author: McGrath, O. J.

text:
    Gustave A. Wolf, Administrator, etc., v. The District Grand Lodge No. 6, I. O. B. B.

      Mutual benefit associations — Conflicting provisions of charter— Beneficiaries — Estoppel—Statute of limitations.

    1. When the constitution of a mutual benefit association contains two inconsistent provisions, that most favorable to the insured will be adopted.
    2. No person not of the class for whose benefit a mutual benefit association is authorized can be a beneficiary; citing Benefit Association v. Bolfe, 76 Mich. 146.
    3. Where the statute under which a mutual benefit association is organized, and its articles of incorporation, entitle its members to devise the death benefit fund to any person, although not ■of any of the classes named as beneficiaries, a provision of the constitution of the association which attempts to restrict members in their choice of devisees cannot be sustained.
    4. Where a member of a mutual benefit association fails to designate a beneficiary, and dies intestate, his heirs will take the death benefit, under the rule laid down in Benefit Association v. Rolfe, 76 Mich. 146.
    6. Where a mutual benefit association, with full knowledge that a deceased member had misstated his age in his application for membership, bases its refusal to pay the death benefit solely upon the failure of the deceased to designate a beneficiary, the association is estopped, in a suit afterwards brought to recover said death benefit, from asserting such misstatement as to age as a defense; citing Toiole v. Insurance Oo., 91 Mich. 319.
    •6. Plaintiff’s intestate resided in Michigan at the time of his death, and was a member of a mutual benefit association. He left three heirs, one of whom was a resident of Germany, where she continued to reside until her death, which occurred some 10 years after that of the intestate. The remaining heirs were •residents of Michigan and Ohio, respectively, and inherited ■the share of their co-heir in the'death benefit; and subsequently ■assigned to plaintiff. And it is held that under How. Stat. § ■8718, — which provides that if any person entitled to bring any •of the actions mentioned in How. Stat. chap. 303, shall, at the time when the cause of action accrues, be- absent from the United States and from the British Provinces of North America, such person may bring the action within the times in said chapter respectively limited after the disability shall be removed, — the statute of limitations did not begin to run rmtil the death of said non-resident heir.
    Error to Kent. (Grove, J.)
    Argued June 20, 1894.
    Decided September 25, 1894.

      Assumpsit. Plaintiff brings error.
    Reversed, and judgment entered for plaintiff.
    The facts are stated in the ■opinion.

      Walker & Wolf, for appellant.

      Maurice M. Houseman, for defendant.
   McGrath, O. J.

The Independent Order of B’nai B’rith is a fraternal organization. Defendant is one of a number of subordinate organizations known as district grand lodges,” Jiaving authority to institute lodges,»and exercising certain independent powers not in conflict with the laws promulgated by the parent organization. Each district grand lodge has jurisdiction over certain lodges in its district, and each district seems to have carried on, within itself, entirely independent of the parent organization and also of the other districts, -a system of insurance on the assessment plan. Applications for membership in the order are made in writing to the local lodges, in which the applicant is required to state his age, residence, etc. Certain past officers of the local lodges become members of the district grand lodge of that district, with the right to sit .and debate, but without the right to vote. Each lodge'in the district elects a representative to its district grand lodge, and that body, so constituted, legislates for the district. In case of the death of a member of a lodge, that lodge reports such death to its district grand lodge, and the amount is assessed, upon a per capita basis, upon each lodge in the district in proportion to the endowment members in such lodge. The funds are forwarded to the district grand lodge, and paid by it. No. certificates or policies are issued.

The defendant is incorporated under the statutes of Illinois relating to corporations not for'pecuniary profit.” The act* (Laws of 1874, p. 74) provides that—

“ Associations and societies which are intended to benefit the widows, orphans, heirs, and devisees of deceased members thereof, and where no annual dues or premiums are 'required, and where the members shall receive no money as profit or otherwise, shall not be deemed insurance companies.”

In Rockhold v. Benevolent Soc., 129 Ill. 440, the Illinois court held that, while the language quoted from the act was f‘in form expository,” yet the powers of the corporation were defined and determined thereby. The same court, in Association v. Blue, 120 Ill. 121, held, under a similar statute, that the language conferred the power on a member to name any stranger as a beneficiary.

The parent organization has a constitution, which is known as the “Constitution of the I. O. B. B.” This constitution contains no reference whatever to the endowment feature. The-articles of association of the defendant body were filed January 27, 1878, and are as follows:

“We, the undersigned, Charles Kozminski, Herman Felsenthal, Adolph Loeb, and Philip Stein, citizens of the United States, propose to form a corporation under an act of the general assembly of the state of Illinois entitled cAn act concerning corporations/ approved April 18, 1872, and that for the purpose of such organization we hereby state as follows, to wit:
“1. The name of such corporation is District Grand Lodge No. 6, I. O. B. B.
“2. The object for which it is formed is the practice of charity, and the promotion of humanity and enlightenment, in harmony with the constitution, laws, and tenets of the Independent Order of B’nai Bhith, the performance of all acts believed to accomplish these ends, and the securing to widows, orphans, heirs, and devisees. of deceased members of said order in said district No. 6 an endowment in accordance with the laws of said grand lodge. Said corporation is not, and shall not be, for pecuniary profit.
“3. The management of the aforesaid district grand lodge shall be vested in 11 managers, who are to be elected annually. .
“ 4. The following persons are hereby selected as the managers to control and manage said corporation for the first year of its corporate existence, viz.: Charles Kozminski, it. Reichman, D. M. Amberg, Philip Stein,- B. H'. Seligman, Adolph Loeb, E. Rubovits, S. Benjamin, David Adler, Samuel Glickauf, and John M. Levy.
“5. The location is in the city of Chicago, in the county of Cook, state of Illinois.”

The defendant body has, .however, what is termed a “ Constitution,” two sections of article 10 of which are as follows: Section 6 provides that—

“The widow of a member in good standing shall be endowed. If there be no widow, all his children shall be endowed. If there be no widow or such children, or parent or parents, then the endowment shall go to the reserve endowment fund, unless such member shall have formally designated a beneficiary or beneficiaries in a book to be kept for that purpose by the lodge, recording therein in his own handwriting, or causing the same to be done at his request, before two witnesses,- the name of such beneficiary; but the testamentary disposition of the endowment, brought to the notice of the trustees, shall be respected and carried out by them, provided that such testamentary disposition be confined to the children, parents, brothers, or sisters of the deceased brother in good standing, or to the reserve endowment fund.” '

* Section 9 provides that—

Any applicant for membership -above the age of 45 years, if elected a member, shall be excluded from the benefit of the endowment law, and be under no obligation to comply with its requirements: Provided, that this section shall not apply to applicants for membership by card.”

A lodge of this order was instituted at Grand Rapids, June 6, 1875. The by-laws of the lodge contain no reference to a will book, nor to the age of applicants, except that candidates for membership must be 21 years of age, nor do they intimate who may or who may not be beneficiaries. Section 1 of article 9 provides that—

The fees for candidates for membership shall be sixteen dollars, of which five dollars shall be paid on application, ten dollars for degrees, and one dollar to be sent to D. O. L. for endoioment fund.”

While, under the constitution of the parent organization and that of the district grand lodge, two classes of members were possible, viz.: (1) Members having received degrees, and entitled to all rights and benefits except participation in the endowment fund; and (2) members entitled to all the rights and benefits of the first class, and also the right of participation in the endowment fund, — yet the by-laws of the Grand Bapids lodge contemplated but one class, and that the latter.

Solomon Wolf, plaintiff’s intestate, who resided at Saugatuck, made a written application to said lodge for membership July 11, 1875, was elected, received the degrees, and continued to be a member, paying dues and assessments as a benefit member, until his death, in July, 1880. He was never married, and died intestate, leaving no father or mother surviving him. He left a sister who at the time of his death resided in Germany, where she continued to reside until her death, in 1890; a brother, Jacob Wolf, who resided in Grand Bapids; and a sister who resided in Ohio. Plaintiff, a nephew, as administrator and as assignee, brings this suit to recover the death benefit. The" defendant insists:

1. That the 10-years statute of limitations, which was pleaded, had run.
2. That decedent was 51 years of age when he became a member, and was therefore ineligible.
3. That decedent had made no designation in the will book, as provided in the constitution, and left no will.

As to the first point, one of the parties entitled to the fund resided in Germany when the cause of action accrued, and continued to reside there until she died, in 1890. Under How. Stat. § 8718, the statute did not begin to run until her death. At her death, her interest, under our statute of distributions, would go to her brother and sister, whom plaintiff represents.

