text:
    NICHOLS v. JUDGE OF SUPERIOR COURT OF GRAND RAPIDS.
    1. Circuit (ourts — Municipal Courts.
    Circuit ourts derive their judicial powers from the Constitution, w'ile municipal courts may be established by the legislature. Const, art. 6, § 1.
    2. Courts — Dotation or Powers.
    While the (onstitution (article 6, §§ 13, 18) gives the legislature autority to-limit the powers and duties of probate and justice courts, no such authority is given over circuit courts.
    3. Same.
    Section 8, art.6, of the Constitution, which provides that “the circuit courts shall have original jurisdiction in all matters, civil ¡nd criminal, not excepted by the Constitution and not prohiked by law,” refers to causes which may be commenced in uch courts, and does not relate to the power to punish for co%mpts in cases properly before the court.
    4 Same — Contempts.
    Section 1098, 1 Cons> Laws, limiting and specifying the acts which courts of r«;ord may punish as contempts, was enacted under the Coistitution of 1835, which vested the judicial power in one Supreme Court and such other courts as the legislature might from time to time establish, and was intended to apply to the courts which the legislature was em powered to establish, and does not apply to circuit courts which possess inherent and exclusive power over contempt!.
    5. Superior Court — Contempts.
    The legislature, by virtue of Const, art. 6, § 1, empowering itto establish municipal courts of civil and criminal jurisdiction, enacted a statute (Act No. 49, Pub. Acts 1875) establisl'ing the superior court of Grand Rapids. Sections 13 and 11 of said act give the court power to do all lawful acts necesary and proper to carry into effect the powers and jurisdiction given by the act, and to do all acts which the circuit /ourts may in like cases do. Held, that the superior court of Grand Rapids has the same power to punish contempts as thecircuit courts have under the Constitution, and is not limite/ to the acts specified in section 1098, 1 Comp. Laws,
    6. Same — Subornation of Perjury.
    The superior court of Grand Rapids has power to junish an attorney for contempt of court consisting in committing the offense of subornation of perjury in a criminal cfse on trial before the court.
    7. Contempts — Criminal Offense.
    The fact that a contempt of court involves a critúnal offense does not deprive the court of jurisdiction to investigate it and punish it as a contempt.
    8. - Same — Jurisdiction—I^rit of Prohibition.
    The writ of prohibition is a proper remedy to determine the jurisdiction of a court to punish for contempt in a case where the relator makes no attack upon the form of the proceedings or the sufficiency of the papers, but denies that the court has any jurisdiction over the proceedings.
    Petition by George E. Nichols against Richard L. Newnham, judge of the superior court of Grand Rapids, for a writ of prohibition to restrain certain contempt proceedings.
    Submitted January 7, 1902.
    (Calendar No. 19105.)
    Writ denied March 26, 1902.
    October 28, 1901, the prosecuting officers of Kent county filed ’in the superior court of Grand Rapids affidavits charging relator with contempt of court. The affidavits changed that the relator committed the offense of subornation of perjury in a criminal case, viz., People against Lant K. Salsbury, -which was then on trial in the superior court; the relator being one of the attorneys for the prisoner. The relator made a motion in that court to quash the proceedings on the ground that the superior court had no jurisdiction in the 'case. This motion was denied, and an order entered that the contempt proceedings be stayed until the further order of the court, and that the prosecuting attorney “take such action through the regular channels of the criminal law as the gravity of the case and the ends of justice demand.” The relator thereupon filed the petition in this court for the writ of prohibition, claiming that the superior court has no jurisdiction over contempt proceedings of this character. Three questions are presented for determination: (1) Is prohibition the proper remedy? (2) Has the superior court jurisdiction over contempt proceedings? (3) Was the superior court proceeding according to law ?

      A. A. Ellis, J. B. Judkins, and Charles W. Nichols, for relator.

      Ward & Brown, for respondent.
   Grant, J.

(after stating the facts). The writ of prohibition is the appropriate remedy only where the court is acting entirely without jurisdiction or in clear excess of its jurisdiction. It is not applicable where the party has a complete and adequate remedy in some. other and more ordinary form. It will not lie to determine whether the petition for contempt is defective, any more than mandamus or certiorari will lie to determine whether a declaration, information, or indictment is defective. In such cases the circuit courts have full jurisdiction to pass upon the validity of the pleadings, and the proper course is by writ of error, appeal, or certiorari, after the proceedings are concluded. The principle is thus stated:

‘‘ The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with, the cause or matter before it, or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a prohibition will not lie where the inferior court has jurisdiction to deal with the cause and with all matters necessarily arising therein, however erroneous its decision may be upon any point.” Heard, Shortt, Extr. Rem. 436.

See, also, High, Extr. Leg. Rem. § 770, where it is stated that “it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law.” This rule is approved in Hudson v. Judge of Superior Court of Detroit, 42 Mich. 239, 248 (3 N. W. 853), and authorities there cited.

In People v. Wayne Circuit Court, 11 Mich. 394, 404 (83 Am. Dec. 754), in a unanimous opinion, written by Justice Campbell, it was said:

“ As the writ of prohibition, if issuable, is only for excess of jurisdiction, it is not material, on this motion, whether the facts charged are true or not. There seems to be no power to issue this writ to restrain any action which can be disposed'of by appeal or other ordinary method of review.”

The clear weight of authority sustains the rule as above stated.

The United States Supreme Court has held that:

“ A writ of prohibition is never to be issued unless it clearly appears that the inferior court is about to exceed its jurisdiction. It cannot be made to serve the purpose of a writ of error or certiorari to correct mistakes of ' that court in deciding any question of law or fact within its jurisdiction.” Smith v. Whitney, 116 U. S. 167, 176, (6 Sup. Ct. 570).

See, also, Ex parte Kearney, 7 Wheat. 38.

Repeated attempts have been made in this court by application for the writ of mandamus and certiorari to determine the validity of declarations, indictments, and information; but we have for several years consistently refused to entertain them. Only when the court below has held the pleadings bad, and quashed them, have we entertained such applications, and then for the reason that the parties had no other remedy. But where the court has retained jurisdiction, the party has another adequate and appropriate remedy. The most recent decisions upon this point are People v. Thompson, 108 Mich. 583 (66 N. W. 478), where the respondent was charged with manslaughter, and the circuit court refused to quash the indictment; and Maynard v. Ingham Circuit Judge, 124 Mich. 465 (83 N. W. 102), where the relator was under indictment, which the court refused to quash on the ground that the indictment was fatally defective. Certainly, the writ of prohibition should not be used to determine the same questions which we have refused to determine upon applications for mandamus and certiorari.

In the case now before us, relator denies that the respondent has any jurisdiction over proceedings of this character. No attack is made upon the form of the proceedings or upon the sufficiency of the papers. It is a clear case of denial of jurisdiction. We are therefore of the opinion that the writ of prohibition furnishes the proper remedy to determine the jurisdiction of the court.

The legislature is, by the Constitution, authorized to establish municipal courts of criminal and civil jurisdiction. Const, art. 6, § 1. The, superior court of Grand Rapids is a creation of the legislature, with such powers and jurisdiction as the legislature has seen fit to confer upon it. We must, therefore, look to the act of the legislature establishing this court to determine what power is given it over the subject of contempts. The statute is silent upon the subject, except as it is covered by the general and broad jurisdiction conferred upon the court. The act gives such court original and exclusive jurisdiction over all criminal proceedings committed within the corporate limits of the city, with certain exceptions, and “power to issue all lawful writs and process, and to do all lawful acts, which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts, which the circuit courts of this State, within their respective jurisdictions, may in like cases issue and do by the laws of the State of Michigan.” Pub. Acts 1875, Act No. 49, §§ 13, 14 (1 Comp. Laws 1897, §§ 630, 631). Under this law the superior court is subject only to the control of the Supreme Court. It is governed by the same rules of practice as the circuit courts. Appeals are taken from it to the Supreme Court. In short, it is subject to the mandate of this court in precisely the same manner and to the same degree that the circuit courts are.

This act is similar in its provisions to the act establishing the superior court of Detroit. This court held that:

“As respects civil jurisdiction, the superior court [of Detroit] is a tribunal of the same class as the circuit courts. There are no limitations upon its powers. * * * The nature of the subjects of its jurisdiction, so far as the jurisdiction extends, is the same. It.is a court of original jurisdiction, proceeding according to the course of the common law.” Wyandotte Rolling-Mills Co. v. Robinson, 34 Mich. 428.

