text:
    AUDITOR GENERAL v. CHANDLER.
    1. Taxes — Proceedings to Enforce Lien of State — Notice of Objections — Statutes—Retrospective Operation.
    Act No. 162, Pub. Acts 1895, in so far as it amends the tax law of 1898 by requiring the service upon the prosecuting attorney of a copy of the objections filed by a contestant in proceedings instituted by the auditor general to enforce the collection of the tax, is not applicable to a case where the. auditor’s petition was filed, and the order for hearing made, before the act took effect.
    2. Same — Amendment of Objections —Discretion of Circuit Judge. .
    Allowing a contestant, after the day fixed for the hearing of the auditor general’s petition, to file a supplemental list of lands, which simply states more in detail the objections originally filed, is a discretionary act on the part of the trial judge, which will not be reviewed.
    8. Same — Boards of Review.
    The provision of the tax law requiring township boards of review to meet upon certain specified days for the purpose of reviewing and correcting the assessment roll is mandatory, and a taxpayer has the right to assume that the board will remain- in session the full statutory time, and to arrange to be present any day he may choose; and if, by reason of the failure of the board to perform this statutory duty, he is prevented from appearing and objecting to his assessment, the tax levied against him thereon is void.
    Appeal from Cheboygan; Adams, J.
    Submitted January 16, 1896.
    Decided March 11, 1896.

      Petition by the Auditor General for the sale of lands delinquent for taxes. From a decree setting aside certain taxes upon objections filed by Merritt Chandler, petitioner appeals.
    Affirmed.

      Victor D. Sprague, Prosecuting Attorney (George W. Bell, of counsel), for petitioner.

      Shepherd & Beilley, for defendant.
   Moore, J.

This proceeding is an attempt to collect the taxes, interest, and charges claimed to be due upon the lands of the defendant for the year Í893 and previous years. The auditor general’s petition was filed July 26, 1895. July 27, 1895, the court ordered a hearing on that petition, to be heard September 17, 1895, at the opening of court. September 13, 1895, proof of publication of the order and petition was filed. September 17, 1895, the defendant filed his objections to the taxes, only one of which it is material to consider here. That is, “ The board of review in the township did not hold its sessions at the time or times provided by law, and for that reason defendant was prevented from making his objections to them.” The defendant did not serve any copy of his objections upon the prosecuting attorney prior to September 17th. Subsequent to the 17th of September the defendant was allowed, against the objection of counsel for petitioner, to file a supplemental list of the lands upon which were assessed the taxes he desired to contest. The counsel for the petitioner objected to the court’s hearing the objections of the defendant: First, because he had not served a copy of them on the prosecuting attorney in season; second, because the supplemental list of lands filed by the defendant was filed too late. These objections were overruled, and upon a hearing the trial court held the taxes were improperly levied and were invalid. The record discloses that the township board of review met on the fourth Monday in May, as required by law; that no .one appeared before it; that it then adjourned without day; that on Tuesday the defendant appeared at the house of the supervisor, the place where the board of review should have been in session, and learned that it had adjourned. One member of the board lived 2i miles away, and the other 13 miles away. It is claimed the supervisor offered to call the board together the following day, and was told by Mr. Chandler that he had other engagements.

The first important question is, had the court the right to hear defendant’s objections, when he had not served a copy of them upon the prosecuting attorney, as required by the law of 1895 ? The petition of the auditor general was filed, and the order of the court fixing a time for the hearing upon the petition was made, before the law of 1895 took effect. The order recited, as required by Act No. 306, Pub. Acts 1893, “that all'persons interested in such lands, or any part thereof, desiring to contest the lien claimed thereon, * * * shall file with the clerk * * * their objections thereto, on or before the first day of the term.” This was done by the defendant. The law of 1893 did not require a copy of the objections to be served upon the prosecuting attorney. The amendment of 1895 did not provide that it should affect pending proceedings. In the absence of any expression of intent on the part of the legislature to have the amendment affect pending proceedings, we think it would be inequitable and unjust to give the statute that construction. See Clark v. Hall, 19 Mich. 356; Smith v. Auditor General, 20 Mich. 398; Auditor General v. Monroe County Supervisors, 36 Mich. 70. The allowance of the filing of the supplemental list of lands, which simply stated more in detail the objections originally filed, was a discretionary act upon the part of the trial judge, which we will not review, and it was a proper amendment to allow. Auditor General v. Jenkinson, 90 Mich. 526.

The only other question necessary to pass upon is, what is the effect of the failure of the board of review to remain in session as the law required? The statute provides that “said board of review shall meet at the office of the supervisor on the fourth Monday in May, at nine o’clock in the forenoon, and continue in session during the day and the day following,” and that its sessions shall continue at least six hours a day. Section 30, Act No. 206, Pub. Acts 1893. The construction of this or a similar provision of the statute is not an unfamiliar proceeding in this court. See Avery v. East Saginaw, 44 Mich. 587; First Nat. Bank v. St. Joseph, 46 Mich. 526; Williams v. Saginaw, 51 Mich. 120; Peninsula I. & L. Co. v. Township of Crystal Falls, 60 Mich. 510. In Township of Caledonia v. Rose, 94 Mich. 216, it was held that—

“The provision of the statute requiring the board to meet upon the days named is mandatory, and it cannot deprive the taxpayer of his hearing there, and thereby force him to a suit at law to obtain redress. Defendant was entitled to assume that the board would remain in session the full length of time provided by the statute, and to arrange to be present any day he chose.”

The decree of the court below is affirmed, without costs.

The other Justiqes concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    SMITH v. AMERICAN EXPRESS CO.
    1. Carriers — Limitation of Liability by Contract.
    A common carrier may limit its strict common-law liability, by express agreement, in such manner as the law can recognize as reasonable, and not inconsistent with sound public policy.
    2. Same — Bill of Lading.
    The receipt or bill of lading issued by a common carrier to a consignor, and received by him without objection, and without any insistence upon the common-law liability of the carrier, is a contract between the parties, and fixes their liabilities and rights.
    3. Same — Negligence of Employés.
    Such contract is not to be construed as in any way limiting the carrier’s liability for loss or damage due to the neglect or default of its employés.
    4. Same — Loss Beyond Line of Carrier.
    A carrier is not liable for loss or injury to property after delivery to a succeedingcarrier, where the contract expressly limits its liability to its own line.
    5. Same — Loss by Fire.
    A carrier may by contract exempt itself from liability for loss by fire not caused by its own negligence.
    6. Same — Negligence—Burden of Proof.
    Where suit is brought upon the negligence of a carrier,' such negligence must be proved by the party asserting it.
    7. Same — Limitation as to Amount of Liability.
    The receipt given by an express company for a package delivered to it for transportation provided that the company should not, in any event, be held liable beyond the sum of $50, unless the just and true value of the property was stated in the receipt. This was not done, nor was the value disclosed by the consignor to the company. Held, that the limitation was reasonable, and, in case of loss, fixed the limit of any recovery by the consignor.
    Error to Wayne; Lillibridge, J.
    Submitted January 28, 1896.
    Decided March 11, 1896.
    • Case by Howard D. Smith against the American Express Company for the loss of a parcel intrusted to defendant for delivery. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The defendant, a common carrier, on September 19, 1892, at its Detroit office, received from plaintiff a sealed package for carriage, marked, “H. D. Smith, Washington, D. C.,” receiving for such carriage 25 cents, .and delivering to the plaintiff a receipt or bill of lading, which reads as follows:

