author: Stone, J.

text:
    VAN SLYKE v. ROOKS.
    1. Trial — Issue—Affidavit of Merits — Filing Nunc Pro Tunc.
    In assumpsit on a promissory note, the defendants, who had pleaded special defenses to the action, were properly allowed, after plaintiff had demanded an inguest, and on the day set for trial, to file an affidavit of merits nunc pro tunc and to present their evidence: the action of the court was discretionary.
    2. Bills and Notes — Holder in Due Course — Evidence.
    Neither suspicions nor gross negligence on the part of a holder of negotiable paper will affect his right, unless the suspicion or circumstances amount to bad faith: knowledge short of bad faith will not amount to notice. And where the testimony of the plaintiff’s good faith is undisputed, it is- the duty of the court to so charge the jury.
    3. Same — Fraud in Inception — Bona Fide Holder.
    Makers of a promissory note who had an opportunity to inspect the paper when they signed it, but supposed that they were signing an agreement to form an association to purchase the horse for which the note was given, were liable, in an action on the instrument, if the jury found that the fraudulent conduct of the person who procured their signatures did not mislead them, or if their negligence in signing the notes was such that they should be required to suffer rather than an innocent holder. As to a defendant who signed the notes without looking at them or being misled as to the purport of the papers by the payee, a verdict should have been directed in favor of the plaintiff.
    4. Same — Forgery—Joint Makers.
    Although one of the makers denied signing the instrument, which plaintiff’s proofs showed that he executed, the other joint makers were not- relieved of responsibility.
    5. Same — Charge—Evidence, Preponderance of.
    In charging the jury on the .question of the burden of proof, no greater weight of evidence ought to be required than an ordinary preponderance, the use of the words “fair preponderance” while not reversible error might-well be avoided. There is no rule of law which adopts any sliding scale of belief in civil actions.
    Error to Ottawa; Cross, J.
    Submitted April 17, 1914.
    (Docket No. 54.)
    Decided June 1, 1914.
    Assumpsit by Charles E. Van Slyke against W. J. Rooks and others upon a promissory note. Judgment for plaintiff. Defendants bring error.
    Reversed.

      F. J. Northway and Odell Chapman, for appellant.

      Diekema, Kollen & Ten Cate -(Jarrett N. Clark, of counsel), for appellees.
   Stone, J.

This is an action of assumpsit commenced in the circuit court for the county of Ottawa. The plaintiff filed a declaration-upon the common counts in assumpsit, and gave notice that, on the trial, he would, under the money counts, give in evidence a certain promissory note, a copy of which was attached to the declaration, and which reads as follows:

“600.00 Zeeland, Mich., Apr. 11, 1912.

“On May 1, 1913, after date, for value received, I promise to pay Calkins & Augsbury, or order, six hundred dollars at the Zeeland at 6 per cent, per annum, State Bank, with interest interest payable annually.

“W. J. Rooks. Albert Bement.

“M. P. Neenhuis. John Van Stratt.

“John C. Webeke. William Zonnebelt.

“Gerrit Schut. Arthur Wiggers.

“Egbert J. Boes. Daniel D. Meeusen.”

“Alfred Van Vorst.

This note bore on its back the following blank indorsement: “Calkins & Augsbury.”

All of the defendants appeared and pleaded the general issue, under which they gave notice:

(1) That the note, copy of which was attached to the declaration, was not the note of said defendants, and that, if the signatures of any of them were attached to said note, the same had been obtained by fraud, deceit, and misrepresentation, and that there was fraud in esse contractus, and therefore they were not liable thereon; (2) that said plaintiff was not a holder in due course, and that there was a total want or failure of consideration for said note, said defendants never having received consideration for said note; (3) that they were discharged from all liability on said instrument by reason of material alterations made thereon without the consent of all of the parties liable thereon; (4) that Alfred Van Vorst, one of the said defendants, was an infant at the time the note was purported to have been given, April 11, 1912; (5) that Albert Bement, being one of the defendants whose name is purported to be attached to said note, never signed or executed the said note, as will more fully appear by affidavit denying said execution thereto attached.

Accompanying the plea was the affidavit of Albert Bement denying the execution of the note, and denying that he ever authorized any one to sign his name to said note.

The case, being at issue, was noticed for trial by plaintiff’s attorney for the August term of 1913, which notice also stated that it was plaintiff’s intention that “an inquest will be taken thereon.”

The record shows that the case was set down for trial for September 4, 1913, at which time the parties appeared in court by their respective attorneys, and the plaintiff’s counsel claimed the right to an inquest under Circuit Court Rule 14; no affidavit of merits having been filed and served by defendants before the first day of the term. It was claimed by defendants’ attorneys that they had noticed the case for trial five days before the notice of trial Was given by the plaintiff, and that both parties had demanded a jury. Thereupon defendants’ attorneys asked leave to file an affidavit of merits nunc pro tuno as of date before the first day of the term. This motion was granted by the circuit judge, and an affidavit of merits, was accordingly filed nunc pro tuno, to which ruling of the court plaintiff’s counsel duly excepted.

It appeared upon the trial that the plaintiff was the purchaser of the note, a copy of which has been given, and also another note of like date and amount, due May 1, 1914, bearing the same rate of interest, and purporting to be signed by all, of. the defendants, and indorsed by Calkins & Augsbury. These notes are known and refererd to in the record as Exhibits A and B.

The plaintiff was sworn as a witness in his own behalf, and testified that he purchased both of said notes of the payees, Calkins & Augsbury, and gave therefor $1,000, which was evidenced by a “check bearing date April 29, 1913, payable to Calkins & Augsbury, and which check appeared to have been duly paid by the bank upón which it was drawn on April 29, 1913.

The plaintiff gave testimony that he was a bona fide holder of these notes; that while he actually purchased them on the 29th day of April, 1913, for the sum of $1,000, that he had agreed to purchase the same from the payees some weeks prior thereto; that he was informed by the payees that the notes in question had been given to the payees upon the sale of a horse by them to the defendants. Without setting forth in full, here the testimony in this record, a careful perusal of the same has satisfied us that the undisputed evidence in the case shows that the plaintiff was a bonafide purchaser of these notes before maturity for value, and that the trial court should have so charged the jury.

Upon the trial of the case each one of the defendants, except the defendant John C. Webeke, was examined as a witness. Their testimony tended to show that they had had negotiations with the payees for the purchase of a stallion. The witness Bement testified positively that he had never signed either of the-notes, nor had he authorized any one to sign the same, in his behalf. It appearing upon the trial that the-defendant Van Vorst was an infant at the time the notes were executed, upon motion of plaintiff’s counsel, the cause was discontinued as to him. The other-defendants, with the exception above noted, all testified that their names attached to the said notes were their genuine signatures, but that they did not know that they were signing promissory notes, and that they had signed the same supposing that they were signing an agreement to form an association for the purchase of said horse. In nearly every instance the defendants testified that they had opportunity to inspect the papers when they signed them; that they read writing in the English language readily; but that they relied upon the representations of one Martin that the papers they were signing had to do simply with an agreement to form said association. In one or two instances, especially in that of defendant Rooks, it was claimed that the signatures of the defendants had been obtained by the fraudulent covering up of the written portion of the instruments which, were signed, and that thereby they were deceived.

The trial of the case resulted in a verdict for the ■defendants of no cause of action, and the plaintiff has brought the case here for review, and has assigned many errors upon the record. Among the errors ■claimed are the following:

(1) That the court erred in permitting the defendants to file an affidavit of merits nunc pro tunc; (2) that the court erred in submitting to the jury the question whether or not the- plaintiff was a bona fide holder of the note sued upon; (3) that the court did not instruct the jury properly or fully enough upon the question of negligence on the part of the defendants in signing the said note; (4) that the court erred in instructing the jury that, in order to recover, they must find by a “fair preponderance” of "the evidence that the plaintiff was a bona fide holder of this note for value, and that defendants signed the note knowing that they were signing a note; the instruction having been as follows:

“The burden of proof in this case is upon the plaintiff to establish his case, and every essential element thereof, by a fair preponderance of the evidence; and, before the plaintiff is entitled to recover, he must establish, by a fair preponderance •of the evidence, all the essential .elements of his case.

