text:
    VILLAGE OF LAURIUM v. MILLS.
    1. Public Officers — Bonds — Liability — Application of Credits.
    In determining the liability of the sureties on the bond of a collecting officer, an excess in the amount turned in by him over the amount collected during the first four months of the period covered by the bond should be applied on collections theretofore made, rather than on subsequent collections.

      2. Same — Secretary of Water Board — Official Term.
    A resolution of a village council authorizing the board of water commissioners to appoint a secretary, with the approval of the council, and requiring him to furnish such bonds as the council may require, makes the office of secretary a distinct office; and the fact that, by subsequent resolution, it was provided that the village clerk should be appointed as such secretary, and that thereafter the incumbent of the office of clerk was permitted to perform the duties of secretary without formal and regular appointment, did not merge the offices into one, or make the clerk ex offleio secretary, so as to terminate his tenure as secretary contemporaneously with the expiration of his term of office as clerk.
    3. Same — Liability of Bondsmen.
    The official bond of the secretary of a village water board recited that he had been appointed to such office to serve until his successor should be appointed and qualified, and its conditions required that he should account for “all moneys that should come into his hands as such secretary.” Held, to cover an incumbency of the office growing out of a holding over for a second term without a reappointment.
    Error to Houghton; Streeter, J.
    Submitted January-28, 1902.
    Decided March 4, 1902.

      Assumpsit by the village of Laurium against Joseph R. Murphy, principal, and Thomas Mills and Nicholas S. Bray, sureties, upon an official bond. From a judgment for plaintiff on verdict directed by the court, defendant sureties bring error.
    Affirmed.

      Gray, Haire & Bice, for appellants.

      P. H. O’Brien, for appellee.
   Hooker, C. J.

Defendant Murphy was clerk of the village of Laurium for about two years prior to March, 1898. He was re-elected in March, 1898, and again in March, 1899, and served continuously until March, 1900, when he turned over his office to a successor. The law (1 Comp. Laws, § 2702) provides that such clerk shall hold his office for the term of one year from the second Monday in March of the year elected, and until his successor is elected and qualified. There was a water board in said village, and among the resolutions adopted in 1891 by the council for the government of said board was the following:

“Article 1, § 1. The board of commissioners shall have power to appoint a secretary of the water board, with the approval of the common council.”

Among the duties of the secretary was the collection of moneys due and owing the said village in connection with the business of the water board. Murphy acted as secretary of the water board throughout his term, and it appears to have been the practice for the village clerk to act as such secretary. If the board ever appointed a secretary, the proof of the fact is not brought to our attention; and a former clerk testified that, at some time before his incumbency, “ there was a resolution passed by the council stating that the clerk should be secretary — should be appointed secretary — of the water board, and they had been doing that right along afterwards;” and other testimony indicates that, for some time after that, it was the custom of the clérk to act as secretary of the water board without a formal appointment by either the water board or council, and that this continued until the spring of 1898, when, according to the testimony of the president, he (the president ) formally appointed him, and the appointment was ratified by the board. We do not discover record proof of this, however, though perhaps the bond itself implies it.

On April 5, 1898, Murphy gave the bond contemplated by article 1, § 1, of the resolution above mentioned, and partially quoted, which makes it the duty of the secretary to “furnish bonds unto the village for such sums as the council may require from time to time.” This bond was for the sum of $2,500, and was signed by Murphy as principal and the other defendants as sureties, and was separate and distinct from another bond which Murphy at the same time gave as village clerk. The bond recites that “whereas, the above-bounden has been appointed to the office of secretary of the water board of the said village of Laurium, county of Houghton, and State of Michigan, to serve until his successor shall be appointed and qualified;” and its condition requires that the principal “shall faithfully and truly account for and pay over all moneys which shall come into his hands as such secretary of the water board.” This action is brought to recover on the bond,, and from a judgment for the plaintiff the defendants have appealed.

The facts upon which the alleged breach of the condition is predicated are that Murphy received funds as follows : The record shows that the secretary, Murphy, collected between April 5, 1898, and April 3, 1899, the amount of $5,759.10, and that his deposits were $5,597.30, —a deficiency of $161.80. It is contended by the plaintiff that, while the collections for the months of April, May, June, and July aggregated only $1,040.54, he deposited $1,609.80, an excess of deposits of $569.26. It was shown that he had collected during February and March $712.67, and the plaintiff’s counsel contends that the defendants are not entitled to have this excess of $569.26 applied on collections made after April 1st, from which source it clearly was not received, but that it should be applied, as far as it will go, in payment of the previous item of $712.67, which is the only source from which it could have come, if it was money received on village account; and that, if it was not so received, it must be presumed to have been deposited to apply on that item, rather than a deposit of individual funds to a public account, for which there would be no occasion or apparent reason. On the other hand, defendants’ counsel insist that it must apply on the collections for the year following April 5, 1898. In our opinion, the contention of plaintiff’s counsel should prevail. We understand that there is no dispute about the facts, and, this being so, the court did not err in directing the jury to include a corresponding sum of $569.26 in the amount of the deficiency for the first year, which was the substantial effect of his instruction.

A second point relates to a deficiency in the funds collected between April, 1899, and April, 1900, amounting to $1,564.79. We understand that the amount of this deficiency is not disputed. The defendants contend that the bond does not cover that period, for the reason that the clerk of the village is ex officio secretary, and that the latter office for the fiscal year 1898 and 1899 ended with that of clerk by the re-election and qualification of Murphy to the office of clerk in the spring of 1899. The resolution quoted clearly shows that the office of secretary of the water board is a distinct office, and, while the village clerk has been eligible, and may have held the office without formal and regular appointment, the resolution of 1891, and the custom to permit the clerk to perform the duties of secretary, have not had the effect to merge the two offices into one, nor to make all clerks ex officio secretaries of the water board in that village, nor to terminate one office by the termination of the other. We are not advised that the secretary has not at all times drawn a salary or compensation as such officer, and we have seen that separate and distinct bonds have been required. We are of the opinion that article 1, § 1, above cited, has not been abrogated in any particular, though it may have been disregarded, or not carefully followed, in regard to the manner of appointing the secretary.

That resolution does not fix the term of the office, which, on general principles, would continue until a successor is appointed and qualified. The terms of the bond indicate the recognition of this by the makers, and an obligation to indemnify the plaintiff during the full period of Murphy’s incumbency under the appointment which the bond expressly recites. Counsel cite some authorities which hold that where one is appointed for a prescribed term, and holds over for a second without a reappointment, the sureties on the bond will not be liable during the second term. We think they are not applicable to the present case, because, if it can be said that the term of ;this office is limited by the resolution to a year, the village has taken and the defendants have given a bond covering a longer period of incumbency growing out of a holding over.

We understand from the defendants’ brief that the questions discussed cover the case, and therefore do not consider the assignments of error seriatim.

The judgment is affirmed.

Moobe, Gbant, and Montgomeby, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    LAMPHERE v. HEATON.
    Deeds — Undue Influence — Evidence.
    A decree sustaining a deed, attacked for fraud and undue influence, was affirmed under the evidence.
    Appeal from Kent; Wolcott, J.
    Submitted January 28, 1902.
    Decided March 4, 1902.
    Bill by Lester S. Lamphere against Effie Heaton to set aside a deed. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      J. T. Preston (M. L. Dunham, of counsel), for complainant.

      L. E. Carroll, for defendant.
   Grant, J.

Defendant is the only child of the complainant. On April 4, 1896, he executed a deed to her of the land described in the bill, and she executed to him a life lease of it. He was an old man, had buried his wife the mother of defendant, about seven months before, and was about to be married again. He was married shortly after the execution of the deed. His second wife was possessed of certain lands, which she had conveyed to her children before the marriage. He virtually admits that he executed the deed to his daughter so that his new wife should have no interest in the land. He now seeks to set aside that deed on the ground that the defendant unduly influenced him to make it.

The question is one purely of fact. We agree in the conclusion reached by the circuit judge. The conveyance, reserving a life estate to himself, was one eminently proper for him to make under the circumstances. The proofs do not sustain his charge that he was induced to make it by fraud or by the undue influence of his daughter.

The decree is affirmed, with costs.

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


text:
    AUDITOR GENERAL v. HOFFMAN.
    Ordinances — Reasonableness—Construction op Sidewalk.
    An ordinance requiring a lot owner to build a sidewalk within five days after notice, and, on his failure to do so, authorizing the city officials to build it, and imposing a tax on him for the cost, is void for unreasonableness.
    Appeal from St. Clair; Whipple, J.
    Submitted January 28, 1902.
    Decided March 4, 1902.
    Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by John M. Hoffman. From a decree for contestant, petitioner appeals.
    Affirmed.

      Joseph Walsh, Prosecuting Attorney, for petitioner.

      William T. Mitchell, for contestant.-
   Grant, J.

The tax which the circuit judge set aside in this case was imposed under the same charter and ordinance that were before the court in City of Port Huron v. Jenkinson, 77 Mich. 414 (43 N. W. 923, 6 L. R. A. 54, 18 Am. St. Rep. 409), in which the penal provisions of both the charter and the ordinance are held to be absolutely void. In that case a notice was given under section 1 of the ordinance to construct the sidewalk within 10 days. It was there said:

“No legislative or municipal body has the power to impose the duty of performing an act upon any person which it is impossible for him to perform, and then make his nonperformance of such a duty a crime.”