See the further reasoning of the court on page 432. See, also, People, ex rel. Covell, v. Kent County Treasurer, 36 Mich. 332.

The power to punish for contempt is essential to the due administration of the law, and to carry out the orders, decrees, and judgments of the court. If it was the intention of the legislature to limit the jurisdiction of the court over contempts to the causes specified in section 1098,1 Comp. Laws, — a law which was enacted long prior to the adoption of the present Constitution, and when there was only one constitutional court, viz., the Supreme Court, — it would certainly have used language appropriate to express such intention. On the contrary, it expressly confers upon the court the same powers in this respect that circuit courts possess under the Constitution. It follows that, if the circuit courts are clothed with the power to punish for con-tempts, and are not limited to the cases provided for in the statute, which was enacted under the Constitution of 1835, then the respondent possesses the same power. The question, therefore, is again presented to this court, Have the circuit courts of this State the inherent power to punish for contempts, or are they subject to the control of the legislature? The question is an important one in the administration of the law. If the legislature can determine what acts shall constitute contempts in the circuit courts, it can abolish the power of such courts to punish for con-tempts. There is no middle ground; either the courts have the absolute control, under the Constitution, over contempt proceedings, or they have only such as the legislature may see fit to confer.

The language of this court in Langdon v. Wayne Circuit Judges, 76 Mich. 367 (43 N. W. 310), is a broad statement that this power is inherent in the circuit courts of this State to the full extent that it existed in the courts of England at the common law. This was an authoritative statement of the law, but seems not to have been so considered by the entire profession. The subject was again before the court in Re Chadwick, 109 Mich. 588 (67 N. W. 1071). We there cited many-authorities from other courts holding the same view that was expressed in the Langdon Case. We will not cite those authorities again, but content ourselves with this reference to them and with the citation of a few others. . We found it unnecessary to pass directly upon the question, but said:

“We must not be understood as assenting to the proposition that the legislature, under the guise of regulation, may destroy a constitutional power of the courts.”

The Constitution of 1835 provided that “the judicial power shall be vested in one Supreme Court, and in such other courts as the legislature may from time to time establish.” Const. 1835, art. 6, §1. The people were dissatisfied with the courts organized by the legislature, and, in the adoption of the new Constitution, made an important change by providing that:

“ The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.” Const. 1850, art. 6, § 1.

Thus the unlimited power to create courts, given by the Constitution of 1835, was taken away by the new Constitution, and the legislature was limited to the creation of “municipal courts of civil and criminal jurisdiction.” The reason for this important change in the organization of the courts is stated in Streeter v. Paton, 7 Mich. 341.

By sections 13 and 18 of article 6, the jurisdiction, powers, and duties of the probate and justices’ courts may be limited and prescribed by the legislature. No such power is found as to the circuit courts or the Supreme Court. Section 8, art. 6, provides:

“The circuit courts shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution, and not prohibited by law.”

This refers to causes which may be instituted in those courts, and not to the practice and proceedings in those causes when once instituted. The sole power conferred upon the legislature by that provision is to determine what causes may be instituted in the courts. It has no reference to the power to enforce their orders, judgments, and decrees by punishment for contempts or by other proceedings. As an illustration of this power, this court has held' that the legislature may take away from a taxpayer the remedy by injunction where an adequate and complete remedy at law is provided instead. Eddy v. Township of Lee, 73 Mich. 123 (40 N. W. 793). But when the legislature attempted to provide a jury trial in equity cases, and make the verdict of the jury binding upon the conscience of the court, it was held in a well-considered opinion, written by Justice Campbell, that the act was unconstitutional. The learned justice used language which is applicable here:

“ Our constitutions are framed to protect all rights. When they vest judicial power, they do so in accordance with all its essentials; and, when they vest it in any court, they vest it as efficient for the protection of rights, and not subject to be distorted or made inadequate.” Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 284 (42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438).

Nor is this all. Section 1098, 1 Comp. Laws, in regard to criminal contempts, includes every court of record. This would include the Supreme Court, and it may, with the same propriety, be urged that the legislature has control -over contempts in the Supreme Court as in the circuit courts. The Constitution is silent as to both. So, also, .are the. debates in the constitutional convention. There were able and experienced lawyers in that convention, who were thoroughly conversant with the powers of these constitutional courts. We must assume that they were .familiar with the decisions upon this subject. If they had intended a limitation upon this power, which had been so long exercised, they would certainly, either in their debates or in the Constitution itself, have left some record of such intention. This intention is further made manifest by the fact that they did make a distinction between probate and justices’ courts and the circuit and supreme courts, as above shown.

The Constitution provides that “no person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this Constitution.” Article 3, § 2. There is no provision in the Constitution which expressly or by implication confers upon the legislature control over this important power. Neither is there anything in it which confers upon the courts any power over the same subject in the legislature. Each was intended to be, is, and ought to be, independent of the other upon this subject. The sound and reasonable rule of law is that, in the absence of express provision in the Constitution itself, the courts of record, established by the Constitution, are clothed by that instrument with the exclusive power over contempts,- — a power which has existed from time immemorial. This rule is also established by a long line of authorities.

This subject has received a careful examination and discussion in Carter v. Com., 96 Va. 791 (32 S. E. 780, 45 L. R. A. 310), decided in March, 1899. The constitution of that State upon this subject is quite similar to our own. The legislature of that State passed an act similar to the one now under discussion.. In addition to defining contempts, it provided for a trial by jury. The act was held unconstitutional in a unanimous opinion. The court say:

“These courts do not derive their existence from the-legislature. They are called into being by the constitution itself, the same authority which creates the legislature. * * * The power to punish for contempts is inherent in the courts, and is conferred upon them by the constitution by the very act of their creation. It is a trust confided and a duty imposed upon us by the sovereign people, which we cannot surrender or suffer to be impaired without being recreant to our duty.”

The constitution of Georgia contains this clause: “ The-. power of the courts to punish for contempts shall be-limited by legislative acts.” Article 1, § 1, par. 20. Held, that this did not confer upon the legislature the-right to determine what acts shall constitute contempts, but only the power to prescribe the punishment therefor. Bradley v. State, 111 Ga. 168 (36 S. E. 630, 50 L. R. A. 691, 78 Am. St. Rep. 157). The court use this significant language:

“Where a court is established by the constitution, it is given all the powers usually possessed by all courts; and we will not construe another provision of the constitution so as to take away from the court a power which is essential to its preservation, and to its accomplishment of the purposes for which it is created, unless constrained to do-so by express words or necessary implication.”

The power to punish for contempts is as ancient as the courts, and antedates Magna Gharta. Chief Justice Wilmot, nearly -a century and a half ago, said of this-power:

The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution. It is a necessary incident to every court of justice, whether of record or not, to fine and imprison for contempt acted in the face of the court; and the issuing of attachments by the supreme courts of justice in Westminster Hall for contempts out of court stands on the same immemorial usage which supports the whole fabric of the common law. It is as much the lex terree, and within the exception of Magna Charta, as the issuing of any other legal process whatsoever. I have examined very carefully to see if I could find out any vestiges of its introduction, but can find none. It is as ancient as any other part of the common law. There is no priority or posterity to be found about it. It cannot, therefore, be said to invade the common law. It acts in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. Truth compels me to say that the mode of proceeding by attachment stands upon the very same foundation as trial by jury. It is a constitutional remedy in particular cases, and the judges in those cases are as much bound to give an activity to this part of the law as to any other.” 3 Camp. Ch. Just. 190.

To bribe or to attempt to bribe a witness in a pending case is a most serious contempt of court, and one which should be promptly dealt with. The fact that it involves a criminal charge does not take away the jurisdiction of the court to investigate and punish it as a contempt.'

Undoubtedly the legislature has the right to limit control over contempts in those courts which are of its own creation. Ex parte Robinson, 19 Wall. 510. Section 1098, 1 Comp. Laws, is first found in the Revised Statutes -of 1846, and has remained without change since that time. It then applied to the courts which the legislature was authorized to create. So, if the legislature, in creating the court in question, had used any language from which it could be inferred that, in establishing it, it intended to limit its powers over contempts, it would undoubtedly be held valid. It did not choose to do so, but, on the contrary, it did choose to give it all the powers which were conferred by the Constitution upon the circuit courts in all those matters intrusted to its jurisdiction.

Inasmuch as the superior court withheld proceedings until the prosecuting attorney should institute criminal proceedings in the matter, it is unnecessary to discuss the third question raised, viz., are the proceedings according to law ?