Upon the second point, it is conceded that plaintiff’s intestate was 51 years of age when he became a member. It appears that decedent and his brother, Jacob Wolf, were solicited to become charter members of fhe lodge. Jacob became a charter member, but Solomon made written application for membership a month later. His application was referred to a committee, who reported favorably, and he was admitted. This application was not produced, or its absence accounted for. In its absence, it must be presumed that, in conformity with the requirements of the by-laws, it contained a statement of the age of the applicant, and that the age was therein correctly given. When decedent appeared for initiation on August 8, 1875, he was required to sign, and did sign, a “declaration,” the material portion of which is as follows: .

“On this 8th day of August, 1875, appeared Mr. Solomon Wolf for initiation in our Grand Rapids Lodge No. 238, I. O. B. B., and, having been instructed to make true answers to the questions which he would be asked,, made the following declaration: My name is Solomon Wolf. I am 44 years old. I reside art Saugatuck. I am by occupation a merchant. I am not married. I am in good health. Am not aware of having any sickness or bodily infirmity. I have read the constitution of the I. 0. B. B., and the by-laws of Grand Rapids Lodge No. 238, and am willing to obligate myself to observe the constitution, laws, and rules of the order faithfully.”

The body of this declaration is written in English, and is in the handwriting of the secretary, and the testimony tends to show that decedent could neither read nor write the English language. The material out of which this lodge was constructed was collected by officers of the defendant body. It is conceded that such officers, so collecting the material for the lodge, held out to the persons applied to by them that the organization was a benefit organization, providing for ’$1,000 at the death of its members, and that age was no bar to admission in the organization of lodges; that both decedent and his brother were urged to join as charter members; that the requisite number for the formation of a lodge was 20; that but 17 had been secured when the lodge was instituted; that decedent was not named in the charter; that decedent's brother became a charter member; that he was 49 years of age at the time; that Jacob was told that his age was not a bar; and that he gave his correct age at the time, bat in the declaration which he signed his age was given at 44 years. The testimony tends to show that, at the institution of the lodge, the charter members were informed for the first time that the constitution excluded from participation in the endowment fund all above the age of 45 years, but that in the formation of lodges they did not observe this limitation; that the committee to whom decedent’s application was referred called upon Jacob Wolf to make inquiry concerning the applicant, and Jacob informed the committee that Solomon was over age; that both Jacob and Solomon were well known, not only to the charter members of the lodge, but to the officers who instituted the lodge; and that the fact that' decedent was upwards of 45 years of age was known to the charter members generally.

After the death of Solomon Wolf, the lodge at first ordered the assessment. They afterwards countermanded the order, and again directed the assessment to proceed; and the assessment was accordingly made and collected. The officers of the defendant body, before payment, made inquiry as to why the order for the assessment had been countermanded, and the reasons given were that the decedent had made no will or will-book designation, and a question had arisen as to the age of the applicant at the time of his admission. At the next session of the district grand lodge an investigation was instituted, and at the following session certain preambles and resolutions were adopted, reciting and resolving that—

\ “Whereas, it appears that on various occasions the officer instituting lodges has represented to certain applicants for membership (charter members) that .their age was no bar 'to the benefits of the endowment law of this district, and that they were entitled to the rights and privileges thereof by virtue of their being charter members; and
Whereas, under such representations, a number of applicants who were above the age of 45 were so initiated and admitted as members; and
“Whereas, many of the members so admitted paid, and continue now to pay, the assessments levied under the endowment law; and
“Whereas, we believe that under these representations the members so initiated and paying have a full and just claim to the benefits of said endowment law:
“Therefore, be it resolved that Jacob Wolf, of Grand Rapids Lodge No. 238 [and 23 other members of lodges in the district], be, and are hereby, entitled to all rights, privileges, and benefits of article 10 of the constitution, known as the ‘Endowment Law/ they having been above the age of 45 when initiated to the contrary notwithstanding; e* * * and the grand secretary shall ■enroll their names upon his record of members entitled to the benefits of article 10 of the constitution of District Grand Lodge No. 6.”

Prior to this action, the grand lodge had sent out a ■circular letter to each of the lodges in the district, asking what charter members had been admitted who were over the age of 45 years, and the circumstances under which ■admitted. Grand Rapids lodge reported as follows:

“ The only case in our lodge coming within the terms .cf the letter is that of Brother J. Wolf. On investigation, we find the facts and circumstances surrounding the same to be as follows:
'“Brother Wolf joined our lodge as a charter member, and did so join at the sjjecial instance and request of the .grand- lodge installing officers; that one of the inducements to join our lodge held out to Brother Wolf by the installing officers was the endowment benefit, which they assured him all charter members were entitled to; that, at the time of making his declaration, Brother Wolf truly .and correctly stated his age to the two installing officers, but they stated it in his declaration to be 44 years; that Brother Wolf probably, knew of their so stating it at the time,- but it was so inserted by their directions; that Brother Wolf acted in entire good faith, sought to conceal nothing, and made no attempt to defraud the lodge or order; that Brother Wolf was at the time ignorant of the terms of our endowment law; that he had always been treated as an endowment member, and has always been in good standing, and now insists that he should he acknowledged as an endowment member, and entitled to the endowment benefit.”

At the same session of the district grand lodge at which this action was taken, that body declined to pay the death claim in the present case. The committee reported upon both matters as follows: .

“In regard to the overaged charter members referred to in the president’s message and the secretary’s report, your committee, in consideration of the established fact that those members have joined the lodges under the representations of the installing grand lodge officers that they would be entitled to the benefits of the''endowment, recommend that they should be entitled to all the rights, privileges, and benefits of article 10 of the constitution, known as the f Endowment Law.’
“In the matter of the deceased Brother Solomon Wolf, of Grand Bapids Lodge No. 238, after whose death assessment was levied on the lodges, and which money is at present in the hands of the district grand lodge-/ because there are no legal heirs to the same, your committee recommends that it should be used as payment of the next assessment.”

A substitute for the first paragraph of the report was adopted, and the recommendation contained in the second paragraph was concurred in by the district grand lodge.

While it is true that the question of decedent’s age was discussed at length, yet the defendant body, after a full knowledge of all the facts, put the refusal to pay not upon that ground, but upon the ground that no beneficiary had been designated by plaintiff’s intestate. Defendant is estopped from asserting any other defense after suit brought. Towle v. Insurance Co., 91 Mich. 219.

Upon the third point raised, it appears by the journal of the proceedings of the defendant body that in 1875, at the time of the adoption of the constitution, and while it was under consideration, a motion was made to substitute for section 2 of article 10,- as reported - by the committee on legislation, the following:

The trustees shall pay to the widow, or, in absence thereof, to the legal representatives, of a deceased brother in good standing, the sum of $1,000. They shall assess-this sum ‘pro rata ’ among all the members of the district-who are amenable to the endowment act', as reported to-the G-. S. previously. Such pro rata assessment shall not be made in fractions of less than five cents, any excess over $1,000 to be paid into the reserve fund.”

The motion prevailed, and the constitution, including said substitute, was adopted. The constitution, as after-wards printed in the proceedings by the secretary, does not contain the substitute. As the case was taken from the jury at the close of plaintiff’s proofs, no explanation is made of the situation. If this substitute section is to be treated as a part of the constitution, there is an irreconcilable conflict between it and section 6 of jhe same article, as above given. , The well-established rule is that, when the charter or by-laws of a mutual benefit society contain two inconsistent provisions, that most favorable to the insured will be adopted. ■ Nibl. Mut. Ben. Soc. §§ 15, 172; Insurance Co. v. Hazelett, 105 Ind. 212; Supreme Lodge v. Abbott, 82 Id. 1; First Nat. Bank v. Insurance Co., 95 U. S. 673; Burkhard v. Insurance Co., 102 Penn. St. 262.

We do not think, however, that the provisions of section 6 of article 10 of the constitution can be sustained. In the first place, the section undertakes to restrict the member in his choice of a devisee. The statute under which defendant is organized, and its articles of incorporation, under the Illinois cases hereinbefore referred to, clearly entitle the member to devise the fund to any person, although not of any of the classes named. See, also, Raub v. Association, 3 Mackey, 68. In the next place, no designation in the will book is necessary if the member leaves a widow or children, or parent or parents. In Supreme Lodge v. Nairn, 60 Mich. 44, a certificate or policy was issued, in which the beneficiary was expressly named, and the constitution provided how a change in that contract should be effected. Suppose, however, that in such a case the beneficiary had died before the insured, and the latter had neglected to make a new designation, would it be contended that the policy had lapsed, and that the heirs would not take? Mich. Mut. Ben. Ass’n v. Rolfe, 76 Mich. 146. In that case it was held that, there being no beneficiary named in the certificate qualified to take, and as the deceased had no family, the fund was payable to his heirs. In the present case it is not claimed that the endowment contract lapsed, but the constitution undertakes to name a beneficiary not a member of any class named in the statute or articles of association. In no sense can the association itself or the reserve fund be said to be a devisee. The relations between the insured and defendant respecting the endowment fund were purely contractual. The position of the defendant is that the heirs, although clearly within the terms of the statute, cannot take in the absence of a devise; but that it, although not within the contemplation of the statute, may take, by virtue of the contract and in the absence of a devise. This contention cannot be sustained. A devise is essential to support the claim of the society to the fund. It is well settled that no person not of the class for whose benefit the association is authorized can be a beneficiary. Mich. Mut. Ben. Ass’n v. Rolfe, supra. In Dietrich v. Association, 45 Wis. 79, an assignment of the insurance to the society, to secure an indebtedness to it, was held void. The court say:

The action of the company in these respects was without lawful authority, and in violation of its charter, which f limits and restricts its business to insurance of lives for the sole benefit of certain special classes of beneficiaries.”

