author: Brooke, J. Blair, J. Ostrander, J.

text:
    VILLAGE OF TRENTON v. RUCKER.
    1. Waters and Watercourses — Easements and Servitudes— Flowing Lands — Drains.
    Residents of villages are subject to the rule, applicable to rural localities, that their land is bound to receive the flow of surface water from adjacent higher land, coming in substantially its natural amount and condition.

    2. Same — Municipal Corporations — Villages.
    Municipalities may not collect and discharge surface waters in unnatural volume upon private land.
    3. Equity — Pleading — Affirmative Relief — Prayer of Answer.
    Without a prayer in defendant’s answer for affirmative relief, the court of equity cannot enjoin complainant from discharging upon his real property waters artificially collected.

      4. Waters and Watercourses — Easements—Villages.
    In a village -which has no sewage system, a property owner may not interfere with the natural flow of water across his lands not in process of improvement, and may be enjoined by the village from interfering with the flowage of surface water which .has from time immemorial drained across his land.
    Ostrander, Moore, and Stone, JJ., dissenting.
    Appeal from Wayne; Murphy, J.
    Submitted February 10,1910.
    (Docket No. 130.)
    Reargued July 1,1910.
    Decided July 14, 1910.
    Bill by the village of Trenton against J. Dean Rucker to restrain defendant from interfering with certain drains. From a decree for defendant, and an order adjudging complainant to be in contempt for violation of said decree, complainant appeals.
    Reversed, and decree entered for complainant.

      Lehman, Biggs & Lehman, for complainant.

      Frank W. Atkinson, for defendant.
    . Defendant is the owner of a lot in the village of Trenton, lying between Front street and the Detroit river, 83£ feet by 160 feet. The block lying immediately to the northwest of defendant’s lot and across Front street slopes somewhat to the south and east. The water collecting on said block has, for a great many years", run in a southeasterly direction, crossing Front street in front of defendant’s lot, and thence across defendant’s lot to the Detroit river. Defendant had been the owner of the lot in question about nine years before the filing of the bill herein. Some time prior to his purchase thereof, the water, collecting on the block to the northwest, instead of being permitted to find its way to defendant’s lot over the surface, was carried by an underground drain to Front street, and thence across Front street, under the surface of the street, to defendant’s lot, whence by a natural channel it reached the river. About eight years ago, the complainant, by agreement with the defendant or his agent, put in a six-inch tile drain across defendant’s lot, from Front street to the river, to carry said water, the tile being laid in the old channel. Just before the village filed its bill of complaint, defendant stopped up the drain, causing the water to back up on Front street. This he did because, he says, he learned that a sewer had been connected with the drain higher up by one Stokes, and it was his understanding that surface water only should be carried through it. Thereupon the bill of complaint herein was filed, praying for an injunction against defendant restraining him from obstructing said drain. A temporary injunction was issued. Defendant answered, admitting that from time immemorial the surface water collecting on the block, lying to the northwest of his lot, had reached the river by running across his land. He asked that the injunction be dissolved, and the bill of complaint dismissed, but prayed for no affirmative relief. After a full hearing in open court, and on March 5, 1909, the following decree was entered:
    “ (1) That the bill of complaint filed in this cause be and the same is hereby dismissed.

      “ (2) That the injunction heretofore issued in this cause be and the same is hereby dissolved.
    “ (3) That the said complainant remove from the property of said defendant the underground system of drainage, placed in said property of said defendant by virtue of the said license, and discontinue the use of said property of said defendant for the purpose set up in said bill of complaint, or for any purpose whatsoever, within ninety days from the date of this decree.”
    After the entry of said decree, complainant took out the crocks it had laid in defendant’s land, and compelled all sewers to be disconnected with the drain. Thereafter the surface water continued to flow through the box or pipe laid across Front street, and upon defendant’s land, to the river through the ditch where the pipe had lain, as it had done since time immemorial, except that by the construction of a new drain from the center of the block north to Pine street a considerable portion of the surface water was diverted in another direction. Defendant then petitioned the circuit court for an order holding the complainant in contempt, claiming that under the third clause of the decree above quoted, the complainant was bound to prevent any surface water from passing on or over defendant’s land. After a full hearing on the contempt proceeding, the court held the complainant guilty of contempt, because it had failed to prevent all the surface water from passing onto and over defendant’s land. Complainant appeals.

       For rights as to flow of surface water, see note to Gray v. McWilliams (Cal.), 21 L. R. A. 593.

   Brooke, J.

(after stating the facts). In what we have to say hereinafter, it will be borne in mind that the complainant village has no sewage system. That it is not claimed by defendant, that by reason of urban improvements, raising, grading streets, etc., therein, the natural course of the surface water has been diverted upon his land, or that the volume thereof has been increased by any act of complainant. He specifically admits in his answer that the water in question has flowed across his land from time immemorial. Under the circumstances disclosed by the record in this case, therefore, we are of opinion that the rules of law established by this court, relative to the care of surface water in rural districts, must control. A contrary holding would, it seems to us, place it within the power of any resident of a village to compel the village to enter upon the construction of a sewage system, whenever he happened to become the owner of a lot which from time immemorial had borne the servitude of carrying surface water from adjacent lands. Villages ordinarily are not wealthy enough to undertake expensive public works, and residents therein must be presumed to have taken up their homes there with a knowledge of this fact. In villages, taxes are lower and conveniences are fewer than in towns and cities. Those who choose to live in villages must bear the ordinary inconveniences incident to such residence. Treating this case as falling within the rural, rather than the urban, class, there is no difficulty in holding that the defendant is bound, under our decisions, to receive the flow of surface water from the adjacent higher land, coming in substantially its natural amount and condition. Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831); Rice v. City of Flint, 67 Mich. 401 (34 N. W. 719); Osten v. Jerome, 93 Mich. 196 (53 N. W. 7); Horton v. Sullivan, 97 Mich. 282 (56 N. W. 552); Finkbinder v. Ernst, 126 Mich. 565 (85 N. W. 1127); Cranson v. Snyder, 137 Mich. 340 (100 N. W. 674). See, also, Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797).

It seems to be settled law in several other States that municipalities are not obliged to provide artificial drainage for surface waters. They may not, however, collect them and discharge them in unnatural volume upon private lands. Lynch v. Mayor, etc., of New York, 76 N. Y. 60 (32 Am. Rep. 271); Davis v. City of Crawfordsville, 119 Ind. 1 (21 N. E. 449, 12 Am. St. Rep. 361); Gilfeather v. City of Council Bluffs, 69 Iowa, 310 (28 N. W. 610); City of Atchison v. Challiss, 9 Kan. 603; Collins v. City of Waltham, 151 Mass. 196 (24 N. E. 327).

Clause 3 of the decree in the court below was, in any event, unwarranted by the pleadings. Defendant sought no affirmative relief. Thayer v. Lane, Walk. Ch. (Mich.) 200; Smith v. Rumsey, 33 Mich. 183; Booth v. Thompson, 49 Mich. 73 (13 N. W. 363); Andrus v. Scudder, 120 Mich. 502 (79 N. W. 794). But this is unimportant, as we are of opinion that complainant was entitled upon the hearing to a decree enjoining defendant from interfering with the natural flow of surface water over his premises, such decree to become operative only when complainant had caused all sewers {i. e., drains connected with water-closets) to be disconnected with said drain.

Inasmuch as the proceedings upon contempt, subsequent to decree, show that nothing but surface water at that time passed through the drain, a decree will be entered in this court to that effect, with costs of both courts.

Bird, C. J., and Hooker and McAlvay, JJ., concurred with Brooke, J.

Blair, J.

Inasmuch as the defendant was not seeking to reasonably improve his property in accordance with the urban rule, I concur in the foregoing opinion.

Ostrander, J.

(dissenting). There are two statements in the opinion of Mr. Justice Brooke, controlling of the conclusion which he reaches, which I think find no support whatever in the record. Those statements are:

“In what we have to say hereinafter, it will be borne in mind that the complainant village has no sewage system. That it is not claimed by defendant that by reason of urban improvements, raising, grading streets, etc., therein, the natural course of the surface water has been diverted upon his land, or that the volume thereof has been increased by any act of complainant. He specifically admits in his answer that the water in question has flowed across his land from time immemorial.”

The land is not in a state of nature. It is in an incorporated village, which, according to the last census, had upwards of 1,200 inhabitants. The block in question is built upon with houses and barns. The village has a system of underground drainage, adopted and constructed by village authority. This is expressly charged in the bill of complaint, which further charges that the water collected in this system is discharged upon the land of defendant by consent of the owner thereof. What is charged in the bill, and what defendant specifically admits, is not that the water in question has flowed across his land from time immemorial, but that — I quote from the bill — “from time immemorial the land * * * has been drained when not interfered with artifically ” across the land of defendant. It is not claimed on the part of the village that it ever acquired the right to discharge upon defendant’s land the water collected by its drainage system except by consent of the owner of the land, and it appears from the statement of one of the solicitors for complainant, found in the record, that no question was involved at the hearing “except whether or not this,” the alleged consent of the owner, “was a license or whether we had a right to maintain it because we went upon that by consent.” The court found, upon abundant and apparently undisputed testimony, that the village had a mere parol license from the owner of the land to so discharge water on the land, and that the license had been revoked. As the bill charged the owner with interfering with the discharge of water on his premises, and prayed for a perpetual injunction to restrain such interference, it would seem that a decree dismissing the bill was properly entered. The revocation of the license terminated the rights of the village in the premises. Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338).

