text:
    RAYMOND v. DAY.
    1. Evidence—Witnesses—Cross-Examination.
    A general agent of an insurance company who has testified upon direct examination, in an action by a solicitor against him for commissions, that he paid one-half of the commissions on the first premium on certain policies to a third person, may be asked on cross-examination, for the purpose of rebutting the inference to be drawn from his testimony that his agreement with the solicitor called for less than half the first premiums, as to how much annual commissions he is entitled to on policies after the first year.
    2. New Trial—Newly-Discovered Evidence—Discretion oe Court.
    Refusal to award a new trial for newly-discovered evidence, on the ground that proper diligence to discover the evidence before the trial had not been shown, will not be reversed, unless the record discloses an abuse of discretion on the part of the circuit judge.
    Error to Wayne; Hosmer, J.
    Submitted November 12, 1896.
    Decided January 5, 1897.

      Assumpsit by Edwin M. Raymond against John C. Day for commissions on insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      E. W. Pendleton (John Atkinson, of counsel), for appellant.

      Charles Flowers, for appellee.
   Montgomery, J.

Defendant, Day, was the general agent of the Equitable Life Assurance Society of New York. Plaintiff entered into his employment in 1887, under a written contract, as solicitor of insurance. This contract, it would seem, related to insurance effected through the instrumentality of plaintiff alone. Plaintiff claims that during the years of 1887, 1888, and 1889 he assisted defendant in effecting insurance on various lives, upon an agreement to share the commissions received, and that for these items there has never been a settlement and payment by defendant. Plaintiff recovered upon this claim. Defendant entered a motion for a new trial, which was refused, and he brings the case, here for review. But two points are presented. One relates to the admission of a single question on the cross-examination of defendant, and the other assignment of error relates to the refusal of a new trial.

The plaintiff had testified that Mr. Day and himself had caused insurance to be written upon the lives of Elias Matter, Mr. Wright, and W. 0. Hughart, under an agreement that the commissions received upon the insurance were to be divided between the two equally. Defendant disputed' this agreement, and testified, in addition, that settlements were made from year to year of the business transactions between the two, and that the settlements were satisfactory. On the direct examination, defendant testified that, as to the insurance written on Mr. Wright, he told plaintiff that, if he could, he would save something for him out of the commissions, and that plaintiff replied that he would be satisfied with that arrangement, and that he (defendant) paid plaintiff out of the commissions a sum satisfactory to plaintiff. On cross-examination, defendant testified to the amount of the premium on the three Wright policies, stating that it was $1,018.20; that the commission was 35 per cent.; and that Mr. Raymond, under his present claim, would be entitled to 50 percent.; that he (defendant) paid to one Lancashire $152 of the premium, and to Mr. Raymond $12?; and that he (defendant) received $29.30. He further testified without objection as to the amount of his commission on certain other policies, and as to the commission he would receive on renewals. He was asked what kind of policies the Wright policies were, and replied that they were 15-year endowments He was then asked: “How much annual commission did you. get after the first year ? ” This was objected to, and received subject to exception, and the witness replied, “Seven and a half per cent.” This ruling presents the first question in the case. We think the testimony was properly received. It was in dispute between the parties as to whether plaintiff was to receive, under an agreement with defendant, one-half the commission, or the amount paid him. As the testimony stood, defendant’s testimony to the effect that he was not to pay more than $127 was fortified by the inference that the jury might draw, that, as he (defendant) had been required to pay $152 to Lancashire, it would be unreasonable to require him to pay substantially all that remained to plaintiff; and, if the fact had been that defendant would have no further concern in the insurance after the receipt of the first premium, the inference to be drawn from this would have been very strong; but, as bearing upon the probabilities, we think the fact that he had a further and other interest in the insurance effected was of some importance, and competent to be considered by the jury. The question is within the principle of numerous decided cases. See Misner v. Darling, 44 Mich. 438; Banghart v. Hyde, 94 Mich. 49, and cases cited.

After the trial, defendant discovered in his office a letter written him by the plaintiff, which tends strongly to support the defendant’s claim of a settlement of accounts in February, 1891. An application for a new trial was made, based upon the discovery of this letter. The case was tried on the 2d and 3d of November, 1894. The testimony of diligence is by an affidavit of Miss Thompson, a clerk in the employ of defendant, who states that, some time previous to the 2d of November, she was instructed by defendant to make a careful and diligent search, and to obtain any correspondence or receipts or other evidence bearing upon any agreement between plaintiff and defendant; that, complying with such instructions, she did make a careful search, as she supposed, of all correspondence of said plaintiff; that subsequent to the 2d of November, in compliance with directions of defendant, she spent the greater portion of four days in the examination and careful reading of the correspondence between the parties; and that, on the 12th day of November, she discovered the letter in question. The ground for refusing the motion for a new trial is not stated in the record, but it is assumed in the briefs of counsel that the circuit judge was of the opinion that proper diligence in the effort to discover the testimony before trial was not shown. We should not feel justified in reversing the action of the trial judge where, as upon such a motion as the present, the matter is committed to his sound discretion, except in a case where a clear abuse of such discretion is shown. We think this is not that case; that there was ample room, in the exercise of judicial discretion, for the circuit judge to entertain the opinion that the defendant had not brought himself within the rule of diligence required to justify a new trial upon the ground of newly-discovered evidence. See 3 Grah. & W. New Trials, 1026 et seq.

The judgment will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    BAKER v. CITY OF GRAND RAPIDS.
    l. Personal Injuries—Street Crossings—Evidence.
    Evidence that it was customary for people to cross a street diagonally in the direction taken by plaintiff when he was injured by falling into a manhole, and that a path had been worn across the street at that point, is admissible on the question of plaintiff’s care.
    2. Same—Travel at Night—Contributory Negligence.
    The mere fact that plaintiff made use of such path, instead of the cross-walk, at night, did not, as a matter of law, render him guilty of contributory negligence.
    3. Municipal Corporations—Excavations for Sewer—Duty to Guard
    The duty resting upon a municipality to cause excavations in the streets occasioned by the construction of a public sewer to be properly guarded and lighted cannot be shifted upon the contractor so as to relieve the city from its obligation.
    4. Same—Attempt to Guard—What Sufficient.
    Whether the duty to light an excavation in a public street was discharged by the act of the excavators in leaving at the place a lighted lantern is a question for the jury, where there is evidence that the lantern did not contain sufficient oil to keep it lighted during the time the light was required.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted November 13, 1896.
    Decided January 5, 1897.
    Case by Fred J. Baker, an infant, by bis next friend, against tbe city of Grand Rapids, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry J. Felker (Taylor & Eddy, of counsel), for appellant.

      McKnight & McKnight, for appellee.
   Montgomery, J.

In 1890 the defendant city contracted with one Tennis to construct a sewer in the center of South Lafayette street, together with manholes and catch-basins, or sand traps. These catch-basins were located between the gutter and the sidewalk, and the excavation for the construction of the same was 7 feet 4 inches in depth, with a diameter of 5 feet 4 inches. The contractor entered upon the construction of this work, and, after the excavation of one of these openings for a catch-basin, on the evening of November 17, 1890, plaintiff, then a lad of 15 years, while on an errand to a grocery store, and crossing Lafayette street in a diagonal direction, fell into this opening, and received serious injuries, for which he recovered in this action. The defendant brings error, and relies, in its argument, upon four grounds of error, principally:

(1) That the court erred in admitting proof of a pathway running diagonally across Lafayette street, in the course taken by plaintiff .

' (2) That there was no sufficient proof that the basin was left unguarded.

(3) That the plaintiff was guilty of contributory negligence.

(4) That no notice of the failure to guard the opening was shown.

Testimony was introduced tending to show that it was customary for people to cross the street in the direction taken by the plaintiff, and that a path had been worn across the street at this point. We think this testimony could not have damaged the defendant, as it was the right of the plaintiff to cross the street at any portion of the traveled way, and he was not confined to the crosswalk. 1 Thomp. Neg. 387; Lincoln v. City of Detroit, 101 Mich. 245. The fact that others, in considerable numbers, took this same course, bore on the question of plaintiff’s care on the occasion in question.