      “read the conditions oe this receipt.
    “The rates charged by this company for the carriage of small packages of merchandise and printed matter have been greatly reduced. Further particulars will be given upon application to agents of the company.
    “AMERICAN EXPRESS COMPANY.
    “Detroit, Mich., Sep. 19, 1892.
    “Received of H. D. Smith, P., said to contain______
    valued at, not given, dollars. Marked Pd. 25.
    “H. D. Smith,
    “Washington, D. C.
    —“Which we undertake to forward to the nearest point of destination reached by this company, subject expressly to the following conditions, namely: This company is not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage by fire, by the dangers of navigation, by the act of God, or of the enemies of the government, the restraints of government, mobs, riots, insurrections, pirates, or from or by reason of any of the hazards or dangers incident to a state of war. Nor shall this company be liable for any default or negligence of any person, corporation, or association to whom the above-described property shall or may be delivered by this company, for the performance of any act or duty in respect thereto, at any place or point off the established routes or lines run by this company; and any such person, corporation, or association is not to be regarded, deemed, or taken to be the agent of this company for any such purpose, but, on the contrary, such person, corporation, or association shall be deemed and taken to be the agent of the person, corporation, or association from whom this company received the property above described. It being understood that this company relies upon the various railroad and steamboat lines of the country for its means of forwarding property delivered tort to be forwarded, it is agreed that it shall not be liable for any damage to said property caused by the detention of any train of cars or of any steamboat upon which said property shall be placed for transportation, nor by the neglect or refusal of any railroad company or steamboat to receive and forward the said property.
    “It is further agreed that this company is not to be held liable or responsible for any loss of or damage to said property, or any part thereof, from any cause whatever, unless in every case the said loss or damage be proved to have occurred from the fraud or gross negligence of said company or their servants. Nor in any event shall .this company be held liable or responsible, nor shall any demand be made upon them, beyond the sum of fifty dollars, at which sum said property is hereby valued, unless the just and true value thereof is stated herein; nor upon any property or thing, unless properly packed and secured for transportation; nor upon any fragile fabrics, unless so marked upon the package containing the same; nor upon any fabrics consisting of or contained in glass. If any sum of money besides the charges for transportation is to be collected from the consignee on delivery of the above-described property, and the same is not paid within thirty days from the date hereof, the shipper agrees that this company may return said property to him, at the expiration of that time, subject to the conditions of this receipt, and that he will pay the charges for transportation both ways, and that the liability of this company for such property while in its possession for the purpose of making such collection shall be that of ware-housemen only. In no event shall this company be liable for any loss or damage unless the claim thereof shall be presented to them in writing, at this office, within 90 days after this date, in a statement to which this receipt shall be annexed. And it is also understood that the stipulations contained herein shall extend to and inure to the benefit of each and every company or person to whom, through this company, the above-described property may be intrusted or delivered for transportation. Deliveries at all points reached by this company are only to be made within the delivery limits established by this company at such points at the time of shipment, and prepayment in such cases shall only cover places within such delivery limits. The party accepting this receipt hereby agrees to the conditions herein contained.
    “For the Company: Stone, Agent.”
    There was printed across the face of the receipt “Not negotiable.” Nothing appeared on the outside of the package to indicate its contents or value. Plaintiff’s agent presented it, paid the charges, took the receipt, and went away, without making apy statement of its value. In shipping goods from Detroit to Washington, Toledo, Ohio, was the nearest point of defendant’s line, and to which it was accustomed to carry and deliver packages to the succeeding carrier. The package was carried safely and delivered in good condition by defendant, September 20th, to the Adams Express Company, the continuing carrier from Toledo to Washington. On that night a collision occurred between two trains of the railroad, upon one of which was the package in question, in charge of the express messenger of the Adams Express Company. A fire resulted, which- destroyed the express car and plaintiff’s package. There is no testimony upon the record tending to show the cause of the accident, or to establish any negligence on the part of the railroad company. The sole evidence is that the accident occurred. The package contained 23 railroad tickets from Memphis to Niagara Falls and return. They had been used by passengers from Memphis to the falls, and, upon their face, were nontransferable. The court directed a verdict for the defendant.

      Washington I. Robinson, for appellant.

      Wisner & Harvey, for appellee.
   Grant, J.

(after stating the facts). The defendant’s positions are summarized as follows:

(1) The receipt or bill of lading is the contract for the carriage of the package in question.
(2) It is not to be construed as limiting the defendant’s liability in any way for loss or damage due to neglect or default of its employes.
(3) By the safe carriage and delivery of the package to the Adams Express Company, defendant fully performed its duty under said contract.
(4) No negligence is shown on the part of any one from which the loss resulted.
(5) Plaintiff’s recovery is limited to $50, the limit specified in the contract where the just and true value is not stated.

1. The second point is beyond discussion. It is conceded to be the law, and the rule is established by an overwhelming weight of authority. Citation of authorities is therefore unnecessary. In connection with this, we note the other well-established rule, that “a common carrier may limit his strict common-law liability, by express agreement, in such manner as the law can recognize as reasonable, and not inconsistent with sound public policy.”

2. It has long been the established rule in this State that the receipt or bill of lading issued by a common carrier to a consignor, and received by him without objection, and without any insistence upon the common-law liability of the carrier, is a contract between the parties, and fixes their liabilities and rights. McMillan v. Railroad Co., 16 Mich. 80. That is also the rule in other courts. Southern Express Co. v. Caldwell, 21 Wall. 264; Belger v. Dinsmore, 51 N. Y. 166 (10 Am. Rep. 575); Hill v. Railroad Co., 73 N. Y. 351 (29 Am. Rep. 163); York Co. v. Central R., 3 Wall. 107; Pacific Express Co. v. Foley, 46 Kan. 457; Ballou v. Earle, 17 R. I. 441. Without quoting it here, I call special attention to 16 Mich., pp. 113, 114, in McMillan v. Railroad Co., where the law is expounded by that learned jurist, Justice Cooley. In that case the plaintiffs had not read the bill of lading, and did not know its contents, although they had been accustomed to ship goods over the same road under similar bills. In this case both the plaintiff and his agent, who delivered the package for shipment and took the receipt, testified that they had frequently, for years, shipped packages by the defendant, and received similar receipts. Both were witnesses, and neither testified that he did not know what the receipt contained. The receipt expressly limited defendant’s liability to its own line. It had fully performed its duty to the plaintiff when it had safely conveyed and delivered the package to the succeeding carrier. McMillan v. Railroad Co., supra; Detroit & Bay City R. Co. v. McKenzie, 43 Mich. 609; Rickerson Roller-Mill Co. v. Grand Rapids & I. R. Co., 67 Mich. 110; Pratt v. Railway Co., 95 U. S. 43; Black v. Ashley, 80 Mich. 90; Coles v. Railroad Co., 41 Ill. App. 607.

The contract also exempted the defendant from liability for loss by fire. Such exemption is reasonable, and not. against public policy, where the fire was not caused by the negligence of the defendant. Adams Express Co. v. Sharpless, 77 Pa. St. 516. The defendant itself was not negligent. The accident which caused the fire happened on the line of the succeeding carrier, which was. the plaintiff’s, and not the defendant’s, agent. Furthermore, there is entire absence of any evidence to show that the accident was the result of any negligence. Mere proof of an accident is not sufficient to establish negligence. Where suit is brought upon the negligence of the carrier, that negligence must be proven by the parties asserting it. Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 56.

3. If the plaintiff could recover at all, his recovery would be limited, under the contract, to $50. Had the value of the property been disclosed to the defendant, it would have made a greater charge for carriage. The limitation is reasonable. There was nothing to indicate its value. It was shipped at the lowest rate. Plaintiff does not pretend that he was ignorant of this condition. It was therefore his clear duty to disclose the value, and to pay accordingly. It would be unreasonable to say that one could ship a package containing diamonds of the value of $10,000 under that agreement, and recover full value in case of loss. No man of common sense and prudence would ship property of so great value without, informing the carrier of its contents and their value. Belger v. Dinsmore, supra; Muser v. Express Co., 1 Fed. 382; Pacific Express Co. v. Foley, supra; Ballou v. Earle, supra.

We consider it unnecessary to discuss the other point raised.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    MOSHER v. BAY CIRCUIT JUDGE.
    Attachment — Perishable Property — What Constitutes.
    Lumber and shingles are not perishable property, within the meaning of that term as used in 2 How. Stat. § 8011, which authorizes the sale, on the order of the court or judge thereof, of “animals or perishable property” seized under a writ of attachment.

      Mandamus by Alfred Mosher, Jr., to compel Andrew C. Maxwell, circuit judge of Bay county, to vacate an order directing a sale of lumber under attachment proceedings.
    Submitted November 5, 1895.
    Writ granted March 11, 1896.

      T. IP. Shepard (McDonell & Hall, of counsel), for relator.

      T. A. E. & J. G. Weadock (Atkinson & Wolcott, of counsel), for respondent.
   Long, J.

October 15, 1895, the First National Exchange Bank of Port Huron sued out a writ of attachment against relator from the Bay circuit court upon a debt not yet due to the amount of about $22,000, returnable November 5,' 1895. The sheriff of that county seized and took into his possession, among other property, a large quantity of lumber and shingles belonging to the relator, situate in the yard of relator at West Bay City, near the Michigan Central Railroad Company’s tracks and the power house of the street-railway company. An inventory and appraisal were made of the property, showing its1 value to be about $37,700. The property attached is also covered by chattel mortgages, making the whole of the claims under the attachment and mortgages about $50,000. Before the attachment was served on the relator, the plaintiff in that suit made an application to the circuit judge for Bay county for an order to sell the lumber and shingles so held under the attachment, on the ground that the property was perishable, within the meaning of 2 Iiow. Stat. § 8011. The claims set up for the order were that the property was so situate that it was liable to fire, that the insurance which had before that been carried had been canceled, and that the sheriff was unable to reinsure except for a small amount. No notice was given the relator of this application, but on October 21st the circuit judge made an order directing the sheriff to sell. On application here the sale was stayed until this petition for mandamus to set aside the order could be heard and disposed of.

The parties have been heard, and we think the order must be set aside. The property attached is not perishable, within the meaning of the statute. It provides that—

“When any of the property taken in attachment shall consist of animals or perishable property, the court or any judge thereof ipay make an order directing such property to be sold, and the money arising from such sale to be brought into court to abide the order of such court. ”

There is no power vested in the circuit judge or circuit court to make an order for the sale of perishable property except the power conferred by statute, and we think this not perishable property, within the meaning of the statute.

The writ must be granted as prayed.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., took no part in the decision.


text:
    DeSALE v. MILLARD.
    Injunction — Complainant as a Wrongdoer.
    Equity will not enjoin the closing of an alleged private alley at the suit of one who, in order to obtain a preliminary issuance of the writ, forcibly invaded the possession of the defendant, and destroyed a fence which the latter had erected for the purpose of closing the alley.
    Appeal from Wayne; Donovan, J.
    Submitted January 29, 1896.
    Decided March 11, 1896.
    Bill by Albert H. DeSale against William J. Millard and Thomas Martin to restrain the closing of a private alley. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John Galloway, for complainant.