In the absence of a devise or designation, the heirs take, under the rule laid down in the Eolfe case.

The court erred in directing a verdict for defendant. Under the case as made, a verdict should have been directed for plaintiff. The judgment will therefore be reversed, and judgment entered here for plaintiff, with costs of both courts.

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


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    Jennie Brown v. Evaline McKimmie et al.

      Landlord and tenant — Assault—Eviction,
    1. Where, in.an action of trespass for an alleged unlawful entry into leased premises by the wife and sons of the landlord, the question whether or not the oral lease under which the plaintiff’s husband held had terminated at the time of the entry is submitted to the jury, their finding will not be disturbed on appeal.
    2. Plaintiff and her husband were in possession of a house on the farm where the husband was at work, and, on the same day on which a notice to leave the premises was served on the husband, the wife and sons of the owner of the farm came to the house in the absence of plaintiff’s husband, and, after informing her that she must move out at once, commenced taking the furniture out of the room where she was into an old kitchen, and told her to pack her clothes, shortly after which her husband came, and took her away. Plaintiff sued the wife and sons in trespass, claiming that she was driven from the house by the defendants, and that the time for which her husband had taken the premises had not expired. The defense was that the hiring was only for one month, and that the time had expired. The court left this latter question of fact to the jury, and instructed them that, if they found that the hiring had not terminated at the time of defendants’ entry, they should take into consideration what took place in the house on that day; that the mere entry into the house by the defendants, under the circumstances, would not give plaintiff a right of action, even if the lease had not terminated, and, if plaintiff recovered, it must be for an injury to herself; and that the jury, in order to find a verdict for the plaintiff, must find that the conduct of the defendants amounted to an eviction. And it is held that the charge properly stated the law.
    Error to Wayne. (Carpenter, J.)
    Argued June 22, 1894.
    Decided September 25, 1894.
    Trespass. Defendants bring error.
    Affirmed.
    The facts are stated in the opinion.

      James H. Pound, for appellants.

      George W. Goomer and William F. Atlcinson, for plaintiff.
   Long, J.

This cause was commenced in justice’s court, where plaintiff had judgment. On appeal to the circuit, plaintiff again prevailed before a jury, who returned a verdict for $50.

The action is trespass, and on the trial it was claimed by the plaintiff that her husband hired out to J. A. McKimmie for two months, and went to work on February 8, 1892; that he and his wife, the plaintiff here, moved into a house on McKimmie’s farm at that time, and remained there until March 9, when McKimmie served a notice on her husband to leave the premises; that on the same day the wife of McKimmie, and his sons, the defendants here, came to the house where plaintiff lived, in the absence of her husband, and told her she must move out, and at once commenced taking the furniture out of the room where she was into an old kitchen and told her to pack her clothes; that her husband came shortly after, and took her away. Her claim is that she was driyen from the house by the defendants, and that the time for which her husband had taken the premises had not expired. The defense was that the .hiring was for only one month, and that the time had expired. The court directed the jury that if the hiring was for one month the plaintiff was not entitled to recover.

On the trial a receipt was produced, which had been given by plaintiff’s husband, as follows:

“March 8, 1892.
“Beceived of J. A. McKimmie $32.50 for one month’s pay. Payment in full up to date. Wages and time terminates to-day.”

Plaintiff claimed that the words “terminates to-day” were not in the receipt when signed, and the jury so found.

The court directed the jury that if the hiring was for two months, and the agreement was afterwards made, as .stated in the receipt, that the tenancy should cease in ■one month, that would end the case, and the plaintiff could not recover. If, however, the hiring had not terminated, then the jury should take into consideration what took place in the house that day;, and they were directed that the mere entry into the house by the defendants, under the circumstances, would not give the plaintiff a right of action, even if the lease had not terminated, and, if she recovered, it must be for an injury to herself, and that it must be found that the conduct of the defendants amounted to an eviction in order to find a verdict for plaintiff. .This charge properly stated- the law.

There are many assignments of error, but, after a careful examination, we think none of them can be sustained. The defendants certainly cannot complain of the charge, and there was some testimony to sustain the charge.

Counsel for defendants, in his brief, discusses at some length the right of defendants to enter and take possession of the premises, because the lease and the hiring of plaintiff's husband had terminated. This question was submitted to the jury, and settled by them. It was plaintiff's house, and it was invaded by the defendants without just right. She was permitted to recover for the wrong done her, and nothing more. j

The judgment must be affirmed.

McGrath, 0. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: McGrath, 0. J.

text:
    Putnam H. Child and Lettie Child v. Joseph Emerson.

      Slander — Parties—Misjoinder—Profit-sharing.
    1. It is not uncommon to allow employés to participate in the profits of the business, but such method of determining their compensation does not entitle them to join with the employer in an action for an injury to the business.
    2. A married woman purchased and established a milk and cream business, and constituted her husband her general agent and manager for a term of years, and agreed to pay him for his services $50 per month in advance, and five-eighths of the net profits of the business, to be calculated annually. And it is held that the husband had no property interests in the proceeds of the business, nor in the profits until an actual division of the same had been made, and that he was improperly joined with his wife in an action fqi- slander of said business.
    Error to Macomb. (Yance, J., presiding.)
    Argued- June 23, 1894.
    Decided September 25, 1894.
    Case. Plaintiffs bring error.
    Affirmed.
    The facts are stated in the opinion.

      O. E. Angstman, for appellants.

      Silas B. Spier and Robert E. Elclreclge, for defendant.
   McGrath, 0. J.

Plaintiffs are Imsband and wife. In November, 1891, they entered into an agreement in writing, the material portions of which are as follows:

“Whereas, said party.of the first part has this day purchased and established a certain milk and cream business at 804 Third avenue, Detroit, Michigan, hereafter to be known and styled the cEdgewood Jersey Milk Company:'’
She does, for the consideration hereinafter set forth, appoint, make, and constitute said Putnam H. Child her general agent and manager in said business, for the term of five years from and including this date, hereby agreeing to pay said Putnam H. Child for his said services, well and truly to be performed, the full sum of $50 per month, in advance, also five-eighths of the net profits of said business, to be calculated annually. And said second party on his part agrees well and truly to perform said services as agent and general manager of said Edgewood Jersey Milk Company, and to accept said compensation as above set forth in full for the same.”

This is an action for a slander of said plaintiffs in relation to said business. The trial court held that Putnam H. Child did not have such an interest in the-business as entitled him to join with his wife in this action, ánd directed a verdict for defendant.

It is conceded that plaintiffs were, not partners. The action is for slander of the business. The business is not the joint business of plaintiffs. It is that of Lettie Child. Putnam H. Child has no property interests in the proceeds of the business. Until the profits are ascertained, and an actual division is had, he has no property interest in them. He is simply an employé, the amount of whose compensation is determined by the amount of the profits. It is not uncommon to allow employés to participate in the profits, but such method of determining the compennation does not entitle such employé to join with the .proprietor in an action for an injury to the business.

In Ashby v. Railroad Co., 5 Metc. 368, cited by plaintiffs, a'petition was filed for damages alleged to have been sustained by reason of the laying out of a railroad over certain land, upon which petitioners had erected machinery at joint expense, and were carrying on business for their common benefit, although the fee of the land was in one of the petitioners. The court held that, under the statutes of that state, it was not necessary that the claimant should be the owner; that if petitioners were interested in one and the same estate, whether such interests were joint or several, it was within the spirit, if not within the express provision, of the statute, that they should join in one petition, and that the jury'might apportion the damages.

In White v. Bascom, 28 Vt. 268, plaintiffs were jointly engaged in transporting merchandise upon a boat which uvas owned by one of them. The court found that the' iboat was clearly in the joint use of plaintiffs, and the ■ earnings their joint property, and held that the fact of "■such joint use gave them a special interest or property therein, and conferred upon them the same right to sue .a stranger to the title for an injury thereto as if they had ■ obtained it from a third person.