“You are instructed that, if you find by a fair preponderance •of the evidence that the plaintiff is a tona fide holder of this note, for value, and that the defendants signed the note knowing that they were signing a note, then you will render a verdict for the plaintiff for the amount of the note, and interest at 6 per cent, from April 11, 1912, to date.”

In many other portions. of the charge the term “fair preponderance of the evidence” was used by the court when speaking of the weight of the evidence necessary for plaintiff’s recovery.

It is claimed by plaintiff’s counsel that the court erred in permitting defendants to file an affidavit of merits upon the trial nunc pro tunc.

Circuit Court Rule 14 has, in substance, been a rule of the circuit courts for many years. It is the «contention of plaintiff that the trial court had no discretion in this matter, and no power to permit the filing of the affidavit of merits. The evident purpose of the rule is to relieve the court from spending its time in the trial of actions on promissory notes, etc., unless the defendant shall make and file an affidavit of merits.

In Wells v. Booth, 35 Mich. 424, this court said that in case a defective affidavit of merits had been filed in good faith, the proper practice was to permit an amendment thereof.

An examination of the case of Bitzer v. Wagar, 83 Mich. 223 (47 N. W. 210), will show that this court has recognized the power of the circuit court to permit the filing of an affidavit of merits later than the time prescribed in the rule, in its discretion. It cannot be reasonably said that this rule has any greater force than a statute. An examination of our decisions will show that we have frequently recognized the power of the circuit court to enter rules to plead nunc pro tunc, also notices of request for estimation of value of premises under the ejectment statute, etc. Coe v. Hinkley, 109 Mich. 608 (67 N. W. 915); Goebel Brewing Co. v. Medbury, 153 Mich. 49 (116 N. W. 543); Brooks v. Fairchild, 36 Mich. 231.

We cannot say there was an abuse of discretion on the part of the circuit court in permitting the filing of this affidavit, especially where it appears, as it does here, that there was no claim of surprise or unpreparedness on the part of the plaintiff, nor was any continuance asked for. Under such circumstances, we think the discretion reposed, in the court was not abused, and that it was not error to grant the motion of defendants.

As we have already said, we are of the opinion that, under the evidence, the trial court should have charged the jury that the plaintiff was a bona fide holder of the note sued upon. The law in this State is well settled upon this subject. For the decisions of this court we need only refer to the recent case of Hakes v. Thayer, 165 Mich. 476, at page 488 (131 N. W. 174), (where,the authorities are collected), in which this court said:

“It was at one time held that circumstances which ought to excite the suspicions of a prudent and careful man constituted notice and put the purchaser upon inquiry. This rule has been- abandoned, and it is the almost universal rule now that neither suspicions, nor even gross negligence on the part of a taker will affect his right, unless the suspicions or circumstances amount to bad faith. Suspicions or even knowledge of facts which will fall short of bad faith do not amount to notice” — citing cases.

Section 58 of our negotiable instruments act (Act No. 265, Pub. Acts 1905), reads as follows:

“To constitute notice of an infirmity in the instrument, or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

We find nothing in the record, either as to the time when the purchase was made by the plaintiff, or the amount which he paid for the notes, to indicate any evidence of bad faith. Within the authorities it must be said that the evidence shows that the plaintiff took the notes for value. See 1 Daniel on Negotiable Instruments (6th Ed.), §§777 to 780. It also appears that the plaintiff acquired the paper in what may be termed the ordinary or usual course of business, by which phrase is meant to describe a transfer according to the usages and customs of commercial transactions. Id. § 780.

Where the testimony of the plaintiff’s bona fides is undisputed, it is the duty of the court to so charge the jury; and that question-should not be submitted to them. Borden v. Clark, 26 Mich. 410; Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306); Drovers’ Nat. Bank v. Potvin, 116 Mich. 474 (74 N. W. 724).

Section 59 of the negotiable instruments act is as follows:

“A'holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.”

We think it was the duty of the trial court to have charged more fully than it did upon the question of whether the defendants were guilty of negligence in signing the note in question; and in saying this we are well aware of the extent to which this court has gone upon this subject, as indicated by the following cases: Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497); Gibbs v. Linabury, 22 Mich. 479 (7 Am. Rep. 675); Anderson v. Walter, 34 Mich. 113; Soper v. Peck, 51 Mich. 563 (17 N. W. 57); First Nat. Bank of Sturgis v. Deal, 55 Mich. 592 (22 N. W. 53); Beard v. Hill, 131 Mich. 246 (90 N. W. 1065); Standard Portland Cement Corporation v. Evans, 205 Fed. 1, 125 C. C. A. 1.

The doctrine of Beard v. Hill, supra, is that a promissory note, the signature to which was procured by trickery or substitution, or was affixed by another without authority, was void, even in the hands of a bona fide holder.

The following may be said to be a fair sample of the testimony of some of the other defendants in the case. Defendant Boes, after testifying to having signed in the little book, referring to the association, said:

"Afterwards I signed some other papers. The name of Egbert J. Boes on Exhibits A and B is my signature. I signed that in Dr. Rooks’ office. This Jimmie was present that took care of the horse. That was all that was present. At that time Martin was out of town. Mr. Augsbury was not present. I did not sign the note in the" presence of Mr. Martin or Mr. Augsbury.

“Q. What was said to you when you signed this document?

“A. He (Jimmie) says: ‘They left the notes here. They are all gone at present.’ He says: ‘And if you want to sign up you can sign up; that is, if they are the notes. He left the papers here.’

“Q. What do you mean by that last statement?

“A. I don’t know that they was notes, you see.

“Q. He says papers?

“A. He says: ‘The papers is right here, if you want to sign them.’ I signed them; he had them laying right there on the desk; he took them out of a big envelope and laid them right there on the desk, and I signed them. When I came back from work at noon Dr. Rooks told me he heard these were notes; that is the first. I heard about it.”

On cross-examination, the witness testified as follows :

“When I signed these notes I did not take them into my possession, only they were lying on the desk. They laid right there, and I had control of them while I signed them. Nobody interfered with my looking at them and examining them as much as I wanted to. I read English, and am 29 years old. I have some education, to about the seventh grade. I read the papers; I read English readily. And the same way with the book; when I signed the book that day, the contract, I had an opportunity, if I wished to, to make such examination as I wanted to, I guess; but I never did it.”

In speaking of conduct of this kind, we refer to section 850 of the sixth edition of Daniel on Negotiable Instruments, where that author says:

“The sixth class of cases are those in which the party possesses the ordinary faculties and knowledge, and is betrayed into signing a bill or note by the assurance that it is an instrument of a different kind. It is generally agreed that if the party is guilty of any negligence in signing the paper, he is bound; and the act itself, it seems to us, can hardly be committed without negligence. A man has no right to have eyes and see not; or ears and hear not; and while the law should protect those who suffer from the want of the senses in their proper development, or ordinary education to throw the burden of the failure to use them upon innocent third parties. In such cases we should say the act of signing the paper without intending to do so, as a general rule, imported negligence per se, and rendered the party liable. A misrepresentation by a total stranger is not sufficient to defeat an action on a promissory note, plainly legible, and assigned before maturity to a holder for value, when the only excuse of the maker is that he was too busy to read the note. If he has full and unrestricted means of ascertaining the true character of the instrument before signing it, but neglecting to avail himself of such means of information, and relying on others’ representations, he signs and delivers a negotiable paper, instead of a different paper, which he intended to sign, he cannot be heard to impeach it when it has been passed to a bona fide holder. In accordance with this doctrine it was held in Iowa that where one Matting was induced to sign a promissory note under the false representation that it was a contract of agency, respecting a certain patent seeder and cultivator, he was bound to a bona fide holder” — citing, Douglass v. Matting, 29 Iowa, 498 (4 Am. Rep. 238).

In that case it was said:

“The defendant intrusted the one with whom he was dealing with the preparation of the instrument. The instrument as prepared was not what defendant had agreed to sign, but was voluntarily executed by him. The act of the agent was a fraud whereby defendant was induced to make the note, and not the false making of it, which is necessary to constitute forgery. * * * Now it would be manifestly unjust to permit the maker, while admitting the genuineness of his signature, to defeat the note, on the ground that, through his own culpable carelessness while dealing with a stranger, he signed the instrument without reading it or attempting to ascertain its true contents. The law will favor, as between the holder and maker in such a case, the more innocent and diligent. The maker had it in his power to protect himself from the fraud, but failed to do so. When the consequences of this act are about to be visited upon him, he seeks to, make another bear it, on the ground that he was defrauded through his own gross negligence. * * *

“The rule contended for by" appellee would tend to destroy all confidence in commercial paper. It is better that defendant, and others who so carelessly affix their names to paper, the contents of which are unknown to them, should suffer from the fraud which their recklessness invites, than that the character of commercial paper should be impaired, and the business of the country thus interfered with and unsettled.”

