yan Derbeck, of Detroit, Mich., manager of Detroit Ball Club and Empire Theater, party of the second part, witnesseth:
    “ Whereas, the party of the first part are owners of the Acme electrical system of illustrating baseball games by electricity;
    “ Whereas, the party of the second part is the manager of Detroit Ball Club and Empire Theater:

      “Now, therefore, be it known that the party of the first part hereby agrees by these presents, for and in consideration of the payment of four hundred and fifty dollars, and the stipulations and agreements hereinafter named, to install in the Empire Theater, at Detroit, a complete system for illustrating baseball games by electricity, upon the following terms and conditions, and no others:
    “It is hereby mutually agreed that the party of the first part shall install said system in said Empire Theater without expense to the party of the second part. The party of the second part hereby agrees, for himself and legal representatives, to furnish said Empire Theater, clean and light the same when necessary, furnish the necessary ticket sellers and ticket takers, and all other help necessary, and cause to be inserted daily advertisements of said system in the daily papers of the city of Detroit, of not less than four lines in each paper.
    “It is further mutually agreed by the parties hereto that, for and in consideration of the agreements herein stipulated, the said party of the first part shall receive one-half of the net receipts, and the party of the second part shall receive one-half of the net receipts, realized from the sale of admission or reserved-seat tickets to witness the exhibitions of this system, and whatever may be realized from the sale of refreshments, or other privileges. It is mutually understood that, before a division Qf the receipts shall be made, there shall be a deduction from said receipts of the sum of four hundred and fifty dollars; said sum being amount hereinbefore mentioned. It is further agreed and understood that the sum of forty-five dollars shall be deducted each day to cover operating expenses of the said system in said theater.
    “It is further mutually agreed that the party of the second part shall assume and take entire management of the business, making daily statements and weekly settlements unto the party of the first part of their respective share of the profits, said settlements to be through the Home Savings Bank of Detroit, Mich.
    “It is further mutually agreed that this agreement shall take effect at once, or as soon as the installation of the system is completed, which must be Saturday, June 24, 1899, and not to continue longer than the baseball season of 1899, with option on other seasons on same basis, or as long as mutually agreeable to both parties hereto.

      “ The party of the first part hereby agrees, for itself and legal representatives, not to install or exhibit, or permit or license any one else to install or exhibit, the system in any other place of amusement or theater in the city of Detroit during the life of this instrument.
    “It is hereby further agreed and understood that the party of the second part is to carry $2,500 insurance to fully indemnify the party of the first part from any losses by fire or otherwise that may occur to its property while in the keeping of the party of the second part, and that he is in no wise to acquire any right, title, or interest in said property.
    “It is further mutually understood and agreed that, in the event that the party of the second part shall fail to make returns and statements as herein stipulated, or neglect or fail to carry out the terms and conditions of this instrument, then, and in that-event, the party of the first part shall have the right to immediately take possession of their appliances, and remove the same, without notice.
    “ In witness of the above, we have hereunto set our hands and seals the day and year first above mentioned.
    “June 17, 1899.
    “Acme Electrical Illustrating & Advertising Co.,
    “E. Abbott Todd, Sec.
    “G. A. Van Derbeck.
    “Witness: W. J. Chittenden, Jr.”
    The apparatus was put up, and proved a failure; there were no profits to be divided; and plaintiff brought this suit to recover $350, the price of installing the apparatus, as stated in the agreement, $100 having been paid. The suit was brought in justice’s court, plaintiff declaring “in an action of assumpsit on all the common counts, especially for balance of $350, due plaintiff on installing an electric plant.”
    Mr. Todd, the secretary of plaintiff, was produced as its witness, and was asked what arrangement or contract he had made with the defendant. The attorney for the defendant objected, as the contract was in writing, when the following colloquy occurred:
    “ The Court: The contract seems to be in writing.

      “ Q. Was it iu writing ?

      “A. Under the agreement by which the board was ordered, the contract was not in writing. A written contract was subsequently made after the board had been shipped.

      “Mr. Collier: I submit, if it was in writing—

      “The Court: It all culminated in a written contract. It seems to me,-by the statement of both parties, the contract was in writing.

      “Mr.. Hislop: I do not think your honor understood me properly. The board was ordered at $450, and a verbal contract for the furnishing of the board for $450, but the written contract employed a lot of other details.

      “The Court: I do not think the contract for $450, verbally, was binding. I think the written 'contract governs, and the verbal contract for $450 is not binding under our law. He engaged to pay $450 for the board.

      “Mr. Hislop: Yes, and he paid $100 on it, and he paid it before the Written contract was entered into.
    “ The Court: Not according to your statement.

      “ Mr. Hislop: I say the $100 was paid on the 19th, and the written contract entered into on the 27th. The company did not accept it until the 27th. ”
    All evidence of the conversation prior to the execution of the written contract was excluded, and the written contract was then admitted, under the objection of the defendant that it was executed upon Sunday. Mr. Todd then testified that he told defendant “that no contract was binding until signed and countersigned by the president and treasurer of the company.” The residence of the company was in Massachusetts. After this conversation, the contract was signed in duplicate, one copy delivered to the defendant, and one retained by Todd. The execution was witnessed by Mr. Chittenden. Todd forwarded his copy to the company in the East. When he received it back does not appear. All that appears is that it was produced upon the trial, and had attached thereto the signatures of the president and treasurer. No notice was given—or at least there is no evidence that it was—to the defendant that it was signed by the president and treasurer. The sole evidence of ratification is the testimony of Mr. Todd that defendant afterwards paid $100 on the contract, and made a verbal promise to pay the balance due.
    The court instructed the jury that the written contract was void, being made on Sunday, but charged them that it was perfectly legitimate for defendant to ratify the contract upon some other, secular day, and that any action on the part of the defendant which showed that he approved and recognized it as an existing contract on some secular day did not make the original contract valid, but was the execution of a new contract upon a day upon which the parties were capable of contracting. The jury rendered a verdict for the plaintiff.

      Maybury & Lucking, for appellant.

      Thomas Hislop, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). Under this record, the written contract, 'executed upon Sunday, must control, unless there was an independent contract subsequently executed upon a week day. A Sunday contract cannot be made valid by ratification upon a week day. There must be evidence from which the jury can find an independent contract between the parties aside from the illegal one. Pillen v. Erickson, 125 Mich. 68 (83 N. W. 1023), and authorities there cited. There was no evidence in this case of any such independent contract. Plaintiff is not seeking to recover upon a quantum meruit, but upon a contract. ' Whether the court erred in excluding testimony of a parol contract before the execution cf the written one upon Sunday is not before us. That ruling was in favor of the defendant, and against the contention of the appellee. The declaration is not for the apparatus alone, but for “installing an electric plant.” The contract contained many conditions and stipulations other than the purchase of the apparatus. Ordinarily, the rule is that, when parties have reduced their contract to writing, that controls, and prior negotiations are inadmissible. Whether the plaintiff can abandon the written contract because executed upon .Sunday, and rely upon a parol contract previously executed upon a week day, is a question upon which, we are not required to express an opinion. I have made considerable search, and have failed to find a case involving this question. Neither are we called upon to pass upon the question of the effect of the duplicate contract being signed by the president and treasurer at the home office of the plaintiff, in Massachusetts. If this contract was not binding, according to the testimony of Mr. Todd, until signed by them, was it binding without notice to defendant that it had been signed by them ? If plaintiff did not notify defendant that it was signed by them, but carried out the contract as executed by its secretary and defendant, is it not bound by the action of its secretary in executing and delivering the contract on Sunday ? These are questions not discussed. We suggest them, as .they may arise upon a new trial.

Judgment reversed, and new trial ordered.

The other Justices concurred.,


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    STATE LIFE INSURANCE CO. v. STRONG.
    Life Insurance—Discrimination—Action for Premium.
    3 Comp. Laws, § 7219, prohibiting life-insurance companies from discriminating between insurants of the same class as to rates, dividends, or benefits, or from giving or allowing any valuable consideration, not specified in the policy, as an inducement to insurance, is violated where, by a special contract delivered contemporaneously with a policy, the insured is constituted one of not more than 500 “ advisory representatives” of the company, and as such is to receive certain financial benefits, dependent on the amount of insurance in force; and hence an action cannot be maintained by the company on a note given for the premium on such policy.

      Error to Grand Traverse; Mayne, J.
    Submitted April 19, 1901.
    Decided July 2, 1901.

      Assumpsit by the State Life Insurance Company of Indianapolis, Indiana, against Nathaniel E. Strong, on certain promissory notes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      George H. Cross, for appellant.

      John A. Loranger (Parm. C. Gilbert, of counsel), for appellee.
   Hooker, J.