The defendant’s testimony tended to show that, wh’en the men quit work on the day in question, they placed barriers around tbe hole, and left a lighted lantern there. The testimony as to the barriers being there was not wholly undisputed, but, in addition to this, there was testimony tending to show that the lantern did not contain oil enough so that the lantern could be kept lighted. Two witnesses testified that, immediately after the accident, they attempted 'to light this lantern, and keep it lighted, and failed in the attempt. The trial judge properly left it to the jury whether, in view of this testimony, the place was properly and reasonably guarded and lighted. It cannot be said that, if it was a duty to leave a light at this place at all, this duty was performed by leaving a lantern with so little oil that it would not remain lighted during the occasion for its use as warning.

3. The contention that the plaintiff was guilty of contributory negligence as matter of law cannot be allowed. It is true the night was dark, but the public streets are intended for travel in the evening as well as in the daytime, and it is not negligence to attempt to travel the public streets in the evening. We are cited to numerous cases by defendant’s counsel, but, in the main, they are cases where the traveler had left the public highway, or the wrought portion thereof, and are clearly distinguishable from this case, in which the plaintiff kept within the limits of the highway.

4. The further contention is answered by the rule laid down in City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78), and reaffirmed in Southwell v. City of Detroit, 74 Mich. 438, in which case the rule is laid down %iat a city, when performing a duty imposed upon it by law, cannot shift the responsibility for conditions created by itself in the performance of such duty upon a contractor, and rid itself of its obligations. See Hayes v. City of West Bay City, 91 Mich. 418. See, also, Brusso v. Buffalo, 90 N. Y. 679; 2 Dill. Mun. Corp. (4th Ed.) § 1027, and note, where the authorities are collected.

We think no error was committed to the prejudice of defendant, and the judgment will be affirmed, with costs.

The other Justices concurred.


text:
    COON v. DENNIS.
    1. Appeal—Assignments of Error—Failure to Embody in Bill of Exceptions.
    The court passed upon an objection to the exclusion of evidence presented and argued before the court below, and clearly disclosed by the record, although the assignments of error were not embodied in the bill of exceptions.
    2. Bills and Notes—Fraudulent Transfer—Right of Administrator to Rescind.
    The right to rescind a transfer of a promissory note for the fraud of the transferee survives to the transferor’s personal representatives.
    3. Same—Action by Indorsee—Defense of Fraud—To Whom Available.
    In an action against the maker of a negotiable promissory note brought by the payee’s indorsee, it is competent for the personal representative of the payee to intercede and defend for the maker, indemnifying him against loss, where the indorsement was procured by fraud.
    Error to Montcalm; Davis, J.
    Submitted October 20, 1896.
    Decided January 5, 1897.

      Assumpsit by Leonora Coon against John Dennis and another on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Ellsworth & Barden, for appellants.

      Vernon H. Smith, for appellee.
   Montgomery, J.

This is an action on a promissory-note for $330.50, payable to the order of John Lewis, and appearing to have been indorsed by him. On the trial of the case, plaintiff proved that the signature of the payee, John Lewis, was genuine, and introduced the note, and rested. The defendant then offered to introduce evidence to show that the note was procured of Lewis by plaintiff by means of undue influence, and to show that the executor of the estate of John Lewis is defending the present case for the defendants, and indemnifying them against loss. The plaintiff objected to the introduction of the testimony for the purpose of showing the fact of undue influence. The objection was sustained, and this ruling presents the principal question in the case.

A preliminary objection is raised to the hearing in this court,—that the assignments of error were not embodied in the bill of exceptions. We would be disposed to remand the record for the purpose of correction, rather than to refuse to entertain the appeal, and, inasmuch as the record clearly shows that the question involved was fully presented and argued before the court, no injustice can be done, either to the court or appellee, in passing upon the question upon the present record.

The rule is settled in this State that the defendant may, in an action on a negotiable promissory note, show that the plaintiff is not the real owner. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122); Reynolds v. Kent, 38 Mich. 246; Hannahs v. Sheldon, 20 Mich. 278. It is true, as a general rule, that the defendant is only concerned in the question of whether the plaintiff is the legal owner. But, in the case of Hillman v. Schwenk, 68 Mich. 293, it was held that, where the indorsee of a note sues, it is competent for the administrator of the estate of the payee to take upon himself the defense of the suit upon the trial.

Undue influence is recognized by all the authorities as a species of fraud (8 Am. & Eng. Enc. Law, 649), and fraud, inducing a transfer of personal property or a chose in action, renders such transfer voidable, and one of the remedies of the party defrauded or his executors is a rescission of the transfer (8 Am. & Eng. Enc. Law, 650; 2 Pom. Eq. Jur. § 872). As to personal property, the act of rescission does not require the interposition of a court of equity. In case of rescission of transfer of personal property, the title reinvests ipso facto. Bigelow, Fraud, p. 76. The rule is otherwise as to conveyances of real estate, but this is based upon the idea that the legal title to real estate, having passed by the conveyance of the title, cannot be reinvested in the grantor in an action at law. Bigelow, Fraud, pp. 47, 76, 77; Moran v. Moran, 106 Mich. 8.

■ Plaintiff cites, in support of her contention that the only remedy of the administrator is in equity, the case of McKinney v. Hamilton’s Estate, 53 Mich. 497, and McKinney v. Curtiss, 60 Mich. 611. McKinney v. Hamilton’s Estate did not present the question whether the maker of a note, having notice of the claim of the true owner, could defend against one in possession of the note, and prima facie entitled to recover upon it; but the question was whether, in an action at law, the ,true owner could, without production of the note, recover, and it was held that one, even though he be the true owner, could not demand payment and recover without the delivery of the note. But it does not follow that he cannot, in a suit against the maker, intercede and defend against the transferee, where the title of such transferee is tinctured with fraud. Nor does it follow, because he has a remedy in equity, that this is exclusive. 1 Pom. Eq. Jur. § 180; McKinney v. Curtiss, 60 Mich., at page 620.

The case mainly relied upon by plaintiff’s counsel in the court below is that of Carrier v. Sears, 4 Allen, 336 (81 Am. Dec. 707). The doctrine of that case was distinctly this: It is no defense, by the maker of a negotiable note, to show that the note was obtained from the payee by undue influence, when he was of unsound mind and incapable of making a valid indorsement, if the payee, or his legal representatives, have never disaffirmed it. But, in the opinion in the case, the court distinguish that case from Peaslee v. Bobbins, 3 Mete. (Mass.) 164, admitting that the text of the earlier case is apparently in conflict with the views expressed in Carrier v. Sears. The writer of the opinion says:

“The fact in the case was, as I well remember, that the defendant had been notified by the guardian of the insane payee not to pay the note to the plaintiff, and the defense was conducted by the guardian for the benefit of his ward. We have examined the record, and find, in the original specification of defense, the statement ‘that said Fletcher, as guardian to said Parker [the payee of the note], claims said note as the property or estate of said Parker.’ There was no controversy upon this point; and, the guardian having claimed and exercised the right to disaffirm and avoid the indorsement, the only question was upon the mental incapacity of the payee at the time the indorsement was made. The language of the court was, therefore, perfectly warranted in its application to the circumstances of the case, as it was presented and understood by the parties, but would require limitation, if taken as the enunciation of a general principle.”

This doctrine is not in conflict with the decision of this court in Hillman v. Schwenk, supra, although the opinion, in other portions, may conflict with Hannahs v. Sheldon, supra.

We think the contention that the right to rescind the transfer does not survive to the executors is without force. See Rogers v. Windoes, 48 Mich. 628.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    DAVIDSON v. CITY OF MUSKEGON.
    1. Municipal Corporations — Claim for Injuries—Presentation to Council.
    A charter provision that all claims for damages against the city growing out of the negligence or default of the city, or of any officer or employé thereof, shall be presented to the common council within six months after the claim shall arise, applies to claims for personal injuries, notwithstanding a further provision that no claim shall be allowed unless it exhibits in detail all the items making up the amount claimed, and the true date of each.
    3. Same—Infancy.
    Such a limitation of the time for presenting claims applies to infants as well as to adults, in the absence of any saving clause exempting the former from its operation.
    Error to Muskegon; Russell, J.
    Submitted November 13, 1896.
    Decided January 5, 1897.
    Case by Ida Davidson against the city of Muskegon for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Ed. D. Haines {Joseph H. Clark, of counsel), for appellant.