See the many cases cited by the above-named author in the notes to the above-quoted text.

Under the undisputed evidence in the case, the court should have directed a verdict for the plaintiff against the defendant John C. Webeke; and, in our opinion, the undisputed testimony of the defendant Boes shows him to have been guilty of such gross negligence that the court might well have directed a verdict against him, and such others of the defendants as did not claim that they were misled by the actual active fraudulent conduct of the persons procuring their signatures; and, as to all of those latter defendants, the court should have charged the jury fully upon the rule of negligence to which we have referred, and their attention should have been called to the maxim that, when one of two innocent persons must suffer by the acts of a third, the loss must be borne by the person who enables such third person to occasion it.

The defendant Albert Bement testified that he had never signed the note at all. This testimony was denied by the witness Martin. But, even had the jury found that the note was a forgery as to defendant Bement, that would not have prevented the recovery against the other defendants under the authority of First Nat. Bank of Durand v. Shaw, 157 Mich. 192 (121 N. W. 809, 133 Am. St. Rep. 342), where this court held that the forgery of a part of the signature on a promissory note does not invalidate the instrument, as to the genuine signatures, in the hands of the holder in due course.

The criticism of counsel for appellant here is upon the use of the term “fair preponderance.” This court has recently had occasion to collect the decisions in this State upon this subject. See Silverstone v. Assurance Corporation, 176 Mich. 525-533 (142 N. W. 776), where the language of this court in an early case is quoted to this effect:

“There is no rule of law which adopts any sliding scale of belief in civil controversies.”

The language used in the instant case is not as objectionable as in the cases cited; but, as the case must go back for a new trial, we should say that we think it more prudent for the trial court, in charging a jury in a civil case, to not require a greater weight of proof than the ordinary preponderance of evidence. We should not feel like reversing the case on this ground. Other questions discussed are not likely to arise upon another trial.

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

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    GREGORY v. OAKLAND MOTOR CAR CO.
    1. Damages — Husband and Wife — Personal Injuries — Automobiles — Wife’s Services.
    Damages for loss of the services of plaintiff’s wife, arising from personal injuries suffered by her in a runaway accident, which was caused by defendant’s servant in charge of a motor car, are recoverable in an action by the husband, notwithstanding the provisions of Act No. 196, Pub. Acts 1911 (4 How. Stat. [2d Ed.] § 11552), giving the wife the right to her earnings and services. The statute means that all earnings acquired or services performed as a result of her personal effort in any separate business carried on by her in her own behalf, or any services performed by her for others than her husband belong to her. Her labor, companionship, society, and assistance in the discharge of her family and household obligations still belong to the husband.

      2; Same — Value—Evidence.
    Nor did the trial court err in submitting to the jury the question of the value of the wife’s- services, although no direct or express evidence was offered on the subject; and it was not improper to permit the jury to fix the damages to be recovered according to their good judgment and common sense.
    3. Same — Excessive Amount — Marriage.
    Seven hundred dollars.for loss of the services of plaintiff’s wife who was disabled from washing, ironing, milking and similar labor, upon testimony tending to show permanence of such injuries, was not an excessive verdict such as to require the court to grant a new trial.
    Error to Oakland; Smith, J.
    Submitted April 20, 1914.
    (Docket No. 81.)
    Decided June 1, 1914.
    Case by Fred J. Gregory against the Oakland Motor Car Company for loss of the services of his wife because of personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for appellant.

      Pelton & McGee, for appellee.
   Stone, J.

This is an action of trespass on the case to recover damages against the defendant for injuries to plaintiff’s horse and buggy, also for expenses incurred by him for medical attendance upon, and for loss of the services, comfort, fellowship, and society of, his wife, by reason of the negligence of an employee of the defendant. Defendant is a corporation, and on May 4, 1912, was engaged in the manufacture of automobiles at Pontiac. On the day aforesaid plaintiff’s wife was driving plaintiff’s horse and buggy on the public highway in a northerly direction toward their home, when she was met by an automobile driven by one of defendant’s testers.

Upon the trial plaintiff’s claim, substantiated by the evidence, was that defendant’s automobile was driven by its said employee at a dangerous and unlawful rate of speed and in a reckless manner, thereby scaring plaintiff’s horse so that it sprang out of the road, tipped the buggy over, and threw out plaintiff’s wife. The horse then ran away, injuring both the horse and buggy. Plaintiff’s wife sustained bruises about her back, head and shoulders, and her right wrist was broken, and she was unable to do any work for three to five months, and at the trial, a year after the injury, there was testimony that she was unable to wash, bake, or iron, or to milk or work in the garden, as she had done before the injury; and there was medical testimony tending to show that there was permanent injury of the nerves of the hand, rendering it numb and impairing its use.

Plaintiff’s wife had previously brought an action against the defendant, and had recovered a substantial amount for personal injuries.

Upon the trial of the instant case, defendant claimed that the plaintiff was entitled to recover only for the damages to his horse and buggy and his expenses for medical attendance on his wife, since, by Act No. 196, Public Acts of 1911 (4 How. Stat. [2d Ed.] § 11552), the earnings of a wife and her earning power now belong to her, and not to the husband. Defendant therefore objected to any evidence being offered as to loss of the wife’s services. This objection was overruled, and defendant duly excepted, and the evidence was received. Upon this subject defendant’s counsel requested the court to charge the jury as follows:

(1) “I charge you that in this case the plaintiff as the husband of Sarah Gregory, is entitled to recover, if you find for the plaintiff, only (a) the damages to his horse and buggy; and (5) the expenses actually paid out or incurred by him for medical attendance, which is given at the sum of $47.”

Which request was refused. There was evidence tending to show the. nature, extent, and consequent effect of the wife’s injuries, but there was no evidence as to the value of such services, and upon the subject of damages the court charged the jury as follows:

“In determining what amount, if any, you may award plaintiff by reason of the loss of the services and society of his wife, you may take into consideration whatever aid, assistance, comfort, and society the wife would be expected to render to, or bestow upon, her husband under the circumstances as shown by the evidence in the case, and in the condition in which the husband and wife were placed.”

(“In addition, you may award damages for the loss, if any, for the services of the plaintiff’s wife, and the amount to be awarded therefor is committed to the sound judgment and good sense of the jury in view of the nature and extent of the disability, as you may find the same from the evidence. You will notice that neither Mr. Gregory, nor any of the witnesses was asked to express an opinion as to how much the services this husband claims as lost were worth per week, month or year. That is what is meant by saying that subject is intrusted to the good judgment and common sense of the jurors. Such amount, if any, as you may award for the loss of the wife’s services you will fix, and state separately in your verdict.”)

The undisputed evidence showed that the plaintiff was a farmer, living upon a farm with his wife and family, at the time of the injury; that plaintiff’s wife, before the injury, did the housework, and at times assisted in doing the chores; and that at the time of the injury complained of plaintiff was 52 years of age, and his wife 46.

The jury returned a verdict for the plaintiff, awarding him $100 damages to his property, and $700 for loss of his wife’s past and future earnings, and a judgment was entered thereon for the plaintiff in the sum of $800.

The defendant brings the case here for review, and assigns error upon the admission of evidence as to the loss of the wife’s services, and the refusal of the court to charge as requested, and upon that part of the charge included in parenthesis.

(1) Was the plaintiff entitled to recover for the loss of his wife’s past and future earnings?

The statute relied upon by defendant is Act No. 196, Public Acts of 1911 (4 How. Stat. [2d Ed.] §11552), entitled:

“An act defining and regulating the right of married women to their own earnings.”

Section 1: “Each and every married woman in the State of Michigan shall be absolutely entitled to have, hold, own, retain and enjoy any and all earnings acquired by any such married woman as the result of her personal efforts; and to sell or otherwise dispose of any and all such earnings, and to make contracts in relation thereto to the same extent that any such married woman could have or do if unmarried.”