The writ is denied.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    QUIMBY v. UHL.
    1. Assignments for Benefit of Creditors — Continuing Business —Estoppel.
    An assignee under a common-law assignment may continue the business with the consent of the debtor and all the creditors, and in such case they will be estopped from claiming that he should have disposed of the property, paid the debts, and turned over the remainder to the assignor.
    2. Same — Payment of Debts.
    When an assignee has paid all the debts, the assignor may take possession of the remaining property, and no retransfer is necessary to convey title to him; or, the trust being at an end as to the creditors, he may arrange with the assignee to continue the business in the name of the assignee.
    S'. Same — Accounting—Losses.
    An assignee, acting in good faith, with the consent of ail the creditors and the assignor, continued the business under the management of the assignor. After the debts were paid, he continued the business with the consent of the assignor, giving his advice and extending credit. After the death of the assignor, the business was continued in the same manner, with the consent of the heirs of the assignor, some of the heirs-being active in the management of the business. Por the first 14 years the business was successful, and yielded large-profits; for the last six years it was unsuccessful, and sustained losses; for the whole period the profits exceeded the losses. Held, that a bill by the heirs of the assignor, who had received and retained the profits of the business when successful, attempting to cast all the losses upon the assignee, was without equity and unconscionable.
    4 Trustees — Management of Property by Consent.
    Beneficiaries of full age and sound mind, who have expressly or impliedly assented to the action of their trustee in the management of the property, will be held to have acquiesced in such action.
    Appeal from Kent; Wolcott, J.
    Submitted- January 10, 1902.
    (Docket No. 63.)
    Decided March 26, 1902.
    Bill by EmelineK. Quimby, EthelynG. Quimby, Clara S. Morley) Walter W. Drew, as administrator of the estate of Ichabod L. Quimby, deceased, and Clara S. Morley, as administratrix de bonis non of the estate of George I. Quimby, deceased, against Edwin F. Uhl, individually andas assignee of Ichabod L. Quimby, and Raymond L. Quimby and Irving L. Quimby, for a receiver and an accounting. There was a decree for defendants, and complainants appealed. Defendant Uhl having died, his executrix, Alice F. Uhl, was substituted as defendant.
    Affirmed.
    In August, 1879, the defendant Uhl was appointed assignee, by a common-law assignment, of the assets of Ichabod L. Quimby. The business was carried on from that time until 1899 in the name of Mr. Uhl as assignee. The debts which then existed at the time of the assignment were all paid. The business was for many years prosperous, but in the depressed times commencing in 1893 it suffered losses. The statement of facts covering so long a period is necessarily lengthy. We do not think we can state them more clearly or more concisely than has.been done in the opinion of the learned circuit judge who heard the case. That opinion is as follows:
    “For some years prior to July 31, 1879, Ichabod L. Quimby and his son, George I. Quimby, had been engaged in a lumbering and manufacturing business at Grand Rapids and elsewhere under the name of I. L. Quimby & Son. On or about that date George I. Quimby conveyed to his father, Ichabod L. Quimby, all his individual property and his interest in the firm, and on August 6, 1879, Ichabod L. Quimby made a common-law assignment for the benefit of his creditors to the defendant Edwin F. Uhl, who formally accepted the trust. The liabilities of I. L. Quimby at that time amounted to about $él,000, and the assigned property consisted of a mill and the surroundings in Grand Rapids, some property at Cherry Grove, a mill at Quimby Station, and some other property, much of which was heavily mortgaged.
    “After the assignment, the business formerly conducted under the name of I. L. Quimby & Son was continued to be carried on in the name of Edwin F. Uhl, assignee of I. L. Quimby, but under the personal management and direction of Ichabod L. Quimby and his son, George I. Quimby, both of whom were experienced and capable business men. The moneys derived from the conduct of the business were deposited in the bank account in the name of Edwin F. Uhl, assignee of I. L. Quimby, and from 1879 to 1893, checks were drawn thereon, signed by George I. Quimby, as follows: ‘ Edwin F. Uhl, by George I. Quimby, Assignee of I. L. Quimby.’ The purchase of supplies and materials, the manufacture and sale of lumber and products, were made by the Quimbys in the name of Edwin F. Uhl, assignee of I. L. Quimby; and the business generally was carried on in that name and in that manner, with the knowledge and approval of the assignee and I. L. Quimby.
    “ In the year 1882 I. L. Quimby had inspected a tract of valuable pine timber,*known as the ‘Dexter & Noble Tract, ’ which he was desirous of purchasing. The defendant Uhl secured the purchase price of $20,000, raising a portion of it at the bank by indorsing a note with George I. Quimby, and giving his own notes for the balance. The title to this property was taken in the name of Edwin F. Uhl. In the year 1885 another purchase of timber land was made in substantially the same manner. This was known as the ‘Hannah & Lay Purchase,’ and for this property $10,000 was paid. The money was raised by Mr. Uhl on his personal indorsement, and the title taken in his name. In 1886 another purchase, known as the ‘ Torrent & Hannah Purchase,’ was made for the sum of $20,000. The purchase money was secured by Mr. Uhl in the same manner as in the other purchases, and the title taken in his-own name.
    “These several tracts were lumbered off by the Quimbys. The mill belonging to I. L. Quimby at the time of his assignment, and then located at Cherry Grove, was removed to South Boardman, and there operated. It was occupied for the most part in cutting the timber from the three purchases referred to. The manufacturing business ■carried on at Grand Rapids was also extended and enlarged during this period. The purchase of these timber lands proved to be a profitable investment. The purchase price of the lands was paid; thp debts existing at the time of the assignment were all paid by 188?; and on the death of I. L. Quimby, in March, 1889, the estate was in good condition, having on hand quite a large surplus over and above all indebtedness contracted since the assignment.
    “In 1887, after the payment and discharge of all the debts existing at the time of the assignment, the business was still carried on in all respects as before, — in the name of Edwin E. Uhl, assignee of I. L. Quimby. Ichabod L. Quimby and George I. Quimby continued as the active managers of the business, and Edwin E. Uhl took little active part in the conduct of the business, other than by way of providing for the purchase of the timber lands before named, and in the indorsement of 'negotiable paper at the request of the assignor or his son, and in giving legal advice and counsel to I. L. Quimby and his son, George, concerning the business.
    “Ichabod L. Quimby died in March, 1889, and left surviving him his widow, Emeline K. Quimby, and his children, George I. Quimby, Clara S. Morley, and Ethelyn G. Quimby. No administration was taken on his estate. After his death no change was made in the conduct of the business, except that George I. Quimby assumed the active management, and the assignee continued to furnish his personal indorsement on negotiable paper, and continued to act as general adviser; business still being carried on in the same name. The business then included the operations of the mill at South Boardman, and the conducting of quite an extensive manufacturing business at Grand Rapids.
    “ On May 15, 1893, George I. Quimby died intestate, leaving a widow, Bertha C. Quimby, and two minor children, the defendants Raymond L. Quimby and Irving L. Quimby; they being the children by a former wife. On the death of George I. Quimby, the defendant Uhl caused an inventory of the property to be taken, and had the books of account examined by expert accountants. The inventory and appraisal showed at that time a total of assets belonging to the estate, including the real estate, of $97,474.75. Of this, $58,199.75 was the appraisal value of the personal property, including accounts and bills receivable, lumber and manufactured products, and all personal property. The entire indebtedness at that time was $31,886.80. No inventory was taken at the time of the death of I. L. Quimby, but the condition of the estate at that time was about the same as at the death of George.
    “After the death of George I. Quimby,'Clara S. Morley, one of the daughters, who had been employed in the office for a few years under her brother, George, requested Mr. Uhl to allow her to take charge of the business. She did so, receiving a salary of $50 per month. From that time the business was conducted as before, Mrs. Morley taking the place which George had taken before his death in the general oversight and active management of the business. New books were opened and kept at the Quimby office by a bookkeeper employed for that purpose. The customers were advised that the business would be continued the same as before. Mrs. Morley purchased the material to keep the factory in operation. She sold the manufactured product, making frequent trips for that purpose. She enlarged the business by entering into other branches not before carried on. She superintended the employment and discharge of the workmen, and gave all the' details of the business her close personal attention. When she assumed the management of the business she was not familiar with the manufacturing business, excepting what she had learned in the office of her brother, George, and her duties there were mainly clerical in character. The operations in the factory at Grand Rapids were left in charge of the same foreman who had been employed there for many years, and the operations at the South Boardman mill were also left in charge of the same foreman who had been employed there during the lifetime of I. L. Quimby.
    “For about six months after the death of George I. Quimby, Mr. Uhl signed all checks drawn in the conduct of the business, and these checks were drawn against the funds belonging to the business, deposited in the name of Edwin F. Uhl, assignee of I. L. Quimby. He also indorsed as assignee for a deposit of all checks and bills receivable which came in from customers, and was in frequent communication with Mrs. Morley concerning the details of the business. He also became personally responsible by indorsement from time to time for various sums necessary to carry on the business and pay outstanding obligations. The amount for which he became thus personally liable increased during the last few years. In December of that year [1893] Mr. Uhl went to Washington, and remained there until December of 1895, when he went to Germany, and remained there until August, 1897.
    “ During the conduct of the business in the name of the assignee, there was purchased from time to time, with trust funds, certain real estate. In some instances the titles were taken in the name of Edwin F. Uhl individually, in other instances in his name as assignee, and in others in the name of George I. Quimby. In still other instances lands were purchased on contracts in the name of Edwin F. Uhl individually, and assigned by him to George I. Quimby in 1892, and deeds made to the latter. At the death of George I. Quimby, the personal property, consisting of cash, bills and accounts receivable, lumber and' other manufactured products, amounting in value to upwards of $54,000, stood in the name of the assignee. The real-estate titles were as follows: All the Grand Rapids real estate, consisting of four lots, upon which are situated the factory buildings, the homestead, and two small dwellings, stood in the name of George I. Quimby, in whose name they had been repurchased in 1888, after the foreclosure of a mortgage upon them; all of the purchase price, together with the taxes and other disbursements relating to them after the purchase, having been paid from the trust funds, and the mortgage given by George I. Quimby for a part of the purchase price having in 1894 been paid by George I. Quimby’s administrator out of certain life-insurance money belonging to his estate, and the mortgage having been assigned to Ethelyn G. Quimby; the payment and assignment having been made by the direction of Edwin F. Uhl. A tract of hard-wood land, consisting of an entire section, in Kalkaska county, purchased in 1891 with trust funds, stood in the name of George I. Quimby, as did also two village lots in the village of South Board-man, and about 550 acres of stump land in Wexford county. A large amount of lands in Kalkaska county, purchased with trust funds, stood in the name of Edwin F Uhl individually, and five lots in South Boardman, and the mill site on which was the South Boardman mill, stood in the name of Edwin F. Uhl, as assignee of I. L. Quimby. An abandoned mill site in Canada stood in the name of Ichabod L. Quimby, and this was the only property which did stand in his name, although all of it was equitably the property of his estate.
    “Soon after the death of George I. Quimby, an administrator of his estate was appointed at the instance of his widow, and the administrator and the widow of George I. Quimby claimed ownership and control of the property standing in the name of George I. Quimby, and continued to make such claim until March, 1894, when a settlement was made with George I. Quimby’s widow, by which, in consideration of $5,200, she conveyed to Clara S. Morley all her right, title, and interest in her husband’s estate. This settlement had the knowledge and approval of Edwin F. Uhl, who had taken no steps to have the titles corrected, who acted as the family adviser in respect to the settlement, and who required, as a condition to its being made, the resignation of the administrator of George I. Quimby’s estate (he having sought to interfere with the conduct of the business of the assignee), and the appointment of Clara S. Morley as administratrix de bonis non. Out of the $5,200 paid to the widow of George I. Quimby, $200 was from the trust funds, and $5,000 was money loaned by Edwin F. Uhl, as guardian of John T. Byrne, upon a note of Emeline E. Quimby, Clara S. Morley, and Ethelyn G. Quimby, secured by an instrument purporting to mortgage ‘all the real estate and chattels real, and all the goods, chattels, moneys, and debits owing to Edwin F. Uhl, assignee of I. L. Quimby, and all the right, title, and interest, claim and demand, of, in, and to all the personal and real estate now vested or held or standing in the name of Edwin F. Uhl, assignee of I. L. Quimby, wheresoever the said real estate, chattels real, or personal property may be.’