The plaintiff is a foreign insurance company. It brought this action upon two premium notes given by one of its policy holders in Michigan. The evidence disclosed that one of the plaintiff’s agents approached the defendant, and sought to induce him to take a policy from the plaintiff, on October 1, 1898, and that defendant upon that day made application for a $5,000 policy, and for appointment as the advisory representative of the company. On October 4th the company issued its policy, and on or about October 9th it issued its advisory representative contract, so called. The applications were signed by the defendant, and at the same time defendant signed the two notes sued upon. The defendant testified:

“Am acquainted with W. S. Shelton. About the 1st of October, 1898, he called at my store, and said to me, ‘ I want to talk to you a little about life insurance.’ I said, ‘I have all the insurance I want.’ ‘Well,’ he said, ‘I have something here that will interest you.’ ‘Well,’ he said, ‘I represent an old-line life-insurance company. Here are rates I can give you. I can give you a policy that will cost you the first year about $91, and the second year $85, and the third year about $75, decreasing every year until the expiration of the seventh year. You will then receive an annuity of so much each year till the close of the term, which will be 20 years.’ In other words, I would receive a policy of insurance as protection on my life for a term of 20 years, and receive as a benefit an annuity of so many dollars every year after the seven years. I says: ‘That astounds me. I don’t see how you can do that. If your company is all right, it is good enough for me. Is it an old-line company?’ ‘Yes, sir,’ he said, ‘ it is an old-line company.’ ‘ I know but little of your company,’ I said. He said,'‘We are giving 500 special contracts throughout the State of Michigan, and this is open for you, if you want it.’ ‘Well,’ I said, ‘if your company is all right, I want it. It is good enough insurance for me.’ And we closed the deal with that understanding. But I said to Mr. Shelton — He offered to take these notes that Mr. Cross has mentioned here; so I said to him, ‘ What evidence have I that you would not take these notes over to the bank, and sell them ? Then I would have to pay them.’ ‘ Why,’ he says, ‘ I will make an assignment of these notes right here in your presence, and if later you find that this company is not an old-line company, exactly as I have told you ’•—

Mr. Cross: Wait. We object, on the ground that they are seeking to introduce oral evidence to vary the terms of a written contract and agreement. The notes, when they were executed and delivered, became a written contract, and the terms or legal effect of those notes cannot be varied by any conditions attached to them at the time of delivery.

The Court: The testimony, for the present, will be admitted, with the understanding that Mr. Cross will be permitted to present his authorities and raise the same objection before the case goes to the jury.

“Mr. Cross: Note an exception.

“(Witness resumes his answer as follows:) He said to me like this: ‘ Now, Mr. Strong, if you find later, on investigation, that this is not an old-line company, you may return the policy, and the notes will be canceled and returned to you; and, to prevent my selling the notes, I will make an assignment of them to the company here in your presence.’ And on that express arrangement made there I signed the notes. The policy came, and later on I found that it was issued by an assessment company, and not an old-line company; so-about February 2, 1899, I wrote the company a letter, inclosing the policy to them, and asked the company to return my notes; that the company was an assessment company; that the policy was assessment insurance; it wasn’t what I had bought, and I didn’t want it. I relied upon the statements made at the time I signed the application and notes.” •

He received the policy and the contract together from the company. This testimony was undisputed.

The court charged the jury as follows:

‘ ‘ Gentlemen of the j ury, this is an action brought by the State Life Insurance Company of Indianapolis, Indiana, plaintiff, against Nathaniel E. Strong, of Traverse City, Michigan, defendant^ to recover a sum of money represented by two promissory notes aggregating $91.55. These notes were given in payment for the first annual premium upon a policy of insurance issued to defendant by plaintiff. This policy bears date the 4th day of October, 1898. The application on which it was issued bears date the 1st day of October, 1898. At the time of taking the application for insurance, plaintiff also, through its agent, received from the defendant an application for appointment as a member of an advisory board. This application, together with the application for insurance, .was sent to the home office of the company by the agent, and in due time a policy of insurance was issued, and delivered to the defendant, together with a contract, designated ‘ Advisory Representative’s Special Contract of the State Life Insurance Company of Indianapolis, Indiana, Limited to Five Hundred, ’ based upon the two applications aforesaid. Under the terms of this latter contract, Nathaniel E. Strong agreed to aid the State Life Insurance Company in increasing and extending its business in his locality by recommending said company to suitable persons for insurance, and also persons desirable as agents, and said State Life Insurance Company appointed said Nathaniel E. Strong an advisory representative, and agreed as follows :

“Article 1. The number of such advisory representatives shall not exceed 500.
“Art. 2. That, on January 1st of each year during the continuance of the contract (which was to remain in force and effect as long as the party maintained his policy of insurance at $5,000), the company should compute the number of thousand dollars of insurance in force written during 10 years from and after January 1, 1898, in the United States, except the State of Indiana, upon which there had been paid during the preceding year one fall annual premium, two semi-annual, or four quarter-annual premiums.
“Art. 3. The said company agrees upon the date aforesaid to credit said advisory representative with such a sum of money from the expense fund of the company as shall be obtained by dividing an amount of money equal to 25 cents for each $1,000 of insurance in force as above by the number of said advisory representative contracts remaining in force. The amount so credited to said advisory representative shall each year, on the anniversary of the date of the contract, be paid to him by said State Life Insurance Company, subject to agreement of said advisory representative; said payment being his compensation for his services as said advisory representative, and for no other consideration.

“The laws of the State of Michigan provide:

“‘No life-insurance company doing business in this State, nor any officer or agent of such company, shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectation of life, either in the amount or payment of premiums or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes; nor shall any such company, or any agent thereof, make any contract of insurance, dr agreement, promise, or representation as to such contract, other than as ifiainly expressed in the policy issued thereon; nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance, any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or give or make 'any valuable consideration or inducement whatever, not specified in the policy contract of insurance.’ 2 Comp. Laws, § 7219.

“Under this contract of insurance, it is not certain whether one of the 500 advisory representatives, provided the class should be filled, would pay the same annual premium as others not of this class, but of the same age and expectancy, and otherwise entitled to receive the same rates. The premium paid by each person of the same age and expectancy was placed in certain funds designated in, the policy of insurance, and from one of these funds this 25 cents per $1,000 provided in this special contract was paid to members of the advisory board. The special contract recites that payment is made as compensation for services; yet it is not a commission; neither is the party in any way obligated to furnish one agent or applicant for insurance. The services to be performed, if any, are very indefinite. The sum to be paid is not in reality a compensation for services to be rendered. By this special contract it was intended to form a class limited to 500 members, who should receive advantages over others who did not belong to this class. The object of the law is apparent. Under the advisory representative’s special contract, it is within the power of the insurance company to fix the rate per thousand at such a sum as would materially lessen, if not entirely pay, the premium of insurance, and thereby vary the cost of insurance between insurants entitled to receive the same rate. Not being included in the policy, individuals could not inform themselves as to the rates charged others; and the business could not be so readily investigated and regulated by the department of insurance. If permitted, it would be within the power of any insurance company so desiring to nullify the provisions of this statute. The entire transaction forms the consideration of these promissory notes, and, being in violation of the provisions of the statute, the plaintiff cannot recover in this action, and your verdict must be, ‘No cause of action.’”

Counsel for the plaintiff contends that this was erroneous, and supports his contention by the claim that the contract of insurance was separate and distinct from the advisory representative contract. We are of the opinion that they were both a part of one transaction, as found by the circuit judge, and within the prohibition of the statute quoted by him.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, G. J.

text:
    HUFF v. COLE’S ESTATE.
    1. Trial—Questions Raised—Appeal.
    Where the trial court indicates to counsel that he understands but one question to be involved in the case, and counsel make no attempt to correct such understanding, they are precluded from raising other questions on appeal.
    2. Appeal—Record—Conolusiveness.
    The Supreme Court cannot consider questions not raised by the record, though appellant contends that it is incomplete.

      3. Trial—Remarks of Court.
    Counsel cannot complain of a remark by the trial court in apparent approval of a statement by counsel himself.
    4. Brokers—Commissions—Evidence.
    In an action for commission on a sale of real estate, evidence of negotiations between plaintiff and the customer, afterwardscommunicated to defendant, is admissible.
    Error to Montcalm; Davis, J.
    Submitted May 7, 1901.
    Decided July 2, 1901.

      Assumpsit by David I. Huff against John M. Cole for a commission on a sale of real estate. Plaintiff had judgment, and defendant sued out a writ of error, but died pending the hearing on appeal, and the cause was revived in the name of his executrix.
    Judgment affirmed.

      Charles L. Barden and D. A. Eliot, for appellant.

      N. 0. Griswold, for appellee.
   Montgomery, G. J.

The action was brought against John M. Cole in his lifetime. Mr. Cole died after judgment was entered in the court below, and the appeal is prosecuted by his executrix. The action was for a stated commission on a sale or trade of a half section of Dakota land. The plaintiff testified that the defendant agreed to pay him a commission of 5 per cent, if he would find him a customer for the land. The testimony discloses that the plaintiff did cause negotiations to be opened between defendant and one Monroe, and also that a trade was ultimately made between them on the terms which defendant had proposed to plaintiff, or substantially on those terms. The defendant testified in the court below that there was in fact no contract of employment whatsoever ; that he was told by plaintiff that he was the agent of Monroe, and that in his dealings with him he so treated him, and never at any time employed plaintiff to act for him in any capacity. On this appeal defendant’s counsel urge that a verdict should have been directed for defendant—First, because the evidence failed to show that the plaintiff had performed his contract as testified to by him; and, second, because the testimony shows that the plaintiff was acting in a dual employment, in a manner which infringes public policy; and error is 'also assigned upon portions of the charge of the court, which is said to have withdrawn the consideration of that question from the jury.

At the close of the testimony the record discloses the following proceedings:

“The Court: Is there any question between counsel here now but what this exchange of property was finally made upon substantially the terms announced by Cole to Huff ?