      James H. Pound, for defendants.
   Grant, J.

The object of this suit is to enjoin defendants from closing a private alley alleged to exist in rear of the defendants’ lots and the one occupied by the complainant. Complainant is a tenant, and evidently is not the real party prosecuting this suit. He was not sworn as a witness. There are four lots in the block, the defendants ownings the outside lots, and complainant occupying one of the inside lots. The alley is a little less than seven feet wide.

Several defenses are raised, of which we need mention but one. The defendants contend that the alley was closed by the mutual consent and agreement of' all the lot owners, in pursuance of which the defendants had erected fences at each end, closing it. It had remained so closed for several months. Complainant’s agent, the active mover in the affair, was informed that he could not serve an injunction unless tlie fence was down. He therefore went, tore down the fences, and then applied for a preliminary injunction, which was granted. The defendant Martin immediately, and before he had any knowledge of the suit or that any injunction was issued, restored his fence. When complainant’s agent went to serve the injunction, he found the fence restored. He thereupon employed some men, provided them with axes, and proceeded to destroy the fence. Defendant Martin was present, warned him off, attempted to defend his possession by force, was overpowered, the fence destroyed, and, after this was done, the injunction was served.

The complainant was not in position to invoke the aid of a court of equity. The defendants were in possession, peaceably; and whether lawfully or unlawfully it is not material to inquire. Equity will not interfere to assist a party who has obtained possession by force. People v. Simonson, 10 Mich. 335; McCombs v. Merryhew, 40 Mich. 725; Tawas & Bay County R. Co. v. Iosco Circuit Judge, 44 Mich. 479; Soule v. Hough, 45 Mich. 418.

The decree is affirmed, with costs, but without prejudice to future proceedings.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. THOMPSON.

    Certiorari — When Lies.

      Certiorari will not lie to review the action of the circuit court in refusing to quash an indictment found by a grand jury, prior to the final disposition of the case in the lower court.
    Application by Thomas M. Thompson for a writ of certiorari to review the action of Joseph W. Donovan, circuit judge of "Wayne county, in refusing to quash an indictment.
    Submitted February 26, 1896.
    Writ denied March 11, 1896.

      Otto Kirchner, for petitioner.

       Rehearing denied October 6, 1896.

   Montgomery, J.

This, is an application for a writ of certiorari to review the action of the circuit court refusing to quash an indictment found against the respondent by a grand jury. No trial has yet been had. The question suggests itself whether the court should interpose at this stage by a writ of certiorari, and arrest the proceedings by a writ upon which a final judgment cannot be given if the action of the circuit court is upheld. In the early case of Palms v. Campau, 11 Mich. 109, it was held that the writ of certiorari ought not to be so employed. It is true that under peculiar circumstances such a writ was issued in People v. Lauder, 82 Mich. 109. But at page 126 it was said by Mr. Justice Morse :

“We are not willing that this shall be made a precedent in other cases for the use of the writs of mandamus or certiorari to decide matters arising upon motions to quash, or the issue joined in pleas of abatement to the indictments or informations in criminal cases. Usually such questions must come before us, on writ of error or certiorari, after trial and judgment.”

We have recently, in a number of cases, refused, to grant writs of mandamus or certiorari to review the action of courts in refusing to quash informations. The practice ought to be uniform, and we think the petitioner should be left to the customary remedy.

The other Justices concurred.


author: Long, C. J.

text:
    PEOPLE v. RICKETTS.
    1. Criminal Law — Assault with Intent to Ravish — Conduct of Prosecuting Attorney — Offer of Incompetent Evidence.
    On the trial of a father for assaulting his daughter with intent to commit the crime of rape, the prosecuting attorney offered to show that the respondent, prior to making the assault complained of, had committed similar acts upon the daughter, which offer was objected to and the objection sustained. Held, that, the offer having been made in good faith, and the proposed testimony objected to and excluded, there was no ground for saying that the judgment against the respondent should be reversed.
    3. Same — Instructions to Jury.
    Where the only testimony given on the trial of a respondent for an assault with intent to commit the crime of rape is that of the assaulted party, which is positive as to the making of the assault, it is not error for the court to charge the jury that, if they believe said testimony, the respondent is guilty of assault and battery, and that the only question for them to consider is whether or not he intended to commit the greater offense.
    Error to Osceola; McMahon, J.
    Submitted January 30, 1896.
    Decided March 11, 1896.
    Ira Ricketts was convicted of an assault with intent to ravish, and sentenced to imprisonment in the state prison at Marquette for eight years.
    Judgment affirmed.

      Charles A. Withey, for appellant.

      C. H. Rose, Prosecuting Attorney, for the people.
   Long, C. J.

Respondent was convicted of an assault with intent to commit the crime of rape upon his own daughter, a girl just past 15 years of age. The errors relied upon by the respondent are:

1. That the prosecuting officer stated to the court, in the presence of the jury, that he proposed to show by several witnesses that the respondent, on several occasions prior to the time of the commission of the offense charged, had committed similar acts upon the complaining witness. This offer was objected to, and the objection sustained. The contention is that respondent’s rights were prejudiced by the offer of this testimony by the prosecution. It is not necessary to discuss the question which the prosecution now raises, that this testimony was competent. It is sufficient to say that, this testimony having bqen objected to and excluded, there is no ground for saying that the case should be reversed. If a case were to be reversed upon such a pretext as this, few verdicts could be sustained. The prosecution evidently made the offer in good faith, and the court promptly excluded the testimony.

2. It is contended that there was no evidence which warranted tlie jury in finding the respondent guilty. We need not’ set out the testimony here. The story, as told by the daughter, if believed by the jury, would warrant a verdict of guilty. „

3. It is also contended that the court was in error in several portions of the charge. These portions are selected from the general charge, and, standing alone, might tend to mislead the jury, but as a whole we think the charge not open to the criticism made upon it by counsel. The court charged:

“In order to find the respondent guilty of the offense, it will be necessary for you to find from the evidence, beyond any and all reasonable doubt, that at the time he made the assault upon her he had in his mind the intent to gratify his passions upon her person, and that he intended to do so at all events, and notwithstanding any resistance on her part; that he intended to have carnal intercourse with her, in other words, and to use such force as was necessary for that purpose to overcome whatever resistance she might interpose, and to have intercourse with her at all events.”

Certainly this was a fair statement of the law.

But counsel claims that, in a preceding portion of the charge, the court took from the jury the question of the degree of the crime with which the respondent stood charged. After stating the claim of the prosecution, the court said:

1 ‘ If you believe the evidence of the prosecuting witness, this respondent is certainly guilty of assault and battery, at all events. If you believe her testimony that he threw her down against her will, and took these liberties in an insulting, offensive, and rude manner with her person, he is certainly guilty of assault and battery; and really the only question for you to debate and consider in this case is whether or not he is guilty of the more serious offense.”

The complaint is of the last portion of this section of the charge. The only evidence set out in the record is that of the prosecutrix, and apparently it was the only evidence given on the trial. The court was not in' error, therefore, in saying that the only question-was. whether the respondent intended to commit the greater offense; and, indeed, it appears by the record that counsel for respondent stated to the jury ‘ ‘ the respondent is probably guilty of assault, or assault and battery, and I do not think it will take you many minutes to convict him of this offense.” It is difficult to conceive how counsel can now contend in this court that respondent was prejudiced by the charge. Some other portions of the charge are criticised, but we find nothing which warrants further discussion.

The judgment must be affirmed.

The other Justices concurred.


text:
    PEOPLE v. WHIPPLE.
    1. Criminal Law — Offense not Triable by Justice — Jurisdiction to Issue Warrant.
    Where a warrant for an offense not cognizable by a justice of the peace recites the examination of the complaining witness on oath, it will be presumed that sufficient evidence was adduced to authorize the issuance of the warrant, although the written complaint purports to have been made solely on information and belief.
    ■2. Same — Evidence to Rebut Presumption.
    In such case, parol evidence to show that no other testimony was taken than that contained in the complaint is inadmissible, — at least upon motion to quash the information, made after the jury has been impaneled to try the cause.
    3. Intoxicating Liquors — Saloon—What Constitutes.
    In a prosecution for keeping a saloon open on a legal holiday, evidence that, upon the day in question, the respondent, during the absence of his copartner, sold liquors in rooms occupied by the latter as living apartments, situated above the saloon proper, and accessible only by an outside stairway, is sufficient to justify a conviction. People v. Cox, 70 Mich. 247, and People v. Ringsted, 90 Mich. 371, followed.
    Exceptions before judgment from Ingham; Person, J.
    Submitted January 31, 1896.
    Decided March 11, 1896.
    Amos Whipple, impleaded with Edward Sedweek, was convicted of keeping a saloon open on a legal holiday.
    ■Conviction affirmed.

      E. D. Lewis and J. E. Nichols, for appellant.

      L. B. Gardner, Prosecuting Attorney, for the people.
   Long, C. J.

The respondents were prosecuted for keeping their saloon open on July 4, 1895. Respondent Whipple was convicted, and respondent Sedweek was discharged by order of the court.