But it was intimated on the argument that complainant did not rely solely upon the alleged license. If we were to assume, in the face of the charge in the bill, that the village expended large sums of money in constructing a system of artificial drainage, in reliance upon an alleged consent of the owner of the property to receive the water so collected, that the village intended also to assert a right to have the waters go as they would have gone if the land was in a state of nature, the complainant has no better case. Whether the rule applicable to rural property and conditions should be applied in this case does not depend upon the simplicity or complexity of the system of drainage established in the village of Trenton. The court may, and should, take judicial notice of the fact that after the building of a village upon land the land is no longer in a state of nature, and there is and can be of necessity no such thing in fact as that natural percolation and flow of surface water which existed before the village was built. It is said by tbia court in Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831):

“A number of the most striking cases cited by plaintiff’s counsel in support of his appeal, as laying down the broadest doctrine, and as relied upon in a good share of his other citations, were cases where the lands were in towns and cities, and the erections or acts in litigation referred to the uses of that class of property. And in relying on these it was claimed that there was no substantial foundation for any distinction between urban and rural property. There is no question but that such a distinction is recognized in the civil-law authorities referred to on the argument, as well as in several of the cases cited. The distinction is one of substance and not arbitrary. As already suggested, the adjoining owners owe mutual duties — the one to receive the natural flow, and the other not to injuriously change its conditions. It is obvious that tira laying out of town streets and the multiplication of buildings cannot avoid making serious changes in the surface of the ground and in the condition of surface water. Grades must usually be established for streets and sidewalks, and pavements and other surface changes are usual, in addition to the walls of buildings which, with their embankments, must obstruct or change the drainage. It is almost universally expected and provided that sewerage and drainage shall be regulated by some municipal standard. There cannot be towns without changing the face of the land materially. And where the same rule has been applied to towns as to the country, it has, in some cases at least, been done expressly, because in the circumstances of the record the particular land in question had remained under rural conditions. If — as seems to be true —some decisions ignore the distinction, they depart from the old rule, and cannot be maintained as harmonious with the general line of authority, unless on special facts which do not justify their broad dicta”

Whether in any case, as between proprietors of adjoining lands in a village, the rule applicable to rural property should be held to apply, we need not determine. Here the village — the municipality — is asserting the right to flow the land of one member of the community with water gathered in underground conduits, for the benefit of the community. This it may not lawfully do.

In so far as the court below held that the village had no right to discharge, by means of its artificial drainage, water upon the lands of defendant, and therefore dismissed the bill of complaint, the decree is right and should be affirmed. But the decree goes further than this. The purpose of the bill has been stated. The decree requires the village to remove from defendant’s property the underground tiling or crocks placed there by the complainant under the license from the owner, and to discontinue the use of the property for the purpose set up in the bill of complaint or for any purpose whatsoever within 90 days from the date of the decree. The village has removed the tiling or crocks from defendant’s premises, but it appears by the record in certain contempt proceedings instituted by the defendant, that the village has not ceased to cast the water from its drainage system upon the defendant’s land. For this the court held the village to be in contempt. The village then appealed from the original decree. The action of the village authorities has made the requirement that the tile be removed from defendant’s land unimportant. As to the other requirement, namely, that the village, in 90 days, discontinue the use of defendant’s premises, the decree requires only what the complainant ought to do. If the time allowed was too short, it should have applied for some modification of the decree. Its right to use the premises being denied, it should stop using them. Defendant asked for no áffirmative relief in the answer, and did not ask in the court below or in this court to amend the answer. We therefore are constrained to limit the relief by decree to the dismissal of the bill. But, in view of the considerations above stated, we decline to award any costs to appellant.

Moore and Stone, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    TROY v. RODGERS.
    1. Judgment — Conclusiveness—Collateral Attack — Justices op the Peace.
    A justice’s judgment cannot be collaterally attacked by proof that a judgment was entered after the ten-day limit fixed by Act No. 475, Local Acts 1903, as amended by Act No. 660, Local Acts 1907, without the defendant’s consent, where the record shows the consent of both parties to the irregular continuance.
    3. Justices op the Peace — Adjournment—Judgment.
    Under the acts applicable to the city of Detroit, the justice who had jurisdiction of the parties and subject-matter had no authority ten days subsequent to the trial for any purpose except to render judgment.
    3. Same — Estoppel.
    Consent to an irregular adjournment, with knowledge of the facts, creates an estoppel to insist on a discontinuance thereby.
    Appeal from Wayne; Murphy, J.
    Submitted February 15,1910.
    (Docket No. 153.)
    Decided July 14,1910.
    Judgment creditor’s bill by John F. Troy against Lillian Rodgers. From a decree for complainant, defendant appeals.
    Affirmed.

      Allan P. Cox, for complainant.

      Clark, Lockwood & Bryant, for defendant.
   McAlvay, J.

Defendant contends that the judgment of the justice’s court was void, and therefore formed no basis for a judgment creditor’s bill. This is the only question presented in the case. There is no dispute as to what the transcript of the justice’s docket shows.

The suit was commenced by a summons which was personally served, and on the return day the parties appeared, and an issue was joined in an action of assumpsit. Several adjournments were had, a deposition was taken and returned into court, and on June 11, 1908, the parties being present in court, the evidence in the case on both sides was taken. Afterwards two further adjournments were had, the last one by consent to June 20, 1908, 9 a. m. Up to this point in these proceedings no dispute arises. To show the record, and to make more clear the contention, the balance of this transcript is given. It reads:

“June 20, 9 a. m. Case called, parties in court. Defendant files brief and decision reserved to June 30, 1908, 9 a. m. June 30. Decision reserved to July 3, 1908, by consent of parties. July 3. I rendered judgment in favor of plaintiff and against defendant for two hundred fifty-five 8 /100 dollars damages, and $1.75 costs. [Signed],” etc.
The justice’s court act of the city of Detroit (Act No. 475, Local Acts 1903), as amended by Act No. 660, Local Acts 1907, among other things, provides:
“ Sec. 5. * * * They shall also have power to hold all cases for final decision not more than ten days: Provided, They announce the day upon which they will render final judgment:”

It is contended that the extension of the time from June 30th, the date fixed by the justice and being the statutory limit of 10 days, to July 3d, was without authority, and operated to oust the justice of jurisdiction of the case, and that the judgment entered upon the day last named was consequently void. It was claimed on the hearing by complainant that the extension of time was an adjournment by consent of parties. To meet this claim defendant offered evidence tending to show that the transcript of the justice’s docket did not correctly st'ate the facts as to the extension ®£ time from June 20th to July 3d being made “ by consent of parties.” This transcript cannot be attacked collaterally. Miller v. Smith, 115 Mich. 427 (73 N. W. 418, 69 Am. St. Rep. 583), and cases cited; Cole v. Potter, 135 Mich. 326 (97 N. W. 774, 106 Am. St. Rep. 398).

The case must be determined by the construction which is put upon the justice’s act of Detroit, above quoted. At the time this extension was made the court had jurisdiction of the case under this law for the purpose of rendering final judgment. Of his own motion he had no jurisdiction for any other purpose, and must render his decision at that time. This is admitted to be the law in this State. Harrison v. Sager, 27 Mich. 476; Brady v. Taber, 29 Mich. 199. From aught that appears in this record the justice was ready to render judgment on June 30th, but the decision was reserved to July 3d by the action or consent of the parties. May it not be said that, in view of such conduct on the part of the parties, they are estopped to claim a discontinuance ? A party who, with knowledge of the facts, applies for, or consents to, an irregular continuance or adjournment, is estopped afterward to insist, to the prejudice of the other party, that the action was thereby discontinued. 24 Cyc. p. 489.

In Patterson v. McRea, 29 Mich. 258, it was held that a defendant who has requested, or at least consented to, an adjournment of a suit in justice’s court on account of the sickness of the justice, will not be heard to complain that such adjournment was on the justice’s own motion, and, being for more than six days, worked a discontinuance so as to deprive the justice of jurisdiction to further proceed with the cause. The above case was cited and applied in Blair v. Compton, 33 Mich. 414.

In Fischer v. Cooley, 36 Neb. 626 (54 N. W. 960), where adjournment beyond 90 days, under the statute, worked a discontinuance of the cause, and ousted the court of jurisdiction, it was held that the rule was otherwise where such continuance was granted by consent, or on the agreement of the parties. The party on whose application a cause in justice’s court is adjourned beyond the period limited by the statute is estopped to claim a dismissal by reason of such adjournment. To permit him to do so would be to allow him to reap a benefit from his own acts to the prejudice of the other party. Jennerson v. Garvin, 7 Kan. 136; West v. Berg, 66 Minn. 287 (68 N. W. 1077).

In Beam v. Reynolds, 144 Mich. 383 (108 N. W. 83), it was held that a second adjournment by a justice, on motion of the plaintiff, defendant and counsel being present and making no objection until after the departure of plaintiff, was equivalent to an adjournment by consent. In that case Justice Hooker, who wrote the opinion, said:

“Ordinarily, a second adjournment, in the absence of the defendant, is fatal, unless upon a motion supported by the oath of some one. In this case the return shows that the defendant and counsel were present, and did not object to the granting of the adjournment until after the plaintiff had gone. This was equivalent to an adjournment by consent. Tiffany’s Justice’s Guide (1905), p. 303; Dunham v. Heyden, 7 Johns. (N. Y.) 381; Kilmore v. Sudam, 7 Johns. (N. Y.) 529; see, also, Patterson v. McRea, 29 Mich. 258.”

The ruling in the above case is perfectly consistent with the ruling in the recent case of Adams & Ford Co. v. Cullen, 159 Mich. 669 (124 N. W. 549), where it was held that a justice loses jurisdiction by adjourning a case, without showing on oath that it is necessary, the adjournment being for the purpose of obtaining a surety, and against the objection of the defendant.

The adjournment in this case having been made by and with the agreement of the parties, we think that it better comports with justice to hold the parties to their agreement, and apply the doctrine of estoppel.