In Bond v. Pittard, 3 Mees. & W. 357, A. and B. were iheld properly joined as plaintiffs, as the money, when .recovered, would be joint property.

These cases do not support plaintiffs’ contention.

The general rule is that two or more persons cannot join in an action for slander. At common law, the wife cannot sue alone in any case for a personal injury to her- . self. This ds one of the exceptions to the rule. The only •other exceptions are in cases of slander to business or title, when the persons jointly interested in the business as partners, or the joint owners of the property the title of - which is slandered, must join.

The judgment is affirmed.

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


text:
    Henry W. Rickel and Louis Henze v. Julian Strelinger.

      Attachment — Dissolution—Certiorari—Fraudulent conveyances.

    1. The rulings of the circuit judge in regard to the admission of 'evidence, made on the trial of an appeal from an order dissolving an attachment, are not reviewable on certiorari.

    2. The giving of a chattel mortgage by an insolvent debtor to a trustee to secure bona fide debts is no evidence of an intent to defraud anybody, but is evidence of an attempt to secure the mortgagor’s creditors.

    3. Evidence tending to show that a debtor, shortly prior to executing a chattel mortgage -to a trustee to secure his creditors, stated to a member of a firm to which he was indebted that he had no debts aside from that-of said firm and one other creditor, who was also secured by the mortgage, will not establish the fact that other claims secured by the mortgage, and which purport to have been incurred several months prior to the making of said statements, are not bona fide.

      Certiorari to Wayne. (Carpenter, J.)
    Argued June 23, 1894.
    Decided September 25, 1894.
    Defendant brings certiorari to review proceedings resulting in the reinstating of an attachment which had been dissolved by a circuit court commissioner.
    Beversed, and order of dissolution sustained.
    The facts are stated in the opinion.

      Harlow P. DavocTc, for petitioner.

      William Look and Edtoard Minock (Ira C. Humphrey, of counsel), for plaintiffs.

       Eor cases bearing upon the question of the review by certiorari of proceedings for the dissolution of an attachment, see note- to Savings Bank v. Barnes, 100 Mich. 5.

       For cases bearing upon the validity of mortgages given in trust to secure all or a portion of the mortgagor’s creditors, see note to Bank v. Bank, 100 Mich. 487 (4).

   Long, J.

On November 6, 1893, the defendant, doing business as a brewer in the city of Detroit, was indebted to the plaintiffs in the sum of $3,355.55. Being pressed by them for payment, he promised to give security for the debt. Instead of so doing, he gave a chattel mortgage on his personal property to James Holihan, as trustee for the creditors named in said mortgage, the plaintiff's claim being stated at $2,700. This chattel mortgage was filed in the city clerk's office on November 6, 1893. Plaintiffs had no knowledge of the giving of this mortgage until three days afterwards, when they caused a writ of attachment to be issued out of the circuit court for Wayne county, based upon an affidavit made by one of the plaintiffs, setting forth that the defendant had assigned and disposed of some of his property with intent to defraud his creditors, and that he was about to assign and dispose of his property with intent to defraud his creditors. On a petition made by the defendant before a circuit court commissioner the attachment was dissolved. Plaintiffs appealed from this order to the circuit court for the county of Wayne, where the case was tried before one of the judges without a jury, and the order of the commissioner overruled, and the attachment reinstated. The case comes to this Court by certiorari.

The reasons assigned in the affidavit for the writ of certiorari are:

1. That there is no evidence to support the finding that the plaintiffs had a good and legal cause for suing out the writ of attachment.
2. That there is no evidence to support the finding that the defendant had assigned and disposed of a portion of his property with intent to defraud his creditors, and that he was about to assign and dispose of his property with intent to defraud his creditors.

Some other errors are claimed in the affidavit relating to the admission 'of evidence, but it is well settled in this State that rulings in regard to the admission of evidence are not reviewable on certiorari in this class of cases. Schall v. Bly, 43 Mich. 401.

No findings of fact or law were made by the court below, but all of the testimony taken before the circuit court is returned here for review, and the only question which'we can consider is whether there was evidence to support the plaintiffs’ claim made in the affidavit that the defendant had disposed of his property with intent to defraud his creditors, or was about to dispose of his property with intent to defraud his creditors. Their claim is that certain facts were shown upon the hearing in the court below that warranted the court in reinstating the attachment. These facts are stated in counsels’ brief to be that, before the mortgage was given, defendant had stated to plaintiffs that they were the only creditors of any importance; that he owned a brewery, and also some property on High street; that his debts to others were of little or no’ importance; that again he stated to plaintiffs that he owed only them and one Weidner, and that Weidner’s bill was but $425. The chattel mortgage, however, covers a large amount which purports to have been incurred several months prior to these conversations. It is claimed that plaintiffs relied upon these statement's as to defendant’s obligations. This being testified to by plaintiffs, it is claimed that the burden of proof was upon the defendant on the hearing to show that the claims secured by the chattel mortgage were bona fide. It is claimed; as a further ground for sustaining the writ that the mortgage given, if valid, did not purport to secure the entire indebtedness of the plaintiffs, as, oyer and above the amount stated in the mortgage, defendant owed plaintiffs about $600.

We are of the opinion that thei’e was no evidence to sustain the allegations in the affidavit. Plaintiffs are npt claiming that the debt due them was fraudulently contracted, or that they relied upon defendant’s statement, in giving him credit, that he was not indebted to other persons; but they rely upon the fact that he had disposed of his property, and was about to dispose of it, with intent to defraud his creditors. The only proof of this, as shown by this record, is the giving of this chattel mortgage. The giving of the mortgage is no evidence of intent to defraud anybody, but is evidence of an attempt to secure his creditors for their debts. Iosco Co. Savings Bank v. Barnes, 100 Mich. 1. The burden of proof was upon the plaintiffs to show the truth of the allegations in the affidavit for the writ of attachment, and the proof which they offered, tending to show the statements made by the defendant that he had no debts aside from what he owed plaintiffs and Weidner, would not establish the fact that the claims secured under the mortgage were not bona fide. Upon an examination of the whole record, we are satisfied that there was no evidence showing or tending to show that the allegations in the affidavit were true. The case falls so clearly within the rule laid down in Iosco Co. Savings Bank v. Barnes, supra, that it needs no further discussion.

The order of the circuit court reinstating the writ of attachment must be overruled, and the order of the circuit court commissioner dissolving' the writ will be sustained. The defendant will recover costs of both courts.

McGrath, O. J.; Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.


text:
    Albert H. Petrie v. Joseph Badenoch, Jr., and John Torrent.
    [See 88 Mich. 43; 90 Id. 265; 95 Id. 439; -98 Id. 130; 100 Id. 117.]

      Trust — Accounting—Parties—Res judicata — Equity jurisdiction.

    Pending a suit against a trustee for an accounting, the trustee purchased at a discount a note given by the cestui que trust after the commencement of the suit, and placed it in the hands of a third person, who sued the cestui que trust thereon, and garnished the trustee, and recovered judgment for the face of the note, and interest. The cestui que trust filed a bill against the plaintiff and the trustee to have the note and judgment declared to be the property of the trustee, and compel him to satisfy the same out of the trust fund in his hands, at what he paid for the "note, with interest. The defendants demurred generally to the bill. And, in affirming a decree overruling the demurrer, it is held:
    a — That the general rule that a trustee cannot buy up a debt or an incumbrance for which the trust estate is liable for less than is actually due thereon, and make a profit to himself, but that such- purchase inures for the benefit of the cestui que trust, is applicable to this case.
    b — That the questions involved in this suit cannot be disposed of in. the suit for an accounting, as the plaintiff in the suit upon the-note is a necessary party in a proceeding to obtain the relief here prayed.
    e — That the matters involved, to wit, the conduct of the trustee, and his dealings with the trust estate and in his relation as trustee, are peculiarly within the jurisdiction of a court of equity, and “were not determined by the suit upon the note.
    Appeal from Muskegon. (Russell, J.)
    Argued June 23, 1894.
    Decided .September 25, 1894.
    Bill to compel a trustee to satisfy a judgment rendered on a note of the cestui que trust which the trustee purchased at a discount, and caused to be sued in the name of a third person, from the trust estate, at the sum paid for the note, and interest. Defendants appeal from an order overruling a general demurrer.
    Affirmed.
    The facts are stated in the opinion.

      Bunher & Carpenter, for complainant.

      Sessions & Bassett, for defendants.
   McGrath, O. J.

This is a branch of the Petrie-Torrent litigation. 88 Mich. 43, 100 Id. 117.