      H. L. Delano, for appellee.-
   Moore, J.

The plaintiff sued the defendant to recover for injuries received by her on a defective sidewalk. It is her claim that the injuries were received August 21, 1892; that she was then an infant, and attained her majority February 1, 1894; that March 15, 1894, she presented to the common council of Muskegon a claim in writing, duly verified, for damages; and that she did the same again July 3, 1894. There is no question raised upon the sufficiency of the pleadings. The case was tried by a jury. The plaintiff introduced evidence tending to prove all the allegations necessary to make a case. The defendant introduced in evidence section 20, tit. 6, of the charter of the city of Muskegon, as follows:

“The common council shall audit and allow all accounts chargeable against the city, but no account or claim or contract' shall be received for audit or allowance unless it shall be accompanied with affidavit of the person rendering it to the effect that he verily believes that the services or property therein charged for have been actually performed or delivered to the city, the sums charged therefor are reasonable and just, and, to the best of his knowledge and belief, no set-off exists or payment has been made on account thereof, except such as are indorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city, of any description whatever, that it has never been presented as aforesaid to the council for allowance, or that the claim was presented without the affidavit aforesaid, and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it. And all claims for damages against the city growing out of the negligence or default of said city, or of any officer or employé thereof, shall be presented to the common council of said city, in the manner above provided, within six months after such claim shall arise, and, in default thereof, shall thereafter be forever barred; and in any action in any court on any such'claim, the claimant shall be required to show that such claim has been duly presented, in the manner in this section specified, to the common council of said city for audit, investigation, and allowance.”

The above was received and read in evidence, and defendant rested. The court thereupon instructed the jury to bring in a verdict for defendant.

The only question in the case is whether the charter provision is a defense to the claim of the plaintiff. In the absence of the charter provision the action was brought in time. It is the contention of the defendant that, as the plaintiff did not file her claim before the common council within six months from the date of her injury, she did not file it within six months after the claim arose, and that she cannot maintain her action. In support of this view, counsel cites Springer v. City of Detroit, 102 Mich. 300; Morgan v. City of Des Moines, 54 Fed. 456. It was the opinion of the trial judge that the last-named case should control this one. It is urged on the part of plaintiff that, in any view of the case, she is entitled to recover. It is said the charter provision requiring her to show that such claim has been duly presented, “in the manner in this section specified, to the common council of said city for audit, investigation, and allowance,” cannot be regarded as a provision applicable to personal injury cases. It is urged that such a requirement asks an impossible thing; that it is not possible for a person to piake an itemized statement of his claim for damages growing out of injuries to the person, and accompany it by an affidavit,—citing Lay v. City of Adrian, 75 Mich. 444. It is also urged that it is not possible for an injured person to know, within six months of the time of the accident, just what the extent of the claim is; that it often happens that, within so short a time of the accident, no one can tell whether the injuries are of a permanent character or not, how serious they are, or how great the damages suffered. It is also urged that this charter provision, inasmuch as it required the claim to be verified by affidavit, is unlike the charter provision of Detroit, and that the case of Springer v. City of Detroit, 102 Mich. 300, does not control the case, but that the case of Lay v. City of Adrian, supra, in its reasoning, does determine it. It is also urged that the case of Morgan v. City of Des Moines, 54 Fed. 456, 60 Fed. 208, does not apply, for the reason that the limitation in the last-named cases was fixed, definite, and certain; the provision being, “No suit shall be brought against the corporation after six months from the time of the injury, unless written notice, specifying the place and circumstances of the injury, shall have been served upon such municipal corporation within 90 days- after the injury.” It is urged that all persons know when an injury occurs which happens to them, but that no one can know that he has a claim for damages, or that a claim for damages has arisen, until he knows approximately how serious the injury is. With reference to the case of Lay v. City of Adrian, it may be said that the limitation imposed by the charter provision did not refer to cases growing out of the negligence of the city or its officers. No reference was made to that class of cases in the provisions óf the charter. We think the case of Springer v. City of Detroit, supra, applies to this case. To hold otherwise would render the provisions contained in the Muskegon charter nugatory.

It is also urged, in this case, on the part of the plaintiff, that, as she filed her claim with the common council within the limited time after she attained her majority, she is not now barred from bringing her suit. The power of the legislature to enact a statute of limitations cannot now be questioned. It is entirely competent for the legislature to enact a general statute of limitations that would put adults and minors on the same footing with reference to the time in which actions must be brought, and such would be the legal effect of a statute which contained no saving clause exempting infants from its operations. Morgan v. City of Des Moines, 60 Fed. 208.

We think the circuit judge made a proper disposition of the case. ,

Judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    LONIS v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Railroads—Signals—Negative Testimony—Instructions.
    Testimony of witnesses who were watching an approaching engine under circumstances which made it improbable that signals could have been given without being heard by them, that no signals were given, is not “negative,” so as to entitlé the company to an instruction, in an action by one who was struck by the train, that “the positive testimony of witnesses who had opportunity to know that the signals were given should outweigh the testimony of witnesses who did not hear them, unless in some manner their attention had been called to it.”
    Error to Lenawee; Lane, J.
    Submitted November 13, 1896.
    Decided January 5, 1897. .
    Case by Minor Lonis against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. E. Weaver (George O. Greene and O. G. Getzen-Danner, of counsel), for appellant.
    Watts, Bean & Smith, for appellee.
   Grant, J.

This case is the companion of McDuffie v. Railway Co., 98 Mich. 356. McDuffie was driving, and Lonis was riding in the same wagon with him. The issue in this case is the same as in the other, and the testimony the same, except' some discrepancies between the testimony of Lonis and McDuffie upon this trial and that given in the other case. All the propositions, except one, now urged by the learned counsel for the defendant, are substantially the same as were urged in that case. That decision is the law of this case, unless the defendant has now established facts which were not established in the former case. Just after the accident, both McDuffie and Lonis made written statements to the agents of the defendant detailing how the accident occurred. Those statements differed from their testimony given upon the trial. It was held in that case that this conflict was not so great as to justify the court in directing a verdict for the defendant on the ground of contributory negligence. We find no such conflict in the three versions of the accident as to justify the court in saying that either Mc-Duffie or Lonis was barred of recovery on account of this conflict. The jury, under proper instructions, were left to determine what credence they would give to the testimony of these parties.

One question which was not raised upon the McDuffie trial is now raised. The following request was preferred and refused:

“The jury are instructed that, as to the question of the giving of the signals,—as to whether or not the whistle was blown and the bell rung,—the difference between positive and negative testimony is very marked, and the positive testimony of witnesses who had opportunity to know that the signals were given should outweigh the testimony of witnesses who did not hear it, unless in some manner their attention had been called to it.”