Respondents were the keepers of a saloon in the village of Williamston, under the firm name of Sedweek & Whipple, and, as such, sold spirituous and other liquors usually kept in saloons. The saloon was on the first floor of a building leased by them for that parpóse. The rent of the entire building was paid from the joint proceeds of their business. On the lower floor, the front part was used as a cigar and tobacco room. Back of this was the saloon proper, and in a wing back of that was a room with tables for card playing and serving liquors. The upper part of the building is reached by back stairs, the foot of which is 10 or 12 feet distant from the rear door of the saloon. The rooms above were kept by the respondent Sedweek as living rooms, though his family did not reside there. On the morning of the 4th day of July, 1895, Sedweek went away, leaving the key to the upper-rooms with a man who had been rooming with him. During that day, respondent Whipple occupied these upper rooms, or some of them, and sold beer and other liquors therein to different parties, but closed the rooms up again before the return of Sedweek in the evening.

But one question need be discussed. It is contended that the justice had no jurisdiction to issue the warrant in the case, for the reason that the complaint, which was in writing, charged the commission of the offense solely upon information and belief. The complaint and warrant are returned here, but none of the other proceedings taken before the justice. The complaint recites that the complainant says “that he has been informed, which information he believes to be true, and does believe, that heretofore, to wit,” etc. There is no statement in the complaint that the complaining witness had any knowledge of the facts set up in the complaint as to the commission of the offense. The warrant recites that the complaining witness “this day made complaint in writing and on oath,” etc. It was conceded upon the argument here by counsel that an examination was had before the justice. The information is set out in full, but whether the respondents pleaded to it the record does not show. After the jury were impaneled, and after a witness had been sworn on the part of the people and the examination commenced, the record shows the following:

“Respondents hereby renewing their motion to quash the information, and to discharge the respondents from further custody, for the reason that the justice acquired no jurisdiction to issue the warrant in this cause, in this: That the complaint was made upon information and belief, and that no other testimony was taken by the said justice before the issuing of said warrant, and that the complaining witness was not sworn, other than the reading of the complaint to him, which he then signed, and being asked by the justice, who put him under oath, and swore him as to the contents of the complaint by him subscribed. Respondents then offered to prove by the justice that the complaining witness did 'not testify to anything outside of the facts set forth in the complaint, and that no other witnesses were called or sworn by him before the issuing of the warrant.”

Respondents then offered to call the complaining witness, and to show by him that he gave no testimony before the justice who issued the warrant other than swearing to the complaint, and that he only knew of the facts as therein set forth on information and belief, and that no other witnesses were produced and sworn before the issuing of the warrant. The court refused to receive this testimony, and overruled the objection.

The complaint, warrant, and information are set out in the record. We are unable to say from the record as presented that there was no other testimony taken by the justice before the warrant issued than that set out in the complaint. The warrant recites that, “on examination on oath of the said Jeremiah Nichols by me, the said justice, it appears to me, the said justice, that said offense has been committed,” etc. It therefore appears that the justice, from such examination, was satisfied that an offense had been committed. It was not necessary that such examination on oath of the witness or witnesses be reduced to writing.

The court very properly excluded the evidence offered to show that no other testimony was taken. The record does not disclose whether the respondents pleaded to the information or not; but it does appear that the trial had proceeded so far that the jury had been impaneled to try the cause, and it is admitted that the respondents had an examination in the court below. We know of no rule-that would permit the respondents, at least at this stage of the case, to adduce testimony to show that the justice who issued the warrant did not have sufficient evidence' before him to warrant his issuing a warrant of arrest.

It is contended, further, that the charge in the information is not supported by the evidence; that, from such proofs, it appears that the place where the liquors were sold was wholly unconnected with the saloon, and was not. a saloon within the meaning of the statute. The case falls-so clearly within the rule laid down in People v. Cox, 70 Mich. 247, and People v. Ringsted, 90 Mich. 371, that no-further discussion of the question is necessary. The offense was properly charged, and was fully supported by the evidence.

Conviction affirmed.

The other Justices concurred.


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    SIGLER v. SIGLER.
    Husband and Wife — Statute of Frauds — Specific Performance.
    A husband and wife, who were in the joint possession of their homestead, the title to which was in the wife, entered into a verbal agreement, whereby the wife, who had determined to separate from the husband, was to take certain personal property, and, in consideration thereof, the husband was to have the right, during his natural life, to occupy certain rooms in the dwelling house, and to use a grapery and a barn situated upon the premises. Pursuant to such agreement, the wife removed the personal property, and the husband took possession of the rooms he was to occupy, after which the wife left him, and rented the remaining portion of the house. After the husband had enjoyed the undisturbed possession of the rooms for two years, his wife, insisting upon her legal title, brought suit to eject him, whereupon he filed a bill to enforce the specific performance of the verbal agreement. Held, that there was such a part performance as to take the contract out of the statute of frauds.
    Appeal from Lenawee; Lane, J.
    Submitted February 18, 1896.
    Decided March 11, 1896.
    Bill by Artemus Sigler against Jennie Sigler to enforce the specific performance of a parol contract in relation to certain lands, and to enjoin the further prosecution of a suit to obtain possession of the premises. From a decree dismissing the bill, complainant appeals.
    Reversed.
    The object of this bill is to enforce the specific performance of a contract relating to land. Complainant and defendant are husband and wife. They were married in June, 1884. He was a widower 61 years of age, and she was 30 years younger. He owned a homestead in the city of Adrian,- worth about $3,000. He and his first wife had executed a mortgage upon it to his nephew in Cleveland, Ohio, for $5,000. He failed in mercantile business soon after his second marriage, and was in debt about $10,000. His stock of goods had been sold under a mortgage, and this homestead was all the property he possessed, except the household furniture situated therein. The bill sets forth that defendant harassed complainant by her repeated demands for a conveyance of this homestead to her; that he finally yielded to her demands to this extent: That it was agreed that she should pay $800 upon this mortgage, that he would pay the balance (amounting to $1,540.43), that the mortgagee should make an assignment of the mortgage to her, and that she should hold and keep it for their mutual benefit. This was done. She paid the $800, and the mortgagee, his nephew, took his note for the balance. The bill further alleges that she importuned him to have the mortgage foreclosed; that he finally yielded to her threats and importunities; and it was agreed that the mortgage should be foreclosed, the title taken in her name, that he would not redeem, and that the same should be their joint homestead, to be occupied, enjoyed, held, and owned by them together. This was done, and the title perfected in- her; the amount of a foreclosure sale being the original amount of the mortgage and interest added. This was in 1886. -They lived in and occupied the homestead as husband and wife until 1892, when she declared her determination to separate from him, and to sell or rent the property. The bill then alleges that it was agreed between them that she should take certain personal property, which was specified, and that—
    “In consideration thereof he should have the right to live in, occupy, possess, and have, for and during his natural life, certain rooms, including a clothespress, in the rear upright part of the house, with the right of access to and from the same by way of a stairway leading thereto from a woodshed in the rear of the house, and also to have the use, possession, and occupancy of a grapery and barn situated upon the rear of the premises.”

      It is further alleged that this agreement was carried out; that she took the personal property away, and sold some of it; that the remaining furniture was moved into those rooms, of which complainant took possession; that defendant then left him, and rented the other portion of the house. For two years complainant was left in the undisturbed possession of these rooms. The defendant, thereafter, insisting upon her legal title, brought suit to eject the complainant therefrom, and thereupon he filed this bill. Proofs were taken in open court, and the bill dismissed.

      J. O. Winne and L. H. Salsbury, for complainant.

      Watts, Bean & Smith, for defendant.
   Grant, J.

(after stating the facts). The learned circuit judge who heard the case filed a written opinion. He did not determine whether the last contract, as claimed by the complainant, was made. He held that the foreclosure proceedings were with the assent of the complainant, who hoped thereby to protect his property, and to keep it, for himself and wife, beyond the reach of his creditors, and that, therefore, he had no right which he could enforce, either in law or equity, after the maturity of the title in defendant. He then disposed of the case upon the ground that, at the time the last agreement was claimed to have been made, both the parties were in possession; that, if there was any change of possession, it was a restriction of it, and not the giving of an additional possession; and held that it was ruled by a case in 47 Mich. The opinion does not state what case, and counsel for complainant assert that it was Murphy v. Stever, 47 Mich. 522. Counsel for defendant assert that the judge had in mind Peckham v. Balch, 49 Mich. 179. The opinion of the judge contains the following statement:

“In view of her marriage relation, and what she had done there, I think that the complainant could rightly insist that the wife could not say that she had all the money there was in this property, because, evidently, from the testimony in this case, what was advanced by Mr. Sigler, the nephew, to Mr. Sigler, the complainant in this case, was a matter between himself and the nephew, and it would, in the law, be the same as though he had paid his own money for it. But the surrender of rights here was when he permitted the wife to take this mortgage, and take the foreclosure deed in her own name. That was the time when he lost right, and he has not, I think, made such a subsequent contract as would enable him to retain this real estate.”