For the same reason the legislature cannot impose a duty upon the citizen, give him an insufficient time to perform it, and then authorize some one else to perform the duty for him, and impose a tax upon him for the cost. The duty to construct a sidewalk is purely statutory, and when such duty is imposed upon a citizen he is entitled to reasonable time within which to perform it. From the language above quoted it is obvious that the court held a 10-day notice unreasonable. In this case section 7 of the ordinance is in direct conflict with section 1, in that it requires the lot owner to build the sidewalk “within five days from the date of the notice,” while section 1 provides for a notice of 10 days. The notice in this case was served under section 7, and was a notice to build a stone or cement sidewalk not less than 4 feet wide within 5 days. Such a provision is unreasonable and void under the decision above cited.

Decree is affirmed.

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


text:
    WRIGHT v. ELK RAPIDS IRON CO.
    1. Contract of Employment — Evidence — Wrongful Discharge.
    Evidence that a discharged employe was hired originally by the year, and that his services were continued from year to year on the same basis, is competent to show that, at the time of his discharge, he was employed by the year, rather than by the month, and was therefore entitled to salary for the full year.
    2. Same — Estoppel.
    An employé, discharged before the expiration of his contract, is not precluded from recovering his salary for the remainder of the term by the fact that he applied for and received a letter of recommendation from his employer, where he notified the latter at the time that he relied on his contract and expected to enforce it.
    3. Appeal — Bill of Exceptions — Prolixity.
    The bill of exceptions is criticised as unnecessarily prolix.
    Error to Antrim; Mayne, J.
    Submitted January 28, 1902.
    Decided March 4, 1902.

      Assumpsit by Fred Wright against the Elk Rapids Iron Company to recover a balance of salary. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff had been employed by defendant as foreman in its flouring mill from 1890 until May, 1896, when he was discharged. He claimed a hiring by the year; the defendant, by the mopth. The declaration and bill of particulars were to recover the balance due for the rest of the year after his discharge. The contract rested in parol. Plaintiff gave evidence tending to show a hiring by the year in 1890; that his services had been continued from year to year upon the same basis. Defendant also claimed justification for his discharge, though no notice to that effect was given in the plea. All questions of fact were submitted to the jury, who found for the plaintiff.

      Pratt & Davis, for appellant.

      Bollin H. Person, for appellee.
   Grant, J.

{after stating the facts). 1. The evidence of the previous hiring by the year, and the continuance under that arrangement from year to year, was competent evidence of a hiring for the year 1896. It is unnecessary to enter into the details of the evidence. The case is controlled, both in its facts and law, by Tallon v. Mining Co., 55 Mich. 147 (20 N. W. 878); Chamberlain v. Stove Works, 103 Mich. 124, 129 (61 N. W. 532); Sines v. Superintendents of the Poor, 58 Mich. 503 (25 N. W. 485).

2. At the time of or upon notification of his discharge, plaintiff obtained a letter of recommendation from the defendant’s officers, stating that he had been in defendant’s employ as head miller for six years, that he was a competent man for such position, and that his steadiness and attention to duty were beyond criticism. It is insisted that this estopped the plaintiff from recovery. The circuit judge, at the request of the defendant, instructed the jury that if plaintiff did apply for such letter, leading it to believe he was going to accept his discharge, he could not recover. To this request the judge very properly added that if at the time of his discharge, or prior thereto, he notified the defendant that he claimed under a contract by the year, and expected and intended to enforce it, then he was entitled to recover. It requires no argument to show the correctness of this instruction.

3. Some questions are raised upon the rejection and admission of testimony. We find no error in the rulings of the court. The defendant was given very wide latitude in introducing evidence as to why it discharged him, some of which the court might with propriety have excluded. Technical objections are also raised against certain portions of the court’s instruction. Taken as a whole, the instruction was a clear and correct statement of the law applicable to the case. The jury could not possibly have been misled. The principles of law are familiar, and it is unnecessary to discuss them.

The record in this case is unnecessarily long. The bill of exceptions was prepared by taking the notes of the stenographer upon the trial, and attaching a beginning and ending to them. The record contains everything that was said upon the trial, including several pages of colloquies between the court and counsel. Such a bill of exceptions is not a compliance with the rule, and casts upon this court unnecessary labor. The most of the testimony should have been condensed in narrative form, and a large part of it, which is mere repetition, left out.

The judgment is affirmed.

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


author: Moore, J.

text:
    SAVLAN v. AYER.
    1. Slander — Pleading—Evidence.
    Evidence of injury to the reputation of plaintiff in a slander suit is admissible under a declaration alleging his previous good reputation, the utterance by defendant, with intent to injure plaintiff therein, of words actionable per se, and the consequent injury to plaintiff in his reputation.

      2. Trial — Misconduct op Counsel — Harmless Error.
    Where the declaration in a slander suit alleged injury to plaintiff’s business, and the evidence showed that the business belonged to plaintiff’s wife, a statement by plaintiff’s attorney that plaintiff had an interest in the business, which he was conducting in his wife’s name, and that he was prevented from getting damages for injuries thereto by reason of a technicality, if erroneous, was rendered harmless by an instruction that a recovery could not be had for an injury to the business ; it affirmatively appearing that no damages were awarded on that branch of the case.
    Error to Charlevoix; Mayne, J.
    Submitted January 28, 1902.
    Decided March 4, 1902.
    Case by Max Savlan against Martha J. Ayer for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. J. Pailthorp, for appellant.

      Fitch & Fitch, for appellee.
   Moore, J.

This is'an action for slander. The jury-rendered a verdict in favor of plaintiff in the sum of $200 for injury to feelings and $50 for injury to reputation. The case is brought here by writ of error. The declaration, so far as it is necessary to state it here", reads as follows:

“ For that whereas, the said plaintiff, before and at the time of the committing by the defendant of the grievances hereinafter mentioned, was a person of good mame, credit, and reputation, and never was guilty of the crime hereinafter laid to his charge, and deservedly enjoyed the good opinion and respect of a large number of persons, and was and still is a merchant carrying on the business of retailing dry goods, furnishings, and other merchantable wares, and was and still is carrying on and conducting the said business with honesty, credit, and reputation. * * * Yet the defendant, well knowing the premises, but contriving and intending to injure and defamé the said plaintiff in his good náme, credit, and reputation, and in his said business, and intending and endeavoring to bring him into public scandal and disgrace, heretofore, to wit, on the 1st day of May, 1900, at Charlevoix, in the county of Charlevoix, aforesaid, in a certain discourse which the said defendant then and there had of and concerning the plaintiff, in the presence of and hearing of divers good and worthy persons, falsely and maliciously spoke and published of and concerning the plaintiff, and of and concerning' him in relation to his said business, the false, scandalous, malicious, and defamatory words following, that is to say: ‘You (meaning the plaintiff) stole the tables and drawers out of my store (meaning the tables and drawers aforesaid). You (meaning the plaintiff) lie, if you say you did not. You (meaning the plaintiff) are a thief, and I will prove it. I will have you (meaning the plaintiff) arrested for stealing (meaning thereby that she, the defendant, would cause the arrest of the plaintiff for the crime of larceny).’ And the said defendant then and there, in the presence of the large number of persons aforesaid, continued to repeat the aforesaid and. other false, malicious, scandalous, and defamatory words in a loud, angry, and threatening tone of voice and manner. * *. * In Consequence of the committing of which said grievances, and the speaking of the said false, scandalous, malicious, and defamatory words by the defendant as aforesaid, the plaintiff has been and is greatly injured in his good name, credit, and reputation, and has been brought into great public scandal, disgrace, and disrepute, and has been greatly injured in his business as aforesaid. * * * And the said plaintiff, by reason of the committing of the said grievances by the said defendant as aforesaid, has suffered great mental anguish and pain of mind by reason of his wounded feelings caused by the aforesaid oft-repeated publication. ”

Upon the trial it appeared by the testimony of the plaintiff that the business was carried on in the name of his wife. The plaintiff, after proving the utterance of the words alleged to be libelous, was allowed to answer the question, “Do you know whether or not these charges made by Mrs. Ayer became circulated throughout the town ? ” and similar testimony was allowed from Mr. Clayden, whose deposition was taken. It is said this was error, because it was not proper to permit any evidence tending to affect the business to go to the jury, and also because, “ under the declaration, it was not admissible to show that plaintiff had been injured in reputation. The declaration alleges that he had not been injured in reputation.” The court ruled the plaintiff could not recover for any injury to his business, and the verdict shows affirmatively that no damages were awarded for injury to his business. "We cannot agree with counsel that the declaration alleges plaintiff had not been injured in reputation. It avers the good reputation of the plaintiff, and that defendant, intending to injure and defame the said plaintiff in his good name, credit, and reputation, uttered the words which are set out at length in the declaration, and which, if uttered, were actionable per se (Youngs v. Adams, 113 Mich. 199 [71 N. W. 585]), and then alleges that, because of the utterance of these words, the plaintiff has been and is greatly injured in his good name, credit,, and reputation.

In the argument the following language was used by the attorney for plaintiff:

“Mr. Savlan had that business because he had an interest in that business. He was conducting it in his wife’s name in the business, and because of that he is prevented from getting damages because of technicality. The man and wife were doing business together.
“Mr. Pailthorp: Note an exception to that.
“Mr. Fitch: We don’t say that, gentlemen, because we expect to get damages for this, because it is true that it was Mrs. Savlan’s business, and that he was running it in her name.”

This is said to be prejudicial error.

In his charge the court told the jury:

“In the declaration it was alleged and certain damages were claimed by reason of injury to the business. The testimony, so far as presented, shows that the business was continued only for two weeks, and that it was conducted in the name of Mary Savlan, the wife of the plaintiff. Under the pleadings I ruled out all evidence relative to injury to the business, and I now charge you, gentlemen, that you shall not consider any evidence relative to-the business of Mary Savlan. If she has sustained any injury, she will have to bring an action in her own name to recover. It cannot be recovered by her husband in this, action.”