Five witnesses for the plaintiff swear positively that the signals were not given, and give their reasons why they so testified. One other witness, John Williams, testified that he was “looking right at the engine,” and that he did not hear any bell or whistle. On cross-examination he said “he did not think he was thinking anything at all about any train coming; that his attention was not called directly as to whether the train whistled or whether it did not, although, being out of doors, he would have heard it, probably, if it had whistled; that he would hardly think the bell would ring without he noticed it at such a time ás that,—in fact, he was talking about it right away.” On the part of the defendant, 18 witnesses testified positively that the signals were given. We do not think there was negative testimony to which the request would have been applicable. ■ The only testimony to which that term could possibly be applied was that of Williams. But he said that he was looking at the engine, was out of doors, and within hearing distance. It seems improbable, as he testified, that he would not have heard them under these circumstances. The situation before the jury «was one of positive testimony against positive testimony, and their verdict depended upon which they believed. They have said by their verdict that they believed the 5 witnesses for plaintiff, and did not believe the 18 for the defendant. If there was any remedy for the defendant, it lay with the circuit judge, who saw the witnesses, and was "better able than we are to determine whether the jury disregarded the rule as to preponderance of evidence, so as to justify him in granting a new trial.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. PICHETTE.
    1. Criminal Law—Warrant—Sufficiency.
    A warrant of arrest for an offense not cognizable by a justice of the peace is sufficient if it sets out in language within the ordinary comprehension the substantial elements constituting the offense charged, leaving to the information the office of describing it with technical accuracy.
    2. Same—Setting Fire to Mill.
    Thus, a warrant for the burning of a sawmill, which avers that the act was committed with force and arms, contrary to the form of the statute, and against the peace of the State, and which refers to such act as a felony, sufficiently charges an offense under 2 How. Stat. § 9125,. although it does not in terms allege that the burning was willful and malicious.
    3. -Same—Threats—Intent—Question for Jury.
    Whether one accused of setting fire to a mill was, as claimed by him, merely jesting when he made a statement capable of being construed as a threat to burn it, is a question for the jury-
    4. Same—Reasonable Doubt—Instructions.
    An instruction to the jury in a criminal case that, if a certain fact is true, the respondent is not guilty, and that they should say so, or, if they have a reasonable doubt about it, they should say so, is equivalent to an instruction that, if the jury have a reasonable doubt upon the subject, they should acquit.
    5. Appeal—Assignments of Error—Good Faith of Counsel.
    The action of counsel in basing an assignment of error upon a partial extract from the charge, taken out of its connection, and in confining the discussion in their briefs to such portion, where the portion omitted clearly shows that the point raised is without merit, is criticised.
    Error to Menominee; Stone, J.
    Submitted November 17, 1896.
    Decided January 5, 1897.
    Louis Pichette and William Tallier were jointly informed against for burning a sawmill! Tallier was acquitted. Pichette was convicted, and sentenced to imprisonment for five years in the state prison at Marquette.
    Affirmed.

      J. M. Opsahl and Frank Bracelin, for appellant.

      Fred A. Maynard, Attorney General, and W. H. Phillips, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of the burning of a sawmill under the provisions of 2 How. Stat. § 9125, which punishes the willful and malicious burning of such buildings. The following is a copy of the material portion of the warrant:

“On the 15th day of April, A. D. 1895, at the hour of 10 o’clock in the night-time of said day, with force and arms, at the township aforesaid, in the county aforesaid, did set fire to and burn a certain mill, to wit, a sawmill there situate, the property of David Nadeau and Louis Nadeau, copartners under the firm name of Nadeau Brothers, said sawmill being, with the property therein contained, then, to wit, at the time of the committing of the felony aforesaid, of the value of $10,000,-—-contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

It will be observed that the warrant does not charge a willful and malicious burning, and, as originally filed, the information was wanting in this particular, but, after motion to quash, it .was amended by the insertion of these words, on application of the prosecuting attorney. The plea of not guilty was entered by direction of the court, the defendant having refused to plead, and an important question in the case is whether this warrant was sufficient to support the proceedings.

The proceedings before the justice are preliminary, and the law does not require that technical accuracy necessary in an indictment or information. The complaint in cases not cognizable by a justice of the peace need be little more than verbal information of a supposed wrong. This is followed by an examination under oifth of the complainant, and of other witnesses if deemed necessary, and the magistrate then issues his warrant. People v. Bennett, 107 Mich. 430. This warrant must specify the substance of the offense with which the accused is charged, not with technical accuracy, but in such manner as to inform him of what he has to meet (2 How. Stat. § 9456), leaving to the information the office of describing with accuracy the offense with which he shall ultimately be charged, which is to be based, not alone upon the warrant, but upon the facts developed upon the preliminary examination, as evidenced by the depositions returned and the certificate of the magistrate; and, while we do not mean to imply that the warrant need not state the offense, we think it sufficient if it set out the substantial elements "constituting it in language within the ordinary comprehension, and that it need not possess the degree of certainty of allegation requisite in indictments. Such appears to be the view that has always been taken by this court. See People v. Annis, 13 Mich. 511; People v. Hildebrand, 71 Mich. 313; People v. Dyer, 79 Mich. 480. In Haskins v. Ralston, 69 Mich. 67 (13 Am. St. Pep. 376), a warrant for forgery from which the intent to defraud was omitted was held good, although it was a statutory requisite to the offense, as much as willfulness and malice are under this statute. It was there said:

“But we think the warrant, so far as the description of the offense is concerned, is sufficient. It sets out the overt acts which make up the crime completely, and a guilty knowledge of the forged character of the- paper. The term ‘forged,’ in law, indicates a fraudulent purpose in making the paper; and proof of the facts and knowledge set up in this document would allow, although it might not under some circumstances compel, an inference of guilt. Such a description would fully inform the person charged as to what he was to meet, and of the ‘nature of the accusation against him,’ which is the only constitutional requirement on the subject. The Constitution does not require technical accuracy, and the statute does not require it. By section 9456, 2 How. Stat., it is provided that the preliminary warrant shall recite ‘the substance of the accusation.’ This does not seem to indicate the necessity of anything more, and there has never been any intimation by this court that any more was required.”

We think that, if the term “forgery” imports fraud, setting fire to a mill with force and arms imports design, and that the reference to such act as a felony is a sufficient implication that the act was done feloniously. Furthermore, it is expressly alleged to have been contrary to the form of the statute and against the peace of the State. Taken as a whole, we cannot doubt that this paper was sufficient to apprise the defendant that he was charged with a criminal act involving willfulness and malice, and that it was sufficient to support the examination. Pardee v. Smith, 27 Mich. 33, is another case where, as said by Mr. Justice Graves, “several statutory elements were left out;” yet the warrant was held good, the “defects being mere irregularities, and not jurisdictional.” Haskins v. Ralston, 69 Mich. 68 (13 Am. St. Rep. 376). See, also, People v. Rutan, 3 Mich. 42; Daniels v. People, 6 Mich. 381; People v. Kohler, 93 Mich. 625. Under this view, we deem it unnecessary to cite authorities to show that the information might be amended.

Several other questions are mentioned by the briefs, but need no extended discussion. The statements of the defendant before and during the fire were admissible. We cannot agree with counsel that they tended only to show a design to burn another mill, and whether they were not serious was for the jury to determine.

We think the failure to give counsel’s third request was not error, the -subject being made sufficiently plain in the charge.

It is said that the court erred in instructing the jury that' “if you say you are satisfied, beyond a reasonable doubt, that they [Tallier and Pichette] were at Tallier’s house, or in that vicinity, during all that time, and did not go to the mill, you should acquit.” Had counsel chosen to quote the whole, viz.: “Now, look over all the evidence along that line, and see if William Tallier and Pichette are accounted for. If their presence, is accounted for in the house of William Tallier from a quarter past 8 until after this building was on fire, and if you shall say that you are satisfied, beyond a reasonable doubt, that they were at Tallier’s house, or in that vicinity, during all that time, and did not go to the mill, you should acquit them both, and say, ‘Not guilty;’ or if you should say that you have reasonable doubt, after looking all the evidence over, as to whether they were at the house from a quarter past 8 until after this fire broke out, you should acquit them,”—it would be apparent from their brief that the court corrected this statement; and we think that justice to the trial court, as well as to this court, demanded that a full and fair statement of the charge relating to the subject complained of should have been given. We do not mean to imply that counsel should not raise and present any legal question, justified by the record, in which they have confidence; but it should never be based upon garbled extracts from the record, or, as in this case, partial extracts, where the portion omitted clearly shows that there is no merit in the point. And we cannot agree with counsel in their construction of the following language :

“Tallier, it is claimed by his wife and other witnesses, was in his own house from before a quarter past 8 until after the fire broke out, with the (exception of a few moments, when he went to get a ’pail of beer. It is claimed by his wife that she saw him go from their house to the saloon and get the beer, and that she had her eye on him all the time. Is that true, gentlemen? If it is true, this respondent Tallier is not guilty, and you should say so; or, if you have a reasonable doubt about it, you should say so.”