“Mr. Grisivold: No, there is none. I don’t understand there is any.

“The Court: If there was any difference, it was an advance price of $150, which would operate in favor of the plaintiff, if any way, under the holding of our court in Wood v. Wells, 103 Mich. 320 (61 N. W. 503). Is there anything to discuss,' anything further in the case, so far as the examination of witnesses is concerned, except he claims that Huff was the agent of Monroe ? There seems to be no question but what, under the testimony of the defendant and the testimony of the plaintiff, but what Huff brought the parties together, and the trade was finally consummated on substantially the same basis and terms as was talked.

“Mr. Grisivold: I think that is right.

“The Court: So the only question is really as to the contract and the agency of Huff.”

Thereupon occurred the following:

Mr. Harden: I think we rest.

“Mr. Griswold: All right; we rest.

“The Court: What is there to go to the jury, except bearing upon the question of contract ?

“Mr. Grisivold: Nothing.

“Mr. Harden: Nothing.

“The Court: Do you claim, as a matter of law, Huff was the agent of either party ?

“Mr. Harden: He was the agent of Monroe, and we are not bound by his statement as to the agency for Cole.

The Court: A man can’t establish his own agency by his own words; he must depend upon the facts.

‘1 Mr. Barden: I .wish to ask the court to hold that they cannot recover in any event.

The Court: My view of this case is, gentlemen, the only thing to go to the jury is the question of contract,— whether he made such an agreement or not.

Mr. Barden: They can recover nothing unless they recover on the contract of 5 per cent.

“The Court: They must find Huff’s claim; that is, the true one. That is all there is to go to the jury.”

In the course of the charge the court stated to the jury:

“ There is no question in this case, under the proofs, but what Huff brought the parties together, and there is no question but what the price fixed by Monroe was $3,200 upon his land, by Cole $2,300 on the Dakota land; no dispute but what the trade was afterwards consummated between the parties at the fixed value, $3,200 for the Eureka land, in this county, and $2,300 for the Dakota land, with $150 added for improvements, that being the only substantial change, making $150 more than was originally talked, and, as has been explained, and not disputed by the defendant, as being added for the improvements being put upon the place after he had announced the place at $2,300.”

No written request was preferred, and no attempt to correct the understanding which the .judge apparently had that the sole question of dispute between the counsel was the one whether the contract claimed to have been made was in fact entered into. Under these circumstances, we think the defendant is not in a position to urge the points made.

Counsel assert that the record is incomplete, and that these grounds were in fact urged before the trial court. But we are bound by the record, and cannot from the record reach any other conclusion than that the circuit judge had the right to understand that all questions other than contract or no contract were eliminated by agreement or assent of counsel.

Error is assigned upon the remark above quoted, that “a man cannot establish his own agency by his own words.” This language was plainly used in answer to a statement of defendant’s counsel, and he certainly is in no position to complain of it.

Error is also assigned upon rulings admitting testimony of conversations between Monroe and plaintiff. The statements related directly to the question of an exchange of Monroe’s land for defendant’s, and nothing aside from the negotiations was received. These statements were, in substance, communicated to the defendant, and were competent.

We discover no error. Judgment affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    PENINSULAR SAVINGS BANK v. UNION TRUST CO.
    Garnishment—Trust Property.
    A debtor conveyed his real estate in trust for his own benefit, the trustee being authorized to sell with the consent of the cestui que trust. The trustee, with the consent of the cestui que trust, sold part of the land on contract, and subsequently, with like consent, assigned the contract to secure a loan to the cestui que trust. Held, that the contract was not taken out of the trust by the assignment, and, being still impressed therewith in the hands of the assignee (who had beon substituted for the original trustee by order of court), could not be reached on garnishee process.
    Error to Wayne; Rohnert, J.
    Submitted May 7, 1901.
    Decided July 2, 1901.
    Garnishment proceedings by the Peninsular Savings Bank against the Union Trust Company, as garnishee of William P. Ratigan, the Ratigan Company, and Anton Michenfelder. Prom a judgment for defendant, plaintiff Brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      'Russel & Campbell, for appellee.
   Montgomery, C. J.

This is an action under the garnishment statute, brought by the plaintiff in error to reach certain personal property belonging to the defendant Anton Michenfelder, in the hands of the garnishee defendant, the Union Trust Company. The facts are agreed upon, and are as follows:

On or about June 1, 1896, the principal defendants became indebted to the amount of $8,000 and over to the plaintiff, the bank relying on certain very valuable real estate held by the defendant Anton Michenfelder. Shortly after this, on June 18, 1896, Michenfelder and wife executed a conveyance of these lands to Robert W. Webb, trustee, but this deed was not recorded until February 3s 1897. The plaintiff thereupon began suit, and, as will be seen, obtained judgment for its claim.

The provisions of the instrument executed by the Michenfelders to Webb, trustee, were that Webb should have possession of the land; that he should rent parts of it, but not for longer than three years without the written consent of the Michenfelders; that the income thus derived should go to the Michenfelders; that Webb should sell the land, or any part of it, when desired by the Michenfelders, and with their approval, to be evidenced by their joining in the deed; and that he should turn over to them the net proceeds from all such sales. The property and income were to go to the survivor on the death of either of the Michenfelders. The trust was to last until all said real estate was sold, or as long as either of the Michenfelders should live; and that, in case of their death, the unsold real estate should go to their children, naming them, so that each should have received an equal share of theéstate. Provision was made for a reasonable compensation for the trustee.

August 8, 1899, Webb, as trustee, entered into a land contract for the sale of a portion of the premises conveyed by said trust deed to John Zynda. By the terms of this land contract, Zynda promised to pay $9,000 in installments of $500 annually. Five hundred dollars has been paid upon the contract. Shortly after the execution of the contract between Zynda and Webb, trustee, a loan was made by the Union Trust Company to the defendant Michenfelder and his wife, Susanna Michenfelder, personally, and the land contract pledged as collateral thereto. The land contract was assigned, for the purpose of securing said loan, to the Union Trust Company. In December, 1899, by an order of the Wayne circuit court, in chancery, the Union Trust Company was substituted for Webb as trustee under the trust deed, suit having been begun for that purpose, and the decree in said suit was entered by the consent of all the parties interested.

On Juno 19, 1900, a writ of garnishment was issued from the circuit court of the county of Wayne, and served upon the Union Trust Company as garnishee defendant, in a suit then pending, wherein the Peninsular Savings Bank was plaintiff and William P. Ratigan, the Ratigan Company, and Anton Michenfelder were defendants. The Union Trust Company subsequently disclosed that it held no funds belonging to Anton Michenfelder. Upon examination of the Union Trust Company in open court it appears that the Union Trust Company, at the time of the service of the writ of garnishment, held the land contract in the manner above set forth, and that there was owing to it from Michenfelder and wife, on account of said indebtedness, the sum of $2,000, $500 of the note having been paid, and that there was an indebtedness of $137.55 due the Union Trust Company upon an open account between Michenfelder and the company, for which the trust company claims a lien upon the said land contract. It also appears that, before the garnishment proceedings were begun, Mrs. Michenfelder died. Since the service of the garnishee summons, the plaintiff, the Peninsular Savings Bank, obtained a judgment against the principal defendants for nearly $11,000. Before the judgment was rendered on the garnishment issue, the plaintiff offered, in open court, to pay the court the sum of $2,750, to insure the payment of Michenfelder’s indebtedness to the Union Trust Company, upon the entry, of an order requiring the Union Trust Company, the garnishee defendant, to turn over the land contract in question to a receiver, to be appointed by the court, so that Michenfelder’s interest therein might be sold.

The circuit judge held that the plaintiff could not recover against the garnishee. Three reasons were assigned by the court for this ruling, but to us the controlling question appears to be whether the contract was impressed with a trust which cannot be worked out under our statute. 3 Comp. Laws, §§ 10606, 10607. If we assume that the obligation of the vendee to pay the purchase price fixed by a land contract is, in ordinary cases, a chose in action which may be reached by garnishment, it is still a question whether the contract in question is under a trust which cannot be worked out in this proceeding. It is contended by the plaintiff that, on the assignment of the contract to the Union Trust Company by Webb with the consent of the cestui que trust, the contract was taken out of the trust, and became the property of Michenfelder. We do not so construe the transaction. The assignment to the Union Trust Company was for a distinct purpose, namely, to secure the payment of $2,500 and interest. The title to the contract, subject only to this lien, remained in Webb as trustee. He did not then part with it, and was only devested of the title when the Union Trust Company was appointed to succeed to the trust. This equity, not transferred, remained in Webb’s hands trust property, subject to charges for necessary repairs of the remaining trust property, proper insurance, and necessary expenses of the trust, including reasonable compensation for the trustee. There is no machinery provided for working out such a trust under the garnishment statute. The remedy of the plaintiff should have been sought on the equity side of the court.

Judgment is affirmed.