If any error was committed by the counsel in the argument, it was cured by the charge of the court. This is made clear by the fact that no damages were given for injury to business.

The other assignments of error have been considered, but we do not think it necessary to discuss them. The case was carefully tried by the trial judge.

Judgment is affirmed.

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


text:
    MONYHAN v. DETROIT & SALINE PLANK-ROAD CO.
    1. Highways — Injury to Traveler — Negligence—Proximate' Cause.
    Plaintiff sued for injuries sustained by the upsetting of a sleigh on which he was riding over defendant’s road. On the trial it appeared that, to avpid snowdrifts in the road, one runner of the sleigh was driven on the ends of the ties of an electric railway, which projected into the roadway above its surface, and that, the other runner dropping into a hole in the roadway, the sleigh was overturned. Held, that, if the driver was acting as a reasonably prudent man should act under the circumstances, the fact that the accident would not have occurred, except for the snowdrifts or the driving on the ties, would not prevent a recovery.
    2. Witnesses — Credibility—Evidence.
    A witness in a personal injury case, who testifies that he was not hurt in the accident, cannot be asked on cross-examination if he did not allege to the contrary in his declaration in a like suit, nor can the files and judgment in such suit be introduced in evidence; but he may be questioned as to the testimony given by him in such suit.
    3. Appeal — Briefs—Matters Considered.
    A report of the weather bureau, dated more than a year after the trial of a case, and not included in the bill of exceptions, is improperly incorporated into the brief of counsel, and will not be considered.

      Error to Wayne; Waite, J.
    Submitted January 28, 1902.
    Decided March 4, 1902.
    Case by John Monyhan against the Detroit & Saline Plank-Road Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hamilton Baluss, for appellant.

      Edward M. Vining, for appellee.
   Moore, J.

Plaintiff recovered damages claimed to have been sustained by the tipping over of a sleigh upon which the plaintiff was riding; the team attached being driven by one Walter Carver, his employer. The sleigh was loaded with a log of about 400 feet, board measure. His claim is that the north part of the traveled portion of the road was filled, and had been for several days, with snowdrifts, which the witnesses state to have been from 3 to 9 feet high, to avoid which it was necessary to drive so that the runners of the sleigh were driven upon the ties of an electric road, which ties projected into the roadway a foot or 18 inches, and were 6 or 8 inches above the level of the road, the snow coming upon the edge of the ties; that the north runners of the sleigh dropped into a hole 10 or 12 inches deep, causing the sleigh to tip over. The plaintiff recovered a judgment for $100. The defendant has brought the case here by writ of error.

Upon the trial no testimony was offered by the defendant. In his charge to the jury, the court, among other things, after stating the claims of the respective parties, said:

“It was the duty of the defendant to keep this road in a reasonably safe condition for travel of vehicles in summer and in winter. They should have kept it reasonably safe. If the railroad company is there, I take it, it is a subsequent servitude upon the highway; and I think I ought to charge you, and I do charge you, that, if they áre there, they are there by the consent of the plank-road company, and the fact of their being there does not exonerate or relieve the plank-road company in any way from its obligation to the public to keep the highway, and the beaten track thereof, which they have held out to be the driveway or roadway of their company, in a reasonably safe condition for vehicles to pass over, and vehicles and teams such as this was. So, if you find there was negligence upon the part of the defendant, and there was no negligence on the part of the plaintiff, or the one driving the horses; that he acted in a reasonable and prudent way,— in such a way as a reasonably prudent man would act under all the circumstances, — then the plaintiff is entitled to a verdict.1’

The defendant presented several requests to charge, which the court declined to give. The substance of these requests is that, if the accident would not have happened except for the snow or the driving upon the ties, the plaintiff cannot recover. We think the court did right in refusing these requests. The public had a right to travel-this highway, even though there were snowdrifts which encroached upon the north side of the wrought portion of the road, and electric road ties which projected into the southern portion of it. If what was done by the driver was what would have been reasonable and prudent for a reasonably prudent man to do, then the driver was not negligent. The rule stated by the judge is justified by the authorities. Carver v. Plank-Road Co., 61 Mich. 590 (28 N. W. 721); Id., 69 Mich. 616 (25 N. W. 183); Laughlin v. Railway Co., 62 Mich. 221 (28 N. W. 873).

In the progress of the trial, Mr. Carver was a witness, and testified he was not hurt. Upon his cross-examination the following occurred:

Q. You brought an action against the plank-road company for this same tipping over?
“A. Yes, sir; I did.
Q. In your declaration in that case you alleged that you were seriously injured ? (Objected to as immaterial. Objection sustained, and defendant excepts.)
“Mr. Baluss: I offer to show by this witness— And I want, in connection with that, to offer the files in that case, as showing the declaration alleging the injury, — file No. 40,315. I offer to show that the witness, who says he drove the team at the time of the accident, brought suit in justice’s court, and recovered judgment in that court upon his testimony that he was injured by the tipping over of this sleigh at the time alleged here, and recovered a judgment in that court, while he now testifies he was not injured. (Offer excluded. Defendant excepted.)”

This is said to be error. We do not think the files and the judgment in the other case were competent. It was competent, upon the cross-examination, to show- whether the witness had not testified differently in the other trial; and we have no doubt the court would have so ruled if the question had been so framed as to call for a ruling upon that question.

The case was tried in November, 1900. The counsel for defendant has printed in his brief a report from the weather bureau dated a year later, which is no part of the bill of exceptions. It should have no place in the brief of counsel, and will not be considered by the court.

Judgment is affirmed.

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


text:
    CAMERON LUMBER CO. v. SOMERVILLE.
    1. Evidence — Books oe Account — Admissibility.
    Where, in an action on an account, it was shown that plaintiff’s books, which were offered in evidence, were books of original entry, that they were properly kept, that settlements had been made by them, and that they had never been disputed; and all, the charges against defendant were proved by the clerks who made them, except certain items shown to be in the handwriting of two clerks who were beyond the jurisdiction; and defendant objected to only one item, which he said was improperly charged, and such item was not included in the verdict, — the admission of the books was not error.

      3. Trial — Misconduct of Counsel — Appeal.
    The judgment was affirmed, notwithstanding certain improper remarks of counsel in the argument to the jury; the court having instructed them to disregard all remarks not based on the testimony.
    Error to Antrim; Mayne, J.
    Submitted January 28, 1902.
    Decided March 4, 1902.

      Assumpsit by the Cameron Lumber Company against Matthew Somerville for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Nelson O. Weter and N. JR. Wilke, for appellant.

      M. W. Newkirk, for appellee.
   Moore, J.

The plaintiff sued to recover a balance of $126.79 and interest thereon, claimed to be due from defendant. The case was tried by a jury, who returned a verdict for $119.07 and interest thereon. The case is brought here by writ of error.

It is claimed the court erred in admitting in evidence the books of plaintiff without calling all the clerks who made the entries. It was shown that the books were books of original entries; that they were properly kept; that settlements had been made with different parties, and the books had never been disputed, and the parties who settled from them had accepted them as correct. Several clerks were called by whom sales making up a large proportion of the items for which suit was brought were proven, and who had made the original entries. A few of the items were not thus proven. These were sales made by two clerks shown to be beyond the jurisdiction of the court, but the entries were shown to be in their handwriting. The defendant was a witness in his own behalf. On the cross-examination he was shown the bill of particulars and asked;

Q. You can’t think of any items that you object to upon that bill of particulars, can you ?
4 ‘A. There is an order to some one there of $7.60. I did not give that. The man that cut logs went and got it. I went down there, and talked to Mr. Salchow about it. I said, ‘ I told you not to give them anything without an order ’ ‘All right,’ he said, ‘but I would like to have you see that this is paid.’ And I said I would. Yes, I agreed to pay it.”

The verdict rendered would indicate this $7.60 was not included therein. We think the court did not err in admitting the books in evidence under this showing. Montague v. Dougan, 68 Mich. 98 (35 N. W. 840); Ganther v. Jenks & Co., 76 Mich. 510 (43 N. W. 600); Lester v. Thompson, 91 Mich. 245 (51 N. W. 893); Seventh-Day Adventist Publishing Ass’n v. Fisher, 95 Mich. 274 (54 N. W. 759); Baxter v. Reynolds, 112 Mich. 471 (70 N. W. 1039).

Complaint is made of the language and conduct of counsel in putting in his testimony. ‘ Some of the language used was justified by the record. Some of the questions put were leading, but as to them the court sustained the objection of counsel for defendant. Complaint is also made of language used by counsel in his argument to the jury. The language was improper, and in a doubtful case, if the effect of it had not been corrected by the trial judge, we should regard it as prejudicial error calling for a reversal. In his charge to the jury the judge said*

“The arguments of counsel and the remarks are given for the purpose of enabling you and aiding you to arrive at a just verdict, and, as far as their arguments and their reasons are based on the evidence in the case, you should consider them and receive them for what they are worth. Where remarks are made by counsel not based on the testimony, whether in the progress of the trial or during the argument, of course these remarks will not be considered by you. I charge you that you are to arrive at your verdict on the testimony as you hear it from the witnesses and the law as given by me, also, of course, from the several exhibits admitted in evidence, and not from what the attorneys may say it is. There were certain remarks of counsel on certain testimony which was offered, and which was given in your hearing, and then stricken out by the court, and, as to such remarks and testimony so stricken out, you will give no attention at all. It is no part of this case.”