We think it is a clear statement that, if the jury had a reasonable doubt on this subject, they should acquit.

The judgment is affirmed.

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


author: Hookek, J.

text:
    De LONG v. BALDWIN.
    Boundaries—Deeds—Statute of Frauds.
    Where the boundary line of iiremises conveyed is clearly located by the deed, the fact that during negotiations for the purchase it was agreed between the parties that the boundary should be marked by a certain cistern, and the further fact that the grantor acquiesced therein during the time that he continued to own the adjoining parcel, do not amount to such a mutual adjustment of a disputed boundary as will estop a subsequent imrchaser of the parcel adjoining from setting up the statute of frauds against a claim based upon the parol agreement.
    Error to Kent; Grove, J.
    Submitted November 19, 1896.
    Decided January 5, 1897.
    Ejectment by Abram H. De Long and wife against Erank A. Baldwin and wife. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      Lombard Bros. (Taggart, Knappen & Denison, of counsel), for appellants.

      Earle & Hyde, for appellees.
   Hookek, J.

The accompanying plat will show the situation of the premises involved in this cause. On January 21, 1891, Herbert W. Heath was the owner of lot 2,

which was 100 feet long east and west, fronting Eleventh street, and he resided in a dwelling upon said lot. On January 24th he sold the defendants a portion of this lot, the deed conveying all of said lot except a strip 35 feet wide from the east end of said lot. The west line of a strip 35 feet wide taken from the east end of said lot runs through a brick cistern just east of the dwelling referred to, which cistern was fed from the roof of said dwelling, and was used by Heath while he occupied it, and by the defendants after their purchase. Soon after their pur-, chase, the defendants moved into said house, and have occupied it continuously since. They erected steps which extended 20 inches beyond the line referred to, and were in the habit of crossing to a walk subsequently built upon said 35 feet, which walk led to the street, said walk being built by Heath to be used in connection with a house which he built and occupied after the sale to the- defendants. On June 15, 1892, Heath sold and conveyed, for a valuable consideration, to Bush, and he to the plaintiffs, the east 35 feet of said lot, including the dwelling thereon, and each entered and occupied the same without any notice of defendants’ claims, other than that offered by his deed and defendants’ occupancy. No fence separated the two parcels of land from each other or from the highway. Upon defendants’ refusal to remove the steps from the premises claimed by the plaintiffs, an action of ejectment was brought, and plaintiffs bring it to this court by writ of error, judgment having been rendered in favor of the defendants upon a finding of fact and law.

The circuit court found that, during the negotiations for the purchase by defendants, Heath and Mr. Baldwin made some measurements, and he was told that the east boundary of his lot came to the east side of the cistern top or cover, which is about 15 inches farther east than the most eastern part of the steps, and that, before the deed was drawn, it was agreed that the east boundary of the parcel was the east side of the top of the cistern. It was found as a further fact that Heath acquiesced in the occupancy by the defendants up to such line, while he remained the owner of the premises, which occupancy was evidenced by the use of the steps and cistern. There can be no question that the land in dispute is not within the description contained in defendants’ deed, which description is in no sense uncertain. There is nothing in the deed which could give rise to any controversy, and the defendants’ claim of title to the disputed land rests entirely on an oral agreement to convey to the east side of the cistern cover, and occupancy such as it was. Being destitute of written title, the defendants’ claim rests upon the proposition that the east line of the west 65 feet of lot 2 is not 65 feet east of the west line of the lot, but that it is about 66 feet 8 inches east of said line; and the warrant for such claim is said to be an agreement that it should be at the east side of the cistern cover, which is about 68 feet from said west line, followed by an alleged occupancy, and acquiescence, to a point 66 feet 8 inches from said west line. The effect of this would be to give them a strip of land 20 inches wide across lot 2, in plain contravention of the statute of frauds, unless the case can be said to fall within the rule that a mutual adjustment of a disputed boundary, followed by the establishment of plain landmarks, and occupancy and acquiescence under such arrangement, fix the confines of lands, though it shall afterwards appear that such adjustment is not in accordance with the true paper title.

Counsel cite several cases; but the cases limit the rule to mutual agreements to settle disputed boundaries, and they do not apply unless the adjustment is accompanied or followed by the existence or erection of distinctive landmarks, showing the bounds of the respective parcels, and exclusive occupancy in accordance therewith. In Smith v. Hamilton, 20 Mich. 438 (4 Am. Rep. 398), it is said that “where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds.” The case of Croninv. Gore, 38 Mich. 381, clearly recognizes this rule. In that case Chief Justice Campbell, speaking for a unanimous court,- said:

‘ ‘ In each one of these cases the line of division between the adjoining owners was distinctly fixed on the grounds under deliberate mutual action, had for the express purpose of fixing it. Neither of them rested on mere acquiescence. The parties were acting with particular reference to determining their respective lines, and for that specific purpose. And it was held that, where such deliberate dealings were had between the parties, the case rested on grounds similar to those which authorize the specific performance of parol agreements actually executed. It. was held, also, that unless the transaction amounted to,an honest attempt, in case of question, to settle a doubtful line, the statute of frauds would apply to prevent the enforcement of an estoppel.”

There is no room for that contention here. There has been no attempt to adjust existing differences, but, if defendants are to be believed, a mistake or fraud has occurred or been committed, whereby they have not received a conveyance of the full quantity of land bargained for. Burns v. Martin, 45 Mich. 22. See, also, Terry v. Chandler, 16 N. Y. 354 (69 Am. Dec. 707).

' The judgment is reversed, and, under the finding of facts, we feel warranted in directing the circuit court to enter a judgment in favor of the plaintiffs in accordance with the allegations of their declaration. Ordered accordingly.

The other Justices concurred.


author: Long, C. J.

text:
    THOMPSON v. TUCKER-OSBORN.
    1. Specific Performance—Antenuptial Contracts.
    A court of equity lias jurisdiction to enforce the specific nerformance of an antenuptial contract.
    2. Same—Definiteness.
    An antenuptial contract for the support of the wife from her husband’s estate by providing a home and such amount monthly or quarterly as may enable her to live in comfort, “and equal to such as she has previously enjoyed,” and, in case of sickness, for such added amount as may be necessary for care, medical attendance, and other necessary expenditures, and at her death for funeral expenses, such allowance to be in lieu of all rights of dower and all rights in the personal estate of the husband, is sufficiently specific to be capable of enforcement.

      3. Same—Wills—Adequate Provision.
    The requirements of such contract are met by a will devising to the wife (who was before the marriage a woman without means) a life estate in the home farm, after taking off a part devised to a nephew, witl\ the right to firewood from the latter part, and giving her absolutely the household furniture, two horses, two phaetons, and harnesses, and placing §5,000 in trust for her use, to be paid “from time to time,” as her necessities may demand; and, such provision having been made, the widow may be compelled in equity to release her dower rights.
    Appeal from Lenawee; Lane, J.
    Submitted November 19, 1896.
    Decided January 5, 1897.
    Bill by Gamaliel I. Thompson, executor of the will of John M. Osborn, deceased, and others, against Sarah A. Tucker-Osborn, for the specific performance of an ante-nuptial contract. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Fellows & Chandler and Watts, Bean & Smith, for complainants.