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


text:
    STACK v. OLMSTED.
    1. Conditional Sale—Acceptance oe Mortgage—Waiver op Title.
    One.who advances money to purchase property for the use of another, under an agreement that the property shall belong to him until paid for, does not, by accepting a mortgage on the same property, necessarily waive his title thereto, so as to subject the property to levy by an execution creditor of the mortgagor.
    2. Execution—Mortgaged Property—Replevin.
    Where the value of mortgaged chattels does not exceed the amount of the mortgage, a sheriff levying an execution thereon subject to the mortgage acquires no interest by the levy, and cannot defeat a replevin by the mortgagee.
    Error to Delta; Stone, J.
    Submitted May 7, 1901.
    Decided July 2, 1901.
    Replevin by John K. Stack and John Corcoran, co-partners as Stack & Corcoran, against Frederick M. Olmsted, sheriff of Delta county, for property seized on execution. From a judgment for plaintiffs, defendant •brings error.
    Affirmed.

      F. D. Mead, for appellant.

      John Cummiskey, for appellees.
   Hooker, J.

The defendant is a sheriff, whose only claim to the possession of the property replevied from him is by virtue of a levy of an execution issued upon a judgment against the Masonville Hoop Company in favor of one of its creditors. The plaintiffs claim to own the property in question, except two old boilers, and to have a chattel mortgage upon them. Previous to the rendition of said judgment, the hoop company was indebted to the plaintiffs, and the findings of fact show that plaintiffs made an arrangement to aid the hoop company by furnishing money upon condition that they should own and control the property, and apply the proceeds upon their claim.

The property in dispute may, for convenience, be divided into three classes: (1) Logs, hoops, etc.; (2 ) miscellaneous property, consisting of horses, wagons, machinery, etc.; (3) two old boilers. On February 28, 1898, the hoop company gave plaintiffs a chattel mortgage for $3,500 upon the first class, and this was duly filed. On the samé day it made with plaintiffs the following agreement, viz.:

“Articles of agreement made and entered into by and. between John S. Armstrong, Isaac L. Lanford, and Ray F. Armstrong, known as the Masonville Hoop Company, of Masonville, Mich., parties of the first part, and Stack & Corcoran and John Corcoran, of the city of Escanaba, Delta county, Mich., parties of the second part.

Whereas, said parties of the first part have this day given a chattel mortgage on logs, hoops, etc., for $3,500, to said second parties, to secure the payment of notes, moneys, goods, etc., said first parties may owe said second parties, from time to time, to the amount of $3,500, or any portion of it. This agreement and said chattel mortgage to cover all hoops and logs on hand, and all logs said first parties may receive from time to time during their indebtedness to said second parties; also all logs, when manufactured into hoops, lumber, etc., to remain the property of said second parties as security. All shipments of hoops, lumber, etc., to be consigned to said second parties, and, when paid, to apply as payment on notes or account due said second parties, or placed to the credit of said first parties in the Bank of Escanaba, to be at the option of said second parties to credit as they may prefer. Should it be necessary for said second parties to sell or dispose of any hoops, logs, lumber, etc., to make payments when due, any expense in so doing to be paid by said first parties. Should said second parties decide to permit said first parties to ship any material in their own name, said proceeds to apply on their indebtedness to said second parties as soon-as collected.”

This was not filed. On July 28, 1898, it gave plaintiffs a chattel mortgage upon a portion of the second class, for $034, and this was filed on August 28, 1898. Another mortgage, for $375, was given on other property belonging to the second class. Plaintiffs had a chattel mortgage for $1,500 upon the two boilers, the same being dated December 6, 1897, and duly filed. The court determined that all ■of the property included in classes 1 and 2 was purchased and paid for by plaintiffs upon an arrangement that it should remain their property until their claim against the hoop company should be fully paid. There was testimony that’“all of this material that was replevied had been material that the plaintiffs had purchased, except the two boilers;” also “that the most of the logs had been taken from lands bought by the plaintiffs, the lands and everything bought in their name,” etc. It was also determined that the two boilers were worth but $300, and that plaintiffs’ lien upon them was $600, and that, therefore, the defendant had no interest in them under the execution.

We are of the opinion that there was evidence from which these facts might be found, and we must therefore consider them established. The defendant contends that there was no evidence that .the logs were acquired under an agreement that they were to remain the property of the plaintiffs until paid for, but that they were to be manufactured under the written agreement that they were to remain the property of plaintiffs “as security.” It is urged that they were mortgaged on the same day, which is inconsistent with the theory that the title remained in the plaintiffs, and consistent only with the theory that they were held as security for $3,500 and no more. As to the second class, it is said that the giving of mortgages upon the property is inconsistent with, and a waiver of, a claim of title. On the other hand, the plaintiffs claim that their title was not affected by taking these mortgages.

There seems to have been no misunderstanding upon this subject between plaintiffs and the Masonville Hoop Company, and the testimony indicates that the judgment creditor was informed of the situation of affairs. Ordinarily, the acceptance of a mortgage would create a strong presumption of ownership by the mortgagor, but we cannot say that it is necessarily a waiver of title, if the parties understand that it is not such. The learned circuit judge appears to have so found, and, this being so, the property was not subject to levy.

Counsel for defendant asserts that the court erred in relation to the two boilers. They, with the other property, were mortgaged for $1,500. , All of this property belonged to the hoop company, but, not being adapted to its wants, most of it was sold, and plaintiffs permitted the money realized to be used in the business, instead of being applied upon the mortgage. It is said that it was not shown that there was $600 due; but the mortgage was $1,500, and there is nothing to indicate payment, so far as we discover. We know of nothing to prevent plaintiffs from allowing the amounts received from the property to be used in the business.

The court found that the plaintiffs’ interest in the two boilers was $000, and thatthey were worth but $300. Nevertheless defendant’s counsel contends that he had a right to levy and sell subject to the mortgage, and that plaintiffs, therefore, wrongfully took the property from him, and must respond to the full value of the property, not exceeding defendant’s claim. In the case of Rosenfield v. Case, 87 Mich. 301 (49 N. W. 630), it was held that, when the value of goods was not in excess of the mortgages, in case of a levy subject to them there would be nothing covered by the levy. Counsel says that this case is not governed by the rule there laid down, because that was a case of goods held by attachment, whereas this is an execution levy. We have not heard a satisfactory reason for applying that'rule in an attachment case and denying its application in case of an execution. It seems to be based on the theory that there should be no levy unless there is an excess over existing liens subject to levy. We think that the learned circuit judge did not err in so holding.

It is unnecessary to discuss other questions. The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    HALLADAY v. WEEKS.
    Statute on Limitations—New Promise. ’

       A written, promise to pay a note, barred by the statute of limitations, “as soon as one can,” is not the promise required by the statute of limitations, and does not revive the original 1 debt. Section 9740, 3 Comp. Laws.
    Error to Jackson; Peck, J.
    Submitted June 4, 1901.
    Decided July 2, 1901.

      Assumpsit by Edgar A. Halladay, administrator of the estate of Julia Oatman, deceased, against Willard C. Weeks, on certain promissory notes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James J. Noon, for appellant.

      William 1C. Sagendorph, for appellee.

       Head-note by Grant, J.

   Grant, J.

On June 22, 1870, defendant executed to plaintiff’s intestate a promissory note for $300, due one year from date. On September 4, 1875, he executed another note for $125, due one year from date, these notes were, long before this suit was instituted, dead in the law, and could only be revived by a written acknowledgment or promise, required by the statute of limitations (section 9740, 3 Comp. Laws), which requires such acknowledgment or promise to be in writing, and signed by the party to be charged thereby. On April 4, 1899, after his appointment as administrator, plaintiff wrote to defendant. The letter was not produced,, and Mr. Halladay did not testify- to its contents; but it may be a reasonable inference that he asked him about these notes. To this, on April 4, 1899, defendant replied: “It will be impossible for me to do anything on that account this spring. I will pay something on it as soon as I can, but cannot say just when.” This is clearly a conditional promise. The letter contains no absolute promise of payment, but only a promise to pay “ as soon as I can.” This means when he is able. The question, therefore, is, Does a conditional promise comply with the statute ?

A similar question was discussed in the early case of Ten Eyck v. Wing, 1 Mich. 40, 47. It was there said, following the best-considered cases in this country, that, where a new promise is set up to avoid the statute, it must be proved in a clear and explicit manner. Following the rule laid down by Mr. Justice Story, the court there held that the acknowledgment or promise is deemed a new contract, springing out of and supported by the original consideration, and that it is the new promise, not the original one, which imparts vitality to and revives the old debt. This court there said: “The new promise, if qualified o.r conditional, restrains the rights of the party to its own terms, and, if he cannot recover by those terms, he cannot recover at all.” An original note, “payable when able,” does not mature until the maker has become able; and his ability to pay must be shown by the holder. Veasey v. Reeves, 6 Ind. 406.

There is an irreconcilable conflict in the decisions as to what language is sufficient to renew an obligation barred by the statute. Chief Justice Shaw, in Sigourney v. Drury, 14 Pick. 387, said that it was quite impossible wholly to reconcile them. We think, however, that the weight of authority is against the proposition that a conditional promise like this satisfies the statute. Mr. Wood says:

“ If a debtor annexes any qualification or condition to his acknowledgment or promise, it will not be operative to remove the statutory bar without proof of its performance; and a contrary rule would nullify the principle upon which the doctrine relating to acknowledgments rests. It is not the acknowledgment of itself which revives the debt, but the promise which the law raises from the acknowledgment; and, if that is conditional, it follows, as a matter of course, that the debt can only be revived subject to such conditions. The debtor, after the statute has run, is master of the situation. If the creditor expects to recover any portion of the debt, he must take it upon such terms as the debtor sees fit to dictate.” 1 Wood, Lim. § 77.