    ' “During Mr. Uhl’s absence in Washington, the checks drawn in the course of the business were signed as agent of the assignee, but all drafts and bills receivable from customers, and all drafts drawn upon customers, were sent to him for his signature; the business being all done in his name as assignee, as before. He received frequent communications from Mrs. Morley concerning the conduct of the business, and advised with her as to its management. By his direction, Mrs. Morley, during his absence in Washington and Germany, looked to his son, David E. Uhl, for assistance in the conduct of the business, — the son acting as his father’s agent; and while Mr. Uhl was in Germany the drafts and bills receivable from customers, and the drafts drawn upon customers, were indorsed and signed by David E. Uhl, as the assignee’s agent. During the same time, trial balances and other statements concerning the business were furnished to David E. Uhl by Mrs. Morley, and were transmitted by him to Edwin F. Uhl. In July, 1896, an inventory was taken of stock -on hand, and it was found that there had been a loss from 1893 of about $12,000. This situation was reported to E. F. Uhl, who was then in Germany. In January, 1897, the inventory taken showed that during the year 1896 the business had lost between $5,000 and $6,000. This fact was communicated to Edwin F. Uhl.
    “In August, 1897, Mr. Uhl returned from Germany, and thereafter gave more personal attention. In July, 1898, another inventory was taken and reported to Mr. Uhl, who was then residing in Grand Rapids, which showed an additional loss of $19,000. In July, 1899, another inventory showed a still further loss of about $9,000; and no change was made in the conduct of the business, except that in July, 1899, under the direction of Mr. Uhl, the name under which the business had been carried on was changed, and the business was thereafter carried on in the'name of I. L. Quimby Factory. During that year Mr. Uhl became'personally liable on his indorsements for money used in the management of the business to the-sum of about $13,000. This was for indorsements at the bank for money borrowed. He also personally guaranteed a number of claims for goods and materials furnished the concern, which were unpaid and pressing for payment. This amounted to about $3,000. He also became personally liable for the overdraft at the bank, which amounted on November 24th to $1,600.
    “The bill of complaint in this case was filed on November 25, 1899, asking for the appointment of a receiver. A receiver was appointed in December, 1899, and his inventoiy and appraisement showed debts amounting to about $50,000, with total assets of about $46,000. Mr. Uhl drew from the estate, during the period in which he was acting assignee, an annual salary of $1,000. It appears.from the evidence that I. L. Quimby desired that the business should be continued in the name of Edwin F. Uhl as assignee, even after the entire indebtedness owing at the time of the assignment had been paid. It appears that the ■same thing was true of George I. Quimby, who was the active manager from the time of his father’s death to his own death. The residence of the Quimby family was in the near neighborhood of the factory in Grand Rapids, and after George’s death the family was composed of Emeline K. Quimby, the widow of I. L. Quimby, Mrs. Morley, and Ethelyn G. Quimby; and, after the settlement with the widow of George I. Quimby, the two children of George I. Quimby, the defendants Raymond L. and Irving L. Quimby, also made their home with the Quimby family. It appears from the books of the concern that Emeline K. Quimby drew and had charged to her personal account the sum of $39,417.61 from 1879 to 1899. It also appears from th§ books that George I. Quimby drew from the business, from the time of the assignment to the time of his death, as appears charged to him on the books, $31,642.35. It also appears from the books that Mrs. Morley, from the time of George’s death to the date of the appointment of the receiver, drew out and had charged to her personal account the sum of $6,681.92.
    “This bill is filed on the theory that by law, and by the terms of the deed of assignment, the assignee had no authority to continue the business as a going business, but his duty was to convert the assets into money as rapidly as possible, and to divide the proceeds among the creditors, and to return the balance of the estate, if any, to the assignor. This was unquestionably his duty, and had he done so at once, and as rapidly as possible, without further purchases of property or extending the business, it is apparent that the assets would no more than have paid the debts, and probably would not have done that; but, with the consent of all the creditors and assignor, it would not be unlawful for the assignee to continue the business as a going business. If all who were beneficially interested in the trust fund, and who were under no legal disability to act, gave express or implied consent, there would then be no one else who would have any right to complain, and the assignee, acting in good faith under such authority, would be protected. So far as appears in this case, the continuance of the business by the assignee up to the time, in 1887, when all the original debts of the assigned estate were paid, was. with the acquiescence of all the creditors. There was after that time, and until his death, no one beneficially interested in the trust, except the assignor, Ichabod L. Quimby. It appears that the continuance of the business by the assignee from 1887 up to the time of the death of I. L. Quimby was with his express consent, or at least with his acquiescence. The business was then profitable and successful, and was providing a means of support for I. L. Quimby and his family, and was accumulating an increasing surplus.
    ‘ ‘ There can be no question but what I. L. Quimby could authorize a continuance of the business as before in the name of Edwin E. Uhl, assignee. It was under his own immediate supervision, and.that of his son, George; and he had the benefit of the name of Edwin E. Uhl, his advice and counsel, and his financial aid as indorser. This does not seem to be seriously questioned in this case by counsel for complainants. At the death oí I. L. Quimby, intestate, the estate belonged to* his widow and children. Of his children, all were of age except Ethelyn, who was then about 19. The family were living together. George was a capable business man, and was thoroughly familiar with the details of the business, and during the latter part of his father’s life had practically had the management of the business. The business was successful and prosperous. It seems to have been taken for granted that it should continue as before. The family apparently relied on George, and he continued as the active manager until his death, in 1893. Up to this time the business had been successful. No complaint was made by any one. There was a net estate of about $65,000. The management of the business in the name of the assignee, and at least under his nominal control, seems to have had the entire acquiescence of all the family. The following six years were years of disaster and loss, and it is for this period that it is claimed the assignee should account.
    ‘ ‘ If those beneficially interested in the estate, and under no legal disability, and with the knowledge of the estate and of their rights therein, acquiesced in the continuance of the business as before, in the name of and under the direction of the assignee, and if the assignee acted in good faith and with reasonable care and judgment, they cannot now complain. Except the two minor children of George, the other heirs of I. L. Quimby were of age. His widow was for a time much disturbed, mentally and physically, over the death of George, but she had at no time, apparently, been consulted as to business affairs; and it appears that she left all such matters to her husband and George during their lifetime, and later to her daughter Mrs. Morley. She was living with the family during all this time, was receiving $100 per month from the estate for the support of the family, and after her recovery she was so situated that she knew, or might have known, all that Mrs. Morley knew of the situation as regards the estate. As to Ethelyn, she was, at the death of George, a member of the family, and so continued, though she seems never to have been personally consulted as to the conduct of the business. Mrs. Morley was the active manager of the business after the death of George. She was a woman of energy and good 'business capacity, and gave to the business her best efforts.
    ‘ ‘ The losses in 1893 and succeeding years were due in great part to the financial panic and general business depression, and to some extent, probably, to the fact that the work in the factory in getting out the product was left to the foreman, and on account of inadequate machinery and appliances in some instances, and the lack of close attention to businesslike methods by those in control in the factory in other instances. The cost of the product of the factory was greater than it should have been. With this portion of the work Mrs. Morley was not familiar, and it was left in the hands of the foreman in charge. There were comparatively few losses from bad debts. Mrs. Morley knew better than any one else the condition of the business, and whether it was prosperous or otherwise. She may not have known fully the legal rights of the heirs and the legal duties of the assignee, but there was no evasion or concealment on the part of the assignee; and it was clearly her wish and desire to have the business continue in the name of Mr. Uhl, and to so manage it herself as to make it a success. This appears in many of her letters. I think it must be said from all the evidence that Mrs. Morley knew the situation of the estate, and knew, or might have known, che rights of the heirs therein, and the relation of the assignee thereto, and that her acquiescence in the continuance of the business by the assignee estops her from now complaining. The same must be said of Emeline K. Quimby and Ethelyn G. Quimby. They apparently knew little of the actual conduct of the business; but they lived close to the factory; they knew it was conducted in the name of the assignee; they were in the same family with Mrs. Morley; they knew that from the receipts of the business there were drawn monthly the necessary funds for the support of the family; and, if they did not know all that Mrs. Morley knew about the business, it was apparently because they accepted the situation as a matter of course, and depended on Mrs. Morley, and acquiesced in what she and Mr. Uhl did, without question.
    “ I do not find that the assignee acted throughout this business at any time in bad faith. He made no new or speculative investment of the trust funds, but continued a business which was well established", and which had been successful and prosperous. The trust funds, while nominally in his control and direction, were embarked in a business which was at all times managed by I. L. Quimby, George I. Quimby, or Clara S. Morley.
    ‘ ‘A somewhat different question is presented as to the minor children of George I. Quimby; assuming that the assignee had, by reason of the acquiescence of the adult members of the Quimby family, authority to continue the business up to the time of the death of George I. Quimby. At that time the rights of the infants attached, and as to them the assignee’s right to continue the business for a longer period than was necessary to close it out must depend upon a new consent as to the infants, given after George I. Quimby’s death. No .temporary operation of the business for the purpose of closing it out was apparently ever contemplated, ‘and the question is, "Was the consent of the infants to a continuance of their estate in the business obtained in any manner so as to affect their rights in the estate ?
    “At the time of the death of George I. Quimby, the defendant Eaymond Quimby was about eleven years of age, and Irving Quimby about six. The question of their rights in the estate, and the necessity of procuring some effective authority for a continuance of their funds in the business, seems not to have occurred to any one. It is not a case where profits were made and accepted for an infant’s benefit; nor where an infant, after reaching maturity, ratified the action of an assignee. No authority of any court has been sought, or any attempt to procure the consent of the guardian. It is true that Mrs. Morley was appointed guardian of the infants, but that was not, so far as appears from the evidence, with any idea of attempting to obtain through the guardian authority to continue the interest of the infants in the business. The appointment seems to have been made after the settlement with George’s widow, for the purpose of having a portion of the allowance made to the widow from the estate drawn for the support of the children. It is not claimed that Mrs. Morley, as guardian, ever did formally consent to a continuance of the business on behalf of the infants, or that such consent was asked or even considered. I do not think such consent can be implied from the mere fact that the guardian was herself engaged in the business, and acquiesced in a continuance of her own funds in its prosecution. Her responsibility or discretion as guardian of the estate of the infants embarked in the business was not exercised.
    “At the death of George I. Quimby, all the estate was in the hands of the assignee, and he held the share belonging to these infants as trustee. It was clearly his duty, holding that position, to obtain, by order of a court or otherwise, authority to continue the funds belonging to the infants in that business. I do not think it can be said that the acquiescence of Mrs. Morley, so far as the estate of these infants is concerned, can shift the responsibility from Mr. Uhl to herself as guardian. Whatever might be said as to strangers dealing with the estate, and relying on the apparent acquiescence of the guardian, as to Mr. Uhl his relations were very different. He not only permitted the business to continue under his name and by his authority, but he stood in the relation of legal adviser to the family. He still held the estate in his name as assignee, and under his control. He owed an active duty to these infants, under the circumstances, to preserve their estate, or to have their portion ascertained and turned over' to their legal guardian; and,"if he desired to relieve himself from personal responsibility for continuing their estate in the business, it was his duty to secure from the court authority to so continue it, or some effectual consent of the guardian, if such could be granted, given with a knowledge of the responsibility therein involved. Under the circumstances of this case, it is the duty of the assignee to account to these infants for their portion of the estate.”