Counsel for defendant have called our attention to the following cases: Jordan v. Railroad Co., 138 Mass. 425; Harmon v. Railroad Co., 165 Mass. 100 (42 N. E. 505, 30 L. R. A. 658, 52 Am. St. Rep. 499).

Some of the provisions of the statute of Massachusetts in force at the time of the above-noted decisions were as follows:

Chapter 147, Public Statutes of Massachusetts:

Section 2: “A married woman may make contracts, oral and written, sealed and unsealed, and in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts with her husband.”

Section 4: “All work and labor performed by a married woman for a person other than her husband and children shall, unless there is an express agreement on her part to the contrary, be presumed to be performed on her separate account.”

Section 10: “The contracts made by a married woman in respect to her separate property, trade, business, labor, or services, shall not, except as provided in the following section, be binding on her husband, nor render him or his property liable therefor; but she and her separate property shall be liable on such contracts in the same manner as if she were sole.”

Section 11 provides that, when a married woman does business on her separate account, she must file a certain certificate setting forth her name and that of her husband, the nature of the business, and the place where it is proposed to be carried on; provided that, if such certificates are not recorded, the property employed in such business shall be liable to be attached as the property of her husband and be taken in execution against him; and provides liability of the husband upon contracts lawfully made in the prosecution of such business the same as if the contract had been made by himself, in such case.

In Jordan v. Railroad Co., supra, it was held that, in an action by a married woman living with her husband for personal injuries sustained by her, she was entitled to recover for the diminution of her capacity to labor, resulting from the injuries. In that case there was evidence tending to show that the plaintiff was a married woman, living with her husband; and that, besides doing ordinary housework, she took in sewing, the proceeds of which she applied to the support of the family of her husband. The trial court charged the jury as follows:

“If you find that the plaintiff is entitled to recover, she is entitled to recover for the pain she has suffered, both physically and mentally, and for the impairment of her ability to labor. No claim is made for loss of time or expenses of sickness, and in no event can the jury award anything for either; but the plaintiff’s capacity to earn is her own, and, if entitled to recover at all, she is entitled to recover for any diminution of her capacity to labor that is shown to have resulted from the injury; and this is to be determined upon the whole evidence, and not by any special theory of computation suggested by counsel.”

The jury having returned a verdict for the plaintiff, and defendant having alleged exceptions, the supreme court, in an opinion by Allen, J., held that the instructions given stated clearly the correct rule of damages, and referred to section 4 of the foregoing quoted statute.

In Harmon v. Railroad Co., supra, the same doctrine was asserted, and the same judge said, referring to the legislation of that State:

“The radical nature of the change effected by the legislation of this State in the legal condition of married women is illustrated in numerous decisions, of which Jordan v. Railroad Co., supra, most nearly resembles the present case in its facts.”

Counsel for appellee call our attention to the later decision of Kelley v. Railroad Co., 168 Mass. 308 (46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397), where the doctrine is asserted that the common-law right of a husband to a right of action for the loss of consortium through an injury to his wife caused by negligence is not taken away by the Massachusetts statutes giving married women the control of their time and actions. That was an action brought by the husband to recover damages for the loss, of society of his wife and expenses incurred for medical attendance upon her by reason of an injury caused by defendant’s negligence. The same judge who rendered the former decisions, referring to the statute and early decisions in Massachusetts, said:

“The unity and identity of interest which by the common law existed between husband and wife have been impaired. Butler v. Ives, 139 Mass. 202 [29 N. E. 654]. They are not, however, entirely done away with. The husband’s right to compel his wife ,to work for him is abridged, but he still has a right ¡to her society and assistance, which is different in character and degree from that which other people have, or which she is at liberty to give to them. By marriage, both, husband and wife take upon themselves certain duties and obligations towards each other, in sickness and health, which it cannot be supposed that the legislature has intended wholly to uproot. A married woman may now perform any labor or services on her sole and separate account, as her husband may; nevertheless, each owes certain duties to the other which are not annulled by the statutes. Mewhirter v. Hatten, 42 Iowa, 288 [20 Am. Rep. 618]. These duties are included in the word consortium; but the extent of these duties, or of the right of consortium, need not now be determined.”

In Mewhirter v. Hatten, supra, the question presented for decision was whether a married man was entitled to the personal labor and assistance of his wife to any extent whatever, so as to be entitled to maintain an action against one who, by injuries committed upon her, deprives him of such labor and assistance. The statute of Iowa reads as follows:

“A wife may receive the wages of her personal labor and maintain an action therefor in her own name and hold the same in her own right; and she may prosecute and defend all actions at law and in equity for the preservation and protection of her rights and property, as if unmarried.” Code 1878, § 2211.

The supreme court of Iowa, in construing this statute, said:

“We think that the terms ‘wages of her personal labor,’ as here used, refer to cases where the wife is employed to some extent in performing labor or services for others than her husband, or where she is carrying on some business on her own behalf; such, for instance, as dressmaking, or the millinery business or school teaching. In a word, she is entitled to the wages for her personal labor or services performed for others, but her husband is entitled to her labor and assistance in the discharge of those duties and obligations which arise out of the married relation. We feel very clear that the legislature did not intend by this section of the statute to release and discharge the wife from her common-law and scriptural obligation and duty to be a ‘helpmeet’ to her husband. If such a construction were to be placed upon the statute, then the wife would have a right of action against the husband for any domestic service or assistance rendered by her as wife. For her assistance in the care, nurture, and training of his children, she could bring her action for compensation. She would be under no obligation to superintend or look after any of the affairs of the household unless her husband paid her wages for so doing. Certainly such consequences were not intended by the legislature, and we cannot so hold in the absence of positive and explicit legislation.”

The further language of that opinion is worthy of examination.

A provision of the Kansas statute is as follows:

“Any married woman may carry on any trade or business, and perform any labor or service on her sole and separate account, and the earnings of any married woman, from her trade, business, labor, or service shall be her sole and separate property, and may be used and invested by her in her own name.” Gen. Stat. 1868, chap. 62, § 4.

It also provides that “she may sue to protect and enforce her rights, in the same manner as if she were unmarried.”

In City of Wyandotte v. Agan, 37 Kan. 528 (15 Pac. 529), the above provision was passed upon by the supreme court of that State. The wife recovered judgment, and among the elements of damages was her loss of time and services, under an instruction from the trial court that she was entitled thereto under the statute. In reversing the decision of the trial court, the distinction was pointed out between services. rendered inside the household and those rendered outside the household. It was said:

“It follows from this that the time and services of the wife do not necessarily bélong to the husband, nor does an injury which causes the loss of such time and service necessarily accrue to him. At least a portion of her time may be given to the labor or business done on her sole and separate account. The profits or earnings of such business or labor are her sole and separate property, and cannot be appropriated! or controlled by her husband without her consent. * * * Notwithstanding this, we are compelled to hold that the instruction was prejudicially erroneous. The duty devolves upon the husband to take care of and provide for the wife, and he is entitled to her society and to her services other than those performed on her sole and separate account. If he is deprived of these services in consequence of an injury inflicted, the loss is his, and the right of action therefor exists in him. The rule fixing the liability for the services of a married woman is fairly stated in a case which arose and was tried in New York, where a statute exists substantially like'ours. It was held that:

“‘The services of the wife in the household, in the discharge of her domestic duties, still belong to the husband, and in rendering such service she still bears to him the common-law relation. So far as she is injured so as to be disabled to perform such services for her husband, the loss is his and not hers; and for such loss of service he and not she can recover of the wrongdoer. But, when she labors for another, her service no longer belongs to ber busband, and whatever sbe earns in such service belongs to ber as if she were a feme sole; and so far as she is disabled to perform such service by any injury to ber person, sbe can in ber own name recover compensation against the wrongdoer for such disability as one of the consequences of the injury, * * * and the money recovered shall be ber sole and separate property’” — citing Brooks v. Schwerin, 54 N. Y. 343, and other cases.

For the meaning of the term “services,” when employed to indicate the ground on which the husband is allowed to maintain an action, see Cooley on Torts (2d Ed.), p. 266.