We do not regard it as important to determine under what arrangement the foreclosure proceedings took place. The parties continued to live there for some years after-wards. If any affection ever existed between them, which is very doubtful, they had evidently become thoroughly estranged from each other. She had determined to leave him, and did leave him. Both were in possession. He was aware that she intended to leave him. It was, therefore, entirely natural that some arrangement should be made to determine their rights in the future. If any arrangement was made, it is important to first determine what it was. He positively asserts the agreement as set forth in his bill of complaint. She positively denies it. Had the circuit judge determined the question, we might very properly say that his determination should stand, since he was in better position to determine which told the truth. We must, however, determine the question without the benefit of the conclusion of the circuit judge. The situation of the parties is important. Complainant was old and feeble. He had lived in this homestead for 37 years. He had no other property, and no children. Defendant had invested but $800 in it. It is not reasonable to suppose that he would give her other property, to which she was not entitled, and abandon to her his homestead besides. She left him in the undisturbed possession for two years. One witness, a Mr. Doolittle, testified that he applied to her to rent the place, and that she then said that complainant “had part of it as his home there,” and that he refused to take it for that reason. She at one time offered him $500 to leave the premises. We think the contract is established by a fair preponderance of the evidence.

We think, also, that there was stich a part performance as takes the contract out of the statute of frauds, although it rested in parol. She had taken the personal property under the contract. He had taken possession of the rooms, grapery, and barn, and abandoned possession of the other part of the house. So far as the consideration to be paid by him was concerned, it was fully executed. It was also executed on her part, by leaving him in possession and taking possession of the other part, controlling and renting it. We do not think the case of Peckham v. Balch applies. It is rather controlled by Murphy v. Stever. Many authorities are cited by both parties, but we deem it unnecessary to refer to them. The rule is well established that part performance of a parol contract for an interest in lands is valid, and not within the statute of frauds, and that a court of equity will decree specific performance. An action at law for damages will not afford an adequate compensation. Complainant contracted for the possession of a part of his homestead as a place of shelter for the remainder of his life. He was entitled to the specific thing for which he had contracted and paid, and of which he was in possession.

It was not necessary to tender to defendant the money she had invested. This is not a suit to set aside her title. It is conceded that she has the title, subject to a life estate in a part of the premises.

The decree must be reversed, with the costs of both courts, and decree entered in this court for the complainant.

The other Justices concurred.


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    FOUNTAIN v. HUTCHINSON.
    Evidence — Partnership—Sale oe Interest in Firm Assets.
    One of two partners gave liis wife a bill of sale of one-third of the firm assets, being his interest therein, in payment of his personal debt to her. The wife, claiming to have sold said interest to the other partner upon his agreement to pay her the value thereof, sued to recover said value. The def end- • ant denied making any such purchase or agreement, and testified that the arrangement was that a corporation about to be formed was to take the partnership property, and allow so much stock therefor, which was to be issued to the defendant, and its value be by him applied to the settlement of the partnership accounts. Held, that it was important that the jury be instructed as to the effect of a sale by one partner of his interest in the partnership property in payment of his individual debt, and as to the rights of partners in the joint property; that, while the partnership accounts could not be settled in said suit if objection were made, still their condition was a pertinent inquiry in determining the probability of the contract as claimed by the plaintiff and as ' asserted by the defendant.
    Error to Calhoun; Smith, J.
    Submitted February 18, 1896.
    Decided March 11, 1896.

      Assumpsit by Olive M. Fountain against Charles Hutchinson to recover the value of certain personal property alleged to have been sold to the defendant. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff’s husband, John Fountain, and defendant, were in partnership in the business of manufacturing cultivators, Fountain owning one-third interest, and defendant two-thirds. Among the partnership assets were a boiler and engine, machinery, and tools. February 20, 1892, Fountain claims to have sold to the plaintiff his one-third interest in the machinery, etc., and for which he made a bill of sale. The consideration was money which plaintiff claimed to have loaned to her husband in 1889, and for which she held his note for $450, dated January 30, 1889. Defendant, at the time of the sale, was not consulted, and knew nothing of it. Plaintiff claimed that through her husband, acting as her agent, she subsequently sold to the defendant her one-third interest in this property, and that defendant agreed to pay therefor one-third of the inventory price of the entire property, when transferred to a corporation then agreed to be formed. Fountain claimed to have made a memorandum of the agreement, which he produced, and which reads as follows :
    “Substance of contract between Messrs. Hutchinson and Cronin: Agree to form a stock company, '$25,000, and to make one thousand cultivators the first year, and more thereafter as trade demands. To employ Fountain at $2 per day, and Fountain to have one-sixth of the profits. Hutchinson to put machinery from Ceresco in as his stock, and pay Mrs. Fountain for the same one-third inventory price.”
    Subsequently a corporation was formed, and this property transferred to the corporation. The business was located at • Battle Creek, the property removed from Ceresco, and after its removal an'inventory was taken. Defendant denied any such contract, and testified that the arrangement was that the corporation was to take the machinery, and allow so much stock for the entire lot; that the stock was to be issued to him, and its value to be applied to the settlement of the partnership accounts of Fountain & Hutchinson. Defendant also denied that he was informed of such transfer by Mr. Fountain, and claimed that he knew nothing of it until some time after the shops were built in Battle Creek, and the machinery running, when Mr. Cronin, one of the stockholders, and the secretary and treasurer of the corporation, called his attention to an assignment from Fountain to his 'wife, which he had found upon the floor of the office, and which had evidently fallen from Mr. Fountain’s coat. Mr. Cronin testified to finding this assignment and showing it to defendant. The entire transaction rests in parol, and no one was present at the making of the alleged agreement except Mr. Fountain and the defendant. Plaintiff had verdict and judgment.

      Louis C. Miller (Howard & Boos, of counsel), for appellant.

      Herbert E. Winsor, for appellee.
   Grant, J.

(after stating the facts). Errors are assigned upon the admission and exclusion of evidence, upon the refusal to give certain requests, and upon the charge as given. The court refused to permit any inquiry to be made into the partnership agreement, and rejected testimony offered to the effect that Mr. Fountain, at- the time of the alleged sale to his wife, had no real interest in the partnership property, and was in fact indebted to defendant. He also refused to instruct the jury as to the effect of a sale by one partner of his interest in any or all of the partnership property in payment of his individual debts, or as to the rights of partners in their joint property. We think it was important that the jury should have been instructed upon these matters. It is evident that Mr. Fountain was at the time insolvent. If it could be shown that in fact he had no real interest in the partnership property, but was in debt to his partner, this would be a very material circumstance for the consideration of the jury in determining who told the truth, Fountain or defendant, and what the contract was. Of course, plaintiff, under the bill of sale from her husband, did not obtain absolute title to the specific property, nor any title whatever, unless upon settlement it was found that Mr. Fountain had some interest to convey. The conveyance to her was subject to the rights of creditors and the other partner. It was her theory that, although her husband may have had no real interest to convey, yet defendant recognized that she was possessed of the title to the undivided one-third of the property described, and agreed to pay her its full value, regardless of his standing in the partnership. It was the theory of the defendant that all the partnership property was to be sold and conveyed to the corporation, and its value, issued in stock to the defendant, to be applied on the partnership accounts. While these accounts could not be settled in this suit if objection were made, still their condition was a pertinent inquiry in determining the probability of the contract as claimed by the plaintiff, and as asserted by the defendant. Richardson v. McGoldrick, 43 Mich. 476; Colwell v. Adams, 51 Mich. 491; Campau v. Moran, 31 Mich. 280; Banghart v. Hyde, 94 Mich. 49.

Most of the errors assigned arise upon the erroneous view of the case taken by the circuit judge that the condition of the partnership and the rights of partners could have no bearing upon the issue. We need not, therefore, consider them in detail.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


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    LEONARD v. CITY OF DETROIT.
    Highways — Adverse Possession — Estoppel.
    The removal by a lot owner, pursuant to notice from the board of public works, of a fence which, for a period sufficient to give title by adverse possession, had inclosed with the lot a strip of land situate within the sidewalk line, will not be construed, after the lapse of 12 years, during which time the city has made no attempt to use any portion of the strip of land for public purposes, and the porch and steps of the lot-owner’s house have projected several feet over and upon said strip, as an acknowledgment by the lot owner of the claim of the city that the line of the street included said strip of land.

      Appeal from Wayne; Hosmer, J.
    Submitted March 3, 1896.
    Decided March 11, 1896.
    Bill by Cornelia S. Leonard against the city of Detroit to quiet title. From a decree for part of the relief prayed, complainant appeals.
    Reversed.

      Albert P. Jacobs, for complainant.

      John J. Speed, for defendant.
   Long, C. J.

Complainant is the owner of a lot situate at the corner of Miami avenue and John R. street, in the city of Detroit, and this bill is filed to quiet-title to a strip of land 4 feet wide along the John R. street side of said lot, and to another strip 9.65 feet wide along the Miami avenue side, which strips the city of Detroit asserts form a part of the street and avenue mentioned. The lot in question is owned in fee by the complainant, and has been in possession of complainant and her grantors for more than 50 years continuously. These strips of land are situate within the sidewalk line, and have been inclosed most of the time for 50 years by a fence about 50 inches in height. There were no inner fences, so that the outer fence upon either side inclosed these strips with complainant’s lot. The house occupied by her has stood upon the lot for about the same length of time. The porch and steps therefrom extend over upon these strips. On the hearing in the court below a decree was entered in favor of complainant, quieting her title to the strip along John R. street, but refusing to grant the relief prayed for as to the strip along Miami .avenue, and complainant appeals from that decree.