The decree of the circuit court is affirmed’, with costs.

Hooker, Moore, Brooke, and Stone, JJ., concurred.


author: Blair, J.

text:
    WEBER v. WAYNE CIRCUIT JUDGE.
    1. Costs — Trial Fee — Consolidation oe Causes — Mandamus.
    But one trial fee is allowable in two actions of ejectment tried together, under stipulation.

      2. Same — Term Fees — Practice in Wayne County.
    The practice authorized and adopted in Wayne county under Act No. 31, Pub. Acts 1903, is inconsistent with 3 Comp. Laws, § 11354, so that term fees are not taxable.
    Mandamus by Joseph F. Weber to compel Henry A. Mandell, circuit judge of Wayne county, to vacate an order disallowing certain items in a taxed bill of costs.
    Submitted January 20, 1910.
    (Calendar No. 23,733.)
    Writ denied July 14, 1910.

      Jasper C. Gates, for relator.

      Walter Barlow (P. J. M. Hally, of counsel), for respondent.
   Blair, J.

This is an application for a writ of mandamus to require the respondent to restore to relator’s proposed bill of costs, and allow, the following items, disallowed by respondent in taxing relator’s costs, viz.:

“For trial of issues of fact, $15; for term fees (case on calendar but not reached or postponed), viz.: January term, 1908, $5; April term, 1908, $5; September term, 1908, $5.”

Two cases in. ejectment were pending in the Wayne circuit, in both of which the city of Detroit was plaintiff. In one of the cases the relator was the sole defendant; in the other, the relator, August Tank, and Mary G-randt were defendants.

The sixth paragraph of the respondent’s return shows that both of these cases—

“ Involved the same issue, viz.: The validity of a certain tax sale for the collection of special assessments for paving Myrtle street in the city of Detroit, and were tried together before this respondent and a jury as one suit, and that a stipulation was filed in City of Detroit v. Weber, that said cause should abide by the decision of the Supreme Court in the case of City of Detroit v. Weber, Tank, and Grandt, decided by said Supreme Court on November 5, 1909,” 158 Mich. 590 (123 N. W. 36).

The seventh paragraph of such return shows—

“ That the reason he disallowed the fee of $15 for trial of issue of fact contained in the bill of costs of relator in the case of Detroit v. Weber * * * was because the attorney for the relator, at the same time the bill of costs ” in Detroit v. Weber “was presented to this respondent for taxation, presented a certain other bill of costs for taxation in the case of Detroit v. Weber, Tank, and Gfrandt, which contained an item of $15 as a fee for trial •of issue of fact, which said item was allowed by this respondent in said last-mentioned bill of costs, but this respondent refused to allow such a trial fee of $15 in both of said cases so tried together as one case at the same time and before one jury.”

The second paragraph of such return shows that said cause of Detroit v. Weber “was on the list of cases for trial at the September term, 1907,” and on the “January, April, and September terms, 1908,” of said Wayne circuit court.

The fourth paragraph of such return shows—

“ That according to the practice of the Wayne circuit court under the provisions of Act No. 31, Public Acts 1903, of the legislature, it calls a list of 100 cases monthly from the list of cases noticed under the terms of said act as ready for trial, and sets the same for a day certain for trial as near as may be, and that it is only necessary to once notice any cause pending in said court for trial and file but one note of issue therein after the same shall be at issue and ready for trial to place said cause upon the list of cases so ready for trial; that when any cause is once placed on such list as ready for trial, it remains thereon until finally tried or otherwise disposed of by the court; that said court has a clerk appointed by the judges thereof whose special duty it is to arrange for the trial of said causes so placed on said list for trial; that said clerk notifies the attorneys for the respective parties when their cases can be heard by the court, and said clerk prepares a list daily from such cases so set for trial as herein-before stated, and presents such daily list to the presiding judge of said court, who in turn distributes such cases between himself and the several judges of said court for trial; that this has been found to be the only practical method of dispatching the business of the court owing to the very large number of cases tried and to be tried in said court, and of furnishing the several judges of said court an opportunity to employ their time to the best advantage in the performance of their judicial duties.”

The fifth paragraph of such return alleges—

“That said act of the legislature hereinbefore mentioned supersedes, in the county of Wayne, section 11254 of the Compiled Laws of 1897, providing for the taxation of term fees in the bill of costs of the prevailing party to a suit tried in the several circuit courts of the State, and that it has been the practice of the court to allow only one term fee to be taxed under the provisions of said act so regulating the method of procedure and practice of the law in said circuit court for the county of Wayne, as was done by this respondent in the bill of costs attached to relator’s petition herein.”

The eighth paragraph of such return shows—

“That the circuit court for the county of Wayne is practically in one continuous session the year round, a session thereof being held on each secular day of the year, and that when one term of said court is closed a new term thereof is at once opened on the same day, and that the regular business of the court is practically going on continuously every secular day of the year, and that under the provisions of section 8 of said act of the legislature a fresh panel of citizens, qualified for jury duty, was called every '30 days to sit and act as jurors in said circuit court.”

The judgment in favor of defendant Weber contained the usual provision that he recover his costs to be taxed. There was but one “ trial of issues of fact,” and therefore the respondent properly allowed but one trial fee. Act No. 31, Pub. Acts 1903, regulates the practice and procedure as to notices of trial and the making up of the docket of cases for trial, so far as the circuit court for the county of Wayne is concerned. Fornia v. Wayne Circuit Judge, 140 Mich. 631 (104 N. W. 147); Hoock v. Sloman, 145 Mich. 19 (108 N. W. 447).

In our opinion, the practice authorized and adopted under this statute is inconsistent with the allowance of term fees based upon a widely different practice. The reasons for the provisions as to term fees having ceased to exist in the county of Wayne, the allowance thereof, except as to the first, should also cease.

The writ is denied, with costs.

Ostrander, Hooker, Moore, and Stone, JJ., concurred.


text:
    HARRINGTON v. CALHOUN PROBATE JUDGE.
    Costs — Judgment—Amendment—Delay.
    After two years from the date of a judgment awarding costs, the Supreme Court will not exercise its discretion, if it has the authority, to grant an amendment in proceedings by certiorari to review drain proceedings and award the costs against the petitioners for the drain, who are not parties to the record.
    Certiorari by George Harrington and others against George W. Hamm, probate judge, and Edward D. Dickinson, drain commissioner of Calhoun county, to review proceedings for the establishment of a drain: On motion of relators to amend a judgment for costs.
    Submitted February 23, 1910.
    (Calendar No. 22,714.)
    Motion denied July 14, 1910.

      Hatch &Page, for the motion.

      Winsor & Miller, contra.

   Blair, J.

On July 13, 1908, this court handed down a decision quashing certain drain proceedings. Harrington v. Calhoun Probate Judge, 153 Mich. 660 (117 N. W. 62). On the same day judgment was entered, quashing the proceedings and providing “that the relators recover of and from the respondents their costs of both courts to be taxed.”

Plaintiffs in certiorari having presented their taxed bill of costs in accordance with the judgment, the same was allowed, and the costs taxed in their favor by the clerk of this court, October 17, 1908, at the sum of $135.35. In February, 1910, plaintiffs in certiorari filed a motion “to amend the judgment for costs heretofore entered in this cause by entering said judgment for costs against the petitioners for the said drain,” etc.

Assuming, but not deciding, that this court might, in the exercise of its discretion, grant the amendment and cause the judgment to be entered against the petitioners, who were not parties to the record and against whom the statute does not in terms authorize the entry of judgment, we are not inclined at this late day to grant the motion.

The motion is denied, with costs.

Ostrander, Hooker, Moore, and Stone, JJ., concurred.


text:
    VAUGHAN v. FORD.
    1. Contracts — Modification—Misrepresentation—Estimate.
    After it was found that the plans for constructing a building were impracticable, the architects provided a new method of constructing the foundation by which for caissons of cement resting on bedrock were substituted piers with bells, which the engineer informed the contractor contained approximately an equal amount of concrete. In fact they contained 1,049 feet more of concrete. Held, that the contractor who proceeded to carry on the work under similar terms was entitled to extra compensation for the increased cost.
    2. Same — Mechanic's Lien — Extras.
    Pumping water which an independent contractor caused to flood the basement is properly allowed as an extra expense in a suit to enforce a mechanic’s lien.
    3. Same — Acceptance of Work.
    In construing a building contract, it is competent evidence that steel beams were not to be encased in concrete, where it appeared that the architects accepted the work without objection.
    4 Meohanio’s Lien — Effect of Filing Excessive Claim.
    The filing of an excessive claim in entire good faith does not bar the attaching of a mechanic’s lien.
    5. Same — Nature.
    A mechanic’s lien under 3 Comp. Laws, §§ 10710-10745, being a direct lien in behalf of the person entitled to it, not one by subrogation, the claimant is not bound by stipulations in the original contract to which they are not parties except as to the contract price.
    6. Same — Recoupment—Damages.
    A damage suit by an adjoining proprietor against the original contractor whose agreement provides indemnity against such claims, does not bar or restrict a subcontractor in the enforcement of a mechanic’s lien when the evidence fails to show a breach or failure of performance of the contract.
    Appeal from Wayne; Hosmer, J.
    Submitted April 7. 1910.
    (Docket No. 7.)
    Decided July 14, 1910.

      Bill by Jay W. Vaughan and Joseph C. Dumont, co-partners as Vaughan & Dumont, against Edward Ford and Frank H. Goddard to enforce a mechanic’s lien. From a decree for complainants, defendants appeal.
    Affirmed.

      Choate & Webster (Leo M. Butzel, of counsel), for complainants.

      Gray & Gray, for defendant Ford.