It will be noted that our statute above quoted gives to each and every married woman the right to have, hold, own, retain, and enjoy “any and all earnings acquired” by her. Can it be said that, in the performance by the wife of the ordinary duties of the housewife as a helpmate in the home of her husband, she has “acquired” the right to her earnings? We think not. If such construction were to be placed upon the statute, then the wife would have a right of action against her husband for any and all domestic services or assistance rendered in the household. We think the statute means that all earnings acquired or service performed by her as the result of her personal efforts in any separate business carried on by her in her own behalf, or any services performed by her for others than her husband, belong to her; but that her husband is entitled to her labor, companionship, society, and assistance in the discharge of those duties and obligations which arise out of the marriage relation, and that these belong to him. Where she has a separate business the wife may recover for loss of time as if she were sole. Fife v. City of Oshkosh, 89 Wis. 540 (62 N. W. 541); Fleming v. Town of Shenandoah, 67 Iowa, 505 (25 N. W. 752, 56 Am. Rep. 354).

She cannot recover for loss of time, if her occupation is that of a mere housewife in the family of her husband. Lyle v. Gray, 47 Iowa, 153.

We are of opinion that the trial court did not commit any error upon this branch of the case.

It is the further contention of appellant that, there being no evidence as to the value of the services of plaintiff’s wife, it was error for the court to allow the jury to fix damages for loss of the wife’s services according to their “good judgment and common sense.”

There was no motion for a new trial, and there does not seem to be any specific claim on the part of appellant that the damages were excessive. But counsel claim there was no basis for the verdict of the jury, in so far as the value of the loss of the services is concerned.

Counsel for appellant have called our attention to Nelson v. Railway Co., 104 Mich. 582 (62 N. W. 993). There the husband brought a suit under the “Death Act” to recover damages for the negligent killing of his wife. We do not think that this and kindred cases are controlling of the question here, for in those statutory actions the damages recoverable are the pecuniary loss only, and nothing for loss of companionship and society. It has been held in other States that, in cases like the instant case, there need not be evidence of the value or amount of the pecuniary loss.

In Denver, etc., Tramway Co. v. Riley, 14 Colo. App. 132 (59 Pac. 476), the court of appeals of Colorado discussed this question, and there said:

“There is some discussion of the question of the kind and amount of proof which is necessary, in a case like this, to enable a husband to recover for the loss of the services, companionship, and society of his wife. What these were worth in money was not shown, and, upon a little reflection, it is apparent that it could not be. The companionship and society of a wife are not articles of commerce. They cannot be weighed or measured; they are not bought and sold, and no expert is competent to testify to their value. The consideration upon which they are bestowed is not pecuniary. Yet the husband is entitled to compensation in money for their loss, and the amount of that compensation is to be determined by the jury, not from evidence of value, but from their own observation, experience, and knowledge, conscientiously applied to the facts and circumstances of the case. So also in relation to the services of the wife. The wife does not occupy the position of a servant, and her services to her husband are not those of a servant. She makes his home cheerful and inviting, and ministers to his happiness in a multitude of ways outside of the drudgery of household labor. All the work of the house may be done by hired employees, and her services still give character to the home. They are not rendered in accordance with set rules; they are not repeated in regular order from day to day. They have their source in the thoughtfulness of the wife, and her regard for her husband, and no witness is qualified to define them, or reduce them to a list, or say what they are worth. So that their value must also be estimated by the jury. Furnish v. Railway Co., 102 Mo. 669 [15 S. W. 315, 22 Am. St. Rep. 800]; Metropolitan, etc., R. Co. v. Johnson, 91 Ga. 466 [18 S. E. 816].”

In Metropolitan, etc., R. Co. v. Johnson, supra, the supreme court of Georgia, upon this subject, said:

“When the loss of a wife’s services, resulting from a personal injury to her, is to be compensated for, she is not to be treated as an ordinary servant or as a mere hireling. Cooley on Torts (2d Ed.), p. 266; Pennsylvania R. Co. v. Goodman, 62 Pa. 329. She sustains to her husband and his household a relation special and peculiar. Her place cannot be supplied; no other is capable of filling it. Some wives perform manual labor — others do not; yet the husbands of the latter no less than those of the former would certainly be entitled to compensation from wrongdoers for causing inability to perform service. The actual facts and circumstances of each case should guide the jury in estimating for themselves, in the light of their own observation and experience and to the satisfaction of their own consciences, the amount which would fairly and justly compensate the plaintiff for his loss. Certainly some elements of loss, such as manual labor, would be subject to estimation by witnesses; and, if evidence of this kind were produced, of course the jury should consider it together with the other facts. But what we hold distinctly is that there need be no direct or express evidence of the value of the wife’s services, either by the day, week, month, or -any other period of time, or of any aggregate sum.”

The rule is stated in 13 Cyc. p. 215, n. 22, as follows:

“There is no need of direct or express evidence of the value of a wife’s services, either by the day, week, or any other stated period, in order to entitle the husband to recover for the loss thereof, as the relation which she sustains to him is a special and peculiar one, and the actual facts and circumstances of each case should guide the jury in estimating for themselves, in the light of their own observation and experience, and to the satisfaction of their own consciences, the amount which would fairly and justly compensate the husband for his loss” — citing Kelley v. Mayberry Township, 154 Pa. 440 (26 Atl. 595); Gainesville, etc., R. Co. v. Lacy, 86 Tex. 244 (24 S. W. 269). See, also, Black v. Railroad Co., 146 Mich. 568 (109 N. W. 1052).

This last-cited case deals with the rule in actions for damages involving the death of a minor child.

As was said in Furnish v. Railway Co., supra, referring to the fact that no evidence was offered of the value of the services:

“To this it may be said that the nature of the subject does not admit of direct proof of value and that, when the fact of loss of society is established by testimony, the assessment of reasonable compensation therefor must necessarily be committed to the sound discretion and judgment of the triers of fact.”

Similar language was used by the court in Kelley v. Mayberry Township, supra.

We are of opinion it cannot be said in the instant case that there was no basis upon which to find a verdict for damages; nor can we say on this record that the damages were excessive.

The judgment of the circuit court is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    NEAL v. NEAL.
    1. Bills and Notes — Trial — Witnesses — Cross-Examination— Fraud.
    Cross-examination of plaintiff’s husband, who claimed to have obtained the note upon which action was brought for a loan of $300 and for an existing indebtedness, was improperly restricted by the trial court, who refused to permit counsel for the defendant to ask him where he got the $300 in support of the defense that the note was forged and the claim fraudulent.
    2. Same.
    Where the defense of fraud is set up, a wide latitude should be allowed upon the cross-examination of a witness who participated in the transaction.
    3. Sake — Defenses—Cross-Examination.
    Defendant claimed, in an action upon a promissory note, that he had not executed the instrument which was written in his wife’s handwriting upon one of the forms taken from the book of the defendant. His wife testified that the payee came to her and asked her to draw up two $500 notes for the use of his son who owed him $1,000; that she prepared the notes in blank, taking a form from her husband’s book of blank forms, and gave them to the payee. Defendant’s counsel asked the payee, who was a witness, whether he had not subsequently attempted to trade a note of his son for an automobile, and the witness denied doing so. Thereupon the attorney offered to show that the witness did have a note of his son at the time inquired about, and offered to trade it for the automobile. The court excluded the testimony. Held, that the testimony was admissible as bearing upon the probability of the testimony of the wife of defendant, that the notes were' prepared for the' son and not for her husband to sign.
    4. Same — Impeachment.
    Such testimony was also competent to impeach the testimony of the payee who had denied having notes of his son, or that there was any such indebtedness.
    5. Witnesses — Impeachment—Reputation.
    Also it was erroneous to strike out testimony of impeaching witnesses who stated that they knew plaintiff’s principal witness, had known him for a number of years and named persons who had questioned the veracity of the witness for plaintiff: one of the impeaching witnesses stating that he had lived in an adjoining township from him, that he had heard numerous persons who lived near the witness talk about his truthfulness, and the testimony being struck out because the witness could not name any prsons whom he had heard make statements concerning the matter.
    6. Appeal and Error — Trial—Conduct of Court.
    Unless the claim that the trial court made prejudicial remarks has been brought to the notice of such court, it will not be considered on error.
    7. Jury — Qualifications.
    A juror will not be held disqualified because he is an alien, if the record permits an inference that he might be a qualified elector. Also, the objection is not well taken, after judgment in a civil action.
    8. Bills and Notes — Weight of Evidence.

      Held, that the verdict was not manifestly against the weight of the evidence.