Under the facts disclosed by the record, we would not feel justified in setting aside the verdict because of the conduct of counsel. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581); People v. Hess, 85 Mich. 128 (48 N. W. 181); People v. Pope, 108 Mich. 361 (66 N. W. 213); People v. Swartz, 118 Mich. 292 (76 N. W. 491).

We do not deem it necessary to discuss the other assignments of error.

Judgment is affirmed.

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


author: Hooker, C. J. Hooker, C. J.

text:
    VILLAGE OF SPARTA v. BOOROM.
    1. Municipal Ordinances — Violation—Complaint—Waiver of Defects.
    If a warrant for the violation of a municipal ordinance, following a complaint which sets out the commission of the offense on information acquired from the examination on oath of a third person before the justice, which affiant believes to be true, can be said to have been issued on a complaint based on information merely, the defect is waived by a plea of not guilty.
    2. Villages — Suppression of Saloons — Extent of Power ConFERRED.
    The provision of the general act for the incorporation of villages which authorizes them to suppress saloons for the sale of intoxicating liquors confers no authority to enlarge the commonly-understood meaning of the word “saloon.” Hence it is beyond the power of a village council to declare that any person selling liquor within the village shall be deemed to be a saloon keeper; and a complaint and warrant charging that defendant sold liquor at the residence of A. B. in said village, and thereby became a saloon keeper, states no offense.

      3. Same — Statutes—Repeal of Ordinances.
    All village ordinances for the suppression of saloons, based on the authority conferred by the general incorporation act of 1875-83, were by implication repealed by the general liquor law of 1887.
    4. Same — Revival.
    And they were not revived by the re-enactment of the delegatory provisions in the general village incorporation act of 1895.
    ON motion to modify judgment.
    Violation of Village Ordinance — Prosecution—Costs.
    Under 1 Oomp. Laws, § 2761, providing that prosecutions for violations of village ordinances may be commenced by warrant in the name of the people of the State of Michigan, and that the proceedings relating to the arrest and custody of the accused during the pendency of the suit, the pleadings, and the proceedings on the trial and in the rendition and execution of judgment shall be governed by, and conform as nearly as may be to, the provisions of law regulating proceedings in criminal causes cognizable by justices of the peace, a prevailing defendant is not entitled to costs.
    Exceptions before judgment from Kent; Perkins, J.
    Submitted January 29, 1902.
    Decided March 4, 1902.
    Judgment modified as to costs June 3, 1902.
    Lewis H. Boorom was convicted of keeping a saloon, contrary to an ordinance of the village of Sparta.
    Reversed and respondent discharged.

      David E. Burns (J. B. Judkins and N. J. Brown, of counsel), for appellant.

      Myron H. Walker, for appellee.

      See Curnow v. Kessler, 110 Mich. 10 (67 N. W. 982).

   Hooker, C. J.

The defendant has appealed from a conviction under a village ordinance. The village was incorporated under the general village incorporation act, which provided that it should have power to suppress saloons for the sale of spirituous and intoxicating liquors. Act No. 52, Pub. Acts 1883; 3 How. Stat. § 2847, subd. 7. Acting under the authority given by this act, the village council passed the ordinance in question on May 5, 1886. It explicitly forbade any person to keep or maintain any saloon for the purpose of selling any spirituous or intoxicating liquors. Its second section provided that any person who should sell, directly or indirectly, any such liquor in any building or other place whatsoever in said village, should be deemed to be a saloon keeper for the sale of such liquors, etc. The fourth section prescribed a penalty by way of fine and imprisonment. In 1887 the general liquor law now in force was passed. 3 How. Stat. § 2283c4; 2 Comp. Laws 1897, § 5379. In 1889 the local option act, so called, was passed. 3 How. Stat. § 2283a; 2 Comp. Laws 1897, § 5412. In 1895 the general village incorporation act was superseded by a revised act, in which the provision regarding the suppression of saloons above mentioned was included. 1 Comp. Laws 1897, § 2769, subd. 7.

The complaint was made by the village marshal, and was upon oath, and the following covers the substance essential to an understanding of the questions raised upon it, to wit:

“One.Lewis H. Boorom, not being then and there a druggist who sells liquors for chemical, mechanical, scientific, medicinal, and sacramental purposes only, did then and there, to wit, at the residence of William R. Smith, on West Railroad street, in said village, sell intoxicating liquors, and liquors a part of which were intoxicating, and liquors containing fermented liquors, as appears from, and as this affiant is informed by, the examination upon oath taken and made before said Oscar Beeby, justice aforesaid, of William R. Smith, and which said affiant avers and believes to be true; and the said Lewis H. Boorom did thereby then and there, to wit, on or about the 2d day of July, A. D. 1901, at said village of Sparta, keep and maintain a saloon in said village of Sparta for the purpose of selling the liquors aforesaid, and was then and there a saloon keeper for the sale of spirituous and intoxicating liquors, against and in violation of the form and provisions of an ordinance of said village.”

The defendant was arrested, arraigned, pleaded “Not guilty,” and was tried before a justice, and upon a second trial convicted. On appeal lie was tried and convicted in the circuit, a verdict having been found by direction of the court. The case is here upon exceptions before sentence.

Several points are raised. We are of the opinion that there is no force in the point that the warrant issued upon a complaint based on information merely. If there was such a defect, inasmuch as positive testimony under oath was taken by the justice before he issued the warrant, the point was waived by the plea of not guilty, as in cases of information.

We are of the opinion, however, that the warrant does not state a case. It charges a single sale, is silent as to the place and circumstances, except that it was not made as a druggist, and states that the defendant “thereby” became a saloon keeper. We are not prepared to say that a wagon might not constitute a saloon, or that a saloon might not be movable, or that it would be any the less a saloon because it was continually moved from place to place; but that is not the charge here. The general village incorporation act did not authorize the prohibition of the sale of liquor in general terms, and it omitted to enlarge the meaning of the word “saloon.” The term has a common and well-understood meaning, and this meaning must be applied to this act. 1 How. Stat. § 2; 1 Comp. Laws 1897, § 50. It did not authorize the village council to enlarge its meaning by calling every man who should make a sale of liquor a saloon keeper, and the cases which hold that a single sale may be evidence to show a man a saloon keeper, where it occurred in a saloon, are not in point.

There is another point which alone must be fatal to this proceeding upon another trial. We have twice held that the general liquor act of 1887 had the effect to repeal by implication all such ordinances as this one. See the opinion of Mr. Justice Grant in People v. Furman, 85 Mich. 110 (48 N. W. 169), and the later case of People v. Wenzel, 105 Mich. 70 (62 N. W. 1038), where it was quoted and followed. We do not discover that this point was 'made upon the trial, but it is fully discussed in the briefs in this court. It may be said that the re-enactment of subdivision 7 in the law of 1895 revived this ordinance, but we think this is not the rule.

The verdict will be set aside, and the respondent discharged.

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

on motion to modify judgment.

Hooker, C. J.

Upon the hearing in this court of the above-mentioned cause, the opinion directed that the verdict be set aside, and the respondent discharged. In the formal order entered in the journal, costs of both courts were awarded to the defendant, and a motion has been made to vacate that portion of the judgment of this court.

The proceeding was brought under the provisions of 1 Comp. Laws, § 2761, which provides for the prosecution being by warrant and in the name of the people of the State of Michigan. This section provides further that:

‘ ‘And the proceedings relating to the arrest and custody of the accused during the pendency of the suit, the pleadings, and all proceedings upon the trial of the cause, and in procuring the attendance and testimony of witnesses, and in the rendition of judgments and the execution thereof, shall, except as otherwise provided by this act, be governed by, and conform as nearly as may be to, the provisions of law regulating proceedings in criminal causes cognizable by justices of the peace.”

We are of the opinion that this excludes the assumption that costs are recoverable as in civil cases.

The motion is granted.

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


author: Hooker, C. J.

text:
    BELLOWS v. CRANE LUMBER CO.
    1. Saw Logs — Conversion—Evidence.
    Where plaintiffs allege that defendant designedly stopped their logs and took them into its possession, converting them, testimony of defendant’s employés that they were instructed not to-saw plaintiffs’ logs that came into the mill, but to throw them out, and that these instructions were followed so far as they could see the marks, is competent.
    3. Same — Instructions—Degree of Proof.
    Plaintiffs and defendant each owned a sawmill, receiving their logs by the same stream. Near defendant’s mill was a boom, where its logs were sorted out and turned into a canal leading to its mill, and plaintiffs’ logs were let through to pass down the stream. Plaintiffs had a large number of logs in the stream above the boom, which could not be driven because of low water, and had careful counts of such logs made. Thereafter defendant opened a dam higher up the stream, and brought down plaintiffs’ logs with its own; and it was plaintiffs’ contention that defendant made no attempt to assort the logs, but turned those belonging to plaintiffs into • its canal, where most of them disappeared. In an action for the conversion, plaintiffs introduced testimony in support of their claim, while defendant offered testimony to the contrary, and showed by its employés that only a few of plaintiffs’ logs were sawed, of which an account was kept. The court charged that the only positive evidence as to the amount of logs converted was that of defendant itself, and that, before the jury could find the conversion of more, they must find some evidence on which to base it, and could not guess at a verdict; also that plaintiffs had not shown a conversion unless they had shown that the logs were “sawed into lumber and held by the defendant.” Meld, that such instructions laid down too strict a rule, and were erroneous.
    Error to Benzie; Chittenden, J.
    Submitted January 29, 1902.
    Decided March 4, 1902.
    Trover by Elwin Bellows and Adelbert Bellows, co-partners as Bellows Brothers, against the Crane Lumber Company. From a judgment for only a portion of their claim, plaintiffs bring error.
    Reversed.