      F. A. Lyon and L. B. Pierson, for defendant.
   Long, C. J.

On October 3, 1891, John M. Osborn married the defendant. Mr. Osborn was at this time upwards of the age of 70 years. He had been married twice before; had retired from the banking business some years before; was suffering from a lingering disease. He had, some time before this, submitted to an operation, by which a part of one of his feet had been removed. It was well known by his friends and those associated with him that it was a disease which must prove fatal in the near future, and was known as “senile gangrene.” The defendant had been in Mr. Osborn’s employ as a servant woman and housekeeper for something like six years before the marriage.' She had never been married, and, prior to the time she commenced working for Mr. Osborn, had supported herself by going out to service. On the 16th day of September, before the marriage, Mr. Osborn, evidently in contemplation of the marriage, drew in duplicate an antenuptial contract, as follows:

“This antenuptial contract or agreement, made this 16th day of September, A. D. 1891, between John M. Osborn, party of the first part, and Sarah A. Tucker, party of the second part, both of the township of Pitts-ford, county of Hillsdale, and State of Michigan, witnesseth: That the party of the first part, for the reason of a marriage to be consummated between and by the first and second parties hereinbefore named, does hereby agree and promise that said second party shall be supported from the estate of which I may die possessed for the term of her natural life, said support to'be by’providing a home and such an amount monthly or quarter-yearly as may be necessary to enable her to live in comfort, and equal to such as she has heretofore enjoyed, and, in case of sickness, such added amount as may be necessary for care, medical attendance, and other necessary expenditures. The party of the second part, in consideration of the above-named provisions for support, hereby accepts the same as marriage settlement, and hereby waives all rights in a will now made by first party, and all rights of dower of real estate, and all rights in the personal estate of which said first party may die possessed. It is hereby further agreed between said parties that the delivery of this contract, duly signed, shall be a bar from any claim from either party as to services, money, or support, or any other claim whatever existing at the time this contract shall be executed. It is further agreed that funeral expenses and rights of burial are considered as an inherent part of this contract. It is further agreed that this contract holds good only so long as second party shall remain the widow of said first party. The above contract is in duplicate, one retained by each party.

“In witness of the above, the parties thereto hereby subscribe their names and affix their seals, this 30th day of September, A. D. 1891.

“John M. Osborn. [l. s/

“Sarah A. Tucker, [l. s.”

“Witnesses:

“S. Van Etta.

“H. S. Van Etta.”

On the É)th day of September, three days before the marriage, this contract was signed in duplicate by the parties, in the presence of two witnesses. One of these contracts was placed in an envelope marked “John M. Osborn, Personal Matter,” in Mr. Osborn’s handwriting. The other was placed in an envelope marked “Sarah A. Tucker.” Both envelopes were sealed, and placed in an envelope which was marked “John M. Osborn’s Will,” and were left in a trunk with Mr. Thompson, who was formerly partner of Mr. Osborn, at Mr. Thompson’s bank.

Before Mr. Osborn’s death, he executed á will, clause 2 of which, it is claimed, was made for the purpose of carrying out the terms and provisions of said antenuptial contract, and is as follows:

“Second. I give, devise, and bequeath to my good wife, Sarah A. Osborn, the occupancy, use, income, and profits of all the residue of my said homestead farm which is left after deducting such thereof as I have given and devised to my nephew, said Gamaliel O. Baker, in the first clause of this, my will, for and during the term of her natural life, with the fight to have, during her occupancy thereof, her necessary firewood from that part of my homestead farm devised in the first clause of this, my will, to Gamaliel O. Baker, as an estate for lifé, but not to commit any waste thereof. Also, I give, devise, and bequeath to my said wife, Sarah A. Osborn, to be hers absolutely, all my household goods and my mare, named Nelly, and my sorrel-colored horse, named Dan, and my two phaetons, and the two single harnesses, blanket, and whip used with them; also the jack used to oil the phaeton with. Also, I place in trust in the hands of my executor the sum of five thousand dollars, to be used according to the good judgment and discretion of my executor, so much thereof as may from time to time be necessary, in with my other devises and bequests to her, for her comfortable support in health and sickness during her natural lifetime, and for her funeral expenses; but, if my said wife shall again marry, then, from and after the date of her marriage, said support, and also her rights of occupancy, use, and enjoyment of the land and premises hereinbefore devised to her, shall cease and be ended, and the same shall then revert; and it is my intention and my will that the provisfons that I have made for my said wife in this, my last will and testament, shall be received and accepted by her in full satisfaction and bar of dower in all my real estate.”

Mr. Osborn died on the 9th day of December, 1893, and his will was admitted in regular form to probate.

Previous to the making of this antenuptial contract, and on October 22, 1889, Mr. Osborn gave the defendant a paper which, together with the indorsement thereon, is as follows:

“$500.

‘ ‘ One year from date, for value received, I promise to pay Sarah A. Tucker five hundred dollars, the same to be paid to the above only, not transferable by assignment or descent of property.

“John M. Osborn.

“Hudson, Mich., October 22, 1889.”

Indorsed thereon:

“I hereby extend the within note on the terms as stated therein, payable at any time, at the option of J. M. Osborn or by his estate when settled.

[Signed] “Sarah A. Tucker.”

The indorsement was made before the antenuptial contract, and before the marriage.

These are the facts as claimed by complainants, and as found by the court to be true upon the hearing of said cause in open court. After the probate of the will and the appointment of commissioners on said estate, the defendant, repudiating the contract, and denying the validity thereof, and refusing to accept the provisions made for her in said will, presented said note to the commissioners, as a claim against the estate of the deceased, and had the same allowed, from which allowance John M. Baker, one of the complainants, appealed to the circuit court for the county of Hillsdale, where said appeal is still pending. Defendant also brought suit in the circuit court for the county of Hillsdale, in ejectment, to 'recover what she claimed to be her dower estate in the land owned by the deceased in Hillsdale county, and also brought suit in the circuit court for the county of Lenawee, in ejectment, to recover what she claimed to be her dower estate in the land owned by the deceased in that county at the time of his death. The executor named in said will, and the other complainants (legatees named in said will), filed this bill, asking for a specific performance of said antenuptial contract, and to restrain the defendant from further prosecuting her claim before the commissioners and the ejectment suits. The testimony was taken in open court, and on March 14, 1896, the court entered' a decree dismissing the bill, but finding the following facts:

“First. That John M. Osborn died at the time alleged in said bill of complaint, the owner of the real estate described and set forth in said bill of complaint.

Second. That on the 30th day of September, 1891, the said John M. Osborn and said Sarah A. Tucker (now Sarah A. Tucker-Osborn, the defendant in this suit) made, executed, and delivered the antenuptial contract set forth and described in said bill of complaint.

“Third. That said antenuptial contract was made by the said parties with a full understanding of its objects,' effects, and purposes.

“Fourth. That the said Sarah A. Tucker was then possessed' of such information by which she knew the extent and value of the property of said John M. Osborn.

“Fifth'. That the said John M. Osborn and said Sarah A. Tucker afterwards intermarried.

“Sixth. That the said John M. Osborn, in his lifetime, made and executed the will set forth and described in said bill of complaint.

Seventh. That the provisions therein named for the said Sarah A. Tucker-Osborn were made by the said John M. Osborn for the purpose of carrying out said antenuptial contract.

‘ ‘ Eighth. That said provisions in said will do not fully carry out the terms of said antenuptial contract.

“Ninth. That said antenuptial contract is not sufficiently specific in its terms for this court to decree a specific performance thereof.

Tenth. That said antenuptial contract cannot operate to bar dower.”

From this decree, complainants appeal.

Defendant contends that the court was in error in the findings of fact, and that, in any event, the bill was properly dismissed.. We cannot agree with this contention. We are satisfied from the evidence that the ante-nuptial contract was made between the parties and delivered, as claimed by the complainants, and that it was made with a full understanding between them of its object and pui’poses, and that the defendant well knew the extent and value of the property of John M. Osboxm; neither have we any doubt but that John M. Osborn intended to fully carry out the provisioxxs of the contract by clause 2 of his will above set out. It would be of no interest to the parties or the profession to set out the testimony in full upon which we reach these conclusions. They are the conclusions of the court below, who heard the testimony, and we cannot well see how any other result could be reached, under the evidence in the case.

It is further contended that, in any event, the court was correct in finding that the antenuptial contract could not be enforced, for the reasons:

(a) That the court had no jurisdiction.

(b) That the contract is void on its face.

(c) That it could not bar dower.

(d) That it is not sufficiently specific to be enforced.

(e) That the will does not carry out the terms of the contract.