Randolph says:

“ The acknowledgment or promise to pay must not be conditional; or, if conditional, the condition must be shown to have been performed.” 3 Rand. Com. Paper, § 1616.

Under conditional promises similar to this, the following among other courts have held that the promise cannot avail except upon proof of the performance of the condition: Richardson v. Bricker, 7 Colo. 58 (1 Pac. 433, 49 Am. Rep. 344); Wilcox v. Williams, 5 Nev. 206; Barker v. Butterworth, 46 N. J. Law, 244 (50 Am. Rep. 407); Chambers v. Garland, 3 G. Greene, 322. See, also, the authorities cited in 13 Am. & Eng. Enc. Law, 754, 755, and in the text-books above cited; Perkins v. Cheney, 114 Mich. 574 (72 N. W. 595).

The judgment is affirmed.

The other Justices concurred.


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    WATSON v. LYNCH.
    Mortgage Foreclosure—Sale—Authority oe Sheriff.

      In a foreclosure sale by advertisement, the notice specifying that the mortgagee will make the sale, the sheriff is not authorized to make it, except upon instructions from the mortgagee.

      Appeal from Ogemaw; Sharpe, J.
    Submitted June 5, 1901.
    Decided July 2, 1901.
    Bill by Annette H. W.atson against Sanford Lynch, Libbie Lynch, Clarence J. Phelps, sheriff, Myron H. French, Fremont F. French, Charles Magnassan, and Leonhard Gruner and Caroline P. Ellis, executors of the last will and testament of Joseph J. Ellis, deceased, to set aside a foreclosure sale and to foreclose the mortgage. From a decree for complainant, defendants appeal.
    Affirmed.
    Complainant resides in Dexter, Washtenaw county. In 1886 she loaned to defendant Sanford Lynch $100, and took a mortgage upon certain lands lying in Ogemaw county. Defendant French subsequently purchased the land, subject to the mortgage, and conveyed it by quitclaim deed to defendants Gruner and Ellis, executors of the estate of Joseph J. Ellis, deceased, and they conveyed it to Hudson P. Ellis. On June 19, 1899, the mortgagee proceeded to foreclose said mortgage by advertisement. One King, of Ann Arbor, was her attorney. Notice was published as required by law; the sale to take place on September 16th, at 10 o’clock in the forenoon. The amount due upon the mortgage was about $4=50. At the day of sale, defendant Phelps, the sheriff, opened the sale at the time appointed, adjourned it until the arrival of the afternoon train, and then sold the land to Hudson P. Ellis, who was then the owner, and bid it in as the agent for Gruner and Mrs. Ellis, the executors of the estate of Joseph J. Ellis. The land was worth fully twice the amount of the sale. Mr. Ellis testified that it was worth the amount of the mortgage. There was evidence that it was worth more than this. The reason for the postponement of the sale, given by Mr. Phelps, was that he had received no instructions from the mortgagee, and that he might get instructions, or that some one might come, on the afternoon train. Two days after the sale Mr. Phelps wrote Mr. King as follows:

      “ I write you today, informing you that Saturday, September 16th, at the time advertised, I sold a certain description of land at mortgage foreclosure sale. As I heard nothing from you or the mortgagee, Mrs. Annette Watson, and not knowing where she lived, at the time as advertised I opened the sale at 10 o’clock, and held the sale open for the space of five and one-half hours, or until the p. m. mail came from the south, thinking some instructions might come. But, not hearing anything from you, I offered the same for sale, and have in my care two hundred and seventeen dollars and seventy cents in cash, which is the amount the property brought. * * * As you are the attorney for the mortgagee, please advise me as to the disposition of this money.”
    Mr. King immediately replied, repudiating the sale, and asked him by whose order or by what authority he presumed to make it, inasmuch as he had received no instructions from either King or Mrs. Watson. Complainant soon after filed this bill to set aside that sale and to foreclose the mortgage. Proofs were taken in open court, and a decree entered for the complainant.

      William T. Yeo, for complainant.

      Merrie H. Abbott and Charles S. Abbott, for defendants.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). Several objections are raised to the validity of the sale, one of which is valid, and entitles complainant to relief. The sale was advertised to be made by the mortgagee, and not by the sheriff. Mr. Phelps, as sheriff, had received no authority or instruction from complainant or her attorney to make the sale. Complainant had written a letter to him, not as sheriff; but this letter, while received before the sale, remained in his desk unopened until several days afterwards. In this letter she said: ‘ ‘ Various estimates of the property have been given me. You will undoubtedly know very nearly the exact value, and I make the request that you bid off the land for me, and oblige.” If he had received this letter and read it, it would not have authorized him to make the sale that he did. Under its authority it would have been his duty to attend the sale and bid the property in for complainant, or procure some one else to bid for her to the amount of her mortgage, if the land was worth that much. It needs no argument to show that the sheriff may not watch the newspapers to see what sales are advertised in foreclosure cases, and then assume the authority to appear and make the sale without any instruction from the mortgagee, unless the notice is such as to show the authority conferred upon him. The mere fact that the statute authorizes such a sale to be made by the sheriff does not confer upon him any such authority as is claimed in this case. The mortgagor may have paid between the last day of the publication of tho notice and the day of sale, or he may have paid before, without the withdrawal of the notice from publication. The sheriff has no right to assume such authority, and the purchaser has no right to assume that the sheriff has been authorized by the mortgagee to make the sale. It is not a case where the purchaser can be protected as a bona fide one, or the mortgagee can be estopped to deny the authority to sell.

The. decree is affirmed, with costs.

The other Justices concurred.


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    GARVEY v. PARKHURST.
    Land Contracts — Description op Premises — Acceptance op Opper to Sell—Evidence.

       1. In a contract for the sale’ of land, a description by name is sufficient, if it can be identified by extrinsic evidence not contradictory of the contract.
    2. The correspondence in this case, coupled with a long-continued possession by the vendee and improvements made, constitutes sufficient evidence of the acceptance by the vendee of the vendor’s offer to sell.
    3. The correspondence in this case is held to constitute a contract of sale, and not a mere license; and a deed of the vendor conveyed the vendor’s title -subject to the rights of the vendee.
    Error to Muskegon; Russell, J.
    Submitted June 5, 1901.
    Decided July 2, 1901.
    Summary proceedings by Emma Garvey against Henry Parkhurst to recover the possession of land. Prom a judgment for defendant on verdict directed by the court, complainant brings error.
    Affirmed.
    This was a summary proceeding under the statute, before a circuit court commissioner, to recover possession of 40 acres of land occupied by the defendant as a farm. Both parties derived their title from the same grantor, Charles Garvey, who resided in Heckley, Miss. Complainant is the mother of Charles and Harry. Harry wrote Charles on April 4, 1896, stating that he desired to purchase the premises, and asked His terms. To tHis CHarles replied on April 6tH as follows:
    “You ask me wHat I would do with you about my place. If you want it, I will let you have it for $150, and you pay the back taxes. I will give you five years to pay it in, but I can’t give you a contract until I come home. I don’t expect to come home for two years, but you can go on and build a house, and I will give you a contract then. You will have to pay the taxes this summer.”
    The case was submitted upon the testimony of the complainant alone, and the record does not show whether Harry wrote, accepting the proposition of Charles. It does, however, appear from complainant’s own testimony that Harry went into possession, relying upon the contract created by this letter; that he or his assignee paid the taxes; that he made improvements; and that Harry remained in possession about a year, when he executed an assignment in writing to defendant of all “his right, title, and interest to a certain place spoken of in this letter from his brother, Charles Garvey,—the place on section 6, 10—14 west, Moorland township.” Defendant went into possession, worked the farm, and made other improvements. Complainant was not pleased with the transfer of the property, which had once been her home, to the defendant. She thereupon purchased a tax title, and brought suit upon it. She was defeated in that, and defendant paid her the taxes. She then obtained a quitclaim deed from her son Charles, for which she paid no consideration. Upon receipt of this deed, she served notice upon defendant to quit, and, after waiting three months, instituted this suit. Complainant admitted that she knew that her son Harry went into possession and made improvements pursuant to the terms of the letter to him from Charles. She evidently understood that there was a contract between Charles and Harry, by which the former agreed to sell to the latter the land, and fully understood its terms, for she saw the letter at the time it was received. The court directed a verdict for the defendant.

      Turner & Turner, for appellant.

      Sessions & Sutherland, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). 1. It is urged that the contract, if any existed, between Charles and Harry, is void under the statute of frauds, because it does not contain a sufficient description of the property. This contention cannot prevail. A governmental description, or a description by metes and bounds, is not required to the validity of a contract for the sale of lands. It is sufficient if the land be described by name so as to be identified by extrinsic evidence not contradictory of the contract. Thus, a description “The Schoolcraft Store,” held sufficient. Francis v. Barry, 69 Mich. 311 (37 N. W. 353). So, land described as, “My title and interest in the lands,” etc., belonging to a certain business, held sufficient. Eg gleston v. Wagner, 46 Mich. 610 (10 N. W. 37). So, in this case, a letter referring to the land as “ my place,” meaning the place situated in the township of Moorland, sufficiently describes the land. It is evident that it was the only place he owned in that township. The identification can be supplied by extrinsic evidence without conflicting with the contract.