      George Whitbeek and Thomas Smurthwaite, for appellants.

      D. G. F. Warner, for appellee.
   Hooker, C. J.

The Betsie river empties into Betsie Lake from the south. Each party owns a sawmill upon the lake; the plaintiffs’ mill being upon the north side, while that of the defendant is upon the south side. Both parties run logs down Betsie river. There are two sorting places. The general sorting gap is at the mouth of the river. The other is known as “Crane’s Sorting Gap,” which is about 20 rods above the mouth of the river. It is at the entrance of an artificial canal leading down to the defendant’s mill. It is the plaintiffs’ claim, and their proof tended to show, that after October 1, 1899, they had from sis to eight hundred thousand feet of logs scattered along the river below Lewis’ bar, and that substantially all of the logs upon the river below that point belonged to them. . They sent some men up to bring them down, but they were obliged to abandon the project. These men estimated the logs, and the plaintiffs caused them to be counted at that time. On October 26, 1899, the defendant sent some men farther up the river to drive down some logs, which they were able to do by means of floods made by opening defendant’s dam at Crystal Lake. No notice was given to the plaintiffs, but they heard of it, and went up the river to see about it, and found that it was true, and that defendant had obstructed the river below Crane’s sorting gap, and was turning its logs which came down, including most of the plaintiffs’ logs, into the artificial canal belonging to it; having failed to provide for adequate inspection and assorting at the gap. The defendant offered testimony to show that it did assort the logs, and that it put substantially all of the plaintiffs’ logs down the channel of the river, though an occasional log was missed, and that most of these were dumped upon their dock or into the lake when found at the mill, according to a local custom, where the plaintiffs could get them, and did get some of them. A few were sawed, and account kept, according to a local custom; and a judgment for about $29 was rendered for them against the defendant, from which the plaintiffs have appealed.

The plaintiffs have not sued for treble damages, under section 5099, 2 Comp. Laws, although they assert in their brief that defendant was guilty of a misdemeanor, under section 5093; but they insist that the obstruction of the river and failure to assort these logs show a willful disregard of law and appropriation of their property amounting to a conversion, whether the logs were actually sawed and used or sold by the defendant or not.

Among other assignments of error, plaintiffs complain of the testimony of defendant’s employés that they were instructed not to saw plaintiffs’ logs which came into the mill, but to throw them out, and that these instructions were carried out so far as they could see the marks. In view of plaintiffs’ claim that the defendant designedly stopped these logs and took them into its possession, this testimony would seem to be competent.

Complaint is made that the court limited the right of recovery to logs which were sawed into lumber and held by the defendant, and of his instruction that—

“ The only positive evidence introduced as to the exact amount of logs converted by the defendant is that introduced by the defendant itself, and this testimony shows but 4,195 feet were converted, and, before you can find that defendant got more than that amount, you must first find some evidence on which to base it; and, as I have before stated, you must not guess at a verdict, but must find it from the evidence, and that by a preponderance of the evidence given you in this case.”

Without intending to indicate an opinion regarding the merits of the controversy, we may say that there was evidence tending to show that the defendant drove into its canal and pond a number of hundred thousand feet of the plaintiffs’ logs. Its duty was to assort these logs; and while plaintiffs, if they had notice, might have sent men to assort, and perhaps should have done so, their failure did not confer the right upon defendant to omit its duty to assort, and turn down the canal the large .quantity of logs belonging to the plaintiffs. If the plaintiffs’ claims are true, and the great bulk of logs belonging to the plaintiffs disappeared from sight after being thus taken into the canal, there is an opportunity for inferences of. conversion, although they were unable to give positive testimony as to the quantity or disposition of the logs. Again, it was laying down too strict a rule to say that plaintiffs had not shown a conversion unless they had shown that logs were “sawed into lumber and held by the defendant.” If they proved facts which convinced the jury that defendant did not try to assort, but received a great quantity of logs belonging to them, and not only did not return them, or give notice of their whereabouts, but, on the contrary, denied receiving them, a conversion might be inferred.

It is not improbable that a just verdict has been reached in this case, but w'e are of the opinion that the jury must have understood that they could render a verdict for only so many of the logs as had been shown to have been sawed and appropriated, and that they were precluded from inferring a conversion from defendant’s conduct. Manifestly, the plaintiffs could not by direct evidence show what was done with their logs; but if it appeared that the defendant intentionally took possession of them, and denied having the major part of them, or refused or failed to show what disposition was made of them, the inference of a conversion would be strong.

The judgment is reversed, and a new trial ordered.

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


text:
    TAYLOR v. GREENE.
    Estates of Decedents — Claims—Promissory Notes — Payments —Evidence.
    Where a claim against a decedent’s estate was based on two-promissory notes written on the same piece of paper, one for §300, payable to claimant, and the other for §50, payable to her husband, which notes were not in her possession, but were asserted to have been taken by decedent, because worn, for the purpose of giving a new note, and claimant denied ever having any other note of decedent, a paper, found among decedent’s effects, on which was a note to claimant for §150 and one of §50 to her husband, and a check of decedent, payable to claimant or bearer, were admissible, in connection with testimony tending to show her receipt of the-amount of the check as a payment on a note of decedent, and of new notes for the difference between that amount and the amount of the notes so found, to disprove the claim.
    Error to Calhoun; Smith, J.
    Submitted January 29,. 1902.
    Decided March 4, 1902.
    Barbary Taylor presented a claim against the estate of James F. Smiley, deceased (George H. Greene, executor), on a promissory note. The claim was disallowed in both, the probate and circuit courts, and claimant brings error.
    Affirmed.

      Hatch & Page, for appellant.

      John E. Foley, for appellee.
   Hooker, C. J.

The claimant filed a claim against the-estate of one Dr. Smiley, based upon an alleged promissory note not in her possession. The claim was denied in probate court, and upon appeal was. again denied upon a hearing before the judge without a jury.

The claimant’s testimony tended to prove that Dr. Smiley gave two notes on one piece of paper, — one for-$300, payable to herself, and one for $50, payable to her husband; that he paid and indorsed interest upon this paper several times; and that on one occasion he came to her house and wanted to take the note away, for the purpose of giving her a new one, because it was getting worn. Her own testimony was inadmissible to prove this, but a daughter from Indiana, on a visit, testified to witnessing the transaction through a crack of a door. A Mr. Hyde testified that he saw a note for $300 or $350 — and he could not tell which — in her possession about that time, bearing Dr. Smiley’s name.

By way of defense the executor produced several papers that he found among the effects of the testator, viz.: A paper upon which was written a note to the claimant for $150, and one to her husband for $50, dated October 28, 1895. Written on the back of this were what purported to be four indorsements. The first was: “Paid interest to Oct. 28, 1896, $7.50.” Similar ones for October 28, 1897 and 1898, followed. Then followed: “ Paid interest and $100 Sept. 8, 1898[9], $106.82.” Similar indorsements were made on the $50 note, paying interest to September 8, 1899, with the amounts $2.50, $2.50, $2.50, and $2.15, respectively. The following check was introduced:

“No. 172. Marshall, Mich., Sept. 9, 1899.
“Commercial Savings Bank: Pay to Barbary Taylor, or bearer, $108.60, one hundred and eight and 60-100 dollars. J. F. Smiley.”

Also a check for $10 to show payment of interest for 1897. A stub in a check book to correspond with the last-mentioned check was introduced, showing the purpose of the check. The executor testified to finding some other notes for small amounts payable to the claimant, but none for $300 or $350. It was proved that two other notes bn one piece of paper, purporting to be made by Dr. Smiley on September 8, 1899, were in' the claimant’s possession, one of which had been collected through the probate court against Smiley’s estate. They were for $50 each, payable to claimant and her husband respectively. The claims for these notes had been allowed, and the husband’s had been paid. Claimant refused to receive payment upon hers. The findings filed show that the judge thought the claim that a $300 or $350 note existed was disproved by the circumstances, and that the notes were for $150 and $50, respectively, and that these were paid. Error is assigned upon the.conclusions of fact and upon the admission of the various writings produced by the executor.

There was some testimony tending to corroborate the inferences drawn from these writings, — e. g., that interest had been indorsed on the note that Hyde saw; that the claimant had received interest in sums of $10, which would accord with the theory that the notes aggregated $200, drawing 5 per cent, interest; and the testimony of Hyde that the claimant admitted that she had received $100, which he said had been previously indorsed on the note. If these papers were competent evidence, there was a question of fact for the trial judge to decide, which we cannot review. It is said that the papers should not have been admitted; that the fact that notes aggregating $200, or that two $50 notes, were given, does not prove that a note of $300 was not given; and that there is no presumption of payment from the fact that a check payable to the claimant or bearer was found among the decedent’s effects; and that indorsements not in her handwriting prove nothing. That is not the situation here. The claimant denied ever having any note but the one upon which she based her claim, yet it was shown that other notes were allowed by the probate court; that the aggregate of these notes and the amount of this check found among decedent’s effects equaled the notes of $150 and $50 in his possession. The bank book showing the entry of the amount of the check, and the admission to Hyde that the sum was paid to the claimant, furnish strong evidence in support of defendant’s contention. We think these papers were admissible, for, although no living witness testified to the circumstances of their giving, such circumstances are deducible from the facts proved, which are sufficient to prove their genuineness. It may be that the stub in the check book, standing alone, was a declaration of the deceased, not strictly admissible to prove the purpose for which the check was given, and that it should have been excluded; but we cannot think that this unimportant paper affected the result, or in any way injured the claimant’s case.