      Error to Shiawassee; Miner, J. Submitted
    April 21, 1914.
    (Docket No. 92.)
    Decided June 1, 1914.
    Assumpsit by Olive M. Neal against John G. Neal upon a promissory note. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Leon F. Miner (Louis E. Howlett and Byron P. Hicks, of counsel), for appellant.

      W. P. Van Winkle and Chapman, McNamara & Matthews, for appellee.
   Stone, J.

This action was brought to recover on a promissory note, reading as follows:

"$500.00. June 20, 1911.

"Six months after date I promise to pay to the order of James W. Neal, or bearer, the sum of five hundred dollars ($500) at-, for value received, with interest at six per cent, per annum.

“John G. Neal.”

John G. Neal, the maker of the note, and James W. Neal, the payee of the note, are brothers. Olive M. Neal, the plaintiff, is the wife of James W., the payee. There is no claim in the case that the plaintiff is a bona fide holder; the note having been transferred to her in the fall of 1912, after it became due.

The defendant claimed upon the trial that he never signed or delivered the note in question, and, further, he claimed there was no consideration for it. He, by affidavit, in due form, denied the execution of the note. The record discloses that at the time this note bears date James W. Neal was not living with- his wife. He was living in the home of the defendant, who was a farmer in Shiawassee county. He had made his home with the defendant and worked for him on his farm from October, 1910, until September 20, 1911. The note was written upon a blank promissory note, and the written portion thereof, except the signature, is, by the uncontradicted evidence, in the handwriting of Anna Belle Neal, the wife of the defendant. The genuineness of the signature was a disputed question, also whether there was any consideration for the note.

James W. Neal, the payee, was the only witness who gave direct testimony as to the signing of the note. He testified on direct examination as follows:

“I saw the signature at the bottom of the note, Exhibit A, written. John Neal wrote it. At the time that was done I stood by the heating stove in the sitting room, and he sat to a little desk just to the left of the heating stove in his house on the farm in the township of Antrim on the 20th day of June, 1911. When John had signed his name to the note he handed it to me. I put it in my pocket and went to Byron. I couldn’t say whether there was or wasn’t any one else present in the room at the time it was signed by John, except him and I. John’s wife was in the house at that time. John Neal took that blank form upon which that note is written out of his note book. It is a blank note filled out. The balance of the note, except the signature, I saw written by Mrs. Belle Neal, John’s wife. She wrote it the morning of the 20th, not but a few minutes before John signed it. She just handed it to me and asked me if it was all right, and he came in and looked it over and sat down and signed it. The pen and ink with which he signed the note sat on the stand. They furnished it. From that time until the 20th of September I continued to work for John and continued to retain this note. At the time John signed this note and gave it to me he was owing me the amount stated in the note. I had let him have money several times before that day. I had his notes before that. I had them at the time. Had them at the time for different things; for money and horse and buggy I sold him. I held a note for a horse and buggy. The amount of that note was $200. * * * That $200 note didn’t go into this $500. That was another transaction.

“Q. What other notes did you hold against him at that time that he gave you this $500 note?

“A. Well I let him have — I am not positive of that amount. It was either $200 or $250 in October, 1910, soon after I went there. Then later on — I did not surrender that note. I was holding that note at that time. That didn’t go into the consideration. I held another one of two hundred. That went into this five hundred consideration. I am not sure I surrendered it that day; but I gave him a note that went into this $500. The other amount that went into this $500 was money that I had let him have at that time.

“Q. Then how much money did you let him have on the day he gave you this note?

“A. $300. I don’t say it was that day. I think I let him have the money previous to the 20th, a few days that he had got this money. Part of it I think he got that day.”

On cross-examination this witness was interrogated on the subject of where he got the money which he claimed he had loaned to his brother. The following occurred:

“Q. From whom did you get it?

“Plaintiff’s counsel: I object to it as immaterial.

“A. I absolutely refuse to answer.

“The Court: I will sustain the objection. (Exception for defendant.)

“Defendant’s counsel (continuing) : We have a right to call that person in here to know whether he is telling the truth or not, to know who the person is.

“The Court: I sustained the objection. Proceed. (Exception for defendant.) * * *

“Q. Witness, in order that I may understand you, did you or did you not say that you received this money from Mrs. Ketchum previous to the day when you let John have this $300 that you have testified to?

“Plaintiff’s counsel: I object to that as incompetent.

“The Court: Objection sustained. The record will show what he said. (Exception for defendant.) * * ❖

“A. I held four notes against Mr. John Neal, but not at this time. I had three in my possession at this time, I think, unless one of them was paid. One of them might have been paid, and I had two of them at that time before he gave the $500 note. I don’t know positively how many I did have at that time. I couldn’t tell when a single one of these notes was paid exactly.

“Q. Can you tell and be sure of it within three months?

“A. I think I can.

“Q. Which one?

“Plaintiff’s counsel: I object to this as immaterial, as to whether he knows when they were paid. They can’t test his memory upon something that is immaterial.

“The Court: I will sustain the objection. (Exception for defendant.)

“Defendant’s counsel: They brought this question of these notes in here.

“The Court: Does that make any difference?

“Defendant’s counsel: Because they brought it in they can’t say it is immaterial when I cross-examine upon the same matter.

“The Court: Yes; they can. Because they brought it in does not make it material. The rule of evidence is whether a thing is material. (Exception for defendant.)

“Defendant’s counsel: Having opened the door, can they close it themselves?

“The Court: No; the court closes it on the ground it is immaterial. (Exception for defendant.)”

Further in the cross-examination this witness had testified to a conversation with his brother-in-law, Walter S. Stuible, in which he denied having asked Stuible whether he thought the signature of the note was defendant’s, and stated that he perhaps told him, when he showed him this note, that he did not want him to tell that he had those notes against John. The following question was asked by defendant’s counsel:

“Q. The fact that you had a judgment against you unsatisfied didn’t have anything to- do with your wanting to keep that note a secret, did it? (Objected to by plaintiff’s counsel as incompetent, immaterial, and irrelevant, and assuming facts not proven.)

“The Court: I will sustain the objection. (Exception for defendant.)

“Q. Is it or is it not a fact that at that very time you had a judgment against you which was unsatisfied in the circuit court for the county of Livingston?

“Plaintiff’s counsel: I object to it as incompetent, immaterial, and irrelevant. (Objection sustained by the court, and exception for defendant.) * * *

“Q. Do you or do you not admit that you told him [Stuible] not to say anything about this $500 note?

“Plaintiff’s counsel: I object to it as immaterial.

“The Court: Objection sustained. (Exception for defendant.) * * *

“Q. Did you ever tell any one else besides Walter Stuible that you had this note for $500 previous to the time you started the suit?

“Plaintiff’s counsel: I object to it as immaterial.

“The Court: Objection sustained. (Exception for defendant.) ”

James W. Neal had testified on direct examination that at a subsequent time he and his brother John had some trouble, and that at John’s house the witness had said to John, in the presence of the latter’s wife:

“All I ask of you is to pay me that note and what you owe me, and I will never darken your doors.”

Anna Belle Neal, defendant’s wife, was called upon the defense, and she was asked this question with reference to that conversation:

“Q. Was anything said at that time about any note?

“A. Not a word.

“Plaintiff’s counsel: I object to that and ask to have it stricken out as leading.

“The Court: Yes.

“Defendant’s counsel: It is a denial of what has been testified to by him [James].

“The Court: It may be stricken out for the present. (Exception for defendant.)

The testimony of James W. Neal as to the making of the note was contradicted by the defendant, his wife, and his son. Anna Belle Neal testified on direct examination with reference to the note as follows:

“I have seen that paper before. The handwriting of the written portion looks like mine. I remember writing it. The written portion except the signature. Mr. James Neal asked me if I would draw up two $500 notes for his boy. He said he wanted two $500 notes drawn up for his boy, Thane, blank, just the body drawn up for his boy ready for him to sign. I told him I would, and he says, ‘John has got a bank note book, hasn’t he?’ I says, ‘Yes.’ He said, ‘He wouldn’t care if you took them out of there, would he?’ I said I didn’t think he would. So I went and got the book and drawed up two $500 notes for him, just the body of the notes.

“Q. What, if anything, did he say to you about his son, Thane, owing him at that time?