      Frederick W. Stevens, for complainants.
    n Burlingame, Belden & Orton (Benton Hanchett,-oí counsel), for defendant Uhl.

      Knappen & Kleinhans, for defendants Quimby.
   Grant, J.

(after stating the facts). if he above opinion so completely covers the case that little else need be said. Mr. Uhl, upon the execution of the assignment and its acceptance by him, became the trustee for the creditors •and Mr. Ichabod L. Quimby. As such it was his duty to ■dispose of the property, páy the debts, and, if anything remained, turn it over to Mr. Quimby. Under common-law assignments, the assignee has no right to continue to carry on a business without the authority of a court in chancery, or the assent of the creditors and the assignor. In this case both the assignor and the creditors unanimously assented, and both were therefore estopped to deny his authority. Wilhelm v. Byles, 60 Mich. 561 (27 N. W. 847, 29 N. W. 113).

When the creditors had been paid, the trust as to them was fully discharged. The purpose of the assignment had been accomplished. Mr. Ichabod L. Quimby was then ■entitled to his own. No retransfer of property was necessary to convey title to him. He could take possession of his own, and carry on the business in his own name. If he chose- to make an arrangement with Mr. Uhl, and Mr. Uhl assented, they were then the only ones interested. Steevens v. Earles, 25 Mich. 40, and cases there cited; Toms v. Williams, 41 Mich. 552 (2 N. W. 814); Wilkins v. Fitzhugh, 48 Mich. 78 (11 N. W. 814); Poole v. Munday, 103 Mass. 174. The assignment did not, after performing its purpose, bind either Mr. Quimby or Mr. Uhl. The moment the debts were paid, they were free to deal with the property and manage it as they saw fit. Mr. Quimby evidently desired to continue the business, which had been so profitable, in the name of Mr. Uhl as assignee. The purchase of property'was necessary to the ■continuance of the business, to effect which large sums of money would be required, which Mr. Quimby did not have. After the death of Mr. Quimby, his son, George, who liad been a manager with him, and for some time before his father’s death had been the substantial manager, continued the business in the same way, with the assent of all interested. The management was successful under him. Upon his death the complainant Mrs. Morley, who-was familiar with the business, considered herself capable of carrying it on successfully. It is more than probable-that she would have done so had the times continued prosperous. She was a woman of intelligence, of energy,, and of good business ability.