      C. K. Latham and W. C. Stuart, for defendant Goddard.
   Blair, J.

Complainants filed the bill of complaint in this case to enforce a mechanic’s lien against the defendant Ford as owner, and the defendant Goddard as masonry contractor, for the erection of a certain office building known as the “Ford Building,” on the northwest corner of Congress and Griswold streets in the city of Detroit.

On the 18th day of September, 1906, Vaughan & Dumont and Goddard entered into a contract, portions of which we quote, as follows:

“Whereas, F. H. Goddard has taken a contract for the erection of a building on the northwest corner of Gris-wold aná. Congress streets, in the city of Detroit, Michigan, which contract includes the construction of forty-seven caissons according to plans and specifications of D. H. Burnham & Company, architects of said building; and,
“Whereas, J. C. Dumont and J. W. Vaughan have agreed to construct said caissons as subcontractors under said Goddard.
“ Now, therefore, it is agreed between said J. C. Dumont and J. W. Vaughan, as parties of the first part, and said F. H. Goddard, as party of the second part, as follows:
“ 1. Said J. C. Dumont and J. W. Vaughan shall construct said forty-seven caissons ready to receive the columns according to said plans and specifications within sixty days from the date of delivery of the rings hereinafter mentioned for the sum of sixty-nine thousand, eight hundred and sixty-seven dollars ($69,867). * * *
“ 10, The foregoing agreement contemplates excavation to depth of one hundred and twenty feet. If the excavation is less than one hundred and twenty feet then there shall be a rebate to Goddard of the amount of such shortage at the rate of 36 -jVo- cents per cubic foot. If it becomes necessary to excavate below one hundred and twenty feet then for such extra excavation up to one hundred and thirty feet said Dumont and Vaughan shall be paid at the rate of 36 cents per cubic foot. For all work below one hundred and thirty feet the price shall-hereafter be agreed upon, which price shall not exceed exact cost.”

The specifications for foundations and masonry provided, among other things:

“The caissons are to be excavated to bedrock, for which purpose this contractor shall provide all necessary wood lagging, steel rings, bracings, etc. The bedrock exists on an average one hundred and twenty (120) feet beneath grade line. This contractor shall estimate on a basis of 120 feet below grade, and shall give a price per foot for additions to or deductions from this depth. * * *
“Caisson construction: This contractor shall build -caisson foundations as shown on both the engineering and architect’s drawings, digging to be thoroughly braced and protected until concrete piers are complete; jacks and drums to be used where necessary. Shafts to be kept straight and plumb and carried down to bedrock. This •contractor shall estimate on a basis of depth of 120 feet below grade line to bedrock and shall give a price per foot for additions to or deductions from this depth.”

Complainants entered upon and proceeded with the work of excavating the caissons, or wells, for the cement piers until October 20, 1906, when water and gas burst into one of the wells, which had reached a depth of over 120 feet, and the work was stopped by mutual consent. By mutual consent, a new plan was substituted for the original plan. By the new plan, which was satisfactorily executed by complainants, the concrete piers were to go down 95 feet instead of 120 feet, and were to be belled with three or four bells in each well.

October 9,1908, the owners of the Moffat building commenced suit against all of the parties to this suit to recover damages for their alleged removal of lateral support. A lien is claimed in the claim of lien and in the bill for a balance of $39,879.01, with interest from February 18, 1907. The circuit court entered a decree granting a lien for the sum of $19,581.50, with interest, and appeals have been taken by both defendants. Complainants have not appealed.

Defendant Ford appeals upon the grounds:

“(1) Because the amount allowed is excessive; and
“(2) Because the claim as presented was excessive;
“(3) Because with the Moffat block suit pending, the court cannot determine whether or not there is any balance due from the owner to the principal contractor, Goddard.”

Defendant Goddard appeals upon the following grounds:

“1. The trial court erred in his findings in disallowing defendant Goddard’s claims against complainants.
“ 2. The court erred in allowing complainants’ claims for extras.”

With reference to the contract determining the rights, of the parties, the court determined that upon the happening of the accident—

“Both architects, contractor and subcontractor at that time felt that some changes under the existing circumstances would be desirable. At the end of the four or five days, the exact time matters not, the architects had brought forth the plans, which were subsequently followed in this case, whereby the support of the building was to rest upon piers in which there were three or more bells, I think, to each pier, or caisson, as it may be called, of concrete, and this plan was adopted in lieu, I think, of the original design which contemplated going through to solid rock. I am very certain that all parties at that, time recognized the impossibility for the contract price, or anything like the contract price, of the putting through of the caissons, if you may call them such, to the bedrock, and I am satisfied from the evidence that it was agreed between the parties at that time that the plan of belling, I think, as it is called, should be substituted in place of the original design of going through to bedrock. Now under these circumstances there can he no question in my mind but what the basis of the payment for this contract should be the contract price. It is testified, I think, on behalf of both parties, of all parties, in fact, that it was represented, I think, to Vaughan and Dumont, at that time, that the contents of the bells and the concrete work to be done under the new plan was substantially the same a3 under the old, and I think they are entitled for any excess there may exist to claim as an extra the difference between the actual — what would have been required under the original plans — and the actual volume which they put into the piers or caissons and bells as completed.”

It is conceded that there was due from Goddard to complainants a balance of $15,685, and the controversy as to the amount of complainants’ claim concerns the following items, which defendants contend were either improperly allowed to complainants, or improperly charged against defendant Goddard, viz.:

(a) Extra concrete............................. $692 45
(b) Pumping water............................ 200 00
(c) Cantilevers................................ 1,010 94
(d) Melchers’ salary........................... 969 90
(e) Hughes’salary............................. 44 75
(f) Page’s salary ............................... 14 95
(g) Alley paving.............................._ 298 16
(h) Lost sacks ............................... 219 85
(i) Office expenses_____________________________ 445 50
Total..................................... $3,896 50

(a) Mr. Gavier, chief engineer of construction for D. H. Burnham & Co., of Chicago, the architects of the building, testified that at the time of the substitution of the' belling plan he told the parties that there would be approximately the same amount of cubical contents in both schemes. Mr. Dumont testified that Gavier said that the amount of concrete would be the same in both plans.

“And he says: ‘ I made it so that the amount of concrete which the bells take equals the amount that it will take to go down 120 feet.’ It meant that 25 feet cut off would replace the concrete in the bells. And he says, ‘ I believe that you are about 53 cubic feet to the good.’ ‘ Well,’ I says, £ that won’t make much difference one way or another, and we will try to go ahead and do it.’ ”
Mr. Goddard testified:
“Q. What, if anything, was said about the substitution of this new plan for the old by you ?
. “A. Why, they said if Mr. Gavier said it was the same thing he was satisfied. That is, we told him that included what was already excavated, just as it stood; the whole thing was practically equal or approximately equal to the new system. * * *
“Q. And which of them said what you referred to a moment ago in the testimony, that if the work was the same — something of that kind ?
“A. Dumont.
“Q, And what was that ?
“A. If the contents were the same, why it was all right with him.”

It is apparent from this testimony that Mr. Dumont understood that he would be required to fill practically the same space with concrete under the substituted plan as under the original. Assuming that the understanding was that the cubical contents of the wells would be approximately the same under both plans, we do not think that such representation was sustained by proof that there was only 1,049 cubic feet difference in a total of 170,837 cubic feet. The word ‘ ‘ approximately ” is to be construed with reference to the subject-matter. An estimate of the cost of constructing a building, where uncertain factors enter into the estimate, might well be held to be approximately correct, although the actual cost exceeded the estimated cost by more than the difference in this case. But where, as in this case, the problem is a mathematical one of figuring the cubical contents of figures of definite dimensions admitting of accurate results, we agree with the circuit judge that the representation cannot be said to be approximately correct.

It is urged, however, that under the substituted plan the amount of excavation would be lessened by 13,331 cubic feet of 2-inch lagging required under the first plan. Under the original plan, the 2-inch lagging lining the wells was to be left in. Under the substituted plan complainants were required to remove it. This order was complied with by complainants, and, according to Mr. Dumont, increased their work and prevented their working to the best advantage. The new arrangement was with reference to the space which complainants would have to fill with concrete; and the amount which they might gain and the added difficulties they might meet, otherwise than in the amount of concrete, were not considered except as, perhaps, they might be thought to offset each other. Mr. Gavier testified:

“Q. Was it not your understanding — I ask you in a fair way — your interpretation of what was said there, that they were to go ahead on the representation of there being the same number of cubic feet of concrete, at the contract price ?
“M. Why, I certainly had that impression; yes, sir.
“Q. Now do you know, and did you prepare any figures—
The Court: Do you mean to say that is, according to your recollection, the substance of your conversation that then took place ?
“A. Yes, sir.”

We, therefore, agree with tne circuit judge that complainants were entitled to compensation for the extra concreting at the price adopted from the testimony of Mr. Dumont.

(&) The only pumping of water for which complainants were entitled to charge under their contract, in our opinion, relates to the water which Dumont testified flooded the basement through Mr. Goddard’s taking up the curbstone and the acts of Hughes’, the basement contractors’, men digging holes through the clay banked up around the caissons to protect them. It appears from Mr. Goddard’s testimony that he gave orders to Mr. Hughes’ men with reference to starting the grillage, and, in the absence of evidence to the contrary, we do not think the record justifies a finding that the flooding of the wells arose from the acts of an independent contractor, even if this would, protect Goddard, if he was responsible for flooding the basement. We therefore agree with the conclusion of the circuit judge as to this item.

(c) The contract between Ford and Goddard provided:

“Steel in foundations: The steel erecting contractor shall deliver the grillage beams to the building, which the masonry contractor shall set in place. All other steel work in the foundations shall be set in place by the steel erecting contractor, the masonry contractor enclosing and completely encasing same with concrete as shown by the drawings, and herein specified.”