“A. He said he owed him $1,000; he had $1,000 note against his boy. He said his boy promised him he would make the $1,000 note good, and he wanted the $1,000 note split in two so it would make them smaller. I never drew up any other $500 note or notes and gave it to anybody payable to James Neal, or bearer. Exhibit A looks like the note that I drew up. It was about’that time. At the time I drew up this note, Exhibit A, and the other like it, my husband was on the farm some place, I think. He was not at the house or in the room. Mr. James Neal and my boy and I was in the room at the time I wrote up these two $500 notes. My boy is 14 years old. I never drew up a $500 note in the presence of myself, my husband, and my boy, and James Neal, and my husband sign it there in our presence. I never knew of my husband signing and never saw him sign a $500 note payable to the order of James Neal, or bearer. I do not know who wrote the signature on Exhibit A. I never saw this note with the signature on until you showed it to me Saturday. At the time I gave it to James there was no signature on it.”

On rebuttal plaintiff called as a witness Thane Neal and asked him the following question:

“Q. Mr. Neal, there has been some testimony offered that at the time of the drawing up of this paper that your father said that you were owing him $1,000, and he wanted two $500 notes. You may state as a matter of fact whether, on June 20, 1911, you were owing your father anything?”

“A. I was not.”

In the cross-examination of James Neal he had been asked by defendant’s counsel whether he did not try to trade Thane Neal’s note to one Otto Steinaeker for an automobile, and he denied in the following language:

“I did not try to trade this note against Thane to Mr. Steinaeker for an automobile. I did not show it to Mr. Steinaeker and ask him if he would take that note in payment or exchange for an automobile. I didn’t show this note to John and his wife as late as the month of June, 1911.”

Defendant’s counsel offered to show that James Neal did have the note in June, 1911, against his son Thane and offered to trade it to Steinaeker for an automobile. Otto Steinaeker was called as a witness, and he was interrogated upon that subject. This testimony was objected to by plaintiff’s counsel as incompetent and immaterial, and the objection was sustained by the court. The further question was asked by defendant’s counsel:

“You may state whether or not James Neal at that time showed you any note?

“Plaintiff’s counsel: I object to it as incompetent, immaterial, and irrelevant.

“The Court: The objection will be sustained. (Exception for defendant.)”

Defendant’s counsel also sought to show by defendant that in the month of June, 1911, he saw this $1,000 note of Thane Neal’s in the possession of James W. Neal at defendant’s house. This evidence was objected to on the ground that the same was immaterial, and irrelevant, and collateral, and the objection was sustained, to which ruling defendant’s counsel excepted.

Upon the trial defendant’s counsel sought to impeach the general reputation of James W. Neal for truth and veracity. One John Frye was called as a witness for that purpose. He was asked the general questions:

“Do you know what the reputation, the general reputation, of James Neal is in the vicinity for truth and veracity? Do you know what it is? Yes or no to that question.

“A. Well, I know so much what I heard from other folks of course.

“Q. Was it good or bad?

“A. Well, according to how you look at it.

“Q. Which is it? "

“A. Well, I guess it was bad enough.”

On cross-examination he testified that he had heard Mr. Hal Lewis say that his reputation for truth and veracity was bad, and that Mr. Lewis had been dead about four years.

“Plaintiff’s counsel: More than that, ain’t it? Ain’t it nearly twelve years that Mr. Lewis died? What?

“A. Mr. Lewis died, I guess, about four or five years ago.

“Plaintiff’s counsel: I move to strike that statement out, what he heard a dead man say who has been dead five years.

“Defendant’s counsel: I object to it.

“The Court: It may be stricken out. (Exception for defendant.)”

James Atherton was also called as an impeaching witness and testified that the general reputation of James W. Neal was bad. On cross-examination he was interrogated as to whom he had heard speak of his reputation:

“A. Claud Badgero down to Byron, another man down there; I can’t remember his name.

“Q. Claud Bradley?

“A. Badgero, yes; and many others I don’t just call to mind just now.

“Plaintiff’s counsel: I move to strike out ‘many others I don’t just call to mind.’

“The Court: Yes; it may stricken out. (Exception for defendant.)”

John Allen was also called as a witness on behalf of the defendant and testified as to the general reputation of James W. Neal. We quote this testimony for the reason that the court struck it out entirely.. The witness testified as follows:

“I live in the township of Burns and have lived there for eighteen years. I know James Neal.

“Q. Do you know what his general reputation is-for truth and veracity in that community?

“A. Yes, sir.

“Q. What is it, good or bad?

“A. I should call it bad.”

Cross-examination:

“I lived about five miles and a half or such a matter from James, where he lived when he was on the farm. There are near neighbors to him down there. Country is quite thickly populated. I can’t call to mind whom I have heard say James’ reputation for truth and veracity was bad; but I heard it spoken.

“Q. Reflect back in your mind, haven’t you too got James’ reputation for chastity mixed with his reputation for veracity?

“A. I don’t think I have.”

Redirect examination:

“Q. You may state whether or not you have heard many or few persons in the vicinity in which he resides discuss this question as to his reputation?

“A. I heard quite a few.”

Recross-examination:

“Q. Can you give the name of any man in the vil-' lage of Byron or in the township that you have heard say it?

“A. I can’t.

“Q. Can’t you tell one of them? There are a good many people in the township of Burns. About what is the population in that township?

“Counsel for plaintiff then said: Your honor, in view of the statement made on cross-examination of this witness that he couldn’t say he heard any of the people that lived in that neighborhood or vicinity say any of these things, I move to strike out, and I base it on the case of Elijah Calkins v. Ann Arbor Railroad. Such testimony as that is incompetent.

“Defendant’s counsel: I object to its being stricken out.

“The Court: Let me ask a question or two.

“By the Court: Q. Where does Mr. Neal live now?

“A. He lives in Owosso.

“Q. How long since he lived — did he ever live in the township of Burns outside of the village of Byron ?

“A. Yes — Oh yes, sir; he has.

“Q. How many years ago?

“A. I should think about— •

“The Court: I withdraw that question. Where has he lived in the last five years? ■

“A. In the last five years?

“Q. Yes.

“A. Why, he has been all over, I guess, most of the time. Traveling some.

“Q. Do you know where he has lived in the last five years any of the time?

“A. He has lived on the farm within the five years.

“Q. Is that farm in the township of Burns?

“A. No, sir; it is in Livingston county.

“Q. Livingston county? Have you ever heard any' one talk about him in that neighborhood about his reputation for truth and veracity,' in the neighborhood where he resided when he lived in Livingston county ?

“A. Why, I think so; but I couldn’t tell any names.

“Q. Can you tell when it was?

“A. Well, no; I can’t.

“Q. Can you tell where they resided?

“A. No, sir.

“Q. Now did he live in the township of Byron some to your knowledge?

“A. No, sir; he did not.

“The Court: I think it may stricken out. (Exception for defendant.)”

Redirect examination:

“Q. How far from the Burns township line did he live when he lived on this farm in Livingston county?

“A. He lived just across .the road from the Burns township line.

“Q. You have lived in the township of Burns during all that time?

“A. Yes, sir.

“Q. Have you heard people who live on the Burns township side of the road, and who live near him, talk about his reputation for truth and veracity?

“A. Yes, sir.

“Defendant’s counsel: I now move to reinstate the testimony that has been stricken out.”

By the court:

“Q. Who was it, when was it?

“A. You can hear it most any time.

“Q. No; when was this particular conversation?

“A. It is the general impression.

“Q. When was the conversation given, give the time?

“A. I can’t state.

“Q. Do you remember of hearing any one talk about it in the last year in that vicinity?

“A. I don’t remember.

“Q. Do you remember of it? If so, who was it?

“A. I can’t speak any names; but I am positive I heard it.

“The Court: I will explain to them so they will understand possibly. General reputation is what people generally say about them, not what one or two persons say, but what people in the vicinity where the parties reside generally say of them. ‘Generally’ means more than one or two. Proceed.

“Defendant’s counsel: Did the court rule on my motion to reinstate?

“The Court: No; I will deny the motion. (Exception for defendant.)”

The trial having resulted in a verdict and judgment for the plaintiff for the full amount of the note sued upon, the defendant entered a motion for a new trial, assigning many grounds therefor, among others the following:

(1) That Christopher Gute, one of the jurors who sat during the trial of said cause, was not a legally qualified juror, because he was not a citizen of the United States, nor a citizen of the State of Michigan, which facts were unknown to defendant or to his counsel.