This covers the substantial questions in the case, though the numerous assignments of error are not individually discussed. The-judgment of the learned circuit judge is affirmed.

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


text:
    HAMMOND v. PULLMAN.
    1. Logging Liens — Time of Piling.
    Where work on logs is continuous from December to June, except for a short lay-off at the employer’s request, though the employé is paid in full for April, May, and June, a lien filed within 30 days of the last work in June is good for work performed prior to April, and not settled for.
    2. Same — 1Trial—Misconduct of Counsel.
    A verdict confirming a lien on logs was not disturbed because of the improper remarks of plaintiff’s counsel as to the insolvency of the contractor, plaintiff’s employer; the same having been provoked by the remarks of defendant’s counsel, and the court having instructed the jury that questions of financial condition must not be considered.
    3. New Trial — Affidavits—Hearsay.
    An affidavit of a litigant as to what a witness would testify, being hearsay, does not, in the face of opposing affidavits, justify granting a new trial.
    Error to Lake; McMahon, J.
    Submitted January 29, 1902.
    Decided March 4, 1902.

      Log-lien proceedings by Peter Hammond against Albert W. Pullman and Edward West, copartners as Pullman & West, principal defendants, and George Engel, log owner. From a judgment for plaintiff, defendant Engel brings error.
    Affirmed.

      U. S. Albertson, for appellant.

      Hal L. Cutler (Charles A. Withey, of counsel), for appellee.
   Grant, J.

Plaintiff sued the defendants Pullman & West to recover for work performed upon certain cedar logs, tbe property of the defendant Engel. Pullman & West admitted the debt. The defendant Engel contended that plaintiff did not perform the work for Pullman & West, but for a firm named Lloyd & Pullman, under a contract entered into with Lloyd & Pullman before that with Pullman & West. This was the main dispute of fact in the case. Pullman was a party to each contract. The evidence on behalf of the plaintiff was to the effect that he was never employed by Lloyd & Pullman, but was employed from the beginning by Pullman & West, and that Pullman & West performed the contract made by Lloyd & Pullman with the defendant Engel. We think there was a disputed question of fact proper for the consideration of the jury.

Defendant also contends that the lien was not filed within 30 days after the last day’s labor was performed. The testimony for the plaintiff showed that his work was continuous from December until June, except that he was laid off for about three weeks at Pullman’s request, and that he performed work on some of the timber within 30 days before the affidavit for a lien was filed. He was paid in full for the months of April, May, and J une, but there was no settlement made. There was due him, according to his contention, the amount of $56.95, for labor performed previous to April. If this was so, and there had been no settlement for this prior work, he was still entitled to his lÍ9n. A similar question arose in Craddock v. Dwight, 85 Mich. 587 (48 N. W. 644), which, we think, controls this case against the defendant’s contention.

Error is also assigned upon the remarks of counsel for plaintiff to the jury as to the insolvency of Pullman & West. While they were not justified by the testimony, there is reason to say that they were provoked by the remarks of counsel for the defendant. The judge, however, very explicitly instructed the jury that the question of the financial condition of either party must not be considered by them. Under the circumstances we do not think the language was such as to justify a reversal of the case.

Counsel also alleges error upon the refusal of the court to grant a new trial. No reasons were assigned for the finding of the judge, and it does not appear that any were requested. Aside from this, however, we think the judge very properly denied the motion. The affidavit of Mr. Engel that he had discovered a witness who would give important testimony in the case to the effect that the work was performed by plaintiff for Lloyd & Pullman was not sufficient, in the face of the opposing affidavits, to justify granting a new trial. Mr. Engel’s affidavit as to what the supposed witness would testify to was mere hearsay. The affidavit of the witness was not produced, and Mr. Engel did not even give his name.

Judgment is affirmed.

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


text:
    RAMSBY v. BIGLER.

    1. Appeal — Jurisdiction—Waiver of Objection.
    A defendant in a suit in justice’s court, who takes a general appeal to the circuit, and there goes to trial on the merits, will not be heard to object in the Supreme Court, for the first time, that the case was not within a justice’s jurisdiction.
    2. Highways —Obstruction —Action for Penalty — Justices’ Courts — Title to Lands — Pleading.
    A defendant in a-suit in justice’s court to recover a penalty for obstructing a highway, who fails to give the notice and bond provided for by 1 Comp. Laws, §§ 782, 784, where title to land comes in question before a justice, is precluded from questioning the existence of the highway; 3 Comp. Laws, § 9804, providing that, in suits to recover penalties, the defendant may, under the general issue, give in evidence any special matter in bar of the action the same as if special notice had been given, being inapplicable to such a case.
    Error to Emmet; Shepherd, J.
    Submitted January-29, 1902.
    Decided March 4, 1902.
    Case by Henry Ramsby, highway commissioner of Littlefield township, against Fred Bigler, to recover a penalty for obstructing a highway. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, highway commissioner of the township of Littlefield, brought this suit against the defendant to recover a penalty for obstructing a highway, under 2 Comp. Laws, § 4157, which provides a penalty of not exceeding $25 for such obstruction. Section 4189 authorizes the highway commissioner to bring suit to recover such penalty in any court of competent jurisdiction. Section 9799, 3 Comp. Laws, confers jurisdiction upon justices of the peace in all actions for the recovery of penalties or forfeitures where the amount thereof does not exceed $100. Defendant entered a plea of the general issue. The case was tried upon its merits in the justice’s court, where a judgment was rendered for the plaintiff; was appealed to the circuit court, where again judgment was entered for the plaintiff.

      Halstead & Halstead, for appellant.

      C. J. Pailthorp, for appellee.

       Rehearing denied April 25,1902.

   Grant, J.

(after stating the facts)., 1. The defendant raises the question of jurisdiction for the first time in this court, claiming that, under the statutes, justices of the peace have no jurisdiction in cases for the recovery of a penalty for obstructing a highway. The objection comes too late. He should have raised it in the justice’s court. This is not one of those cases where the court of last resort will upon its own motion, or where the question is there for the first time raised, decide that the court in which suit was brought had no jurisdiction- The circuit court, under defendant’s contention, had jurisdiction. He took a general appeal to that court, and thus submitted his case upon the merits to a court of competent jurisdiction. The case is within the following authorities: Gott v. Brigham, 41 Mich. 227 (2 N. W. 5); Grand Rapids, etc., R. Co. v. Gray, 38 Mich. 461.

. 2. It is next contended that plaintiff did not prove the existence of a highway where the obstructions were placed. It is apparent from the record that defendant claimed title to the land comprising the highway where the obstructions were placed. Not only had he obstructed it, but he had posted a notice, signed by himself, that this was a private road. If he had claimed title he should have given notice under section 782, 1 Comp. Laws, with his plea that title to the land in question was involved, and also have given the bond required by section 784, in which case the suit would have been certified to the circuit court for trial. By his failure to give such notice and bond he was precluded from raising the question of title. Section 786. Defendant .relies upon section 9804, 3 Comp. Laws, which provides that, in suits to recover penalties or forfeitures, the defendant may give in evidence, under the plea of the general issue, any special matter in bar of the action, or in discharge of the defendant therefrom, in the same manner, and with the like effect, as if a special notice thereof had been given. That is a general act, and does not affect the special proceedings provided for where title to lands comes in question. The circuit judge was correct in holding that, under the pleadings, the question as to the existence of the highway was not involved, and that the plea of the general issue admitted the existence of the highway. It is clear from the record that this highway had been opened and used as such for from two and a half to three years, and the defendant himself admitted that he received $100 as compensation for his work in building it.

The judgment is affirmed.

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


text:
    BAARS v. CITY OF GRAND RAPIDS.
    Taxation — Credits—‘Nonresidents.
    Credits belonging to a nonresident of the State, consisting of notes secured by mortgages on property therein, the legal title to which is in him, are not taxable under our laws, though in the exclusive custody and control of a resident agent; 1 Gomp. Laws, § 3837, subd. 6, providing that personal property under the control of a trustee or agent may be assessed to him in the township where he resides, not extending to such a case. Village of Howell v. Gordon, 127 Mich. 517, followed; City of Detroit v. Lewis, 109 Mich. 155, distinguished.

      Error to superior court of Grand Rapids; Newnham, J.
    Submitted January 29, 1902.
    Decided March 4, 1902.

      Assumpsit by J. Frederic Baars, attorney for Isabella C. Wood, against the city of Grand Rapids, to recover taxes paid under protest. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    This is a suit by the plaintiff to recover the amount of taxes assessed against him, and paid under protest by him, as agent for a nonresident,' on credits belonging to the latter. These taxes are claimed to have been illegally assessed. The conceded facts are as follows: Some 20 years ago, Ransom E. Wood, the father of Isabella C. Wood, at that time a resident of Grand Rapids, Mich., went to Europe to live, and took his family with him. While in Europe he sold his homestead in Grand Rapids. He never returned to Michigan, and his daughter Isabella has since that time been in Michigan but once, and has never been in Grand Rapids. When Ransom E. Wood left Michigan, he left about $50,000 with plaintiff for investment. He died about a year after, and plaintiff was administrator of his estate, and divided the same between his heirs shortly after. Since that time plaintiff has been agent of the daughter Isabella C. Wood, and has had charge of the property which came to her from her father’s estate. For several years after her father’s death, the latter lived in Dresden, Germany, and some time prior to 1899 she and her sister bought a house in London, England, which has since been their home. Plaintiff has been agent for Isabella C. Wood continuously since the time of her father’s death, and has made the loans on notes secured by mortgages taken in her name, under a power of attorney from her. He has made the loans in accordance with his own judgment, and without the necessity of consulting her. Any money at the time not loaned, belonging to her, was kept in the National City Bank of Grand Rapids, in an account in her own name.