The proposal of Dumont of August 29, 1906, to construct the caissons for $71,280 contained the following:

“This figure includes all material and labor for setting-iron up to base of columns and cantilevers. Iron to be furnished by other contractor.”

His proposal of September 1st, which was accepted, waa as follows:

“ My revised figure for the caissons, learning the thickness of lumber for lagging, is $69,867. The contents of my previous letter of August 29, ’06, are to be the same.”'

On February 23, 1907, the architects wrote the following letter to complainants:

Gentlemen: The digging of the 47 caissons of the-Ford building have been completed, and we wish to say that you have given us a very excellent concrete job. We feel perfectly certain that our foundations are O. K. in every respect. This includes the setting of the grill-age.”

In view of complainants’ proposal and the acceptance of the caissons as completed by the architects, we think the court properly construed the contract between complainants and Goddard as not requiring them to encase certain cantilever beams in concrete. As to the other items, we agree with the findings of the circuit judge, without further discussion.

An examination of the long record has satisfied us of "the correctness of the finding of the circuit judge that, notwithstanding the disparity between the claim as filed and the amount found due, the excessive claim was made and filed in good faith, and therefore should not bar the attaching of the lien.

Does the pendency of the suit for damages prevent a final determination ? Goddard, by his contract, assumed the obligation to indemnify Ford against such liability as is involved in the suit by the owners of the Moffat building, but we find no such contractual obligation on the part of complainants to protect Goddard against liability. The facts as disclosed by this record, in the absence of contractual liability, do not indicate any liability on the part of complainants to either Ford or Goddard. The plans and specifications of the original and substituted schemes were prepared for the owner by an engineer of wide experience and unquestioned eminence in his profession, and by their contract complainants were subject to the directions of the architects and executed the work to their satisfaction, as evidenced, among other things, by their final certificate approving the work.

The important question, therefore, for determination, is: Does the contingent liability of Goddard to Ford operate to prevent or postpone the determination of the amount of complainants’ lien against the building ? We agree with the contention of counsel for complainants that our statute (3 Comp. Laws, §§ 10710-10745) provides for a direct lien in behalf of the persons entitled thereto and not one by subrogation to the rights of the contractors, and that they are therefore not bound by the stipulations of. the original contract as to liens or the amounts to be paid thereon, except as to the amount of the contract price. Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114, 80 N. W. 797); Clough v. McDonald, 18 Kan. 114.

The same statute, however, which gives the lien provides :

“The owner, part owner, or lessee shall not be liable to .the subcontractor, materialmen or laborers, for any greater amount than he contracted to pay the original contractor and shall be entitled to recoup any damages which, he may sustain by reason of any failure or omission in the performance of such contract.” 3 Comp. Laws, § 10710.

This statute limits the amount of the liens of subcontractors, etc., to the amount legally due under the original contract, after deducting from the contract, among other' proper items of credit, such damages as may be awarded to' the owner “by reason of any failure or omission in the' performance of such contract.” J. E. Greilick Co. v. Rogers, 144 Mich. 313 (107 N. W. 885).

The answer of defendant Ford makes no reference to a. threatened suit, nor was it amended after the institution of the damage suit to state that fact. The only reference in the answer to complainants’ right to a lien is contained in paragraph 12, as follows:

Twelfth. This defendant further answering shows that he is advised that the complainants are not entitled to a lien upon said premises for the work and labor alleged to have been performed by them, and therefore denies that complainants are entitled to the relief prayed for in their bill of complaint, and therefore prays that the bill of complaint may be dismissed, and that this defendant may be awarded his reasonable costs and charges, in. this behalf most wrongfully sustained.”

The answer of defendant Goddard refers to a threatened, suit and by amendment there was added the following:

“That said owners of said Moffat building have, since the answer of defendant Goddard was filed in this cause, begun said threatened suit alleging damages, $200,000,. which said suit is now pending in this court; and this defendant asks this court in this cause to stay all proceedings by complainants for the collection of any part of said amount this defendant admits is owing by him to complainants, and from the collection of any of whatever sum of money may be decreed complainants in this suit, until said damage suits against this defendant above referred to have _ been completed, and until all damages awarded, therein have been fully paid.”

The brief for defendant Goddard does not discuss the question presented by his answer only, of the effect of the damage suit. The question is argued at length in the brief for defendant Ford, whose answer presents no such question. The proofs in this record would not have sustained an allegation of a failure or omission in the performance of the contract, so far as the execution of the work was concerned, but, on the contrary, the evidence demonstrates to our satisfaction that, so far as the parties to this suit were concerned, the contract was fully performed.

The decree is affirmed, with costs to complainants.

Moore, McAlvay, Brooke, and Stone, JJ., concurred.


author: McAXjVay, J.

text:
      In re CURTIS’ ESTATE.
    1. Executors and Administrators — Banks and Banking — Deposit — Estates op Decedents.
    An administrator, in the matter of selecting a depository for the funds of an estate, is required to use the care which an ordinarily prudent person would use, and to deposit trust, funds in his trust capacity, not as an individual.
    2. Same.
    Purchasing a draft by an administrator in his own name and indorsing it to the beneficiary of the estate is not a sufficient designation of the trust to relieve him from liability in case of the failure of the bank before payment.
    8. Same — Receipt.
    The fact that a receipt was given by the beneficiary for the-amount of the draft before it was dishonored does not warrant a finding that the administrator paid the sum, as a matter of law, where he had acknowledged his liability and received back the draft which he filed with a claim for the amount involved in the bankruptcy court administering the estate of the insolvent drawee.
    Error to Cass; Des Yoignes, J.
    Submitted April 7, 1910.
    (Docket No. 30.)
    Decided July 14, 1910.
    Joseph R. Edwards presented his final account as administrator of the estate of Raymond Curtis, deceased. The account was-allowed in the probate court, and Henry C. Curtis, sole, heir of decedent, appealed to the circuit court. A judgment on a verdict directed by the court affirming the order of the probate court is reviewed by contestant on writ of error.
    Reversed, and judgment entered for contestant.

      Carr & Eby, for appellant.

      Charles E. Sweet, for appellee.
   McAXjVay, J.

The evidence on the part of plaintiff in this case showed that defendant was administrator of plaintiff’s brother, who resided and died in Cass county, Mich., and who left a small estate, of which, at the time of the transaction connected with the matter here in dispute, plaintiff was the sole heir. Plaintiff was a farmer living near Carthage in the State of Missouri. On February 7, 1908, the defendant purchased and sent from Dowagiac, Mich., a draft to plaintiff in a letter, for the sum of $301.80, as follows:

“No. 39829.
“ City Bank of Dowagiac.
“Lyle, Gage & Co., Bankers.
“ Dowagiac, Michigan, Feb. 7, 1908.
“Pay to the order of J. R. Edwards..........$301.80
Three Hundred One & 80 /100 Dollars. In current funds. To the Continental National Bank,
“Chicago, Ill. “I. B. Gage,
“ Cashier.”

This draft was indorsed on the back: ‘ ‘ Pay to the order. of H. C. Curtis, J. R. Edwards.” This draft represented $318 collected on that date by defendant, being part payment on a contract belonging to the estate, after deducting his commission and exchange. The letter of transmission gave an itemized statement to that effect and requested plaintiff to sign an inclosed receipt. Plaintiff received this draft in due course of mail, at his home in Missouri, on February 11, 1908. He immediately took it to the Carthage National Bank, indorsed it on the back under defendant’s name, received $301.80, and then signed the receipt and returned it as requested to defendant by letter dated February 14, 1908. In a letter dated February 15th, defendant wrote plaintiff notifying him that the bank which issued the draft had closed its doors February 10th; asking plaintiff what he had done with the draft and saying that if it had been cashed it would go to Chicago, and if there were no funds “ It will be protested and come back to me, and I will be in for its payment.” This ■was the first notice that plaintiff had of the failure of the bank, and the statement that the failure occurred on the 10th was false. It had in fact failed on the 8th.

This draft in due course reached Chicago, and on February 18th was presented for payment and payment refused. It was duly protested and notice given to all concerned, including defendant. On February 22d, plaintiff was notified of this protest by the Carthage National Bank, and demand was made of him to refund $301.80, together with protest fees of $3.12 This amount plaintiff paid, and on the same day returned the protested draft to defendant as requested by him. It was duly received by defendant, and on March 5, 1908, filed by him with his sworn proof of claim with the referee in bankruptcy as a claim against Lyle, Gage & Co., bankrupts, and allowed March 9, 1908, at $304.92. Defendant, in his proof of claim, among other things, stated “that the consideration of the draft or debt was money due and owing to this deponent from the said City Rank of Dowagiac, which money was deposited with said bankrupts,” and that the debt was evidenced by a draft (which draft was the draft in question purchased by him of the bankrupts and afterwards protested). Later, plaintiff notified defendant to return the receipt he had given him for this draft, and also that he would hold him for the payment of the $301.80 claimed to have been paid to him by defendant. On February 6, 1909, defendant filed in the probate court his annual account in this estate, showing payments by remittances of $731.14, and among the receipts to make up this amount was the receipt of $301.80 given by plaintiff for the draft in question. Plaintiff filed objections in writing to the allowance as a payment to him of this item of $301.80. After a hearing had, the probate court overruled his objections, and entered an order and decree allowing said account in full, including this amount. From this order and decree plaintiff appealed to the circuit court for Cass county. Upon the hearing of the appeal at the close of plaintiff’s case, upon motion of defendant, the court instructed a verdict for defendant, holding that defendant was entitled to a credit for the amount of this draft as a payment to plaintiff; to which holding and instruction plaintiff excepted. From a judgment entered upon such verdict, plaintiff has brought the case to this court for review upon a writ of error.