It would not be necessary to discuss the question of complainant’s right to a decree to the Miami avenue strip as well as the John R. street strip upon the above state of facts, as the' question would clearly fall within the opinion of this court in Flynn v. City of Detroit, 93 Mich. 590; but counsel for the city contends that upon the proofs contained in the record relative to the action of the common council in 1881, and the acquiescence of complainant therein, whatever rights in the Miami avenue strip she might have acquired prior to that time by such adverse possession she- is now estopped from claiming, it having become a part of the' public highway by user. It appears that on May 24, 1881, the common council of the city adopted a resolution directing the board of public works to notify the owners and occupants of the property on Miami avenue to remove all fences and other like obstructions in said avenue in front of their respective premises; that in compliance with such notice the complainant and others removed the fences on Miami avenue;'and since that time, and for nearly 12 years before this bill was filed, it is contended that the complainant has by such act acknowledged the claim of the city that the line of the street includes the premises in controversy; and that, though the traveled part of the street has never been extended beyond its then limits so as to include this strip, yet by user it is now a part of the street.

The reasons of the court below for refusing to quiet the title of complainant to the Miami avenue strip are not stated in the record, but we are satisfied that the court was in error in not quieting the title in this strip as well as in that along John K,. street. Complainant’s house stands upon the lot line, and her porch and steps project several feet over upon this Miami avenue strip; the porch and steps have never been removed; the traveled way has never been widened; the sidewalk has never been disturbed, so far as shown by this record. Aside from the removal of the fence, there is no evidence that the complainant intended to dedicate this strip for city purposes; but, on the other hand, it is quite apparent that no such dedication was intended, as the porch and steps have continued to occupy a portion thereof. The city has done nothing, except to order the removal of the fence along Miami avenue, nor has attempted to use any portion of this strip for the purposes of the city. We think it clear that the city has. not acquired the right by user to claim this strip as a part of Miami avenue.

The decree of the court below relative to this strip of land will be reversed, and a decree entered here removing the cloud from complainant’s title thereto. The complainant will recover costs of both courts.

The other Justices concurred.


author: Mooke, J.

text:
    GILLETT v. KNOWLES.

    1. Vendor and Vendee — Agreement to Pay Deficiency in Value of Land Conveyed — Statute of Frauds — Evidence.
    Parol evidence of an agreement to make good any deficiency in the value of land agreed to be given in part payment for other land is admissible, where the deed to the latter land, having been delivered to a third person to be held until a written agreement to make good such deficiency should be executed, was fraudulently obtained by the grantee therein before the execution and delivery of such agreement, and the transaction was thereupon repudiated by the grantor.
    2. Contract — Fraud—Rescission—Surrender of Securities.
    One who has been induced by fraud to accept a note and mortgage in payment of a debt may maintain an action to recover the debt without returning such securities, where the mortgage is worthless because of the foreclosure of a prior mortgage covering the same property, and the mortgagor is insolvent and without the State.
    Error to Hillsdale; Lane, J.
    Submitted March 3, 1896.
    Decided March 11, 1896.

      Assumpsit by Joel H. Gillett and wife against Ezra S. Knowles for a balance due upon a sale of lands. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      F. A. Lyon {Watts, Bean & Smith, of counsel), for appellant.

      J. B. Sutton, E. J. March, George A. Knickerbocker, and F. H. Stone, for appellees.

       Rehearing denied July 8, 1896.

   Mooke, J.

The first count of the declaration filed in this case is in assumpsit, to recover an alleged unpaid portion of the purchase price of certain real estate sold by the plaintiffs to the defendant. The second count is also in assimpsit, and describes the manner in which the consideration for said real estate should be paid, as follows:

“A mortgage of $1,300 then upon said land, and the sum of $400 at the date of said conveyance, and the conveyance by said defendant to said plaintiffs of a certain parcel of land situate in the county of Mason, State of Michigan, containing 40 acres, for the sum of $500, provided said last-mentioned land was worth that sum, and the said defendant promised and agreed that, if the said last-mentioned land should not be worth $500, the said defendant would make that amount good to said plaintiffs, and pay them the difference between the value of the land and the said $500, and the balance in equal annual payments of $100, with interest at 7 per cent. * * * And the said plaintiffs aver that the said land, situated in Mason county, was not worth the sum of $500, but was worth a much less sum, to wit, the sum of $50. And the said defendant has hitherto altogether refused, and still does refuse, to pay to said plaintiffs the difference between $50, the real value of said land, and the sum of $500, the alleged value of said land as above stated, and has refused, and still does refuse, to pay the said sum of money in this count mentioned, or any part thereof, to said plaintiffs.”

The common counts were added.

Plaintiffs’ bill of particulars is as follows: October, 1886, for unpaid price of land sold and conveyed by said plaintiffs to said defendant, $2,000; October, 1886, for balance due to plaintiffs for land sold and conveyed to defendant, $1,700. The plea of the defendant was that of the general issue, .with notice that the statute of limitations had run. The case was tried by a jury, who rendered a verdict for $1,534.85 in favor of the plaintiffs. Defendant appeals.

The record discloses that in 1886 the plaintiffs, who were old and ignorant people, sold a farm in Jackson county to defendant for $3,000, defendant to pay an incumbrance upon it of $1,300, and to pay $400 down, and the balance in yearly payments of $100, with interest at 7 per cent. After the sale was agreed upon, the defendant proposed to deed to plaintiffs, as a part of the consideration for the farm, a piece of land in Mason county, which neither of them had seen, which defendant represented as worth $500, and, if the land was not worth the $500, he would pay to the plaintiffs the difference between its real value and $500, and the balance should be paid $100 yearly, with interest at 7 per cent. In the afternoon they all went to the office of Justice Riggs, where a deed was executed by the plaintiffs to the defendant of the J ackson county farm. Knowles did not have a description of the Mason county land with him, but it was agreed that he would leave a description with Riggs, so that plaintiff Joel H. Gillett could go and look at the lands; that Knowles was to pay half of his expenses; and that, if the lands were not worth $500, he would make up the deficiency as stated. The deed from the Gilletts to Knowles was to be left with Justice Riggs, no“t to be delivered until Knowles left a paper agreeing to make good any deficiency in the value of the Mason county lands if they were not worth $500, and a warranty deed of them. Knowles paid $200 down, and afterwards, in the absence of Justice Riggs, left with his wife what purported to be a deed of the Mason county lands, but which contained only a warranty against all lawful claims whatever since the party of the first part came into possession, but did not leave the paper agreeing to make good the deficiency, if there was any, and took away the deed from the Gilletts to him. Gillett afterwards went to look at the Mason county land, and found it nearly, if not quite, a worthless pine barren. On his way home, he found Knowles taking possession of the Jackson county farm, and claims he forbade bis doing so; that Knowles told him if he would let him in possession, and would come down to his place, he would fix it up all right. He let Knowles into possession, and afterwards went to Knowles’, and threw out to Knowles the deed of the Mason county lands and a slip with the memorandum of his expenses in going to see them, and told him how worthless the lands were. He was informed by Knowles that he would have nothing to do with the northern lands, and Knowles went off, and left Gillett, who then picked up the papers, thinking they would aid him in bringing about a settlement. Instead of giving his note for the balance of the payments he was to make, Knowles first persuaded Gillett to take what was known as the “Fuller Note,” and then arranged to withdraw the Fuller note as a payment, and to turn out to him, instead of Knowles’ own notes, an interest, amounting to $956, in a note and mortgage given by one Blanchard, upon which the payments became due, $100 yearly, with interest at 7 per cent. Knowles represented to Gillett that this was a first mortgage, and was first-class, and that Knowles’ object in asking Gillett to take this mortgage and note was to save the necessity of giving his own obligation. The mortgage was never assigned to Gillett, though the note, which was payable to bearer, was delivered to him, and was in his possession when the suit was brought. This mortgage was a second mortgage. The prior mortgage was foreclosed in 1888, and, in answer to a special interrogatory, the jury found that the land described in this mortgage was not worth any more than the first mortgage at the time that Gillett got such interest as he obtained in the Blanchard mortgage. Defendant, in addition to the $200 first paid, made payments amounting to $115. Defendant claimed these payments were made on the Blanchard mortgage. Plaintiff denied that he had ever received a dollar on the Blanchard_mortgage, and the jury evidently found with him. Col. March gave evidence tending to show that Blanchard was entirely irresponsible. It is a somewhat significant fact that Knowles, though present throughout the trial, was not called as„a witness.

It is claimed by defendant that there was not as much due at the time verdict was rendered, in any possible view of the case, as the amount of the verdict. We think this is not true if the jury adopted the plaintiffs’ theory of the case, which they evidently did.

The admission of any testimony as to the agreement of defendant to make good any deficiency in the value of the Mason county lands is assigned as error, because not in writing, and within the statute of frauds. In. support of this contention, the case of Warnes v. Brubaker, 107 Mich. 440, is cited. We do not think that case governs this. There the negotiations to trade were finally reduced to writing, which was accepted by the parties. Here one of the parties obtained by misrepresentation the delivery of a deed to him, without leaving at the same time an indemnity paper and a warranty deed, as he had agreed to do; and, when Gillett found what had been done, he repudiated the Mason county deed, and attempted to return it to Knowles. Suppose Knowles had agreed to leave with Justice Riggs $1,000 in money before the Gillett deed was delivered to him, and, representing to Mrs. Riggs that an envelope left with her contained a check for that amount to Mr. Gillett, had succeeded in getting the deed, when in fact the envelope contained nothing; would it be claimed that Mr. Gillett could not sue for the $1,000? We do not think this position is well taken.