All the complainants lived together, close to the property, as members of one family. For nearly 20 years-they had lived out of the business, in comparative ease, if not luxury, during which time they had received the benefit of Mr. Uhl’s name, his advice, his indorsements, and money procured for them by him. The family during-these years drew out from the estate $77,741.88. Complainants do not seek to set aside Mr. Uhbs doings for the-first 14 years, but only when the times became depressed, and when he was away from home, in Washington and in Germany, in the service of the government. During-that time he wrote letters, wishing to be relieved; asking complainants, through Mrs. Morley, to pay the debts for-which he was liable, and relieve him from all responsibility. In other words, complainants wish to receive the-benefits from the business when it was a success, and to cast upon Mr. Uhl all the losses incurred in depressed times. The claim is without equity, and is unconscionable. Even though Mr. Uhl had carried on the business-in a way not strictly authorized by the authority conferred upon him, either as assignee or by the Quimbys, yet, having acted in good faith and with their assent, they cannot select those years in which he made a profit, receive the-benefit of that, and compel him to pay for the years when there was a loss. Thqy must take the bad with the good; and it is evident that, for 20 years during which this business was carried on, the profits exceeded the losses. In re Small’s Estate, 144 Pa. St. 293 (22 Atl. 809); Hoyt v. Sprague, 103 U. S. 613. Where beneficiaries either expressly or impliedly assent to the action of their trustee in managing their property not in strict accord with the terms of the trust, they will be held to have acquiesced in such action. See authorities above cited; also 11 Am. & Eng. Enc. Law, 841; Heyn v. O'Hagen, 60 Mich. 150 (26 N. W. 861). A party cannot complain when he has ■consented. Barton v. Gray, 57 Mich. 636 (24 N. W. 638).

It is hardly conceivable that complainants did not fully understand the situation. There can be no pretense that Mrs. Morley did not. That she knew her legal rights, ■clearly appears from her letters. Whether the other complainants had actual knowledge is immaterial. They were in position to know, and did know, that Mrs. Morley was running the business. When they filed this bill they ■did not ask to have the business closed up, but continued. One of the very purposes of filing the bill, according to its •allegations, was to prevent Mr. Uhl’s taking steps to close up the business and secure what was due him. One of their prayers was that a receiver be appointed, and that he be authorized to continue the business.

Decree is affirmed, with costs.

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


author: Moore, J.

text:
    CARPENTER v. CARPENTER.
    1. Error — Favorable Rulings.
    Questions decided in favor of appellant in the court below will not be reviewed on writ of error in the Supreme Court, where the party against whom the rulings were made has not appealed, and the bill of exceptions was made out with a view to having appellant’s assignments of error passed upon.
    2. Evidence — Cross-Examination.
    In an action of ejectment involving the questions of the delivery of a deed and adverse possession, testimony on cross-examination of plaintiff’s husband that he presented a claim against his mother’s estate, which was disallowed, and also contested her will, is irrelevant.

      Error to Ingham; Wiest, J.
    Submitted January 28„ 1902.
    (Docket No. 67.)
    Decided March 26, 1902.
    Ejectment by Cora M. Carpenter against Frank L. Carpenter and others. From a judgment for defendants,, plaintiff brings error.
    Reversed.

      Smith & Hood, for appellant.

      Frank L. Carpenter (Russell C. Ostrander, of counsel), for appellees.
   Moore, J.

This is an action of ejectment. It was. tried before a jury. The case is brought into this court by writ of error. In its facts it is almost like the case of Carpenter v. Carpenter, recently heard in this court, and reported in 126 Mich. 217 (85 N. W. 576). In this, case the title to the undivided one-fifth of lot 10 is involved, while in the other case it was the title to the undivided one-fifth of lot 12. The case of Carpenter v. Carpenter, supra, was pending in this court when the case now under consideration was tried in the circuit court. It is. probable, if the opinion in Carpenter v. Carpenter had been handed down before the trial of this case, this case would not now be here. A reference to the reported case-of Carpenter v. Carpenter will make a long statement, of facts unnecessary.

Upon both trials three defenses were interposed: First, that there was no delivery of the deed from Miriam Carpenter to Miss Rogers, through whom, by mesne conveyances, plaintiff claims title; second, adverse possession;, and, third, res adjudicflta, because of an ejectment suit wherein defendants Frank L. Carpenter and Lucy G. Jones were plaintiffs, and John I. Carpenter and one Sautelle were defendants. As to the third defense, the circuit judge held it was not made out, and charged the jury in favor of the plaintiff as to that defense. As to the other two defenses, the court allowed the jury to pass upon them. The jury found there was am delivery of the deed, and the-judge entered a verdict for the defendants.

A comparison of this record with the record before us in Carpenter v. Carpenter, supra, upon the fh’st of the defenses, shows the testimony was nearly identical. Where it differs, it is even stronger in this case in favor of the plaintiff. As to the question of adverse possession, it is substantially the same in both cases. As to both of those defenses, we think the case of Carpenter v. Carpenter is coixtrolling, and the judge shoxxld have instructed the jury that neither of those defenses had been established.

As the coxxrt decided the third defense in favor of plaintiff, and defendants took no appeal, and the bill of exceptions was settled in view of having plaintiff’s assignments of error passed upon, and the record discloses that some of the testimony as to what issue was tried in the ejectment case against Carpenter and Sautelle is not incorporated in the record, we do not think we can -now definitely settle that phase of the case.

Upon the cross-examination of witness John I. Carpenter, the court allowed testimony to be given that he had presented a large claim against the estate of his mother, which was disallowed, and also that he contested her will, which will was duly probated. This testimony was not germane to the issue involved, and the objection to it should have been sustained.

In view of the conclusions we have reached and herein expressed, it will not be necessaxy to discuss the other assignments of error.

The judgment is reversed, and a new trial ordered.

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


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

text:
    BENNETT v. WESTERN UNDERWRITERS’ ASS’N.
    Eire Insurance — Removal op Insured Property — Consent op Agent.
    Where application is made to an agent of an insurance company for permission to remove insured property to another location, and the agent promises to mate the transfer, and the jury find that the transfer was made out before the fire, but not delivered or attached until after the fire, when the person to whom the application was made was no longer agent of the company, liability of the company cannot be escaped, notwithstanding a provision in the policy that no agent shall have power to grant the permit except by a writing indorsed upon the policy. Grant, J., dissenting.
    Error to Wayne; Rohnert, J.
    Submitted January 28, 1902.
    (Docket No. 78.)
    Decided March 26, 1902.

      Assumpsit by Ira B. Bennett against the Western Underwriters’ Association on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Stevenson & Butzel, for appellant.

      Bowen, Douglas & Whiting, for appellee.

       For location of movable property as affecting insurance thereon, see note to Benton v. Farmers’ Mut. Fire-Ins. Co., (Mich.) 26 L. R. A. 237.

   Hooker, C. J.

The plaintiff was insured in the defendant company, and has brought an action upon the policy to recover for a loss by fire. His policy was a Michigan standard policy, and contained the following provisions:

“All while contained in the two-story, shingle-roof, frame building and additions, adjoining and communicating, occupied only as a dwelling, and not elsewhere, and situated at number 140, north side of Willis avenue, between Second and Third avenues, Detroit, Michigan.
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

On the 2d day of May the plaintiff had a talk by telephone with the local agent of the defendant company with reference to the transfer of the insurance to a different locality to which he had removed or was removing. They do not agree about this conversation. The plaintiff testified that he then informed the agent that he had moved or was moving his stock to another location, and wanted him then and there to transfer the insurance to the new locality, and was assured that he would do so, and would make a memorandum of the transfer at that time. The witness stated that he said to the agent:

“ ‘ I want you particularly to make this transfer today,’ and I was very emphatic that he transfer it today; and he said he would do so, and that I could have the permit at any time that I would bring over the policy.”