The sole question in the case is whether the court was in error in directing a verdict. The facts are not in dispute. It is contended by defendant that the case must be treated as if defendant had made a deposit as administrator in the bank which failed, and that there is no evidence that he knew or should have known that it was in a failing condition, and not a responsible depository, claiming that under such circumstances an administrator cannot be charged with negligence; citing In re Fishbeck's Estate, 146 Mich. 348 (109 N. W. 666, 117 Am. St. Rep. 646); In re Grammel's Estate, 120 Mich. 487 (79 N. W. 706). That this is the rule cannot be disputed. An administrator, as such, in the matter of selecting a depository for the funds of an estate, is required to use the care of an ordinarily prudent man. Such funds, however, must be deposited by him in his fiduciary capacity, and not in his individual name without any designation of the trust. 18 Cyc. pp. 235, 236, and notes; 11 Am. & Eng. Eng. Law (2d Ed.), p. 949.

If purchasing this draft is to be considered as a deposit, it must be considered as a deposit in his individual name, and would not bring him within the rule invoked. This draft was purchased by him as an individual, and he so indorsed it. Nothing in this transaction, after he received the money until he indorsed the draft, indicates or designates the trust.

Defendant is an attorney, and the letter he wrote February 15th indicates that he believed himself liable for the amount of the draft. His conduct in presenting the draft as a personal claim as administrator against the bankrupt estate shows that he continued in that belief. The question before us is whether the account of defendant should be credited with this draft as a payment to plaintiff. Our conclusion is that, under the authorities, it should not be so credited. There was no payment in fact, and in holding that it was a payment as a matter of law the court was in error.

Other questions are discussed in plaintiff’s brief, which primarily relate to the relation of these parties to each other as individuals, and not to relations existing between defendant and this estate. These matters are not material to the question now before the court.

The judgment, for the reasons given, is reversed and set aside, and, as no disputed question of fact is raised, a new trial would avail nothing. A judgment will therefore be entered in this court in favor of plaintiff, and the item of $301.80 as a credit to defendant in his account in said estate appealed from is disallowed and stricken out.

The case will be remanded to the circuit court to be certified to the probate court for the entry of an order and decree striking out from defendant’s account appealed from $301.80 as a credit to said defendant on account of a payment to plaintiff.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Bbooke, J.

text:
    FECHT v. HENZE.
    1. Wills — Estates—Conveyances—Habendum Clause.
    A will creating an estate in fee in testator’s wife, limiting, in the same paragraph, the estate granted, by charging it with the payment of legacies after the wife’s death, effects the intended purpose, and does not create an unqualified estate in fee simple.
    2. Same — Construction.
    A will is to be construed as an entirety, so as to give effect if possible to the whole instrument.
    3. Same.
    The fact that the estate is of less value than the legacies, in no way affects the widow’s estate, merely reducing the legacies pro rata.

    4. Same — Legacies—Abatement.
    Since legacies become a charge upon real estate, either by express direction or by necessary implication, if the language used by the testator indicates that he intended the legacies to be paid, although he knew the personal property to be inadequate for the purpose, they become a charge on the real estate; or, if the real estate and personalty are blended in one mass and legacies bequeathed, they may be charged upon the real estate.
    5. Same.
    Where the estate consisted of real property worth $5,000 and personal property worth $1,400 and testator bequeathed legacies amounting to $8,000, to be paid from his estate remaining at his wife’s death, and blended the entire estate as one mass, it is evidence of his intent to charge the legacies upon the entire estate.
    6. Same.
    The court should discover the intent of the testator and if possible give it effect.
    Appeal from Wayne; Murfin, J.
    Submitted April 6, 1910.
    (Docket No. 12.)
    Decided July 14, 1910.
    Bill by Albert Feoht, administrator with the will annexed of Pauline Ams, deceased, against William E. Henze, administrator de bonis non with the will annexed of the estate of Frederick Ams, deceased, and others, for a construction of said last-named will. From a decree for complainant, defendant Henze appeals.
    Reversed, and decree entered for defendant.

      E. W. Mulford, for complainant.

      William E. Henze, in pro. per.

    The bill of compjaint is filed in this cause to obtain a construction of the.will of Frederick Ams, deceased. The construction of said will will determine the disposition of a fund now in the hands of the defendant Union Trust Company, and likewise determine whether or not the estate of Pauline Ams is liable to the estate of Frederick Ama for certain sums of money, received by her in her lifetime from said estate.
    Frederick Ams died testate August 20, 1878. His estate, at his death, as shown by the inventory, consisted of real estate valued at $5,000, and personal property to the amount of $1,400. His will was as follows:
    “I, Frederick Ams of the City of Detroit, county of Wayne, and State of Michigan, being of lawful age, sound mind and memory, do hereby make, publish and declare this to be my last will and testament in the manner following, that is to say:

      “ I hereby give, grant, bequeath and devise unto my wife, Pauline Ams, formerly Wuerth, of the City of Detroit, county of Wayne and State of Michigan, all my property, real, personal and mixed of every nature whatsoever, of which I shall die seised or possessed, or to which I Shall be entitled at the time of my decease. To have and to hold the same unto my said wife Pauline Ams, formerly Wuerth, her heirs and assigns forever, but upon and after the decease of my said wife, Pauline Ams, formerly Wuerth, the child or children of my son Max Ams, now of the city of New York in the State of New York, shall receive the sum of two thousand dollars in equal shares, the child or children of my son, Joseph Ams, of Walkirch of Baden, in Germany, shall receive the sum of two thousand dollars in equal shares. The child or children of my daughter, Frieda Ams, of Walkirch aforesaid, shall receive the sum of two thousand dollars in equal shares, and the child or children of my daughter, Therese Ams, of Walkirch aforesaid, shall receive the sum of two thousand dollars in equal shares.
    “In case any of my aforesaid children shall die without leaving issue, the share bequeathed to such issue shall go to the children of my other above-named children according to representation.
    “Lastly, I hereby appoint and nominate my said wife, Pauline Ams, formerly Wuerth, of the city of Detroit, county of Wayne and State of Michigan, sole executrix of this my last will and testament, with full power and authority to sell, convey and dispose of any or all of my real estate in fee simple. And I hereby revoke all former wills, heretofore by me made.
    “ In witness whereof, I have hereunto set my hand and seal at the city of Detroit, county of Wayne and State of Michigan, this twelfth day of September A. D. eighteen hundred and seventy-four.
    “ [Signed] Frederick Ams. [Seal.] ”
    The estate of Frederick Ams was duly administered by Pauline Ams as executrix, and she was discharged in 1879, no assignment having been made of the estate.
    In March, 1895, Pauline Ams conveyed by warranty deed the real estate, which had been owned by her husband, to John P. Schmitt and Mary Schmitt, his wife, for $6,200. This money was deposited with the defendant Union Trust Company under the following agreement:

      “Whereas, Pauline Ams, of the city of Detroit, acquired, under the will of Frederick Ams, a copy of which is hereunto attached, certain personal property and also real estate described as follows: Lots No. 21, 22 and 23, situated on the northeast corner of St. Aubin avenue and Jay street, with a frontage on St. Aubin avenue of 115 feet and with a depth along Jay street of 95 feet, valued at $6,200.00; and
    “Whereas, said Pauline Ams has sold said real property for said amount to John P. Schmitt and his said wife, Mary Schmitt, and in and by her deed of conveyance has covenanted to and with said John P. Schmitt and his said wife that she is seised of said property in fee simple, that it is free from all incumbrances whatever, and that she will warrant and defend the same against all claims and demands whatsoever :
    “Now, therefore, for the purpose of securing said John P. Schmitt, his heirs and assigns, against any damage or loss on account of the warranty contained in said deed, it is hereby agreed between said Pauline Ams, John P. Schmitt and the Union Trust Company, that the said money shall be received by said Union Trust Company in trust for the following purposes, to wit: (1) To pay to said Pauline Ams during her lifetime the interest upon said sum of money at the rate of four per cent, per annum, payable semi-annually at the office of said Union Trust Company. (2) In case it shall be legally established by the judgment of a court of the last resort, that a breach has been made in any of the said covenants of warranty made by said Pauline Ams, to pay to said John P. Schmitt, his heirs or assigns, the damages incurred by him or them by reason of such breach. (3) Upon the death of said Pauline Ams, to pay the said sum of $6,200.00 to the persons entitled thereto upon such persons legally establishing there right thereto.
    “ It is further agreed that, at anytime after the expiration of five years from date hereof, the rate of interest herein provided to be paid to said Pauline Ams may be reduced to such amount as said Union Trust Company and said Pauline Ams may determine upon, and, in case they cannot agree, to such amount as shall be determined hy the chancery court of proper jurisdiction. In case at any time after five years from date hereof, both said Pauline Ams and John P. Schmitt shall jointly agree to .and with each other in a request in writing to said Union Trust Company to pay said sum of money to either of them, or to such other person or persons by them jointly designated, said Union Trust Company hereby agrees, upon such joint request of said Pauline Ams and John P. Schmitt to pay said sum to the person or persons by them jointly designated, provided that three months’ notice of such request be first given said Trust Company.
    “ In witness whereof, The parties hereto have executed this agreement in triplicate this 25th day of March, 1895.
    [Signed in German] “Pauline Ams.
    ^Signed] “John P. Schmitt.
    ^Signed] “Union Tbust Company,
    “ By Ellwood T. Hance, Secy.
    “ In presence of:
    'Signed] “YYm. A. Moobe.
    ^Signed] “Heney Wunsch.”
    John P. Schmitt died in 1904, and his wife, as survivor, now owns the land. Both she and the defendant Union Trust Company have filed disclaimers to the fund in the hands of the trustee, and ask the court to determine its; ownership. Pauline Ams died May 20, 1909, leaving a last will, by the terms of which she gave $1,000 to one Rosa Pecht, $2,000 to one Louis Wuerth, and the balance to be equally divided among her other heirs at law. The inventory in her estate shows personal property to the amount of $3, TOO, aside from the sum in the hands of the trustee. At the time of the death of Pauline Ams, there were living children of each of the four children of Frederick Ams mentioned in his will. The administrator of the estate of Frederick Ams appeals.
   Bbooke, J.