A max’riage between parties who have previously xnade a contract with each other, to be perfoxuned presently or during the marriage, releases or extinguishes such contract. Such contracts, however, when made in contemplation of marriage, and respecting the property of either of the parties, though released or extinguished at law, are held good in equity, axid will be exxforced by a court of chancery against the heix’S of the pax’ty in default. Miller v. Goodwin, 8 Gray, 542. As stated by Mr. Schouler in his work on Doxnestic Relations (section 173):

“In this country the validity of marriage settlements is generally recognized; and it is well understood that almost any bona fide and reasonable agreement, made before marriage, to secure the wife either in the enjoyment of her own property or a portion of that of her husband, whether during coverture or after his death, will be carried into execution in chancery.”

In Stilley v. Folger, 14 Ohio, 610, 649, the court said:

“All supposed actual fraud may be laid out of view. Why should not this agreement be enforced ? Antenuptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage, and tend to promote domestic happiness by removing one of the frequent causes of family disputes,—-contentions about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled at this day that .almost any bona fide and reasonable agreement, made before marriage, to secure the wife in the enjoyment either of her own separate property or a portion of that of her husband, whether during the coverture or after his death, will be carried into execution in a court of chancery.”

In Paine v. Hollister, 139 Mass. 144, a bill was filed by the executor to enjoin the widow from prosecuting a petition in the probate court for an allowance out of the husband’s estate, setting up the fact that the defendant had entered into an antenuptial contract whereby she had agreed to accept a certain provision in lieu of dower, or any allowance or distributive share in the estate of her husband. There the court said:

“There is no doubt that the contract is lawful in its general features; that it was not extinguished by the marriage of the parties; and that a resort to equity is proper to enforce it.”

The same principle is recognized in equity in Tarbell v. Tarbell, 10 Allen, 378; Jenkins v. Holt, 109 Mass. 361; Blackinton v. Blackinton, 110 Mass. 461; Sullings v. Richmond, 5 Allen, 187 (81 Am. Dec. 743); Collins v. Collins, 73 Iowa, 104; McNutt v. McNutt, 116 Ind. 545. In a note to the last case cited, as reported in 2 L. R. A. 372, it is said:

“Executory agreements made between a man and a woman, who afterwards marry, and which then become void at the common law, in the application of the conscientious principles of equity, will be specifically enforced against either husband or wife at the suit of the other.”

This doctrine has been fully recognized in this court in Phillips v. Phillips, 83 Mich. 259.

It is therefore well settled that a court of chancery has jurisdiction to determine the questions here presented, and that the parties are in the proper forum.

But it is claimed that such a contract would not bar dower in the lands of the husband. It is not contended that the contract ipso facto operated as a bar to her dower, like a jointure or pecuniary provision settled upon her in accordance with the terms of sections 5746-5749, 2 How. Stat., but that it was an executory agreement between the parties, and that, when performed by Mr. Osborn or those representing him, the court will compel the defendant tp specifically perform her part of the contract, and release her dower right; and that the making of the will was performance on the part of Mr. Osborn. If the contract is so specific that its performance may be decreed, and the will operates to carry out the agreement on the part of Mr. Osborn, we have no doubt of the correctness of this contention. Dakin v. Dakin, 97 Mich. 284. That the defendant entered into the contract we have no doubt, fully understanding its terms and the financial condition of Mr. Osborn. She had been an inmate of his house for several years. There seems to have been made ample provision for her support and maintenance by the contract, and such as was satisfactory to her. But it is said that it is not sufficiently specific, and for that reason it cannot be enforced. The contract provides for her support from the estate by providing a home and such amount monthly or quarter-yearly as may enable her to live in comfort, and equal to such as she has heretofore enjoyed, and, in case of sickness, such added amount as may be necessary for care, medical attendance, and other necessary expenditures, and, at her death, funeral expenses and rights of burial. These amounts are easily ascertainable. Her former mode of life was to be taken into consideration in fixing what the home should be, as well as the allowance to be made. She was a woman without means at the time this contract was made, and in the employ of the deceased as housekeeper. Before that time she was there in the capacity of a house servant. In Collins v. Collins, 72 Iowa, 105, the contract provided that—

“E. A. Collins [the husband] does by these presents agree to, and does hereby, settle upon Maria, out of his estate, a sufficient amount to keep and maintain her during her life, or as long as she remains his widow. The said amount so to be furnished shall be sufficient to maintain said Maria in such circumstances and in such manner as the estate of said Collins, Sr., will justify, and as would be reasonable to be furnished by a party or an estate in like financial circumstances.”

The court decreed specific performance, and fixed the amount that would be .reasonable under all the circumstances.

In Jacobus’ Ex’r v. Jacobus, 20 N. J. Eq. 49, it was held that it was within the power of a court of equity to determine what a good and sufficient support was, and to direct its payment. In Preston Nat. Bank of Detroit v. George T. Smith Middlings Purifier Co., 84 Mich. 364, a contract less specific than the present one was enforced by this court.

Did the will fully carry out the terms of the contract ? By the will, the defendant was given what was left of the home farm, after taking off the part left by the will to a nephew, with the right to firewood from the part devised to the nephew. She was also given absolutely the household furniture, two horses, two phaetons, etc. Deceased then placed the sum of $5,000 in trust in the hands of his executor for her use, and to be paid from time to time, as her necessities demanded. It is true that the payments, by the terms of the will, were not in exact accord with the terms specified in the contract,—that is, monthly or quarterly,—but from time to time; and there is nothing in the case showing that it will not be paid in accordance with the contract. It cannot be said that the will does not carry out the terms of the contract, and meet the requirements of it. The court below was in error in holding that the contract was not specific enough to be enforced, and that the will did not carry out its terms.

The decree below must be reversed, and a decree entered here, granting the prayer of the bill. No costs of this court will be allowed to either party.

The other Justices concurred.


text:
    DICKINSON v. CITY OF DETROIT.
    Municipal Corporations—Paving—Assessments.
    An improvement of a city street 200 feet wide, of which. 40 feet in width in the center was originally paved, consisting of a driveway of asphalt 25 feet wide on each side of a strip 100 feet wide left .in the middle of the street for park purposes, constitutes a repavement, where there is nothing to show that the original pavement was inadequate, within a provision in the charter requiring the cost of all “repaving” to be paid out of the repaving fund, instead of by the abutting lot owners.
    Appeal from Wayne; Carpenter, J.
    Submitted November 19, 1896.
    Decided January 5, 1897.
    Bill by Horace H. Dickinson against the city of Detroit and Albert Stoll, receiver of taxes, to restrain the collection of a 'paving tax. From a decree for complainant, defendants appeal.
    Affirmed.

      Wells, Angelí, Boynton & McMillan (Fred A. Baker, of counsel), for complainant.

      Charles Flowers (C. D. Joslyn, of counsel), for defendants.
   Hooker, J.

Washington avenue is a street in the city of Detroit, and is 200 feet wide between lot lines. Many years ago, under an ordinance passed in the year 1860, this street was paved with block stone, such pavement being laid to the width of 40 feet through the middle of the street. In the year 1895 the common council caused the stone pavement to be taken up, and a strip of ground 100 feet wide through the middle of the street was appropriated to the purpose of a street park, on each side of which a driveway 25 feet wide was made of asphalt. This, improvement was assessed as a paving improvement upon the adjoining premises, and complainant files the bill in this case to restrain collection.

The charter (• section 35, chap. 11) provides:

“The cost and expense of such improvement, except so much thereof as shall be for the work within the lines of intersection of cross streets and alleys, for the cross-walks at such intersections, and for repaving streets, avenues, and highways, shall be assessed ratably, according to their extent of front, on the lots, parts of lots, or parcels of real estate directly fronting on and within the local assessment district. * * * The cost of all repaving of streets, avenues, and highways of the city shall be paid out of the repaving fund.” Act No. 544, Local Acts 1887.

The case turns upon the question whether or not this was a repavement, within the meaning of the charter; counsel for the complainant claiming that it is, while counsel for the city urge that it is not, because it does not cover the ground theretofore paved, and that, inasmuch as the city might, in the first instance, have paved the entire width of the street at the expense of adjoining proprietors, it was proper to charge the expense of the first pavement laid upon a given portion of the street to adjoining proprietors.