2. While there is nothing in this record to absolutely show a written acceptance by Harry of the proposition of Charles, yet there is sufficient in the testimony of complainant to show that both parties had acted upon the existence of such contract, and that Harry had accepted it by taking possession and making improvements, and that complainant also recognized it. Defendant also went into possession and made other improvements. The letter did not, as counsel for complainant insisted, create a mere license. It gave no authority at all to Harry except upon the terms of the written proposition of Charles. He did enter under that proposition. The quitclaim deed from Charles to complainant does not show any intention to interfere with the rights of Harry under the contract. The deed gave to complainant only the same rights that Charles had. The title was conveyed to her subject to the rights of the defendant under the contract. No violation of the terms of the contract is claimed. Under these facts, the court was right in directing a verdict.

The judgment is affirmed.

The other Justices concurred.


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    WETMORE v. MOLONEY.
    Appeal—Requests to Charge — Exceptions — Bill of Sale— Chattel Mortgage.

       1. An assignment of error upon the refusal of the court to give' a request will not be considered when no exception is taken.
    3. A bill of sale may be shown to be a mortgage, notwithstanding a statement in it that it is “understood to convey an. absolute title.”
    Error to Cheboygan; Shepherd, J.
    Submitted June 5, 1901.
    Decided July 2, 1901.

      Assumpsit by John H. Wetmore, administrator of the' estate of Henry A. Wetmore, deceased, against James F. Moloney and John Cosgrove, upon a promissory note. From a judgment for plaintiff, defendant Moloney brings error.
    Affirmed.
    On May 1, 1893, defendant Cosgrove, desiring to enter upon the business of keeping a saloon, borrowed from plaintiff’s intestate $500 with which to pay the taxes thereon, and gave the note in suit. Defendant Moloney was a joint maker with Cosgrove. Various payments were made, and at the trial there was due the sum of $352.59, for which plaintiff recovered judgment.
    Mr. Cosgrove rented the building, where were his saloon and his living rooms above, from Mr. Wetmore, and also borrowed from him dther money with which to fit up the saloon. With his plea of the general issue, defendant gave notice that he would give in evidence a bill of sale, dated June 29, 1894, of certain personal property mentioned therein, and that said bill of sale was given and received in payment and satisfaction of the note declared on in this case. Defendant Cosgrove testified that this bill of sale was given in payment of said note. Plaintiff abso: lutely denied this, and stated that the bill of sale was given as security for rent and other items which Mr. Cosgrove owed plaintiff. This was the issue upon which the case was tried.

      G. S. Peilley, for appellant.

      Prost & Sprague, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). 1. Error is assigned upon the refusal of the court to give certain requests propounded by the defendant. To such refusals no exception was taken. They cannot, therefore, be considered. Thorn v. Maurer, 85 Mich. 569 (48 N. W. 640); Peterson v. Toner, 80 Mich. 350 (45 N. W. 346).

2. The bill of sale contained the following language: " It is understood that this instrument conveys an absolute title to said Howard Wetmore of the property herein described.” The testimony on the part of the plaintiff is positive that this bill of sale was given as security. It was immediately filed in the office of the city clerk by Mr. Cosgrove himself at the request of .plaintiff. It was renewed from time to time. Defendant’s counsel concedes that a bill of sale absolute in form may be shown to be a mortgage. This language does not take it without the rule. It is quite apparent there were reasons why Mr. Cosgrove desired to have this clause appear in the bill of sale, so as to convey to his other creditors the idea that it was not a mortgage. After agreeing upon its terms, Mr. Cosgrove went to his attorney, and had it drawn, submitted it to the plaintiff, and then took it to the city clerk. The court gave very explicit instructions to the jury as to what they might consider in determining the character of this instrument. He told them that, if they found that this bill of sale was given in payment of the note, their verdict must be for the defendants. If, however, they found that the instrument was a mortgage to cover other indebtedness than the note, they should find for the plaintiff. This was the issue the defendants tendered, and the court very properly instructed them that it was the sole issue. It was immaterial to the defendants whether this bill of sale was absolute or a mortgage, if given to pay or secure other indebtedness (than this note. The sole question for the jury was, Did plaintiff accept it in payment of the note ? And this issue went against defendants.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


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    ABREY v. CITY OF DETROIT.
    Appeal—Review—Objections to Evidence—Damages—Instructions—Adjoining Landowners.

       1. An objection to the admission of testimony will not be considered where no reason is assigned.
    2. Where the instruction of the court clearly eliminates from the consideration of the jury one element of damage, and it is evident from the verdict that the jury did not consider it, a judgment will not be reversed for the refusal to give a request upon the subject.
    3. When one places a bank of dirt on his own land, above his neighbor’s, he is bound to erect a retaining wall sufficient to prevent the dirt from encroaching. This rule applies to municipalities as well as to individuals. The fact that one has built a brick foundation to his house is not an invitation to his neighbor or a municipality to bank earth against it.
    Error to Wayne; Frazer, J.
    Submitted June 6, 1901.
    Decided July 2, 1901.
    Case by George T. Abrey against the city of Detroit for injuries to a building. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      The plaintiff had judgment for alleged injuries to his building, claimed to have been caused by the filling in of earth on the side of the roadway which was the approach to the Belle Isle Park Bridge. His testimony supports the following statement of facts: The approach extends southerly from Jefferson avenue to the bridge, and had been used for some time before plaintiff’s building was constructed; but, although the grade line of the approach had been established, the earth was not filled in to the entire width of the approach until after the construction of plaintiff’s building. The natural surface of the earth sloped from near Jefferson avenue to the water’s edge, and on each side of the roadway of the approach the ground sloped to the lot line.
    In 1891-92 the plaintiff built a frame building on the east side of the approach, the north line of which was 200 feet south of Jefferson avenue. The building had a frontage of 70 feet on the approach, and was built at or near the lot line. It was 60 feet in depth, and 3 stories in height above the water-table, and the water-table was at or near the grade of the roadway of the approach. The natural surface at the north line of plaintiff’s lot was 8 feet below the grade of the roadway, and at the south line of the building it was 22 feet below the grade of the roadway. On the north line the building was supported by a brick wall, and a brick foundation wall extended from the northwest corner of said building 35 feet from the north line on the west side. On the southerly 35 feet of the west line of the building, on the south line, and on the east line, the building rested on piles, which were 26 feet in length at the south end of the building, and driven into the ground 4 feet. Plaintiff obtained from the commissioners of parks and boulevards a license to enter said building from the bridge approach, and constructed a sidewalk along in front of the building at or near the grade of the roadway, and on the line of the water-table, and connected said sidewalk with the roadway of the approach. The first floor of the building was fitted up as a restaurant, the second floor as a dance hall; with sleeping rooms on the third floor, which is what is known as a “half story.” At the southerly end of said building a kitchen had been provided under the first floor.
    In the fall of 1893 defendant began to fill in with earth-the space between the roadway and the plaintiff’s building, filling it between the roadway and plaintiff’s building to the level of the roadway, and banked the dirt over on plaintiff’s lot and against plaintiff’s building, without putting in any protection in the way of piles, boards, or retaining walls. Plaintiff complained to defendant when the work commenced and ,was in progress, but his complaints were ignored. The dirt broke windows, and filled in so as to prevent the use of the basement door. The foundation wall fell in twice by reason of the pressure of the dirt, as plaintiff claims; and the dirt followed it, filling in the basement, preventing the use of the furnace, and plaintiff threw it back in the basement out of the wayj as far as possible. The filled-in earth pressed against his building, and drove the southerly end of it 26 inches to the east; and in 1899, by placing jackscrews against the building on the east side, the building was forced back 18 inches, and still remains 8 inches east of where it was originally plaped at the southwest corner. Defendant contended that the building was improperly constructed; that the pile foundation was insufficient to support a building 3 stories, or about 36 feet, in height; and that the damage to the building, if any, was caused by settling or by wind pressure. The jury during the trial was sent to view the premises.

      John W. McGrath, Chief Assistant Corporation Counsel, for appellant.

      Graves & Hatch, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). 1. Error is assigned upon the ruling of the court in admitting testimony on the part of the plaintiff as to the cost of repairing the building by putting a stone or brick foundation under it. Two witnesses had already testified to this without objection. On the following day one of the witnesses was recalled, and revised his figures, showing the cost to be much less than that testified to by him the day before. After detailing how he intended to do this work, he was asked to give a detail of his estimate. To this the objection was made, “I object to this class of testimony,—about the cost of putting up walls and brick piers.” No reason for the objection was assigned. This court has repeatedly held that such objections cannot be considered: Benedict v. Provision Co., 115 Mich. 527 (73 N. W. 802); Hutchinson v. Whitmore, 95 Mich. 592 (55 N. W. 438), and authorities there cited.

No motion was made to strike out the prior evidence on the same point. It is not at all clear that the testimony was not competent as an element of damage. If the original foundation, consisting of piles and the brick, was sufficient to maintain the structure, and such a foundation was rendered insecure by the dirt thrown against it, the cost of building a secure foundation would result solely from the fault of the defendant. The cost of restoration might, therefore, be a proper measure of damage. Hartshorn v. Chaddock, 135 N. Y. 116 (31 N. E. 997, 17 L. R. A. 426 ). But the verdict of the jury, of $1,000, shows very clearly that this was not considered by them, under the charge of the court, as an element of damage.