(after stating the facts). The only question here involved is the character of the estate which passed to Pauline Ams under the will of Frederick Ams.

It is urged by the administrator of her estate, and the circuit judge held, that the will of Frederick Ams created an estate in fee simple, absolute in Pauline Ams, and. that the latter part of the clause, which created that estate, in which the testator attempted to make certain specific bequests to his grandchildren, was void for repugnancy.

In reaching this conclusion, the learned circuit judge relied upon the following cases: Jones v. Jones, 25 Mich. 401; Dills v. La Tour, 136 Mich. 243 (98 N. W. 1004); Moran v. Moran, 143 Mich. 322 (106 N. W. 206, 5 L. R. A. [N. S.] 323, 114 Am. St. Rep. 648); and Killefer v. Bassett, 146 Mich. 1 (109 N. W. 21). An examination of these cases will show that in each case the testator, as in the case at bar, used words sufficient in law to create an estate in fee in the first taker, and in each, case the testator then attempted to dispose of such portion of the estate, if any, as might remain at the death of the original devisee and legatee. There is no limitation in the wills considered in any of these cases upon the right of the first taker to dispose of the entire estate during her lifetime, but an attempt is made in each instance to limit an uncertain remainder upon an estate in fee. The case at bar is clearly distinguishable from those relied upon. Here the testator created an estate in fee in his wife, and in the same paragraph charged that estate with the payment of certain specific legacies, upon the happening of a certain future event.

There can be no doubt that language, which, standing alone, would create an estate of inheritance, may be so modified by subsequent language as to limit or qualify the estate originally apparently created. Forbes v. Darling, 94 Mich. 621 (54 N. W. 385); In re Owen’s Estate, 138 Mich. 293 (101 N. W. 525).

In the case of Robinson v. Finch, 116 Mich. 180 (74 N. W. 472), this court quoted with approval the language used in Smith v. Bell, 6 Pet. (U. S.) 68. It is peculiarly pertinent when applied to the words of the will here considered, and is as follows:

“ If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out; yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. We are no more at liberty to disregard the last member of the sentence than the first. No rule is better settled than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole. Either the last member of the sentence must be totally rejected, or it must influence the construction of the first so as to restrain the natural meaning of its words; either the bequest to the son must be stricken out, or it must limit the bequest to the wife, and confine it to her life. The limitation in remainder shows that in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them.”

See, also, Chase v. Ladd, 153 Mass. 126 (26 N. E. 429, 25 Am. St. Rep. 614); Kent v. Morrison, 153 Mass. 137 (26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616).

In the case of Cousino v. Cousino, 86 Mich. 323 (48 N. W. 1084), where the testator, after providing for the payment of his debts, bequeathed the residue of his estate, real and personal, to his wife, and “after her death, or sooner, if she chooses to, to be divided among my childr'en or their heirs, share and share alike,” this court held that the widow took only a life estate, upon the ground that to construe the will as creating an estate in fee would render the clause quoted meaningless.

There is no question that as to $8,000 of the estate left by Frederick Ams, it was his intention to give to his wife, Pauline, only the use thereof during her lifetime. It transpired at his death that his entire estate was of less value than the legacies with which he had charged it. This fact, however, can have no bearing upon the character of the estate created in the widow. It would result simply in a reduction of the legacies pro rata.

Construing the will as creating a life estate only as to the $8,000, there is no repugnancy in the clause under consideration, but if, as urged by the appellee, the latter part of the clause is repugnant to the earlier, the latter, being clear, definite, and specific, must control. Barnes v. Marshall, 102 Mich. 248 (60 N. W. 468); Foster v. Stevens, 146 Mich. 131 (109 N. W. 265), and cases there cited; Gilchrist v. Corliss, 155 Mich. 126 (118 N. W. 938, 130 Am. St. Rep. 568); Hamlin v. Express Co., 107 Ill. 443; Schouler on Wills (3d Ed.), § 478. Legacies become a charge upon real estate, either by express direction or by necessary implication. If the language used by the testator indicates that he intended the legacies to be paid, although he knew his personal property to be inadequate for that purpose, they will not abate. Or if the real estate and personalty are blended in one mass, and legacies then bequeathed, the legacies become a charge upon the real estate, if the personalty be insufficient. Gardner on Wills, p. 584; In re Owen’s Estate, supra.

We are of opinion that the testator clearly intended to charge his real estate, as well as his personalty, with the payment of the legacies, and that such construction' arises from necessary implication. The testator’s real estate, which at the time of his death was valued at only $5,000, was sold by his widow 17 years later for $6,200. His personal property amounted to only $1,400. It is obvious that, to provide for the payment of $8,000 of legacies, the testator must have intended to charge them upon the real estate, as well as the personal estate, and the blending of his entire estate in one mass in the earlier part of the clause is persuasive evidence of that intent.

It is unnecessary to cite authorities to the effect that the primary rule of construction is to discover the intent of the testator, and, if possible, give effect to that intent. As before pointed out, the testator clearly intended that his estate, to the amount of $8,000, should, upon the death of his wife, pass to his own grandchildren rather than to her heirs or devisees.

ThB judgment is reversed, and a decree will be entered in this court upon the footings of this opinion, with costs of both courts.

Moore, McAlvay, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    YOUNG v. MOORE.
    1. Constitutional Law — Statutes — Sueeioienoy oe Title — Foreign Corporations.
    Act No. 194, Pub. Acts 1905, amending Act No. 232, Pub. Acts-1903, by including foreign corporations within the provisions-imposing a liability on directors for failure to make reports, is unconstitutional for the reason that the amendment is not fairly within the title of the amended statute, which refers, to domestic corporations only.
    2. Statutory Construotion — Penalties.
    Statutes imposing penalties must be strictly construed.
    3. Corporations — Foreign—Liability op Directors — Reports..
    Act No. 310, Pub. Acts 1907, does not impose a liability on-directors of a foreign corporation for failure to make annuaL reports.
    Certiorari to Mecosta; Palmer, J.
    Submitted April 7, 1910.
    (Docket No. 20.)
    Decided July 14, 1910.
    Assumpsit by Sylvester A. Young against Henry H.. Moore and others upon certain promissory notes. An order overruling a demurrer is reviewed by defendants on. writ of certiorari.
    Reversed, and demurrer sustained.

      N. O. Griswold (Hyde, Earl & Thornton, of counsel), for appellants.

      Cogger & Broomfield, for appellee.

      John E. Bird, Attorney General (Arthur P. Hicks and S. A. Kennedy, of counsel), amicus curioe.

    Plaintiff brought suit against defendants, as directors of the Tabard Office Supply Company, a foreign corporation, by which he sought to recover from them the amount of two promissory notes made by said corporation. The defendants, as such directors, had failed to make the annual report for the year 1907. The action is brought under the provisions of Act No. 232 of the Public Acts of 1903, as amended by Act No. 194 of the Public Acts of 1905. Defendants demurred to the declaration. The demurrer was overruled, and defendants bring the case into this court by writ of certiorari.
   Brooke, J.

(after stating the facts). The Tabard ■Office Supply Company was admitted to do business in this State on December 15, 1906, under the provisions of Act .No. 206 of the Public Acts of 1901. Section 5 of that act is as follows:

“Any foreign corporation so admitted to carry on business in this State shall be subject to any and all provisions of statute requiring the filing of reports by corporations of this State, organized for the purpose for which such foreign corporation shall have been admitted; and a failure to file such report within the time prescribed shall be sufficient cause for revoking the right of such corporation to carry on business in this State, which revocation may be declared by any court of competent jurisdiction on complaint filed by the attorney general.”

This act was amended in 1907 (Act No. 310, Pub. Acts 1907), by providing in section 4 that—

“ The secretary of State shall in the certificate which he issues state under what act such corporation is to carry on business in this State, and such corporation shall have all the powers, rights, and privileges, and be subject to all the restrictions, requirements, and duties granted to or imposed upon corporations organized under such act.”

The certificate of admission granted by the secretary of State to the Tabard Office Supply Company, authorized it to do business in this State, “with all the rights and privileges, but subject to all the restrictions, requirements, and liabilities of a corporation organized under the provisions of Act No. 232 of the Public Acts of 1903.” Section 12 of that act reads in part as follows:

“Every corporation subject to this act shall annually, in the month of January or February, make duplicate reports for the fiscal year last ending, * * * and for refusal or neglect to make and deposit the reports required by this section before the first day of September in each year, the directors shall be liable for all the debts of such corporation contracted during the period of such neglect or refusal, and shall be immediately subject to all the penalties provided in this section.”

This section was amended in 1905 (Act No. 194), by inserting after the words “every corporation subject to this act” the words “including every foreign corporation admitted to carry on business in this State under the provisions of this act.” It is the position of the appellants that the amendment to section 12, supra, whereby the penalties incurred by directors of domestic corporations for failure to file the annual report are in terms likewise visited upon directors of foreign corporations, is unconstitutional and void.

Act No. 232, Pub. Acts 1903, is entitled:

“An act to revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies or any union of the two, and for the incorporation of companies for carrying on any other lawful business, except such as are precluded from organization under this act by its express provisions, and to prescribe the powers and fix the duties and liabilities of such corporations.”