It is claimed that there could be no recovery of any portion of the amount represented by the Blanchard note and mortgage, because the Blanchard note had not been returned when suit was brought. This view is sustained by Coolidge v. Brigham, 1 Metc. (Mass.) 547; Estabrook v. Swett, 116 Mass. 303. In Dayton v. Monroe, 47 Mich. 194, Justice Campbell held:

“We cio not understand that there is any rule requiring a defrauded party to give up the personal unsecured obligation of those who defraud him, as a condition of suit for the fraud. It is one of the documents which may be necessary, as it was here, to prove the false representations, which were indorsed on the note itself. By surrendering this, plaintiff would have lost the most important item of proof which he possessed.”

This case was followed in Stubly v. Beachboard, 68 Mich. 414. The authorities are all agreed that, if the note is worthless, it need not be returned before suit is brought. See Estabrook v. Swett, supra.

The security evidenced by the Blanchard mortgage, given to secure this note, had been cut off by the foreclosure of a prior mortgage. Five annual payments on the note were past due, and no payments were made on it. Evidence was given tending to show that Blanchard was insolvent, and had left the State. The learned 'trial judge instructed the jury that, unless they found the Blanchard note and mortgage were both worthless, then there could be no recovery as to them. In view of this charge, the jury must have found the note and mortgage were both worthless in order to render the verdict they did. The record does not disclose any material error.

The judgment is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    PETERSON v. WAYNE CIRCUIT JUDGE.
    1. Execution — Issuance.
    An execution cannot be considered as issued until it is placed in the hands of the sheriff, or other proper officer, for service.
    2. Same — Delivery to Attorney.
    An execution issued by the clerk and delivered to the attorney of the judgment creditor on the last of the 20 days during which proceedings were stayed, and by said attorney delivered to the sheriff on the following day, is a valid writ when delivered to the sheriff.
    3. Appeal — Supersedeas—Release op Levy.
    A levy upon real estate under an execution issued after the expiration of the statutory stay of 20 days is not discharged by the subsequent issue of a writ of error and the filing of a supersedeas bond, under 3 How. Stat. § 7621c, providing that no stay of proceedings upon any verdict or judgment rendered in the circuit court shall be granted or allowed for the purpose of moving for a new trial or settling a bill of exceptions, for longer than 20 days, unless the party applying therefor shall execute a bond, with sufficient sureties, conditioned to pay the judgment if the same is not set aside or reversed.
    4. Same — Levy on Personal Property.
    Whether a levy on personalty would be released under such circumstances, —quaere.

      Mandamus by Henry M. Peterson to compel William L. Carpenter, circuit judge of Wayne county, to vacate a levy upon relator’s property.
    Submitted March 3, 1896.
    Writ denied March 11, 1896.

      James JS. Pound, for relator.

      T. T. Leete, Jr., for respondent.
   Moore, J.

May 27, 1895, Herbert J. Dawson and others obtained a verdict against relator, upon which judgment was rendered June 18th, of the same year, and on the same day an order was entered staying all proceedings for 20 days. July 8th an execution was issued, and by the clerk delivered to the attorney for the plaintiffs, who.delivered the execution to the sheriff July 9, 1895. On the same day the sheriff levied upon real estate, and after-wards proceeded to advertise said property for sale, which sale was to be August 31, 1895. August 26, 1895, — a month and a half after the stay of execution had expired, — a writ of error was issued, and a bond filed by the relator, in accordance with the statute. The sheriff was advised that his authority to make the sale was questioned. No further proceedings were taken by him towards making a sale. The proceedings up to this time involved costs and expenses which were borne by plaintiffs. Application was then made to the respondent to cause the levy to be set aside. The circuit judge issued an order to said sheriff to show cause why said levy should not be released. In answer to said order, the foregoing facts were made to appear. The circuit judge was of the opinion that the circuit court had not power to cause said levy to be discharged; that the writ of error and bond operated as a stay, but was not retrospective, and did not operate on the execution and levy anterior to its allowance; and declined to direct the levy to be released. The relator then asked for the writ of mandamus, to have the questions involved in the proceeding passed upon here.

The first question which arises is, was an execution issued July 8th, upon a judgment rendered June 18th, which execution was placed in the hands of the sheriff July 9th, of any force or effect? When it was issued by the clerk, only 19 days had elapsed after judgment. When it was placed in the hands of the sheriff, 20 days had elapsed after judgment. In First National Bank v. Dwight, 83 Mich. 191, it is held that an execution “cannot be considered as issued until it is placed where it might have been executed, and some efficient act done under it. It must be issued to the sheriff, or other proper officer. 2 How. St. § 7664. The officer is the only one who can do such efficient act: The attorney who takes out the writ can do nothing under it.” We think the execution, when delivered to the sheriff, was a valid writ.

The other question in this case is whether the filing of a bond and the issuing of a writ of error after the stay of proceedings authorized by the statute has expired will discharge a levy made upon real estate under an execution issued after the stay of execution has expired, and before the bond was filed and the writ of error issued. It is claimed by the relator that it does have that effect. Where the levy made was upon personal property, it has been held that the filing of the bond required by law, and the issuing of the writ of error, would have the effect to release the levy. Ela v. Welch, 9 Wis. 395. And it is upon this case the relator chiefly relies to support his contention. It has been held, however, in a late case in the same court, that where a stay of execution had expired, and an execution had been issued, by virtue of which a levy had been made upon a large amount of personal property, the filing of a bond and perfecting an appeal operated to stay all further proceedings, but did not ipso facto recall the execution or release the levy. Tilley v. Washburn, 91 Wis. 105, citing many cases. In Curtis v. Root, 28 Ill. 367, it was held that an appeal does not vacate the lien of the judgment; it only suspends its execution. See Bassett v. Daniels, 10 Ohio St. 617. While in the case of Arnold v. Fuller’s Heirs, 1 Ohio, 458, it was held that a levy upon real estate was not vacated by writ of error and supersedeas. The question has never been directly before this court, though there is a strong intimation in Blair v. Compton, 33 Mich. 417, that, under our statutory regulations governing stay of execution by bail in error, the stay does not vacate a completed levy upon personalty. See, also, People v. Stephenson, 98 Mich. 218. Since the decision in Blair v. Compton was rendered, the statute staying proceedings in court has been amended. For a long time the courts had the power, and in some instances were in the habit, of staying proceedings without requiring a bond to be given. This sometimes resulted in procuring writs of error for the purpose of delay, and it often happened that judgment plaintiffs were defeated entirely in securing their judgment, even when it was affirmed in the Supreme Court. To obviate this wrong the legislature enacted that—

“No stay of proceedings upon any verdict or judgment rendered in any circuit court in this State shall hereafter be granted or allowed for the purpose of moving for a new trial or settling a bill of exceptions in the case in which such verdict or judgment was rendered, for a longer period than twenty days, unless the party applying for such stay, if judgment shall have been rendered against him, shall execute to the adverse party a bond with sufficient surety or sureties, to be approved by the judge of the court in which such judgment was rendered, conditioned to pay such judgment if the same is not set aside or reversed.” 3 How. Stat. § 7621c.

To give this statute the construction asked for by the relator would be to render the purpose of the legislature in passing it nugatory.

In view of the fact that a levy on personal property may involve the question of incurring additional costs by the sheriff after the filing of the bond and the issuing of the writ of error, as by feeding animals levied upon, or the loss of perishable property levied upon, if the levy is not vacated, we express no opinion upon the question of what the effect of the filing of a bond and issuing the writ of error would be upon a levy upon personal property.

The writ of mandamus is denied, with costs.

The other Justices concurred.


text:
    MOSHER v. MOSHER.
    Bill of Review — When Granted.
    Where a complainant, whose bill has been dismissed on appeal, and whose motion for a rehearing and for leave to introduce further testimony has been denied, presents a petition for leave to file a bill of review, containing the affidavits upon which the motion for leave to introduce further testimony was based, as well as other affidavits, which are for the first time presented, which affidavits, if true, make a strong case in his favor on the point upon which the case turned on appeal, and it appears that he was not at fault in not producing the testimony upon the former hearing, equity requires that the case be opened to permit such testimony to be introduced.
    Petition by Orin B. Mosher against Sally Mosher for leave to file a bill of review.
    Submitted March 3, 1896.
    Granted March 11, 1896.

      St. John & Merriam (Geer & Williams, of counsel), for petitioner.

      James S. Galloway, for defendant.
   Long, C. J.

The bill in this cause was filed for the purpose of establishing a lost deed. The cause was heard in the court below in 1894, and a decree entered there in favor of complainant, establishing said deed. From this decree defendant appealed to this court, where the cause was heard at the January term, 1895, and an opinion was filed therein on April 2, 1895, and is reported in 104 Mich. 551. In that opinion it was said:

‘ ‘ While there is sufficient testimony in the case to justify a finding that a deed was executed and deposited with Weir, yet we are convinced that the allegation in the bill that it was upon a consideration actually paid by Alva Mosher is not sustained, and that such deed was subject to recall by Oliver E. Mosher; and the fair inference from the testimony is that it was recalled after his marriage.”