(2) Because the verdict of the jury therein is against the weight of the evidence.

The affidavit in support of the motion, in so far as the juror was concerned, was to the effect that Christopher Gute, one of the jurors who sat in said cause, was not a citizen of the United States of America, nor a citizen of this State, and that this fact was unknown to defendant until after the verdict was rendered.

The motion for a new trial was denied, and with reference to the second ground the circuit judge said:

“It did occur to the court that the weight of the evidence was with the defendant, or, in other words, that the plaintiff had not shown by a preponderance of the evidence that plaintiff was entitled to recover; but the witnesses were all in court and appeared upon the witness stand, and the jury listened to their testimony, and the court does not feel that the jury acted fraudulently in their decision, and, from the fact that it is the duty of the jury to pass upon questions of fact, the court does not feel that he is authorized to set aside the verdict upon that ground.”

The motion for a new trial was overruled, to which ruling defendant’s counsel duly excepted.

The defendant has brought the case here for review, and there are more than 50 assignments of error. We have examined the record carefully and must say that many of the assignments of error are without foundation, and some parts of the argument of counsel for appellant are not based upon any assignments of error. It is the claim of defendant:

(1) That there were errors in the rulings of the court during the trial in receiving and rejecting testimony.

(2) Errors consisting of prejudicial remarks made by the court during the trial.

(3) Error in refusing to grant a new trial.

The questions which we shall discuss are covered by assignments of error.

It is the claim of counsel for defendant and appellant that the case was tried in the court below upon the theory by defendant that a fraud was being perpetrated upon him, and that in such a case the law permits a wide latitude in the range of testimony, especially in the cross-examination of witnesses; that the trial court adopted too strict a rule in the cross-examination of the payee of the note, James W. Neal. It is urged that it was material to show that James W. Neal had no money to loan at the time he claimed the note sued upon was made. In view of the direct conflict in the evidence, and the fact that fraud was claimed by the defendant, we are of opinion that the court should have given a wider range to the examination of witnesses than was here given.

This court has said that, where there is a defense of fraud set up, a wide latitude should be allowed upon the cross-examination of a witness who was a participant in the transaction. Anderson v. Walter, 34 Mich. 113; Jacobson v. Metzger, 35 Mich. 103; Gutsch v. Pittsley, 51 Mich. 566 (17 N. W. 59); Fury v. Strohecker, 44 Mich. 337 (6 N. W. 834); Wessels v. Beeman, 87 Mich. 481 (49 N. W. 483).

We are of opinion that it was material and competent for the defendant to show that James W. Neal offered to trade his son’s note of $1,000 to Mr. Steinacker in the month of June, 1911, and that he had such note in his possession, as bearing upon the probability of the truthfulness of the testimony of the wife of the defendant above referred to. Banghart v. Hyde, 94 Mich. 49 (53 N. W. 915); Fountain v. Hutchinson, 108 Mich. 596 (66 N. W. 477); Raymond v. Day, 111 Mich. 443 (69 N. W. 832); Aldrich v. Scribner, 146 Mich. 609 (109 N. W. 1121).

The case was a close one upon the facts, and w;e think that it was prejudicial error to exclude the testimony offered.

Such offered testimony was also material as tending to contradict the testimony of James W. Neal, and was not collateral.

We are of opinion that it was prejudicial error for the trial court to strike out the testimony of the witness John Allen, and to rule as it did upon the téstimony of James Atherton and John Frye. This testimony was material and competent, and its weight was for the jury. • Had Allen’s testimony been admitted, it might have led to a different result. Keator v. People, 32 Mich. 484; People v. Mix, 149 Mich. 260 (112 N. W. 907, 12 Am. & Eng. Ann. Cas. 393).

There is no merit in the claim that the court erred by making prejudicial remarks during the trial. The attention of the court was.not called to the matter of such claim, and the question is not properly before us. Without reference to what the rule of the circuit may be relating to exceptions to rulings, we will not consider the question where the attention of the trial court was not challenged upon the subject.

Error in refusing to grant a new trial.

(a) The claim is made that the juror Gute was not legally qualified. There is nothing in the record to show that fact. For aught that appears, this man may have declared his intention to become a citizen 2 years and 6 months before November 8, 1894, in which case he would be an elector and qualified as a juror. People v. Collins, 166 Mich. 4-9 (131 N. W. 78, Ann. Cas. 1912D, 981). It will be presumed that the juror was qualified to act as such, in the absence of proof to the contrary. It may also be said that the point is not a good one in a civil case, where the fact was not discovered until after judgment. Johr v. People, 26 Mich. 427; People v. Scott, 56 Mich. 154 (22 N. W. 274).

(5) That the verdict was against the weight of the evidence. While we cannot say that the verdict was plainly and manifestly against the weight of the evidence, it does appear that the case was a close one, and justifies us in a careful examination of the rulings of the trial court in the admission of evidence.

For the errors pointed out relating to the rulings of the trial court in admitting and rejecting testimony, we are constrained to reverse the judgment of the court below, and grant a new trial.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    ZEMON v. TRIM.
    Names — Fictitious ob Assumed Name — Partnership.
    The name David. S. Zemon & Company, employed by a co-partnership composed of said Zemon and another, is not a fictitious or assumed name, requiring registration with the county clerk and a certificate of membership under Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.).

    Appeal from Wayne; Van Zile, J.
    Submitted April 24, 1914.
    (Docket No. 15.)
    Decided June 1, 1914.

      Bill by David S. Zemon and Philip D. Gordon, co-partners as David S. Zemon & Company, against Norman B. Trim and others to reach equitable assets of the defendants upon a judgment. From a decree for defendants, complainants appeal.
    Reversed.

      Selling & Brand, for complainants.

      L. Eugene Sharp, for defendants.
   Stone, J.

The history of this litigation, briefly stated, is as follows: Complainants were in the business of the manufacture of garments in the city of Detroit. It is claimed that they sold and delivered to the defendants (other than Belle M. Trim), as copartners, certain merchandise. The merchandise not being paid for, complainants sued said copartnership defendants in justice’s court in said city, and obtained a judgment for $465.28, damages and costs. The judgment not being paid, a transcript was filed in the circuit court, an execution was issued thereon, placed in the hands of the sheriff, and in due time was returned unsatisfied. Thereupon a judgment creditor’s bill was filed against all of the defendants. Application in due form was made for the appointment of a receiver, to which defendants raised the objection that complainants had not complied with Act No. 101 of the Public Acts of 1907, being “An act to regulate the carrying on of business under an assumed or fictitious name.” The court below denied the application for a receiver for the sole reason that complainants had not complied with said act. Thereupon application was made to this court for the writ of mandamus to compel the circuit judge to appoint a receiver. This application was denied. See Zemon v. Wayne Circuit Judge, 171 Mich. 589 (137 N. W. 210).

The defendants then filed a plea setting forth that complainants had no right to bring this suit for the reason that they had no standing in court, because David S. Zemon & Co. was an assumed name, as the style under which the complainants were conducting and transacting business, to wit, David S. Zemon & Co., did not contain the individual names of the parties or partners therein interested, being David S. Zemon and Philip D. Gordon, and that the said style, David S. Zemon & Co., was an assumed or fictitious name within the meaning of said act, etc., and alleging that said complainants had not at the time, or previous to the time of the filing of their said bill of complaint, filed the certificate required by said act. The plea was set down for hearing and argument, after which the circuit judge filed an opinion in which he sustained the plea, and entered an order accordingly. From this order the complainants have appealed.

It is the claim of defendants that the question here involved is ruled and controlled by the case of Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Ann Cas. 1913C, 697). It will be noted that in that case the firm name was the “Flint Construction & Realty Company,” manifestly an assumed or fictitious name. Not so in the instant case. It cannot be said David S. Zemon is an assumed or fictitious name, nor can that term be applied to David S. Zemon & Co. We are of the opinion that the reasoning in the above cited case does not apply to the instant case. We think that this case is ruled and controlled by the cases of Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422); Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418), and Cross v. Leonard, ante, 24 (147 N. W. 540).

The language of Justice Steere in the Sauer and Axe Cases is strikingly pertinent in the instant case.

In our opinion the name here used was not “an assumed or fictitious name,” within the meaning of the act.

The order or decree of the circuit court is reversed, and the case remanded to the court below for further proceedings. The complainants will recover their costs to be taxed.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.