It is admitted that plaintiff had the policy in his possession. The policy was brought to the agent on the 21st day of May, the property having burned on May 19th; and the agent stepped into the next room and brought the permit, which he attached to the policy. On cross-examination he testified that: “I asked him if he would do it at that time, and he said he would. He said, ‘ It is transferred now,”’ — and that the agent afterwards told him that he entered it on his books at that time, and that he did not know, of his own knowledge, whether the transfer was made on the books at that time or not.

The jury found from the testimony that the permit was-made and held for the plaintiff before the fire. This they might do from the statements made by the agent at the-time the transfer was agreed upon, which was part of a. transaction within the power of the agent, i. e., to consent to the transfer, and plaintiff’s version of what occurred when the permit was attached to the policy. If it is tfue that the agent and the plaintiff agreed upon a written permit, and the same was actually made at the time in consideration of the promise to pay an additional-premium, and the permit was held for the plaintiff, who-was to call for it, although the policy itself was not present, and the permit was therefore not attached to it, the company cannot escape liability upon the ground that the-consent had not been given in technical compliance with the contract. It was a substantial compliance, and not dissimilar from a case where the permit is filled out and signed by the agent, and given to the policy holder to-attach. Presumptively, these permits are printed and furnished by the company to be used in place of formal writings upon the policies. The case is within the rule of Pollock v. Insurance Co., 127 Mich. 460 (86 N. W. 1017). We consider the other questions raised technical and unimportant.

The j udgment is affirmed.

Moore and Montgomery, J J., concurred with Hooker, C. J. '

Grant, J.

(dissenting). I am of the opinion that, under the plaintiff’s own testimony, he is not entitled to-recover. He knew the condition of his policy, and that it would be void unless he had the written assent to the transfer either indorsed upon or attached to the policy. He attempted notwithstanding to make a transfer by parol over the telephone. His testimony amounts to no-more than a promise on the part of Mr. Macklem, the agent, that he would make the transfer. His statement that Mr. Macklem said, “It is done now,” is, of course, untrue, because it had not then been done, for that was the first time he had spoken to Macklem about it. Plaintiff knew that he should either procure the written permit and attach it to his policy, or that he should' take the policy to Mr. Macklem and have it attached. He did neither, and with the full knowledge of the consequences. That which this provision of the policy intended to avoid has happened, viz., the entire matter rests in parol. Mr. Macklem and his clerk swear that the permit was not made out until May 21st, when plaintiff brought his policy to have the permit attached. Plaintiff does not swear that the permit was not written out at that time. He says:

“I asked him if he had that permit, and he said that he had; and he stepped into the next room and brought me back this permit, which he attached to the policy.”

Mr. Macklem testified that he told him that the permit then would do him no good, — “that it looks to me like boys’ play,” — and told him that it was done at his (plaintiff’s ) risk. Mr. Macklem at that time had ceased to be the agent of the defendant.

This is a standard policy, approved by State authorities. Its very purpose was to avoid contracts and changes therein resting in parol. To hold this policy valid results, in my judgment, in saying that the words “written upon or attached to ” are of no use. It thwarts the very purpose of the provision.. I think the j udgment should be reversed.

Long, J., did not sit.


author: .Montgomery, J.

text:
    EDWARDS v. WHEELER’S ESTATE.
    Partnership — Change to Corporation — Notice.
    A partnership had dealt with plaintiff, using in their correspondence letterheads giving the firm name and the names of the partners. The firm removed to another city, and, under a letterhead giving the names of president, vice-president, and secretary, wrote plaintiff that delay had been caused by a reorganization of the company, and that they did not want to incur any further liability until the matter was fully settled. A few days later a corporation was formed, using the same name as the firm, and thereafter bought goods of plaintiff. Held, that there was sufficient evidence to justify a finding that plaintiff had actual knowledge of the change in the contracting party, and could not recover for the goods against an individual partner’s estate.
    Error to Kent; Perkins, J.
    Submitted January 29, 1902.
    (Docket No. 103.)
    Decided March 26, 1902.
    Robert Edwards and Adam Lungen presented a claim against the estate of Austin K. Wheeler, deceased, for goods claimed to have been sold and delivered to a partnership of which decedent was a member. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. Prom a judgment for defendant, claimants bring error.
    Affirmed.

      Maher & Salsbury, for appellants.

      Taggart, Denison & Wilson, for appellee.
   .Montgomery, J.

This case comes before the court on exceptions to findings of fact, and on assignments of error based upon the conclusions of law. The evidence taken upon the trial is not made a part of the record. It appears from the findings that Albert E. Waggoner and the deceased, Austin K. Wheeler, were engaged in business at Muskegon, Mich., manufacturing and selling a watchman’s electric clock, under the firm name of the Wag-goner Watchman Clock Company. This clock was invented by Albert E. Waggoner, and he had assigned a half interest in the invention to Austin K. Wheeler. The claimants were manufacturing electricians in New York City. It appears that in November, 1899, a letter was written to claimants, signed by the Waggoner Watchman Clock Company, by W. B. Waggoner, manager, asking for figures on the cost of manufacturing clocks. This letter was written under a letterhead bearing the words: “Waggoner Watch man Clock Co., Manufacturers of Wag-goner’s Watchman Clock. A. E. Waggoner, Austin K. Wheeler.” After this letter was written, the business was moved to Grand Rapids, and a new style of letterhead was adopted, containing the following words: “Austin K. Wheeler, President; A. E. Waggoner, Vice-President; W. B. Waggoner, Secretary and Treasurer. The Waggoner’s Watchman Clock Co., W. B. Waggoner, Manager.” On November 22d, using the last-named letterhead, Waggoner wrote:

“You will note from our letterhead that we have moved our headquarters from Muskegon to Grand Rapids. Are now ready to do business in a business way. * * *
[Signed] “The Waggoner’s Watchman Clock Co., “By W. B. Waggoner, Manager.”

On December 15th, using the same new form of letterhead, a letter was written containing the following:

“This matter has been delayed, owing to the reorganization of our company, which will put it on a thoroughly substantial business foundation; and we do not want to incur any further liabilities until this matter has been fully settled, which we hope will be in a few days.”

On December 23d a corporation was organized under the laws of Michigan, under the name of the Waggoner’s Watchman Clock Company. On December 30th, using the same new form of letterhead, the Waggoner’s Watchman Clock Company wrote claimants, directing them to book an order for the parts of 50 clocks, at the price of $17.25 each, etc. There had been a previous transaction between the parties while the copartnership was engaged in business at Muskegon.

The question presented for decision below and here is whether the obligation was an obligation of the copartnership or of the corporation. It is the contention of the claimants that no sufficient notice of the termination of the partnership was given to the claimants. The circuit judge found, however, as matter of fact:

“The goods and merchandise, the purchase price of which is the subject-matter of this claim, were neither ordered by nor received by the partnership of which Mr. Wheeler was a member, but were ordered by and received by the corporation formed on December 23d.
“The deceased receivéd no benefit from such purchase, or from the contract with claimants, except such as may have accrued to him as a stockholder of the corporation.
“The contract of the purchase and sale involved in this claim was a contract between the claimants and the corporation formed on December 23d.
“ The claimants had notice of facts sufficient to put them on inquiry whether the order for these goods, sent to them on December 30th, was the order of the same partnership with which they had been dealing, or was not the order of such partnership, but of some different organization.”

“These findings would apparently be sufficient, in the absence of any return of the testimony, to justify an affirmance of the case. But if we assume that these findings are deductions, simply, from the previous facts set out in the findings, the same result, we think, should follow. The new letterhead was an indication that a new institution was being formed, in which Wheeler was designated as president, A. E. Waggoner as vice-president, and W. B. Waggoner as secretary and treasurer and as manager. This, taken in connection with the express notice contained in the letter of December 15th that the delay in ordering was occasioned by the reorganization of the company, was, in our view, sufficient actual notice of the change in the contracting party to put the claimants on inquiry,' — -in fact, was sufficient of itself to apprise them that it was a new .concern that proposed to contract.

The cases relied upon by claimants’ counsel as furnishing support for their claim, namely, Morrill v. Bissell, 99 Mich. 409 (58 N. W. 324); Hall v. Heck, 92 Mich. 458 (52 N. W. 749); Sibley v. Parsons, 93 Mich. 538 (53 N. W. 786); and Tousignant v. Iron Co., 96 Mich. 87 (55 N. W. 681), — are clearly distinguishable from the present. The substance of the holding in these cases is that, as to parties with whom the copartnership has dealt, it is necessary to bring home to them notice of a change in the copartnership, in order to relieve a retiring partner. This, is a well-understood rule. But in the present case, according to the finding of facts, such notice was brought home to the claimants, and there was sufficient in the evidentiary facts found to justify this finding of the ultimate fact by the trial court.