Complainant’s bill alleges that on October 4e, 1890, Petrie gave to one Marshall, of Chicago, his note for $2,450; that about January 15, 1892, Torrent purchased the note from the payee through one Meglade, of Chicago, for $1,375; that Torrent then put the note in the hands of defendant Badenoch, in order that judgment might be had for the full value of the note; that Badenoch brought suit on the note, and garnished Torrent; that on January 19, 1893, Badenoch recovered judgment on the note in the circuit court for the county of Muskegon for $2,843.02; that Badenoch was not the owner of the note at the time suit thereon was brought, is not now the owner thereof, nor is he the owner of the judgment thereon, or any part thereof; that, at the time of the purchase of said note, Torrent was, and ever since has been, complainant’s trustee, and at the time of the purchase of the note said Torrent had in his hands, as suoh trustee, upwards of $85,000 of complainant's money; that the defendant Torrent purchased said note, and caused suit to be brought thereon in the name of Badenoch, for the purpose of taking an unfair, unauthorized, inequitable, and fraudulent advantage of Petrie, and of making a^ profit out of his fiduciary relation by buying said note at a discount, and by seeking by indirect means, fully set forth in the bill of complaint, to enforce a claim against Petrie, not at what he paid for said claim, but at the face value of the note; and that the defendant Badenoch was the plaintiff in said cause for no other purpose, and that said suit was prosecuted for no other purpose, than to give, by said indirect means, to the defendant Torrent, an unfair, unauthorized, inequitable, and fraudulent advantage of Petrie. The bill further alleges Petrie's willingness to pay to Torrent, and to allow in the accounting, whatever Torrent paid for the note, together with interest thereon from the time of its purchase.

Complainant prays that said note and judgment may be declared to be the property of Torrent, and that the bringing of said suit and the obtaining of judgment therein may. be declared and decreed to be in fraud of the rights of the complainant, and that the defendant Torrent may be compelled to satisfy said -note and judgment out of the moneys in his hands belonging to complainant, at what he paid for said note, together with interest thereon from- the time of said payment, and that all proceedings in the suit at law and in the garnishment suit be permanently stayed. The bill filed by complainant against Torrent in the case reported as aforesaid, and the decree therein, are referred to and made a part of the bill in the present case.

Defendants demurred to the bill, the demurrers were overruled, and defendants appeal.

It is well settled that a trustee cannot use the trust property, nor his relation to it, for his own personal advantage. He cannot buy np a debt or an incumbrance for which the trust estate is liable for less than is actually due thereon, and make a profit to himself, but such purchase inures for the benefit of the trust estate, and the cestui que trust shall h&ve all the advantage of such purchase. Perry, Trusts, § 428; Lewin, Trusts, 276. He should take no advantage of his position to receive personal gain from the trust property, his duty being to protect it, and that, too, without having an adverse interest. Parshall’s Appeal, 65 Penn. St. 233; Sloo v. Law, 3 Blatchf. 459. He cannot buy up debts against or incumbrances upon the estate at a discount, without accounting to the estate, or the party having the beneficial interest therein, for the full benefit. King v. Cushman, 41 Ill. 31; Slade v. Van Vechten, 11 Paige, 21; Schoonmaker v. Van Wyck, 31 Barb. 457; Barksdale v. Finney, 14 Grat. 338.

While conceding the rule, counsel for defendants would make its applicability depend upon the extent of the trust. It is, however, the particular estate which is held in trust that is here sought to be affected. The note was purchased and placed in the hands of a third person in order to reach by garnishment the money or estate held in trust, and offset the amount against a claim therefor. Is it not evident that the very relation which the rule says shall not be used for personal advantage inspired the purchase? The rule is based upon the obligation resting upon the trustee to protect the trust estate, and the possibility of adverse or conflicting interest. The only note in question was given pending a controversy, not yet ended, over this very trust fund, in which it is strenuously urged that large sums of money are being wrongfully withheld. It is by no means clear but that in such case the purchase should be treated- as having been made with the trust funds. Procrastination may be made profitable if the obligations of the cestui que trust, the issue of which may have been made necessary by the very delay or withholding, may be purchased at a large discount, and then offset at their face value against the sum due.

It is urged, however, that the question may be disposed of in the principal suit upon the accounting; but defendant Badenoch is a necessary party in a proceeding to obtain the relief here prayed.

- It is also insisted that the matter involved in this' suit has been determined by the suit at law, and is res judicata; but the defense here sought to be established was not available in the suit at law. The matters involved, to wit, the conduct of the trusted, and his dealings with the trust estate and in his' relation as trustee, are peculiarly within the jurisdiction of a court of equity.

The decree overruling the demurrers is affirmed, with costs to complainant.

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


author: McGrath, C. J.

text:
    Frank B. Williams v. The Buchanan Manufacturing Company, Principal Defendant, and The Hartford Fire Insurance Company, Garnishee Defendant.

      Fire insurance — Mortgage interest — Garnishment.
    A manufacturing company mortgaged its property in trust for creditors, after which it suspended active operations, and the mortgagees took possession of the property. The property was destroyed by fire, and a compromise was effected between the mortgagor and mortgagees and an insurance company, which had written policies on the property payable in case of loss to the mortgagees, by which the insurance company agreed to pay a certain percentage of the insurance. Before making such payment, the insurance company was garnished at the suit of one of the mortgagor’s creditors. There was no evidence to authorize the jury to. find that the compromise was fraudulent, and the evidence showed that the amount of the insurance, as agreed upon, would not satisfy the debts secured by the mortgage. And it is held that a verdict was properly directed in favor of the garnishee defendant.
    Error to Berrien. (O’Hara, J.)
    Argued June 22, 1894.
    Decided September 25, 1894.
    Garnishment proceedings. Plaintiff brings error.
    Affirmed,
    The facts are stated in the opinion.

      George 8. Glapp, for appellant.

      Edward Bacon, for garnishee defendant.
   McGrath, C. J.

In June, 1888, the Buchanan Manufacturing Company executed two chattel mortgages, — one to Alfred E. Boss, cashier of the Farmers’ & Manufacturers’ Bank of Buchanan, in the sum of $28,686.77, to secure the payment to the bank aforesaid," and to other banks and individuals, of certain outstanding obligations. On the same day, the said company executed another chattel mortgage, to Minnie Weisgerber and Alfred F. Boss, cashier, etc., in the sum of $18,647.66, to secure Minnie Weisgerber upon $13,647.66 of its obligations, and the bank upon two notes of $2,500 each. On November 4 the works of the principal defendant were destroyed by fire, with the major portion of all stock and material on hand.. At the time of the fire, said company held three insurance policies in the Hartford Fire Insurance Company, aggregating $3,375, and other policies in other companies, the entire insurance amounting in the aggregate to about $20,000. Four of the policies were payable, in case of loss, to the Farmers’ & Manufacturers5 Bank. All the others, including those issued by the garnishee defendant, were payable to Minnie Weisgerber and the Farmers5 & Manufacturers5 Bank. It appears that, before the fire, the company had ceased to operate its works, and certain of the mortgagees had taken possession. The answer of the garnishee defendant sets up' that by the giving of these mortgages, the cessation of the •operation of the works, and the taking of possession thereof by the mortgagees, the policies had become forfeited. Proo'fs of loss were, however, furnished, and a conference was had in December, 1888, between the representatives of the various insurance companies and the mortgagees and the representative of the principal defendant, and at such conference a compromise was effected, and it was agreed that the companies should pay to the mortgagees 70 per cent, of the amount of the policies in full thereof. At the time that such compromise was agreed upon, certain proceedings in garnishment were pending; but for some reason they were afterwards dismissed, and the present writ of garnishment was issued on March 1, following, before, however, any moneys were paid over under that arrangement.

Upon the trial, the court below directed a verdict for defendant, and, we think, properly. There was no .evidence that would have authorized the jury to find that the compromise effected between the principal defendant, the insurance companies, and the mortgagees was fraudulent. The insurance was payable to the mortgagees. There was abundant evidence that the amount of the insurance, as agreed upon, did not satisfy the indebtedness secured by the mortgages, and the record does not disclose any evidence tending to show that a surplus remained.

The judgment is affirmed.

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


author: Montgomery, J.

text:
    Francis L. Peck and Edward H. Cutler v. The German Fire Insurance Company.