2. The court refused to instruct the jury, as requested, that they could not allow the plaintiff what it would cost to place a brick or stone foundation under the building. As already stated, it is evident that the jury did not include this in their verdict. The jury were instructed that there were two elements of damage for them to consider, viz.: Injury to the building, and loss of rents. This instruction eliminated from the consideration of the jury the cost of building a wall as a measure of damages. We therefore think that the refusal to give this charge did not result in any prejudice to the defendant.

3. Error is assigned upon the refusal of the court to instruct the jury:

“ 1. The building having been constructed with its water - table at the grade line of the approach, the city had the right to assume that the building was constructed so as to permit the filling complained of.

“2. It appears that this building was constructed with reference to this approach, and its water-table was located with' reference to the grade of that approach; and it is for the jury to say whether or not the plaintiff did not by such construction invite the filling in complained of, and if he did, and the work was done in a careful manner, the plaintiff is not entitled to recover.”

There was no evidence upon which to base this charge. Plaintiff not only did not invite the defendant to fill it in, but protested against it. The bank broke the brick wall in, and rendered the basement almost useless. This land was not a public highway, but was purchased by the city as a part of the grounds of the parks and boulevards. Plaintiff had no right to its use for a passageway from the roadbed into his building. Abrey v. Commissioners of Parks & Boulevards, 95 Mich. 181 (54 N. W. 714). In filling this space the defendant was bound to exercise the same care as though the land were owned by a private individual. Plaintiff was not under obligation to build a wall to protect against the dirt thrown in. When one places a bank on his own land above his neighbor’s, he is bound to erect a retaining wall or structure sufficient to keep the dirt from encroaching upon his neighbor’s land. The case comes within the maxim, “Sic utere tuo ut alienum non Icedas.”

4. We think all the other exceptions to the refusal to charge as requested are covered by the general instructions of the court. The court, in very clear language, submitted to the jury the theory of the defendant, as well as that of the plaintiff. He distinctly instructed them that “if the building was not erected in a sufficiently stable manner to resist the ordinary action of the wind storms, and if any injury was done by the wind or the elements, or by anything over which the defendant had no control, it would not be liable for any such injury.”

The judgment is affirmed.

The other Justices concurred.


text:
    TOOMBS v. STOCKWELL.
    Contract of Sale—Construction.

       The order in this suit was to he fully, settled for within 10 days from date. H'eld, that this contract could not be changed by another contract of agency, made between the signer of the order and the party to whom the order is directed, giving 30 days in which to settle for goods ordered.
    Error to Clinton; Davis, J., presiding.
    Submitted June 6, 1901.
    Decided July 2, 1901.

      Assumpsit by Theodore Toombs against A. U. Stock-well upon a guaranty of payment for goods sold. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff brought suit upon the following paper:
    “St. Johns, July 11th, 1900.
    “ The Ideal Flatiron Company.
    “ Gentlemen: Please ship to my address one dozen Ideal flatirons, at $36 per dozen, as per agreement on back of this order; to be fully settled for within ten days from date.
    “Town, St. Johns. ' County, Clinton.
    “State, Michigan. R. R. Station, D. & M.
    “ Mrs. L. B. Servís, Canvasser.”
    On the back appeared the following guaranty:

      “ St. Johns, July 11th, 1900.
    “ I hereby guarantee the payment of the amount set forth in the order herein mentioned. I also certify that I am worth property subject to levy and execution for double the amount set forth in said order. I make this statement for the purpose of securing the credit now obtained.
    “ Name: A. U. Stockweel.”
    Also the following appeared on the back:
    “Received the within-mentioned goods in good order.
    “ Mrs. L. B. Servís.”
    Defendant pleaded the general issue, with a notice of several special defenses, the only one of which material to notice is that, at the time of the execution and delivery of the above instrument, there was also executed, as a part and parcel of it, a certain other paper, which is set up in full in the notice, and known as “ General Agent’s Contract.” There was no agreement on the back of this order except the agreement of guaranty signed by the defendant. At the same time that the instrument sued upon was executed, another agreement was executed between the Ideal Flatiron Company and Mrs. Servis, by which she agreed to be a canvasser for the goods specified in the agreement, and was allotted the exclusive use of a certain territory. This instrument contained the clause, “All goods must be settled for 30 days from date of invoice.,” The claim of defendant is that this contract of agency was the contract referred to as “agreement on back of this order,” and that the contract of agency controlled the contract sued upon. The goods mentioned in the contract guaranteed by the defendant were delivered upon the execution of that contract. Plaintiff purchased this contract, and brought suit before the expiration of the 30 days. The court held that the “general agent’s contract” controlled, that suit could not be maintained until after 30 days from date of the invoice, and that suit was prematurely brought.

      Leiuis Severance, for appellant.

      TS&win H. Lyon, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). We think the court was in error. The paper sued upon was a specific order for certain goods, specifically stated that they were to be settled for within 10 days from date, and its payment guaranteed by defendant. Even if the contract of agency had been attached to the paper, the terms of the guaranteed order must control as to the time. Inasmuch as this was the sole question upon which the case was. decided, it is the only one which we need to determine. We may, however, with propriety refer to one other point raised by the defense, viz., that there is no averment in the declaration of the assignment of this order. The printed record does not set up the pleadings and proceedings in the justice’s court. The original record shows the declaration, and it avers a due assignment of the order to the plaintiff.

The judgment must be reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, C. J..

text:
    FREER v. HAMILTON.
    Justices of the Peace—Attachment—Sufficiency of Affidavit.
    An affidavit for attachment in justice’s court, setting up an indebtedness “on contract,” is not fatally defective in not specifying whether such contract is express or implied; the statute (1 Oomp. Laws, § 721) not imposing any such requirement.
    Error to Kalamazoo; Adams, J.
    Submitted June 6, 1901.
    Decided July 2, 1901.
    Attachment proceedings by John Freer against'Edgar Hamilton. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Jesse JR. Cropsey, for appellant.

      Frost & Jackson, for appellee.
   Montgomery, C. J..

This case originated in justice’s court. The defendant removed the case to the circuit court by certiorari, where the judgment was affirmed. The case is brought here on error.

The case was commenced by attachment.' The body of the affidavit reads as follows:

“John Freer, being duly sworn, saith that there is justly due to him, this deponent, from Edgar Hamilton, upon contract, the sum of thirty-seven and 29-100 dollars, as near as this deponent can estimate the same, over and above all legal set-offs, and that the said Edgar Hamilton, as this deponent has good reason to believe and does • believe, is about to assign, dispose of, or conceal his property with intent to defraud his creditors.”

The meritorious question which we are called to decide is whether, under the statute authorizing attachments in justice’s court, it is necessary to specify in the affidavit for attachment whether the suit is brought on express or implied contract; that is, to distinguish between the two. In circuit-court proceedings this has been held essential, but upon the distinct ground that the statute requires it. People v. Blanchard, 61 Mich. 478 (28 N. W. 669). The justices’ statute (1 Comp. Laws, § 721) provides that:

‘c Any plaintiff shall be entitled to an attachment against a defendant in any action founded on a judgment or on a contract, express or implied, if such plaintiff, or some person in his behalf, shall make and file with the justice an affidavit specifying, as near as may be, the amount due to the plaintiff, and containing a further statement,” etc.

It will be .noticed that, in stating what the affidavit shall specify,' there is no requirement that the nature of the demand shall be stated. That this omission is to be deemed significant, see discussion of the court in Weimeister v. Manville, 44 Mich. 408 (6 N. W. 859).

It is urged that the affidavit should show that the justice had jurisdiction, in addition to stating what is required by the terms of the statute. The answer is that this affidavit complies with this requirement, as it shows the action to be based on contract, which must be either express or implied.

The other questions discussed are without merit.

The judgment is affirmed.

The other Justices concurred.


text:
    PEOPLE v. PALMER
    Forgery—Order for Goods
    An order for the purchase and delivery of goods is within 3 Comp. Laws, § 11659, prescribing a punishment for the forgery of “any order, acquittance, or discharge for money or other property.”
    Exceptions before judgment from Montcalm; Davis, J.
    Submitted June 7, 1901.
    Decided July 2, 1901.
    Frank W. Palmer was convicted of forgery.
    Affirmed.

      John Nichol, for appellant.

      Frank A. Miller, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of the crime of forgery, and we infer, though the record does not so state, that the case is before us upon exceptions before sentence. The instrument forged is as follows:

THE ZONE OIL 00.,
Cleveland, O.
Order No__________ April 30, 1900.
Ship to A. R. Isham & Sons.
P. O. Address, Butternut.
Shipping Address, Butternut, Mich.
How Ship, Ann Arbor. When, 1 June.
Terms, 90 days.
2 barrels bright red paint. Oil at 57c per gal.
_____“ ______per Wood...........
1-2 half barrels------------------paint 50c
_____ “ ________black roof________
( Containing about ) _____keg ( 20 gallons. j
______gallons------------------------
Extra for Packages.
Half barrels----------50c Kegs.-KOn
5 gal. cans___________50c 10 gal. cans__________75c
The above prices are F. O. B. delivered.
This order is taken with the understanding that it is positive, and not subject to change or countermand, unless so specified thereon. Any agreement not stated on this order will not be recognized.
( Purchaser’s signature) A. R. Isham & Sons.
F. W. Palmer, Salesman.