Whether this action of the council grew out of a desire to beautify Washington avenue, by changing the location of the roadway and parks, or from a necessity for a new pavement arising from the wear upon the first pavement, we are not informed. The fact remains that there is nothing to show that a pavement 40 feet wide was not adequate to the wants of the traffic upon the street. Had the new pavement been laid in the place of the old, and no wider, there could be no dispute as to its character. It would have been a repavement, and must have been paid for by the city; and the mere fact that the location was changed, thereby giving opportunity for beautifying the street, does not alter the nature of the paving, any more than it would had it been done for the avowed object of evading the repavement clause in the charter. We are cited to two cases upon which the defendants rely in asking that the adjoining proprietors be required to pay for this work. One is Slocum v. City of Philadelphia, 11 Wkly. Notes Oas. 167, where a market was removed from the middle of a paved street, and the place formerly occupied by the market was paved. The other case is Alcorn v. City of Philadelphia, 112 Pa. St. 494, where a strip eight feet wide, which had been left in the center of a street for shrubbery and trees when the street.was paved, was afterwards paved under a resolution changing the plan. In each of these instances the work was held not to be repaving, and it was assessed upon adjoining proprietors. These were not cases where existing pavements, approximating the new in width, were torn up and destroyed, but were more in the nature of additional pavement. We do not express an opinion upon a question of that kind, as it is not involved. But we are of the opinion that the facts of this case show that this improvement was a repavement, and could not be lawfully assessed upon premises adjoining. Counsel cite the following cases which seem to support this view: In re Garvey, 77 N. Y. 523; In re Smith, 99 N. Y. 424; City of Williamsport v. Beck, 128 Pa. St. 147; Leake v. City of Philadelphia, 171 Pa. St. 125; City of Philadelphia v. Eddleman, 169 Pa. St. 452.

The decree of the circuit court is affirmed.

The other Justices concurred.


text:
    PEOPLE v. BUTLER.
    1. Criminal Law—Conspiracy—Sufficiency of Information.
    An information alleging that respondents fraudulently conspired together, by false pretenses, to acquire from a given county a certain sum of money, and to cheat and defraud the said county thereof, sufficiently charges a conspiracy to cheat and defraud.
    2. Same—Evidence—Admissions—Appeal.
    Upon the trial of persons jointly informed against for conspiracy to cheat and defraud, the testimony of one of the respondents, voluntarily given upon the preliminary examination, is admissible as against him, and its admission will not be held erroneous as to his co-respondent where the record fails to indicate that the testimony was objected to as prejudicial to such respondent, or that the judge failed to caution the jury against permitting it to have such effect.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted November 18, 1896.
    , Decided January 5, 1897.
    Daniel M. Butler and William H. Bird were convicted of conspiracy to cheat and defraud the county of Wayne, and were sentenced to imprisonment for 18 months in the Detroit House of Correction. Respondent Butler brings error.
    Affirmed.

      George Gartner and Fred A. Baker, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted in the recorder’s court, and appeals to this court. The information filed in this case reads as follows:

“That Daniel M. Butler and William H. Bird, late of said city of Detroit, heretofore, to wit, on the 1st day of May, in A. D. 1895, at the said city of Detroit, in the county aforesaid, unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate, and agree together, by divers false pretenses, subtle means, and devices, to attain and acquire unto themselves, of and from the county of Wayne, a sum of money, to wit, the sum of fifty dollars, of the value of fifty dollars, of the money of it, the said county of Wayne, and to cheat and defraud it, the said county of Wayne, thereof, to the great damage of it, the said county of Wayne.”

It is the claim of the respondent that this information should have been quashed,—First, because it states no offense known to the law; second, because it contains no allegations of the means by which respondents conspired to cheat and defraud. The claim of the respondent cannot be sustained. The case is ruled by People v. Richards, 1 Mich. 216 (51 Am. Dec. 75); People v. Clark, 10 Mich. 310; People v. Winslow, 39 Mich. 505; People v. Petheram, 64 Mich. 252; People v. Watson, 75 Mich. 582; People v. Dyer, 79 Mich. 480.

A number of witnesses were sworn, and records introduced, which tended to show that respondent was coroner of Wayne county in 1895, and that Bird was his clerk; that bills were made out in the name of Bird, against the county, which were certified to by Butler. The testimony disclosed that these bills were for inquests that were never held, and contained charges for services in serving subpcenas for witnesses, for jurors, and for taking testimony on such alleged inquests. It was also shown that the fees for witnesses and jurors charged for in these bills were fictitious, and were never paid to witnesses and jurors. Something like 15 of these fictitious bills, made out in the name of Bird and certified to by Butler, were introduced in evidence.

During the examination in the police court,- Bird offered himself as a witness, and was sworn. His testimony was taken down, and in the trial of the •case in the recorder’s court his testimony was offered and received in evidence. Counsel for the respondents, who were jointly on trial, objected, on the ground that the testimony was incompetent, immaterial, and irrelevant, and also because said witness was in court, and ready to testify. The admission of this testimony is assigned as error. It is claimed that this was a violation of article 6, § 28, of the Constitution, which provides that the accused shall be confronted with the witnesses against- him; and counsel cite Hill v. People, 16 Mich. 351; Ward v. People, 30 Mich. 116; People v. Lambert, 5 Mich. 349 (72 Am. Dec. 49); People v. Jones, 24 Mich. 215. We do not think these cases apply to the condition disclosed by the record. One of the respondents on trial, Mr. Bird, had seen fit to become voluntarily a witness, and give his version in the police court of the offense for which he was arrested. This testimony was certainly competent against him. People v. Eaton, 59 Mich. 559; People v. Arnold, 43 Mich. 303 (38 Am. Rep. 182); People v. Prague, 72 Mich. 178; People v. Gastro, 75 Mich. 127; People v. Swetland, 77 Mich. 53; People v. Taylor, 93 Mich. 638; People v. Kennedy, 105 Mich. 434; People v. Seaman, 107 Mich. 348. No objection was made, so far as disclosed by the record, to the testimony, upon the ground that the admissions of the respondent Bird could not be used against the respondent Butler. Nor was the court requested to caution the jury against using the testimony as incriminating Butler. In the case of People v. Arnold, 46 Mich. 277, which was a conspiracy case, it was stated:

4 ‘ It is further urged that the court erred in receiving in evidence the admissions of John Snediker. These were admissions of a joint offense, made after its commission, and from their nature, it is said, could not be received against Snediker alone. But the fact that the offense is joint cannot exclude admissions. They are admissible against the party making them, and the court must protect the other respondent by cautioning the jury not to permit the confession of his alleged associate to prejudice him. If the participation of the other is not made out by independent evidence, there can be no conviction; but the existence of a conspiracy must commonly be made out by the detached acts and statements of the individual conspirators.”

In People v. Saunders, 25 Mich. 119, it was held to be competent, in trials for conspiracy, to connect the several parties charged by evidence of their separate acts and statements. See, also, Beebe v. Knapp, 28 Mich. 67.

Bird was swprn as a witness in the case. The i'ecord does not purport to contain all of the proceedings had in the recorder’s court. There is no suggestion in it that any claim was made by counsel that Bird’s testimony could not be used against Butler, nor does it suggest that the trial judge did not caution the jury as suggested in People v. Saunders, supra, and People v. Arnold, supra, and we do not feel called upon to assume that it was not done.

Error is assigned because of a portion of the argument of the prosecuting attorney. It is evident that what Mr. Hunt said, was in reply to a suggestion by Mr. Navin, counsel for respondent; and, while it would have been well to avoid some of the remarks made by him, some allowance must be made for the excitement and heat engendered by a trial, and we do not think what was said constitutes reversible error.

It is also claimed that the charge of the trial judge was objectionable. We cannot agree with the counsel for the respondent. The charge, taken as a whole, was a fair and careful statement of the law applicable to the case.

Judgment is affirmed.

The other Justices concurred.