The facts are so fully set out in the opinion that further reference to them is unnecessary. After this opinion was filed, a rehearing was asked by counsel for complainant. Incidental to that motion, certain affidavits were filed, and leave was asked to introduce further testimony upon the main question in the case; that is, the question upon which the case was here reversed. The motion for rehearing was thereafter denied, as well as the motion for leave to introduce further testimony. Application is now made, to this court for leave to file a bill of review.

The application contains the affidavits upon which the motion for leave to introduce further testimony was based, as well as several other affidavits, which are for the first time presented. If the affidavits now presented, taken with those which were produced on the former motion, are true, a very strong case is made showing that the deed was given for a valuable consideration, as stated in the bill of complaint; and the decree of the court below should have been affirmed, as Oliver E. Mosher would not have had the right to recall the deed and destroy it. Upon the showing now made, it is clear that complainant should have the right to be heard upon the testimony discovered since the cause was heard in the court below. The showing is clear that the complainant was not in fault in not producing this testimony upon the former hearing, and equity requires that the case be opened to permit this testimony to be introduced.

The prayer of the petition must be granted, and leave given to file a bill of review, on condition that complainant pay the costs of this court and a fee of $15 on this motion.

The other Justices concurred.


text:
    FOUNTAINE v. LEVEQUE.
    Specific . Performance — Damages.
    On a bill for specific performance of a contract to convey land, it appeared that, after complainant had taken possession, he contracted to sell the premises to one D. for an advanced price, defendant consenting to accept from D. the balance then due from complainant, which amounted to §491, with interest at 10 per cent.; that, after D. had paid defendant §100, defendant, intending no wrong, gave him a deed, and received §400 more, which D. raised by mortgaging the land to a third person, who had no knowledge of complainant’s rights. Held, that in canceling the deed to D., and decreeing specific performance of defendant’s contract to convey to complainant, it would be inequitable to compel defendant to pay the mortgage, as he had received no more than he was entitled to, and complainant had suffered no substantial loss.
    Appeal from Houghton; Hubbell, J.
    Submitted January 8, 1896.
    Decided March 24, 1896.
    Bill by Alphonse Fountaine against Prudent Leveque and others for the specific performance of a land contract, and for the cancellation of a deed and mortgage upon the ground of conspiracy and fraud. From a decree granting in part the relief prayed, but allowing the mortgage to remain a lien upon the land, complainant appeals.
    Affirmed.

      Dunstan & Hanchette, for complainant.

      Willard E. Gray (Ohadbourne & Bees, of counsel), for defendants.
   Moore, J.

The complainant filed a bill in chancery, alleging: That on October 19, 1891, he (Fountaine) bought from Prudent Leveque and wife 40 acres of land upon contract, for $532.08, payable on or before January 19, 1892, with interest at 10 per cent., and that the complainant went into the possession of the premises, and improved them. That October 6, 1892, Fountaine made a written contfact to sell this land, together with the personal property on it, valued at $500, to Jean M. Deslongchamps, for $1,800, — $200 payable on the. execution of the contract; $100, January 2,1893, payable to Leveque; $300 payable to him January 2, 1894, with interest at 10 per cent, per annum; $91.79, January 2, 1895, with interest at 10 per cent.; and the balance of the payments to be made to Fountaine, with interest at 8 per cent. That October 10, 1892, Leveque signed a paper that he was satisfied with the conditions of the last-named contract, “and accepts the said Jean Marie Deslongchamps in payment according to the contract.” The bill further charges that Deslongchamps has paid to Leveque all of the $491.79 due from complainant to Leveque; that Fountaine has demanded from Leveque a deed of the premises, which Leveque refuses to give him. The bill also alleges that on October 27, 1894, Levequé, Deslongchamps, and Longpre, to defraud complainant, conspired together, and that Leveque gave Deslongchamps a deed of the premises, and Deslongchamps gave Longpre a mortgage for $400, and that Longpre knew of the contract between Fountaine and Leveque; that the giving of the deed and the mortgage has deprived complainant of his security for the balance due him from Deslongchamps. The bill prays for a specific performance of the contract from Leveque to Fountaine, and asks that the deed and mortgage be delivered up to be canceled and discharged from the records, with a general prayer for relief.

Leveque answered this bill, admitting the title and the two contracts, and that he agreed to accept from Deslongchamps the amount complainant had agreed to pay, but avers that he did not intend to and did not release his lien on the land for the money due him on tho contract. He admits that Deslongchamps has paid him all'the money due him on the contract, but avers that, in order to pay, Deslongchamps had to borrow $400 from Longpre, and was obliged to give the latter tho mortgage mentioned in the bill of complaint; that to enable him to borrow the money, and with no thought of fraud, he made the deed to Deslongchamps; that Longpre had no knowledge, so far as Leveque knows, but what the title was all right; and that complainant is not entitled to a deed of the premises until he shall pay the money advanced by Longpre to Deslongchamps, because the land was bound for the payment thereof to Leveque.

Longpre answered to the bill, and admits the taking of the mortgage, but denies any conspiracy, or any knowledge of any different title from what the record disclosed; avers that Deslongchamps is irresponsible; and that the mortgage is the only security Longpre has for his loan.

Defendant Deslongchamps did not appear, and the bill was taken as confessed as to him.

The testimony was taken in open court. A decree was entered in favor of Longpre, with costs. Leveque was required to deed the land to complainant. The deed to Deslongchamps was set aside, and the mortgage of $400 was allowed to remain a lien upon the land. Costs were decreed in favor of complainant, and against Leveque. From that decree an appeal was taken by the complainant to this court.

The first question is, shall the mortgage of $400 remain a lien upon the land ? The learned trial judge found from the evidence that Longpre loaned the money in good faith, and without knowledge of the contract between Leveque and complainant. We think this finding was entirely warranted by the evidence. It is true that there was testimony showing that one of the witnesses to the land contracts was asked by Longpre, before he took his mortgage, to find out from the office of the register of deeds whether the title to the land was all right. It is urged that this witness must have known of Fountaine’s interest in the land, that he was acting for Longpre in making the inquiry at the register’s office, and that his knowledge must be presumed to have come to Longpre. The difficulty with that position is that it appears affirmatively that, when he was making these inquiries for Longpre, he was employed for a definite purpose, not connected with the land contracts, and did not think anything about them at the time. He reported to Longpre that the title was all right, and at that time he believed this to be true. So far as the record discloses, Longpre had no knowledge to the contrary.

The complainant asks, if this court holds the mortgage to be good, to decree:

(1) That the deed from Leveque to Deslongchamps be canceled, and a new warranty deed from Leveque to complainant be made; and that the com lainant have compensation enough to discharge the mortgage given by Deslongchamps to Longpre, so that the complainant should own the land free from any lien for purchase money, or otherwise, because the title belonging to the complainant, being held by the creditor, defendant Leveque, as security for the performance of the contract of the principal debtor, defendant Deslongchamps, was so dealt with by the principal debtor and the creditor, without the consent of the owner of the security, as to release the security; or, instead of cancellation of the deed and of the mortgage, the complainant should have compensation for the amount of $732.71, or the value of the security disposed of by the principal creditor without his consent, the value of the security being based upon the amount due to the complainant upon the contract from Deslongchamps to the complainant, over and above all legal or equitable set-offs.

If that to the court is not firmly established, then (2) the court should decree that the deed from Leveque to Deslongchamps should be set aside, and a new warranty deed given from Leveque to complainant; and that defendant Leveque should pay and discharge the mortgage from Deslongchamps to Longpre; and that the complainant should pay to the defendant Leveque the actual balance due upon his contract with Leveque, without interest; and that a commissioner should be appointed to ascertain how much more than the $400 was paid by Deslongchamps to Leveque, when the deed was delivered in. October, 1894.

Can either of these positions be maintained in this proceeding? The bill is not filed upon any such theory. Complainant comes into a court of equity, and asks for a specific performance of the contract, and to have the deed and mortgage set aside, upon the ground of conspiracy and fraud. He fails to establish the conspiracy and fraud, and the mortgage is allowed very properly, as we think, to remain a lien upon the land. This part of his case having failed, can he have a specific performance of the contract, and damages for a failure to perform it? If it is conceded that, in some cases, damages may be decreed as well as specific performance, is this a case where it would be equitable to do so? This is an appeal to an equity court. Should not the complainant do equity? The principal parties to this litigation are comparatively ignorant men. The complainant testifies through the medium of an interpreter. Defendant Leveque testifies that he agreed to take Deslongchamps for the payments, and supposed the deed would run to him, as the complainant told him he had sold to Deslongchamps. The trial court had these witnesses before him, and evidently could judge of their candor and truthfulness. The record shows that, when Deslongchamps made the contract with complainant, there was to become due to Leveque $491.79, with interest at 10 per cent. It also shows that all he has received since then is $100, paid in 1893, and the $400 obtained of Longpre. Leveque has had no more pay for the land than he waá' entitled to. While he had no legal right to make the deed to Deslongchamps, we think the d.ecree of the trial court, in view of the facts disclosed in the record, is an equitable one.

The decree is affirmed, with costs.

The other Justices concurred.