It is understood that the instrument was made by the defendant, and by him sent to defendant’s employer, the Zone Oil Company, with intent to defraud. The only question discussed in appellant’s brief is whether the instrument described is covered bj^- the statute. Had Isham & Sons made and sent this writing to the Zone Oil Company, it would have been intended and received as an order for the delivery of goods to them. It is, therefore, subject to forgery, within the statute, which punishes the forgery of any order for the delivery of goods. It seems substantially on all fours with the order described in People v. Phillips, 118 Mich. 699 (77 N. W. 245, 74 Am. St. Rep. 436).

The conviction is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    DUNN v. DUNN’S ESTATE.
    Estates op Decedents—Witnesses — Competency — Wipe of Claimant.
    In a proceeding against a decedent’s estate for damages for the breach of an oral contract to convey land, claimant’s wife is a competent witness in Ms behalf to prove the contract; her interest not being such as to constitute her an “opposite party,” within 3 Comp. Laws, § 10212. Laird v. Laird, 115 Mich. 352, distinguished.
    Error to "Washtenaw; Kinne, J.
    Submitted February 12, 1901.
    Decided July 2, 1901.
    Charles Dunn presented a claim against the estate of Isaac Dunn, deceased, for the breach of a contract to convey real estate. The claim was disallowed by the commissioners, and claimant appealed to the circuit court, where he obtained a judgment. Defendant brings error.
    Affirmed.

      .Lehmann Bros. & Stivers, for appellant.

      Randall & Jones, for appellee.
   Moore, J.

Charles Dunn presented a claim against the estate of his deceased father. His claim was disallowed by the commissioners. He appealed the case to the circuit court, where it was tried by a jury, who rendered a verdict in his favor for $500. The case is brought here by writ of error.

It is the claim of Charles Dunn that in 1876 he moved upon and took possession of a farm belonging to his father, Isaac Dunn, situated in the county of Ingham, embracing some 200 acres of land, under the agreement with his father that he (Charles Dunn) should go on and occupy said farm, and make certain improvements thereon, and that in consideration thereof the father would, at his death, leave said 200 acres of land to Charles as his own property; that, in pursuance of said agreement, the claimant did go on and occupy said farm, make certain improvements there, spend certain sums of money; that in 1883 claimant, at the request of his father, removed from said farm, and occupied another farm near the residence of his father, in Ann Arbor; that he never released or abandoned his right in said property. He also claims that, without his knowledge or consent, his father deeded 90 acres of the land to another person, which deed was not to be delivered and recorded until after the death of Isaac Dunn, when it was delivered and recorded.

Upon the trial Anna E. Dunn, the wife of Charles Dunn, was allowed to testify. The principal question in the case is whether she was a • competent witness or not. The appellant claims that she was not a competent witness under the statute (3 Comp. Laws, • § 10212). Counsel assert the case is controlled by Laird v. Laird, 115 Mich. 352 (73 N. W. 382). We cannot agree with counsel in this contention. Laird v. Laird was a case where a bill was filed for the specific performance of an oral land contract. If a decree was rendered as prayed for in the bill, the wife would secure homestead and dower rights, of which she could not be deprived except by her own voluntary act. For these reasons it was held she was a party in interest within both the letter and spirit of the law. In the case at bar a claim is presented for damages for a breach of an agreement. If the claim is allowed, it belongs to the husband. The wife has no more interest in it than she would have in the result of any other litigation determined in his favor. She is not a party in interest, within either the letter or spirit of the law. The precise question was involved in Cotherman v. Cotherman’s Estate, 58 Mich. 467 (25 N. W. 467), where it was held the wife was competent to testify. See, also, Slack v. Norton, 111 Mich. 213 (69 N. W. 497).

The other assignments of error have been considered, but do not call for discussion.

Judgment is affirmed.

The other Justices concurred.


text:
    WALLACE v. FRATERNAL MYSTIC CIRCLE.
    1. Benefit Societies—Notices op Assessments—Waiter.
    The by-laws of a benefit society provided that notices of assessments should be mailed to the insured, left at his residence, or handed to him in person. In an action on a certificate, in which the nonpayment of an assessment was set up as a defense, a witness testified that all of insured’s notices of assessments were left at his place of business, being handed to him personally if present, and, if not, to his clerk; but it did not affirmatively appear that any of the notices prior to the last one was served on the clerk. Held, not to show a waiver by insured of the right to notice in accordance with the by-laws.
    2. Same—Witnesses—Competency.
    In an action on a benefit certificate, defendant’s officers are disqualified by 3 Comp. Laws, § 10212, from testifying to matters equally within the knowledge of deceased.
    3. Same—Payment op Assessments—Custom.
    Evidence that a member of a benefit society entertained a belief that the courts would not sustain a forfeiture of his certificate for failure to pay an assessment within the time required by the by-laws has no tendency to show that, in delaying such payment, he did' not rely on a custom of the society to receive payments after the time limited.
    4. Same—Suspension of MEember—Validity.
    Action by a benefit society looking to the suspension of a member for nonpayment of dues, taken without notice to the member, and not entered on the records of the society, is ineffectual.
    Error to St. Clair; Atkinson, J.
    Submitted March 7, 1901.
    Decided July 2, 1901.

      Assumpsit by Christine Wallace against the Fraternal Mystic Circle on a benefit certificate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Avery Bros. & Walsh (John F. Follett, of counsel), for appellant.

      Frank Whipple (J. B. Mcllivain, of counsel), for appellee.
   Montgomery, C. J.

This case has once been considered by this court. The opinion of the court on the former hearing is reported in 121 Mich. 263 (80N. W. 6). On a second trial the plaintiff recovered, and defendant brings error.

The assignments of error are numerous, but we find, on examination, that many of them raise questions which are concluded by our former decision, which has become the law of this case. We will, for convenience, treat such questions as are not concluded in substantially the same order adopted by counsel.

1. It was submitted to the jury to find whether the notice of assessment 21 (the one in question) was received by the assured. The rules of defendant provided for notice served by mail, or at his place of residence, or handed to him in person. The ovidence tended to show that the notice of assessment was left at the place of business of assured. The defendant asked an instruction that the assured had waived the right to insist on service at his residence. The evidence on this point was by the messenger, who testified, in substance, that he delivered the notices of assessment at the store, and that, if Wallace was present, he handed the notice to him, and, if not, he handed it to his clerk. He does not state how many of these notices were handed to the clerk. He is unable to state whether the one in question was handed-to Wallace or the clerk. It does not affirmatively appear that any of the notices prior to-the last was served on the clerk. We think it cannot be held that there was a waiver of the right to insist upon notice provided by the by-laws.

2. The court excluded testimony of defendant’s officers as to facts equally within the knowledge of the deceased. This ruling is assigned as error. In the former opinion it was said that such testimony was incompetent; but it is said that additional considerations are now urged, and ■ it is strenuously contended that the plaintiff is not a legatee, heir, or assignee, within the meaning of the statute. It is possibly correct to say that she does not come within the precise words of the statute, and, were the question entirely new, there might be ground for hesitancy. It should be kept in mind, however, that plaintiff is a bene.ficiary of the assured, and that up to the time of his decease he retained the power of disposition of his policy. She takes, therefore, by virtue of a right bestowed upon her by the deceased. The question is not new. See Krause v. Assurance Society, 99 Mich. 461 (58 N. W. 496).

3. The defendant offered to show that deceased had a notion that some court had decided that the order could not insist upon his making payments within 20 days or forfeit his policy, and asked an instruction that, if _ he relied upon his notion in not making payment within the 20 days, he could not recover. The offer of proof did not go to the extent of excluding knowledge on the part of the deceased of the custom of receiving payments after 20 days. The dealings with assured showed that this custom was adopted in his case, at least. This being so, the fact that he believed that the court would not enforce a forfeiture for failing to pay within 20 days would not tend to show that he placed no reliance upon the custom.

4. The contention that the custom was without force unless a health certificate was produced is not supported by the testimony; and the same may be said of the claim that the assured could not avail himself of the custom unless in good health, and of the contention as to the reasonableness of the time within which payment might, under the circumstances, have been made.

o. The defendant introduced parol testimony tending to show that deceased was, at a meeting held on April 4th, reported for nonpayment of dues, and at a subsequent meeting, held July 18th, he was suspended. Complaint is made that the circuit judge, in charging the jury as to the force of this parol testimony, laid down a rule requiring defendant to establish the facts by more than a preponderance of testimony. The charge is subject to this criticism, but we think the defendant is not in a position to complain. The by-law requires that a default in payment of dues be reported by the worthy recorder in open Ruling, and that, if the dues are not paid on or before the next regular meeting, the member may be suspended. It appears to be conceded that a record of each of these ac^ts should regularly have been made, but the defendant relies upon the general rule that the records may be corrected by parol. If, however, the order was at liberty to proceed without notice, we think the notice which would come to the assured from the record was at least essential. People v. Mechanics’ Aid Society, 22 Mich. 86. The circuit judge’s ruling was too favorable to defendant.

■ We discover no error prejudicial to the defendant.

Judgment affirmed.

The other Justices concurred.