      Fire insurance — Action on policy — Limitation—Commencement of suit — Summons—Amendment.
    1. Where a fire insurance policy provides that no suit or action thereon for the recovery of any claim shall be sustainable unless commenced within 12 months next after the fire, a suit cannot be maintained unless it is in fact commenced within the year specified in the policy; citing Steele v. Insurance Co., 93 Mich. 81; Law v. Association, 94 Id. 266; Lentz v. Insurance Co., 96 Id. 455.
    2. The commencement of suit in the circuit court by summons consists of suing out the summons, and delivering or transmitting it to an officer of the proper county, with the bona fide intention of having it served.
    3. A circuit court summons, issued on the day after the return-day of a former summons issued in the same case, which has not been returned, cannot be treated as an alias; citing Johnson v. Mead, 58 Mich. 71.
    4. One day prior to the expiration of the year limited for bringing suit upon a fire insurance policy, a summons was issued from the circuit court, and sent by the clerk to the attorneys for the plaintiff, who, through an oversight, failed to transmit it to the sheriff of the proper county for service. And it is held that the right of action was not saved by the issuance, one day after the return-day of said writ, of a second summons, tested as of the day of issuance of the first summons, and its service upon the insurance company.
    5. The fact that the first summons was not made returnable on the first Tuesday of any month, or on any day in term, is unimportant; and the clerk had no authority, on his own motion, to make so radical an amendment as was attempted by the issuance of the second summons.
    Error to Wexford. (Aldricb. J.)
    Argued June 26, 1894.
    Decided September 25, 1894.

      Assumpsit. Defendant brings error.
    Reversed, and no-new trial granted.
    The facts are stated in the opinion.

      Marie Norris, for appellant.

      Dunham é Preston, for plaintiff.
   Montgomery, J.

This is an action upon a fire insurance policy containing the following provision:

“No suit or action on this policy for the recovery of any claim shall be snstainable in any court of law or -equitv unless commenced within 12 months next after the fire.”

There is no testimony showing any waiver of this provision. On the contrary, the defendant promptly denied liability, and returned the proofs of loss immediately upon their being furnished. The suit cannot therefore be maintained unless it was in -fact commenced within one year from the time of the fire. Steele v. Insurance Co., 93 Mich. 81; Lentz v. Insurance Co., 96 Id. 445; Law v. Association, 94 Id. 266.

The fire occurred May 26, 1892. , On the 25th day of May, 1893, plaintiffs’ attorneys telegraphed the clerk of the court to issue a summons, which he did, making the .same returnable June 27, 1893. The summons was sent to the plaintiffs’ attorneys on the same day. On the return-day of the writ the plaintiffs’ attorneys wrote the following letter to the clerk:

“Dear Sir: * Just at the time of the receipt of inclosed summons, I went to Lansing, afterwards to Ohicago, then to Newaygo, then- to Paw Paw, and by reason of these trips I forgot to send the summons to Lansing for service. I return them to you, and ask you to change the date, advancing the return-day 15 or 20 days in the future, and be sure to make it come within the rule, leaving the date of issue the same, as at present, or else make out an ■entirely new one of the same date; and be kind enough to enclose an additional eop3r, as one has to be sent to the insurance company and the other to the insurance commissioner. ”

The clerk thereupon, upon the receipt of this letter, made out a new summons, dating it back to May 25, and making the return-day July 11. This writ was delivered to the sheriff July 3, and served July 5, 1893. The first summons was .never delivered to the sheriff of the proper county. An attempt was made to excuse this by showing that it was sent to the sheriff of Ionia county instead, but the evidence does not show that this error was not discovered in time to have enabled the plaintiffs’ attorney to correct the error, and the fair inference from the letter which he wrote to the clerk is that the failure to transmit the summons to the proper sheriff was an oversight.

The commencement of suit consists of suing out the summons, aiid delivering or transmitting it to an officer, with the dona fide intention of having it served. 13 Amer. & Eng. Enc. Law, 746; Howell v. Shepard, 48 Mich. 472; Ang. Lim. § 312; Insurance Co. v. Schroeder, 9 Ill. App. 472; Hancock v. Ritchie, 11 Ind. 48; Ross v. Luther, 4 Cow. 158. The plaintiffs, sought to avoid the force of this rule by claiming that the 27th of June was neither the first. Tuesday in any month nor any day in term, and hence not a return-day. It is "difficult to see how this affects the plaintiffs’ position. The second summons was not issued until June 28, 32 days after the term of limitation had expired. It cannot be treated as an alias. Johnson v. Mead, 58 Mich. 71. Nor are we aware of any authority for the clerk, on his own motion, to make so radical an amendment. The court itself would not have been authorized to make such an amendment on the strength of che letter of plaintiffs’ attorney above quoted.

While the case may be one of some hardship, we think the settled rules of law require that the judgment be reversed, and no new trial ordered.

McGrath, C. J., Grant and Hooker, JJ., concurred. Lons, J., did not sit.


author: Ter Curiam.

text:
    Clarence M. Burton v. Henry M. Reynolds, County Clerk of Wayne County.

      Public records — County clerk — Examination of files — Compensation —Mandamus.

    1. The files of courts of justice should not be open to the general public so as to permit a maker of abstracts of title to keep a. clerk continuously in the office of the county clerk, occupying a place at the .desk, carrying keys to all the file cases ini said office, and removing and replacing files- at will.
    2. The rights of a maker of abstracts of title to access to the files and records of suits pertaining to real estate in the office of the county clerk, to enable him to make abstracts of the same to use in his business, do not depend upon the privileges which the clerk may choose to permit others to enjoy, but are measured by the law, and cannot be diminished for the benefit of others, nor can they be increased by reason of indulgence to others; and one whose business requires much examination has no greater rights than one .whose interests require but little.
    3. Mandamus will not lie to compel a county clerk who, for a compensation paid by relator’s competitors, employs a clerk at his own expense to superintend their use of the files and records in the office for the purpose of making abstracts of title, to grant the same facilities to the relator without compensation, it appearing that the clerk is not legally bound to furnish such increased facilities, and that the furnishing of the same does not abridge the rights to which the relator is legally entitled.

      Certiorari to Wayne. (Donovan, J.)
    Argued. June 26, 1894.
    Decided September 25, 1894.
    Relator applied to tbe circuit court for mandamus to compel tbe respondent to give bim access to tbe files and records of all suits pertaining to real estate, to enable him to make abstracts of the same, to use in bis business of making and selling abstracts of title. Relator brings
      ■certiorari to review the order denying the writ.
    Affirmed.
    The facts are stated in the opinion.

      Henry A. Chaney and Hoyt Post, for relator.
    - Jasper C. Gates, for respondent.
   Ter Curiam.

This cause comes to this Court by certiorari to the circuit court of Wayne county, where a mandamus was denied to the relator, who sought to compel the clerk of said county to give him access to the files and records of all suits pertaining to real estate, to enable the relator to make abstracts of the same, to use in his business of making and selling abstracts of title. The respondent denies relator’s right- to the privilege claimed, unless he shall pay the sum of $25 per month for each person employed by relator in making abstracts from such files.

It appears that relator has heretofore had access to the clerk’s files, having been allowed to keep a clerk continuously in said office, who occupied a place at the desk, and who carried keys to all file cases, removing and replacing files at will. Respondent very properly put a stop to this. The files of courts of justice should not be- open to the general public to any such extent as that mentioned, and the law does not compel it. If a clerk permits-it, it is at his peril. Relator apparently does not ■contend for such privileges as these mentioned, unless it be in his claim that he should be entitled to the same privileges as are granted to two others who are engaged in similar business, and who enjoy privileges that relator asserts he is denied, though it does hot very clearly .appear what they are.

According to the return, the respondent proposes to require relator to receive files and records from an assistant of respondent, who shall supervise their use by relator. He says that the clerical force provided is insufficient to permit him to attend to the wants of relator, who proposes tokeep one or more clerks constantly employed in said office, and that he cannot give him the same facilities that he does the other persons mentioned unless he will contribute to the employment of such assistant, as they do. • Just what those facilities are does not appear, and perhaps they are not important. Relator’s rights under the law do not depend upon privileges which respondent may choose to permit some to enjoy. His rights are measured by the law, and cannot be diminished for the benefit of others, nor can they be increased by reason of indulgence to others; and we think that one whose business requires much examination of public records has no. greater rights than one whose interests require little. The former cannot, and probably would not, attempt to monopolize the facilities furnished, to the exclusion of the latter. But, as already stated, the officer is under no obligation to provide additional accommodations, or to permit one to move in furniture and occupy permanently any portion of the office.

The clerk of Wayne county is a salaried officer. Counsel for relator argue that he is not entitled to fees. We are cited to no statute requiring him, at his own expense, to furnish clerical assistance, and we understand that it is provided by the public, and that he is allowed certain clerks. He cannot be expected to give his personal attendance to this relator day after day, nor can he be required to furnish a clerk who will. Relator must take his turn with others, receiving and using and returning files to the person who is detailed to wait upon the public, at and from othe place provided for the public. The return denies a refusal of the files in any particular case, except as the relator requested them in connection with more than 20 other cases; and it further discloses that, since the issue of the alternative writ, he has given relator and his assistants full and unrestrained access to any and all records, papers, and files, without let or hindrance.