      Early in March, 1900, Mr. Baars, fearing an assessment of these notes and mortgages, sent them to the Merchants’ Loan & Trust Company in Chicago for safe-keeping, and they remained there subject to his order until some time in June of that year. He was later advised that the board of assessors had a list of the mortgages, and were about to assess them to him as agent. He called at the office of the board, saw the list they had prepared, and gave them information from the records in his office of such mortgages as had been paid, at the same time insisting that they had no right to assess these mortgages. He was afterwards assessed in the aggregate of the mortgages listed, as corrected. He appealed to the board of assessors, which appeal was refused. He thereupon appealed to the common council sitting as a board of review, and that appeal was likewise refused. On July 30th he paid the taxes assessed, filing at the same time a written protest. He afterwards presented a bill to the common council for the amount of the taxes, which was not allowed, and brought this suit within 30 days from the time the taxes were paid. The trial judge directed a verdict in favor of the defendant.

      Knappen, Kleinhans & Knappen, for appellant.

      Moses Taggart and Frank W. Hine, for appellee.
   Grant, J.

(after stating the facts). If the choses in action in this case, owned by Miss Wood, standing in her name, consisting of credits secured by her mortgages, are taxable in this State, it must follow that the law taxes all credits, if the foreign owners thereof employ agents here to look after their investments.

It is unnecessary to cite authorities to sustain the following rules in regard to the taxation of property:

1. Real estate is taxable where situated, regardless of the residence of the owner.
2. Personal property, in the absence of a statute, is taxable at the domicile of the owner.
3. Tangible personal property may, by statute law, be assessed at the place of its actual fixed location.

Courts are divided upon the power of a State to tax choses in action owned by nonresidents.

This court held in Graham v. Township of St. Joseph, 67 Mich. 652 (35 N. W. 808), that the authority to tax personal property of a tangible character at any other place than the residence of the owner must be plainly written in the statute. If that be the rule in regard to tangible personal property, with much greater force does the rule apply to intangible property. The power of taxing this property in the hands of nonresidents must therefore, if it exists, clearly be found in the statute. It is not contended that the statute expressly authorizes such taxation. By the statute (1 Comp. Laws, § 3836) “all personal property, except as hereinafter provided, shall be assessed to the owner in the township in which he is an inhabitant.” The exceptions are found in section 3837, which provides that all goods and chattels shall be assessed in the township where situate, if certain conditions exist. And subdivision 6 of the same section provides that “all personal property under the control of a trustee or agent * * * may be assessed to such trustee or agent in the township where he resides.” The only provision of the statute which, by any possibility, can be construed into authority to impose this tax, is the last provision above quoted. The authority to so tax is not “plainly written in the statute.” We, however, disposed of this question in the case of Village of Howell v. Gordon, 127 Mich. 517(86 N. W. 1042), which case in its facts is almost the parallel of this. Plaintiff here had the same control over the loans and moneys of his client, Miss Wood, as did defendant Gordon. Each had exercised the same control for many years. To hold with the defendant in this case would be to overrule that case. The taxability of this property cannot be made to depend upon the fact that nonresidents have agents here to attend to their business. Investments of nonresidents are usually made and controlled in this way. It cannot well be done in any other way. The title to these credits was not in the agent, but in the principal. It is not logical to say that taxability depends upon the length of time that the money or the note has been in the.hands of the agent for collection or for investment, or the number of times he has collected and reinvested, or the number of times he has collected interest. In City of Detroit v. Lewis, 109 Mich. 155 (66 N. W. 958, 32 L. R. A. 439), the legal title was in the trustee, and we there clearly recognized the distinction between cases where the legal title was in the nonresident and where it was in the agent or trustee. We think that case points out the true distinction, and that the title must be in the trustee or agent in order to subject the property to taxation. It does not mean that control which an agent has who is clothed merely with authority to loan his principal’s money under his direction, and take the title in the name of his principal. See, also, City of St. Paul v. Merritt, 7 Minn. 258.

Judgment reversed, and new trial ordered.

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


author: Montgomery, J.

text:
    HACKETT v. WILSON TRANSIT CO.
    1. Vessels — Collision — Ship Canal — Action for Death of Captain — Contributory Negligence — Question for Jury.
    On a clear but dark night, the steam tug of which plaintiff’s intestate was captain entered a 300-foot wide ship canal from the south, running at a proper speed and in a proper course, well over towards the east pier. About the same time defendant’s steamer and tow, connected by a 1,000-foot hawser, entered the canal from the north. The steamer signaled the tug to maintain her course, which she did; but the tow sheered over to the east pier, across the course of the tug, and the hawser swept off her upper works, killing intestate. It appeared that intestate signaled his engineer to stop, but gave no signal to back. Held, that, in the absence of any evidence as to when the danger became apparent to intestate, and in view of testimony tending to show that an attempt to back the tug would have increased the danger, the question of whether intestate was guilty of contributory negligence should have been submitted to the jury.
    2. Same — Negligent Navigation.
    The question of whether there was negligence in the management of defendant’s boats was also for the jury; the act of Congress regulating navigation requiring that steam vessels, when about to meet in channels less than 500 feet wide, shall each slow do wn to moderate speed, according to circumstances, and there being testimony to the effect that defendant’s boats were running 101 miles an hour when they entered the canal, and 8 miles an hour at the time of the collision.
    Error to St. Clair; Thomas, J.
    Submitted January 30, 1902.
    Decided March 4, 1902.
    Case by Percey Hackett, administrator of the estate of Ralph' Hackett, deceased, against the Wilson Transit Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      John B. Molhoain (Joseph' Walsh, of counsel), for appellant.

      Harvey D. Goulder (P. H. Phillips, of counsel), for appellee.
   Montgomery, J.

Plaintiff, as administrator of the estate of Ralph Hackett, deceased, brings this action to recover damages for causing the death of plaintiff’s intestate on the 17th of July, 1895. At the conclusion of the plaintiff’s case the learned circuit judge directed a verdict for the defendant, on the ground that the evidence failed to show due care on the part of decedent, and plaintiff brings the case here for review on error.

The testimony adduced on the part of the plaintiff tended to show that plaintiff’s intestate was master of the tug Torrent, about ] 50 feet in .length and 21 feet beam. On the evening of July 17, 1895, the Torrent was bound up through the St. Clair Flats Canal, loaded with 125 tons of coal, navigating at a proper speed, and in her proper position, well over to the east pier. The night was dark, but clear. The course of the canal is substantially north and south, and the canal is about 7,221 feet long, 298 feet wide, and has a light on each end of the west pier. On the night in question, at about the time the Torrent entered the south end of the channel, the defendant’s two boats, consisting of the steamer Sitka, and. the Yukon in tow, connected by a 4-inch hawser, 800 to 1,000 feet long, entered the canal, bound down. These boats were 280 feet long and 41 feet beam, each, loaded with iron ore, and drawing about 14 feet 6 inches of water. From a statement made by defendant’s counsel in opening the case, it would appear that these boats came into the canal at a speed of 10£ or 11 miles an hour. After entering the canal, the Yukon sheered to the east pier, and rebounded to the west pier, striking the west pier at a point about 2,000 feet from the north end, and rebounded again on a broad sheer to the east pier, across the course of the up-bound Torrent. The Torrent was then standing out about 50 feet from the east pier, and the Yukon passed down between the Torrent and the east pier. The towline between the Sitka and the Yukon swept off all the upper works of the Torrent, killing the plaintiff’s intestate, who was master of the Torrent, the lookout, Kinirie, and the mate’s son. Capt. Hackett, plaintiff’s intestate, was at the time forward, at his post of duty. There is some uncertainty as to the signals given to the engineer by the deceased. The circuit judge construed the testimony as indicating that, while the deceased gave a signal to the engineer to stop, no signal which could be construed as a signal to back up was given, and that in this failure to give such signal the deceased was guilty of contributory negligence. It appears by the testimony that the headway of the Torrent could not be stopped short of three or four lengths.

If the case were to turn upon the question of whether the signal to back up was given by the deceased, we should hesitate to disturb the ruling of the circuit judge. The testimony upon this point is that of the engineer, who, while his testimony is somewhat confused, certainly did not construe the signals as signals to back. But we do not think it fatal to the plaintiff’s case if it be said that it affirmatively appears that no signals to back up were .given. There is testimony which would have justified the jury in inferring that backing up the engine would have thrown the Torrent into the center of the canal, and more certainly in the way of the app'roaching vessels, and this might present the question as to whether to back up the vessel was the wisest thing to do under the circumstances. Furthermore, it does not appear just when the necessity of prompt action to avert the danger was made apparent to Capt. Hackett. As before stated, the night was dark, and the jury might well have found that the ■captain would not have been able to discern the hull of the Yukon at any considerable distance. If so, there would be no indication to him that a collision was impending until the Yukon had sheered sufficiently to obscure her port light. In measuring the deceased’s care, it is to be kept in mind that the Sitka had signaled the Torrent to pass to port, and that she was in this course when the ■collision occurred. The master had the right to assume ■that he was pursuing his course in safety until something occurred to indicate danger. If he was unable to discern the hull of the Yukon, that danger would not be apparent to him until the port light was obscured. Assuming negligence on the part of defendant’s servants, we think it is a question for the jury as to whether deceased acted with reasonable promptness after opportunity of discovering his peril and the peril to his vessel.