This title obviously relates to domestic corporations only, and we are of opinion that the amendment by which the legislature attempted to impose penalties upon directors of foreign corporations is not fairly within the title of the act, under our decisions, Grosvenor v. Duffy, 121 Mich. 220 (80 N. W. 19), and cases cited.

But it is urged by the appellee that the defendants are liable for the penalty, even though this amendment fails. This liability is predicated upon the language above quoted, from section 4, Act No. 310, Pub. Acts 1907, which makes foreign corporations “subject to all the restrictions, requirements, and duties ” imposed upon corporations organized under the act, which is designated by the secretary of State as the one under which such foreign corporation shall do business. With some hesitation we have reached the conclusion that this ground is untenable.

It is not to be doubted that the legislature intended, by its amendment to section 12 of Act No. 232, to impose the same penalties upon directors of foreign corporations for failure to make the required reports as are visited upon those of domestic corporations, and it maybe that in using the language quoted from section 4 of the so-called “ Comity Act ” the legislature intended to include in the words “ foreign corporations ” not only that impersonal and incorporeal thing, the corporation itself, but likewise its directors and stockholders, but nevertheless, statutes imposing penalties must be strictly construed. Gilbert v. Kennedy, 22 Mich. 5; Shaw v. Clark, 49 Mich. 384 (13 N. W. 786, 43 Am. Rep. 474); Crosby v. Railroad Co., 131 Mich. 288 (91 N. W. 124). We are not disposed to enlarge by intendment the natural meaning of the words used.

This view is strengthened by an examination of the whole of Act No. 310, Pub. Acts 1907, which prescribes “the terms and conditions on which foreign corporations may be admitted to do business in Michigan. ” It will be observed that that act itself provides specific penalties for the failure to file annual reports, to wit, the revocation of its certificate to do business, and section 5 provides that, for a failure to comply with the requirements of that section, the corporation shall be subject to a penalty of not less than $100 nor more than $1,000 for every month it continues to transact business in Michigan without such compliance. These provisions would seem to negative the idea that besides the express penalties prescribed, it was intended by the legislature in using the words “restrictions, requirements, and duties,” to impose upon the directors (who are nowhere mentioned in the act) the added penalty of personal liability for the debts of the corporation, in case it made default in filing its annual report.

A very similar question was before the Supreme Court of the United States in the case of Park Bank v. Remsen, 158 U. S. 337 (15 Sup. Ct. 891). There that court said:

“ Section 12 of the act of 1848 is not in terms re-enacted in the charter of the warehouse company. It is, as we have seen, a statutory provision of a penal character, and before any party can be held bound by its provisions, it must satisfactorily appear that the legislation of the State has rendered him subject thereto. The contention is that section 9 of the charter of the warehouse company in effect incorporates said section 12 into such charter, but the provision of section 9 is that the corporation shall possess all the general powers and privileges and be subject to all the liabilities conferred and imposed upon corporations organized under the act of 1848. It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of "the corporation ? The officer is not the corporation; his liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation. How then can it be contended that a provision in a charter, that the corporation thus chartered shall assume all the liabilitiesjmposed by a general statute upon corporations, carries with it a further provision of such general statute that the officers of corporations also assume, under certain conditions, the liabilities of the corporation ? Does one by becoming an officer of a corporation assume all the liabilities resting upon the corporation; is not his liability of a distinct and independent character •and dependent upon other principles? * * * In the ■absence of any controlling decision, we are unwilling to hold, that a provision of a general statute imposing a personal liability on trustees or other officers, is incorporated into a special charter by a clause therein declaring that the corporation shall possess all the general powers and privileges and be subject to all the liabilities conferred and imposed upon corporations organized under such general act. (Something more specific and direct is necessary to burden an officer of the corporation with a penalty for omission of duty.”

We have examined the cases of Nelson v. Bank of Fergus County, 157 Fed. 161, 84 C. C. A. 609; Starkweather & Shepley v. Brown, 25 R. I. 142 (55 Atl. 201), and Miller v. Quincy, 179 N. Y. 294 (72 N. E. 116), cited for appellees, but find nothing therein, which, in our opinion, tends to cast doubt upon the correctness of the reasoning in Park Bank v. Remsen, supra.

It is a simple matter for the legislature, at its next session, by a suitable amendment to Act No. 810 of the Public Acts of 1907, to impose a personal liability upon directors of foreign corporations for failure to file annual reports, if, as is evidently the case, it intends such liability should attach. As its enactments now stand, we are of opinion that no such liability exists.

The order overruling the demurrer is reversed, and the demurrer sustained.

Moore, McAlvay, Blair, and Stone, JJ., concurred.


text:
    OPSOMERE v. OPSOMERE.
    1. Trial — Directing Verdict — Appeal and Error.
    A plaintiff, against whom a verdict is directed, is entitled to have the testimony he presents considered as true in disposing, on appeal, of the question of his right to recover.
    2. Replevin —Right of Possession — Landlord and Tenant — Personal Property.
    Under an agreement by a son to work the farm belonging to his father for the crops raised, and to care for the father during the current year, in pursuance of which the father purchased a team and tools for use on the place, and to belong to the father, the right of possession vests in the parent upon a breach of the contract by the other party, and the question of ownership should be submitted to the jury, where the son claims he purchased the property with his own funds.
    Error to Bay; Collins, J.
    Submitted April 7, 1910.
    (Docket No. 19.)
    Decided July 14, 1910.
    Replevin by Leander Opsomere against Alex Opsomere. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Gilbert W. Hand, for appellant.

      W. A. Collins, for appellee.
   McAlvay, J.

This is an action in replevin, brought by plaintiff, aged 86 years, against his son, 40 years of age, to obtain possession of a team of horses, some harness, a wagon, plow, land roller, and a harrow, which the plaintiff claimed to own, and to be entitled to the possession of, at the time the writ issued. The case was tried before the circuit court of Bay county, and a verdict was directed in favor of defendant, on the ground that at the time suit was commenced defendant, under the agreement between the parties, was entitled to the possession of the property. Plaintiff has brought the case here for review by writ of error, and asks a reversal of the judgment, principally upon the ground that the court erred in inrstructing a verdict for defendant.

The evidence introduced by plaintiff tended to show: That he owned and resided alone upon a small farm in Bay county, which he had rented for cash for the year •(1908) next preceding the year when this dispute arose for $150; that he had an opportunity to rent it for $175 cash the following year (1909); that in March of that year his son, the defendant, came to him and desired to work the place, saying that he had no home for his boys; that plaintiff then made the following agreement with defend■ant: The son was to work the place for one year, to have everything he raised, and was to care for the plaintiff and .furnish him a living. Defendant was to leave as much on the place at the end of the year as he found there. He was to have the right to use the tools then on the farm to work with. Plaintiff did not own any team. Defendant asked plaintiff if he had some money, and was told by plaintiff that he had some in the bank at Reese. Defendant then asked him to buy a team of horses with his money, and such new tools as were needed; the team and tools to belong to plaintiff, and to be used for working the farm. Soon after, on March 22, 1909, these parties went to Reese and called upon Mr. Herbst, an implement dealer, .requesting him to go with them to the bank to draw out money to buy some horses. The old gentleman is French, and speaks little German or English. Mr. Herbst went with them, and $388.71 was drawn out and at once handed to the son. The canceled check for that amount is produced in evidence; on the same date plaintiff purchased from Herbst, on credit, a harrow, a plow, and a roller for $52. Both plaintiff and Mr. Herbst swear to these facts. A few days after the team was bought by the son and brought to the father, who was asked if he was satisfied with them, and they were afterwards used on the farm. The implements bought of Herbst were brought to the place by the son. In August defendant went away for ■eight or nine days. He came back intoxicated, and asked his father to drink with him, which he refused to do. He then asked him to deed him the farm, and upon refusal he seized his father and threw him down. Plaintiff then went to his daughter’s house, one-half mile distant, and remained until 11 o’clock at night. He returned, accompanied by two neighbors. When they arrived, the defendant had gone away. In the morning plaintiff discovered that the team and the other property, which is claimed in this suit, had been taken away. The father then went to Bay City, where he remained for two weeks. When lie returned he went with his daughter and a neighbor to his farm, and the daughter made demand for this property of defendant for plaintiff. The son ordered them from the place, threatening to. shoot her, and refused to-surrender the property, claiming that it belonged to him. This property at this time was secreted at a farm three miles away, where defendant- had taken it, and where it was afterwards found by the sheriff, and taken under the writ in this case. It was duly appraised, and under the statute, defendant having furnished a bond, the property was returned to him and has been in his possession.

The verdict having been directed against the plaintiff, he is entitled to have the testimony he presented considered as true for the purposes of this case. Taking this view of the case, if no testimony had been introduced on the part of defendant, we are satisfied that an instructed verdict for plaintiff should have been given, if requested.. The trial court took the view that under this contract, as-recited by plaintiff, the defendant was entitled at the time of the replevin to the possession of this property. In coming to this conclusion he overlooked the fact that, taking the testimony of plaintiff and his witnesses to be true, defendant had repudiated the contract, taken the property from the farm, and secreted it, and, when demand was made for it, denied plaintiff’s ownership and asserted his own. If this was true, plaintiff was entitled, to bring his action in replevin. Wattles v. Dubois, 67 Mich. 313, 315 (34 N. W. 672); Freese v. Arnold, 99 Mich. 13 (57 N. W. 1038). Defendant denied this contract, and claimed that the property was his, purchased with his own money. The issue of fact thus made was a. question to be determined by the jury, and not by the court. The case should have been submitted to the jury under proper instructions. The court was in error in directing a verdict for defendant.

Further discussion is unnecessary. The judgment is-reversed, and a new trial ordered.

Moore, Brooke, Blair, and Stone, JJ., concurred..