Relator’s brief states that the bone of contention is the sum of $25 per month which respondent demands for certain privileges which he is not otherwise disposed to furnish, and which the law does not compel. Counsel for relator say that he only wants the same privileges that his competitors are enjoying; i. e., he wants them for nothing, while they pay for them. The return shows that, for a consideration, respondent is finding a way to help such competitors to what they want, — by employing a person at his own expense to superintend their use of the files. This does not abridge relator’s facilities, so far as appears. On the contrary, it may tend to increase them, and we think that the respondent, by rendering such increased facilities, does not thereby enlarge relator’s rights. The clerk is custodian of his office and its contents. He is responsible for its management and preservation. He probably exercises a large discretion in such management, and doubtless thereby accommodates the general public. The brief of relator’s counsel gives prominence to the privileges accorded to others, and complains that he is to be charged fees for seeing papers which he has the right to examine; but it nowhere discusses the denial of relator’s right, to see files as the general public see them. In the principal brief it is said:

“Mr. Burton’s request is only to be allowed the same latitude that is freely allowed to others.”

And in the supplemental brief it is said:

“ The essential point of our petition is that respondent, being a public officer, refuses us permission to make such examinations of public records in his. office as he permits-others to have, unless he will pay him for such permission.”

In short, he wants exceptional facilities. His only excuse for claiming tbem is that tbe clerk is willing to assume tbe risks and responsibility of furnishing them to others. He is not willing to take them upon the same terms, claiming that the money required is a fee, which the law denies the clerk the right to take. It is true that the clerk cannot charge fees for those things that a citizen has a right to demand, but we can only aid relator in obtaining the rights to which the general public are entitled, as was held in the case of Day v. Button, 96 Mich. 600.

The order of the circuit court will be affirmed.


text:
    Robert Thuner v. Charles E. Kanter.

      Real-estate broker — Commission—Procuring cause — Evidence.
    1. Where, in a suit to recover a commission on a sale of real estate, neither the pleadings nor plaintiff’s version of the contract of employment leave the case open for any claim under the quantum meruit, it is not error to exclude testimony as to expenditures made by the plaintiff in advertising.

    2. Where, in a suit to recover a commission on a sale of real estate, the pleadings limit the issue to the question whether the plaintiff did in fact procure a purchaser, either at the price stated in the declaration or at a price satisfactory to the defendant, and the undisputed testimony shows that plaintiff did not bring the purchaser and the defendant together, and that the purchaser was not a customer of plaintiff, and did not acquire his knowledge that the property was for sale from him, directly or indirectly, a verdict is properly directed in favor of the defendant.

      Error to Wayne. (Reilly, J.)
    Submitted on briefs June 26, 1894.
    Decided September 25, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated m the opinion.

      William J. Gray, for appellant

      Ed. E. Kane, for defendant.

       See Montross v. Eddy, 94 Mich. 100; McDonald v. Ortman, 98 Id. 40.

   Montgomery, J.

Plaintiff sued to recover a commission on a sale of real estate. The circuit judge directed a verdict for the defendant, and plaintiff brings error, alleging that the circuit judge committed error — First, in excluding testimony of plaintiff as to how much money he had expended in advertising the property; second, in admitting testimony of defendant that he had placed the property in the hands of other brokers; third, in directing a verdict for the defendant.

1. It was not error to exclude testimony as to expenditures made by plaintiff in advertising. Neither the pleadings, nor the plaintiff’s version of the contract of employment, left the case open for any claim under the quantum meruit.

2. While we think the testimony of the defendant as to his having placed the property in the hands of other brokers immaterial, it is apparent that the error in the admission of such testimony resulted in no injury to the plaintiff, if the court was right in holding that there was no case made for the jury.

3. The only question which requires extended discussion is whether the circuit judge should have submitted the case to the jury.

The declaration contained three special counts. In the first it was alleged in substance that defendant employed plaintiff as broker to effect, on behalf of said defendant, a sale of the premises in question, and agreed to pay to the plaintiff a commission of $1,000 in case he (the plaintiff) would, within a reasonable time, procure a purchaser at the price of $20,000; that the plaintiff agreed to use his best efforts to effect such a_ sale, and, with the knowledge of-the defendant, negotiated with several parties in regard thereto; that within a reasonable time after the making of said contract, through the efforts of said plaintiff, said property was brought to the attention of Frank A. Osborn; that said Osborn and the defendant, being thus brought together through the plaintiff, negotiated with respect to said property, and that pending the negotiations said plaintiff notified defendant that said Osborn had been procured as a possible purchaser by said plaintiff, and that said Osborn was desirous of purchasing said premises, but was unwilling to pay so high a price as $20,000; that said defendant then, in willful disregard of plaintiff’s rights in the premises, did agree to sell said premises to said Osborn at a price named which was less than $20,000, and that said Osborn agreed to purchase the same at such price. The plaintiff further averred that by reason of the premises, and the lowering of said price, under the circumstances, the defendant became indebted to the plaintiff in the sum of $1,000.

The second count averred that defendant employed plaintiff at the agreed price of $1,000 to furnish a purchaser at a price satisfactory to defendant, and alleged that the purchaser and defendant were brought together by plaintiff’s efforts, and a sale at a price satisfactory to defendant was made, and claimed the agreed compensation.

The third count was the same in substance as the second, except that it averred that plaintiff’s employment was at a reasonable commission.

There were appended the common counts, and a bill of particulars was filed, which limited plaintiff's claim to one “for services in procuring a purchaser for stores No. 420 to 428, Michigan avenue, $1,000.”

Under the state of the pleadings, we think the only question for trial was whether the plaintiff did in fact procure a purchaser, either at $20,000 or at a price satisfactory to the defendant. Each count avers that the purchaser was procured by the plaintiff, and there is no averment of any special damage for withdrawing the property from plaintiff's hands, excépt as it is averred that plaintiff produced Osborn as a purchaser, and that defendant availed himself of plaintiff's efforts. There is no averment in the first count of the declaration that the plaintiff was to have the exclusive sale of the property, and the plaintiff's own testimony shows that defendant was authorized to sell if he should himself get a purchaser for the property. This count alleges that defendant's wrong consisted in selling to a customer with whom plaintiff himself was at the time in negotiation. But this averment of the declaration is refuted by the undisputed testimony in the case. The plaintiff testified that defendant agreed to place the property in plaintiff’s hands, fixed his price at $20,000, and agreed that if plaintiff succeeded in selling at $20,000 he was to have $1,000 commission for the sale; that defendant agreed to place the property in his hands exclusively and absolutely, with the reservation that, if he himself succeeded in finding a purchaser, he (defendant) would first notify plaintiff to bring in any customer that he had, before withdrawing the property. Plaintiff also testified that he agreed to use his best efforts; that he entered into negotiations with one Eyfe for a sale of the property, and that Eyfe, after considering the matter, declined to buy, but referred him to his partner, Mark B. Stevens, and introduced him to him as a possible purchaser; that Stevens looked into the matter, and stated that if he bought he preferred to do so through his •nephew, one George B. Stevens, who. was in the real-estate business, and that he (plaintiff) 'finally agreed with Mark B. Stevens that in case he should become a purchaser he would divide commissions with George B. Stevens; that Mark B. Stevens never agreed to buy the property of him, but it was left in- that way; that, a short time before the sale to Osborn was consummated, defendant told the plaintiff that George B. Stevens had brought Mr. Osborn to look at the property, and that he (plaintiff) then told the defendant that, if the property was sold to anybody connected with Mr. Stevens or with Mr. Fyfe (referring to Mark B. Stevens), he (the plaintiff) would -claim his commission. The plaintiff also called the purchaser, Osborn, who testified that he purchased the prop-' erty from defendant through George B. Stevens, paying $19,300; that he first learned of the property through Mark B. Stevens, but that his negotiations were with ■George B. Stevens; that he had no acquaintance with the plaintiff, and that he had never heard of him until after “the purchase. Mark B. - Stevens testified that he had, before’the purchase by Osborn, given up the thought of purchasing the property, and communicated the fact to George B. Stevens, and it would seem that after this conclusion George B. Stevens negotiated the sale with Osborn. George B. Stevens, who was called for the defendant, testified that after the talk between Mark B. Stevens and plaintiff, and while Mark B. was still negotiating with a view of purchasing, he (George B. Stevens) weiSt to see defendant, and the defendant distinctly refused to negotiate with him when he learned that his customer was Mark B. Stevens; that subsequently Mark B. Stevens said he should not buy, and told witness that possibly Osborn would take it; that thereafter he opened negotiations with Osborn, and the sale was finally effected.