But it is contended that the defendant’s negligence was not shown. The act of Congress regulating navigation requires that steam vessels, when about to meet in channels of less than 500 feet, shall each be slowed down to a moderate speed, according to circumstances. This is little more than a declaration of a rule of common prudence. It appears that the Sitka entered this channel, with another vessel in tow, at 10% miles an hour, and there was testimony which would have justified a finding that, at the time when the collision occurred, she was still running at a speed of 8 miles an hour. It is certain that she was unable to control the Yukon, and that, when the latter vessel sheered to the opposite side of the channel, the result was that defendant’s two vessels and the towline swept the channel from side to side, and would, of necessity, carry away everything before them. Whether this was preventable, as well as whether, if preventable, the management of the boats which brought about this condition was negligent, we cannot think are questions of law, to be determined in the negative. In a case arising out of this same collision, instituted by the representatives of Kinirie, a verdict against the defendant was obtained in the United States circuit court for the Eastern district of Michigan, and affirmed on error by the court of appeals. Wilson Transit Co. v. Kinirie, 34 C. C. A. 691, 92 Fed. 1023. No opinion was filed by the court, but presumably the facts appeared to the court, and the opinion of that court, while not controlling, is entitled to weight.

We think a case was made for the consideration of the jury, and the judgment will be reversed, and a new trial ordered.

Hooker, C. J., Moore and G-rant, JJ., concurred. Long, J., did not sit.


text:
    BAKER v. UNION TRUST CO.
    1. Bills and Notes — Accommodation Paper — Evidence.
    A promissory note was found, from the evidence, to have been made for the accommodation of the payee.
    2. Same — Payment—Subsequent Transferee.
    The indorser of a note made for his accommodation became insolvent, and the holder, to protect himself, bought the indorser’s assets at auction. Afterwards a bank, another creditor, with a view to making its claim, proposed to purchase the assets and employ the indorser to continue the business, to which the indorser agreed on condition that the bank secure an assignment of the note. Accordingly the indorser, acting for the bank, purchased the assets and note, the note, by his direction, being assigned to his wife. Held, that, the indorser’s agreement with the bank constituting the consideration for the transfer of the note to the wife, the transaction amounted to a payment of the note, and hence a transferee from the wife, with notice, could not enforce it against the estate of the maker, on the theory of a succession to the rights of the original bona fide holder.
    Appeal from Wayne; Rohnert, J.
    Submitted January 30, 1902.
    Decided March 4, 1902.
    Bill by the Commercial Bank of Port Huron against Samuel G. M. Gates and the Union Trust Company for the appointment of a receiver for the estate of said Gates. The trust company having been appointed as such receiver, Baker, Schwartz & Dake presented a claim against the estate, which was disallowed, and they appeal.
    Affirmed.

      Adolph Sloman, for claimants.

      Mussel & Campbell, for the receiver.
   Montgomery, J.

The original cause was instituted for the purpose of having a receiver appointed of property transferred by Samuel G. M. Gates for the benefit of his creditors. Baker, Schwartz & Dake intervened, claiming to be the owners of a certain note made by Gates on the 18th of June, 1896, payable to the order of Frank T. Sullivan, and indorsed by Frank T. Sullivan. The receiver contests the allowance of this claim upon the ground that the note was without consideration as between Gates and Sullivan, and was made for Sullivan’s accommodation, and claims further that the note was satisfied, after it became due, by an adjustment between Sullivan and Uptegrove & Bro., of New York, by whom it had been discounted before maturity. The circuit judge sustained the contention of the receiver, and the petitioners appeal.

Without attempting to review in detail the testimony upon the subject, we are satisfied that the contention that the note was made for the accommodation of Sullivan is fully sustained by the record. The letter of Gates accompanying the note when sent to Sullivan states that it was made for Sullivan’s accommodation, and was for Sullivan to pay, and this is supported by the testimony of Gates himself.

The petitioners, however, claim that Uptegrove & Bro. became good-faith purchasers of this note, and that they afterwards transferred the note to Mrs. Sullivan, and Mrs. Sullivan transferred it to the claimants, and that they are entitled to stand in the position of Uptegrove & Bro., as good-faith purchasers. It appears that Sullivan failed in 1896, owing Uptegrove & Bro. on an open account about $2,000, besides the note in question. For the purpose of protecting themselves, Uptegrove & Bro. bought at public auction from Sullivan’s assignee a large portion of Sullivan’s assets. A short time afterwards the First National Bank of Tonawanda, one of Sullivan’s creditors, conceived the idea of purchasing all of Sullivan’s assets and employing Sullivan to go on with his business in the hope of realizing enough in that way to make them good on their account. Sullivan agreed with the bank that he would engage to enter their employ to dispose of the assets which they purchased from Uptegrove & Bro., on condition that they would secure an assignment from Uptegrove & Bro. of their claim against him arising from the open account and the note in question. The bank consented to this, and Sullivan, acting for the bank, purchased the Sullivan assets which Uptegrove & Bro. had acquired at the auction sale, and also bought the Uptegrove & Bro. claim against him, and paid Uptegrove & Bro. for the same. The note in question was surrendered by Uptegrove & Bro., but assigned, at Sullivan’s direction, to his wife, Mrs. Sullivan. It is the contention of the claimants that Mrs. Sullivan furnished the consideration for this transfer by putting up her notes to the amount of $18,000 to the First National Bank of Tonawanda. But there is a written contract between the First National Bank of Tonawanda, of the first part, Clara Sullivan, of the second part, and Frank T. Sullivan, of the third part, in which the consideration for the giving of the notes by Clara Sullivan is stated, and this consideration does not include the note in question. The fair inference is, therefore, that the only consideration for the transfer of this note to Clara Sullivan was that furnished by her husband’s agreement to engage in the service of the bank, and thereby to enable Uptegrove & Bro. to make the sale to the bank; and this was deemed a consideration passing to Uptegrove & Bro., for which they entered into an agreement reciting a consideration of $1 to them paid by Clara Sullivan, and agreeing to transfer to her any sum that might be realized out of the estate of Frank T. Sullivan on the note in question, as well as on the open account against Frank T. Sullivan. The petitioners were the attorneys acting for Sullivan in this entire transaction, and were familiar with all the details of it. Subsequently Frank T. Sullivan became indebted to the petitioners for services, and the note in question was assigned to them in payment of this claim.

As we construe the transaction, it amounted to this: Sullivan was liable upon this note, on its face, as an indorser. As between himself and Gates, he was the principal. He furnished the consideration which satisfied the, holders, Uptegrove & Bro., and their agreement to transfer it by his direction to his wife did not confer any rights upon her which Sullivan himself could not have asserted. The note must be treated as having been paid by this transaction. It is, of course, clear that in the hands of Sullivan the note could not be enforced, and, having reached and passed through his hands, to the knowledge of the petitioners, they stand in no better position. See Kost v. Bender, 25 Mich. 515.

The order disallowing the claim will be affirmed, with costs.

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


text:
    MINER v. BOYNTON.
    Land Contracts — Surrender — Acceptance op Lease by Vendee.
    A vendee in a land contract, who, having failed to comply with its terms, and having been served with notice to vacate, leases the premises 'from the vendor, thereby surrenders his rights under the contract.

    Appeal from Muskegon; Russell, J.
    Submitted January 30, 1902.
    Decided March 4, 1902.
    Bill by Thomas G. Miner, executor of the last will and testament of Johannes Harms, deceased, against Milo A. Boynton, Henry Bramer, and Anna S. Reed, for the specific performance of a contract for the sale of land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Cross & Lovelace, for complainant.

      C. W. Sessions, for defendants.

       See, on this subject, Stewart v. McLaughlin’s Estate, 126 Mich. 1 (85 N. W. 266).

   Hooker, C. J.

On July 18, 1895, Harms purchased the premises which constitute the subject-matter of this suit from Boynton, taking an executory contract therefor, and entering into possession. He paid $7 at the time of making the contract, and never paid more. It is said that he did not pay the taxes. He erected some cheap buildings, and lived upon the place until his death, which occurred on June 8, 1900. He had cleared a portion of the land, and cropped it up to the time of his demise. In 1898 one Paine filed her bill to quiet her title to this and other lands, but her bill was dismissed, and the decree affirmed by this court on May 15, 1900. Paine v. Boynton, 124 Mich. 194 (82 N. W. 816). Harms, having paid neither the installments nor the taxes provided for by the contract, was served with a written notice of forfeiture and to vacate on August 18, 1897, as provided for by the contract. On May 18, 1900, Harms entered into a contract whereby he rented and Boynton leased the premises to him for one month, agreeing to vacate said premises on demand thereafter. A few days before Harms died, he made a will, leaving to complainant, a neighbor, and not a relative, all of his property, except $25. He has filed the bill in this cause, as executor, for a specific performance of the contract, making Boynton, together with Bramer and Reed, who bought the premises from Boynton after Harms’ death, parties defendant.

The learned circuit judge, who saw the witnesses, determined that the lease was obtained without fraud by Boynton, and that Harms’ execution of and occupation under it was a surrender of his rights, if he had any, under the contract, by operation' of law. We agree with him upon the question of fact, and concur in his view of the legal question. Donkersley v. Levy, 38 Mich. 54; Sullivan v. Dunham, 42 Mich. 518 (4 N. W. 223). See 18 Am. & Eng. Enc. Law (2d Ed.), p. 362.

The decree is affirmed, with costs.

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