The judgment, which was in favor of the estate, will be ■affirmed, with costs.

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


text:
    HANGSTERFER v. SHAFER.
    Lease — Right to Renew — Election of Remedies.
    A tenant who has a right, at the expiration of his lease, to elect to renew the lease for four years, or terminate it and collect of the lessor 75 per cent, of the cost of the fixtures placed on the premises by him, cannot, after remaining in possession five months beyond the term, elect to terminate the lease and recover from the lessor for the fixtures.
    Error to Wayne; Rohnert, J.
    Submitted January 29, 1902.
    (Docket No. 92.)
    Decided March 26, 1902.

      Assumpsit by J. William Hangsterfer against Charles A. Shafer and Wilber S. Peck for a breach of the terms •of a lease. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellant.

      Alfred Lucking, for appellee Shafer.
   Moore, J.

This suit was brought in the circuit court. A bill of particulars was filed, which stated, after the formal heading:

“Take notice that the following is a bill of particulars of the plaintiff’s claim, for which suit is brought:
“ The following articles of furniture, fixtures, including soda fountain, purchased under the terms of contract sued upon:
Soda fountain__________1..............'.......— $2,200 00
William Wright & Co., bill of fixtures------------- 791 20.”

Then followed 20 other items for fixtures and equipments connected with the soda fountain, the total of the items being about $4,500. The circuit judge directed a verdict for the defendants. The case is brought here by-writ of error.

The defendants stand in the place of the Mabley & Goodfellow Company, who entered into an agreement with the plaintiff, by the terms of which the soda fountain and fixtures involved in this litigation were, by the plaintiff, put into the building known as the “Majestic Building” in Detroit. A great many errors- are assigned, but, as we think one feature of the case disposes of it, we shall refer only to that. The agreement was dated February 26, 1897. Those portions of it important to this discussion read as follows :

“The first party shall furnish the second party with the drawings and the description of the fixtures and fountain necessary to place upon said premises, which fixtures and fountain shall be suitable to the place, and in keeping with the other fixtures in the portion of the Majestic Building controlled by the first party as aforesaid, and said second party shall cause said fixtures to be constructed and placed upon said premises. The cost of said designs and descriptions shall be paid by the first party, and the cost of said construction by the second party. If this license should not be renewed as hereinafter contemplated, by reason of the first party refusing to renew the same, then said first party shall buy said fixtures and fountain, and shall pay the second party therefor the reasonable cost of said construction, which, however, shall not exceed the actual cost thereof. If the second party shall elect not to renew this license as herein contemplated, then the first party shall buy said fixtures and fountain, and shall pay the second party seventy-five per cent, of such reasonable cost of construction, which reasonable cost shall not exceed the actual cost. * * *
“This license shall begin on or about the first day of April, 1897, and continue only so long as its terms and stipulations, and each and every one of them, are fully and promptly complied with by the second party, and in such case from then until and including the tenth day of February, 1898. If, at the expiration of this license, the relation of the parties and the business conducted have been satisfactory, the second party shall have the right to renew this license on the same terms and conditions for the term cf four-years from and after the last-mentioned date.”

It is claimed by plaintiff that, before this suit was brought, such a condition arose as made it the duty of the defendants to take the soda fountain and fixtures, and to pay him for them. It will'be observed that, under the terms of section 3 of the contract, the obligation of defendants to purchase the fountain and fixtures depends upon whether the license is renewed February 10, 1898, or not. The amount which defendants are to pay depends upon who elects not to renew it.

The testimony offered upon the part of the plaintiff tends to show that, before this agreement was entered into, it was represented to him by the manager of the Mabley & Goodfellow Company that eight floors of the building would be filled with goods, making a large department store controlled by that company; that, at the time the agreement was entered into, the Woodward-avenue entrance to the store was near where the fountain was to be placed, and no other fountain was to be placed upon any one of the eight floors; that, relying upon this, plaintiff was induced to put into the contract a guaranty to make sales amounting to $30,000 annually, and to pay the defendants 25 per cent, thereof; that defendants did not cause eight floors to be filled with goods, making a large department store, but only two floors were occupied, and that, as a result, plaintiff’s sales up to November were nowhere near reaching at the rate of $30,000 a year, and in November, because of the situation, the written contract was modified orally, by an agreement between the manager and the plaintiff that only 10 per cent, of the sales should be paid as rental, and the guaranty of sales to the amount of $30,000 should be eliminated; that, in pursuance of this contract, only 10 per cent, was paid until a new manager came on. What occurred after this ■ is stated in the brief of counsel for plaintiff as follows:

“On February 10, 1898, Goodfellow left the management of the Mabley & Goodfellow Company, and Charles A. Shafer took his place as manager of the company in person. This was the date on which the right to renew the license accrued, but, owing to the confusion necessarily incident to a change of management in so large a concern, nothing' was done in regard to a new lease for some time. Mr. May became manager February 20, 1898. On March 10th he called Mr. Hangsterfer to his office, where they had a talk, in which Mr. May, in substance, declared that Hangsterfer had broken his agreement in the lease, and asked him what he was going to do about it. Hangsterfer asserted his right to remain on payment to the defendants of 10 per cent, of the gross sales, irrespective of any guaranty of any specific amount of sales, and that the guaranty had been abrogated, and the percentage reduced to 10 per cent., by verbal agreement at the talk with Good-fellow, November 9, 1897. On April 5th, Hangsterfer, in a conversation with Shafer, said he would stay on the basis of 10 per cent, of sales, with no guaranty as to the total amount of the same. He continued in possession, paying rental at the rate of 10 per cent, of his gross sales. This continued until March 19, 1898, when Shafer began to retain all the money turned in to him, instead of 10 per cent, of it only. This continued for some two weeks and a half, when plaintiff retained the money received from sales, and made no settlements with the defendants whatever. On April 8, 1898, Hangsterfer was served with a written notice to quit the possession of the premises.”

A like notice was served April 26th, 1898, and a third notice on July 16th. On July 13, 1898, for the first time, plaintiff served notice upon the defendants of his election to vacate the premises, and that the defendant should pay him the cost of the fountain and fixtures, according to the terms of the agreement. In the meantime Mr. Shafer undertook to close the Woodward-avenue entrance, near the soda fountain, and open a door nearly to the other side of the building. On the 9th of April the plaintiff ■commenced a suit in chancery against Mr. Shafer, in which he set up the original agreement and its modification in November, and claimed it was' then in force as modified, and he also set up the proposed alterations in the store, and also that defendants proposed to put in a soda fountain, and that he would be greatly injured if the proposed changes were permitted, and prayed for an injunction.

The defendant claimed Mr. Goodfellow was not authorized to change the written contract; that, as it was a contract for more than a year, under the statute of frauds it could not be legally changed except in writing; that, as Mr. Hangsterfer remained after February 10th, it was an election to renew for four years under the written contract unchanged; that defendant has always been ready to have him remain under the written contract, and that,- if anything was necessary to be done to renew it, he was ready to do so, and had so notified the plaintiff; and that it was not until plaintiff refused to perform the contract that defendant sought to end it.

Without discussing these various claims or the interesting legal questions which arise, it is apparent that neither of the parties to the contract elected, on or about February 10th, to terminate it. The plaintiff insisted upon his right to continue his tenancy upon the terms of the contract as modified by the oral arrangement made in November ; the defendants denied that the written contract had been modified, but conceded the right of plaintiff to remain under the original written contract. There is nothing to indicate that plaintiff sought to end his tenancy, and to give up his possession, until in July. On the contrary, he asserted his right to remain by the terms of his lease as modified. Taking any view of the case, it is clear the condition did not arise February 10th, or in a reasonable time thereafter, when plaintiff had a right to insist upon defendants’ paying him for the fountain and fixtures. His right to require the defendants to take the fountain depended upon the terms of the written instrument. The time when the election might be made was fixed in“ the instrument. The plaintiff could not enter upon the second year of his tenancy, and continue therein for five months, insisting he was there as tenant, and at the same time hold the defendants liable for the value of the goods. If he has any remedy for what occurred, it is not in this action. See Horner v. Fellows, 1 Doug. 51; Foster v. Rowley, 110 Mich. 63 (67 N. W. 1077); Thompson v. Howard, 31 Mich. 309; Merrill v. Wilson, 66 Mich. 232 (33 N. W. 716); Thomas v. Watt, 104 Mich. 201 (62 N. W. 345).

Judgment is affirmed.

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