We think the circuit judge was right in holding that the undisputed testimony showed that plaintiff did not bring Osborn and defendant together. Osborn did not acquire his knowledge that the property was for sale from the plaintiff, directly or indirectly; but it seems that Mark B. Stevens, having the interests of his nephew in view, suggested that he (the nephew) look tip a customer, which he did. The defendant refused to sell either to Fyfe or Mark B. Stevens, except through the plaintiff, as he recognized the plaintiff’s claim that' he had negotiated with them. But no such claim was made as to Osborn. Confining our holding to the distinct question made by the pleadings and passed upon by the trial judge, namely, whether the plaintiff showed that Osborn, the purchaser, was a customer procured by him, we think the circuit judge’s ruling in the negative was correct.

The judgment will be affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    David Roberts v. The City of Detroit.

      Municipal corporations — Defective highways — Bight of action— Husband and wife.

    1. Municipal corporations, in Michigan, are liable for injuries resulting from their neglect to repair public highways only where made so by statute; citing City of Detroit v. Blackeby, 21 Mich. 84; McCutcheon v. Village of Homer, 48 Id. 483.
    2. The right of action given by 3 How. Stat. § 1446c, for injuries sustained from defective highways, etc., is confined to cases of bodily injury, and the statute in terms limits the recovery of damages to the person so injured or disabled; but, in case of his death, the right of action survives, under 3 How. Stat. § 7897, to his administrator; citing Baeho v. City of Detroit, 90 ■ Mich. 93.
    8. The words “other property,” as used in, 3 How. Stat. § 1446<3, which provides that if any horse or other animal, or any cart, carriage, or vehicle or other property, shall receive injury or ■ damage from defective highways, etc., the municipal corporation in fault shall pay the owner just damages, etc., being preceded by several words descriptive of particular hinds of property, are limited to things of a like kind.
    4. Loss to a husband of the services of his wife, and money expended for surgical attendance and nursing, while she is suffering from injuries received by falling upon a defective sidewalk, do not constitute an injury to “ other property,” within the meaning of 3 How. Stat. § 1446d, and the husband has no right of action under said statute for the same.
    5. 3 How. Stat. § 1446e, which makes it the duty of municipal corporations to keep in reasonable repair, so that they will be reasonably safe and convenient for public travel, all public highways, etc., that are within their jurisdiction and under their care and control and which are open to public travel, does not give a right of action to everybody because it imposes a public duty, but must be construed with 3 How. Stat. §§ 1446c, 1446d, which give certain rights of recovery for neglect to perform the duty thus imposed.
    Error to Wayne. (Carpenter, J.)
    Argued June 26, 1894.
    Decided September 25, 1894.
    Negligence case. Defendant brings error.
    Reversed, and no new trial granted.
    The facts are stated in the opinion.

      John J. Speed, for appellant.

      Thomas ,Hislop, for plaintiff.
   Hooker, J.

Plaintiff recovered a judgment against the city of Detroit, based upon the loss of the services of his wife, who tfas injured by falling upon a defective sidewalk. Money paid for surgical attendance and nursing constituted a part of the damages recovered. The only question presented for our consideration is whether he had a right of action.

Municipal corporations, in Michigan, are liable for injuries resulting from their neglect to repair public highways only where made so by statute. That there is no common-law liability was decided in the case of City of Detroit v. Blackeby, 21 Mich. 84, which was a crosswalk case. It was followed by McCutcheon v. Village of Homer, 43 Mich. 483. The earlier case contains an exhaustive discussion of the subject, holding that the duty of cities to repair highways is a public one, and that a private action does not lie for negligence in such cases. Subsequently a statutory liability was created, and it is under this statute that the plaintiff must recover, if at all.

The statute consists of several sections, viz., 3 How. Stat. §§ 1446c-14467i, inclusive. Section 1 (1446c) provides:

“ That any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks, and culverts on the same, in reasonable repair, and in condition reasonably safe and fit for travel, by the township, village, city, or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk, or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city, or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.”

So far as this section is concerned, it limits the liability to cases of bodily injury.

The second section covers property interests. It is as follows:

“If any horse or other animal, or any cart, carriage, or vehicle or other property, shall receive any injury or damage by reason of neglect by any township, village, city, or corporation to keep in repair any public highway, street, bridge, sidewalk, crosswalk, or culvert, the township, village, city, or corporation whose duty it is to keep such public highway, street, bridge, sidewalk, . crosswalk, or culvert in repair shall be liable to and shall pay the owner thereof just damages, which may be recovered in an action of trespass on the case before any court of common [competent] 'jurisdiction."

The plaintiff’s case does not fall within the first section {1) because he has no right to recover for the bodily injury — i. e., pain and suffering, etc. — of another; (2) because the statute in terms limits the recovery to the person so injured or disabled. Under another statute the right of action has .been held to extend to administrators of persons injured. Racho v. City of Detroit, 90 Mich. 92.

If plaintiff’s case is covered by the second section, it must be because he is injured in his property. It is asserted that he is so injured, inasmuch as he has lost the services of his wife, and has been obliged to expend money for her recovery. We think that this position is not tenable. Services (which may or may not be rendered) can hardly be called present property, as was held in Reed v. Belfast, 20 Me. 246, where a father was denied relief upon a claim of loss of services of a minor son who had been injured upon a defective highway. Moreover, while this statute uses the word “property," it is preceded by several words descriptive of particular kinds of property, and the provision is thereby limited, to things of a like kind. In the language of Chief Justice Shaw:

“Therefore, though the word ‘property’ is used, it follows words designating goods and chattels, and could not extend to mere rights." Harwood v. City of Lowell, 4 Cush. 310; Chidsey v. Town of Canton, 17 Conn. 475.

Counsel cites the following cases supporting this rule of construction: American Transportation Co. v. Moore, 5 Mich. 368, 386; McDade v. People, 29 Id. 50; Board of Bducation v. City of Detroit, 30 Id. 505; Brooks v. Cook, 44 Id. 617; Wood v. Railroad Co., 81 Id. 358, 362.

Our attention is called to the case of Hunt v. Town of Winfield, 36 Wis. 154, as an authority sustaining the plaintiff's position; but the Wisconsin statute is broader than that of Michigan, providing that if any damage shall happen to any person, his team, etc., such person may recover. It may therefore be distinguished from the statute of this State.

Counsel for the plaintiff makes the further point that section' 1446e makes it the duty of cities to keep their streets in reasonable repair, so that they may be reasonably safe and fit for travel, etc., and argues that, the duty being imposed, the liability must follow; citing the case of Borough of Nanticoke v. Warns, 106 Penn. St. 373, in support of the proposition. The court in that case say:

“Whatever the law may be in other states, in Pennsylvania, townships and boroughs are bound to keep the roads and streets in repair, and are liable for injuries resulting solely from negligence in performing that duty. The liability is the consequence of the neglect of a statutory duty, and the right of a person does not depend on the construction of a statute providing who may recover, and for what, in case of injury from defect in the highway."

That case seems to recognize the fact that some states hold otherwise, and, as already seen, that is true of Michigan. See City of Detroit v. Blackeby, supra, which’asserts the doctrine' that the imposition of a public duty upon a. municipal corporation does not create a private right of action for injuries sustained by an individual by reason of its non-performance.

Again, the statute under discussion gives certain rights of recovery, but only against corporations whose duty it is to keep streets in repair. This appears from both sections 1446c and 1446a!. The succeeding section prescribes the duty. As these sections must be construed together, and in the light of the previous decisions of the Court, it ■cannot be held that the effect of this statute was to give .a right of action to everybody because it imposed a public ■duty. If 'such was the legislative intent, the first two .sections were superfluous.

The judgment of the circuit court must be reversed. No new trial will be granted.

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


text:
    Abram Bolton v. Lavinia Calkins.

      Negligence — Fires—Question for jury.

    On a calm morning in September, when there was a heavy dew on the ground, defendant’s .servant set fire to some grass, weeds, and brush, which he had cut the previous day, and piled in what is termed a-“cathole” on defendant’s land. There had been no rain for several weeks, and the surface of the cathole was dry, .but it was very wet just beneath the surface. About three hours after the fire was set, and while defendant’s servant was on the ground with a bucket of water to watch the fire, the wind began to blow violently, and what is termed a “whirlwind” took up some of the fire, and carried it over a furrow which defendant’s servant had plowed around the cathole, and set the stubble on fire, and, despite his efforts and the efforts of others to whom he had given the alarm, the fire ran to plaintiff’s land and damaged his timber. And it is held that the question of defendant’s negligence in seeing the fire was for the jury.

      Error to Lapeer. (Moore, J.)
    Submitted on briefs June 22, 1894.
    Decided September 25, 1894.
    Case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Geer é Williams, for appellant.

      SticTcney & Halpin, for defendant.’

       For cases involving the question of the negligent setting of fires,, see Richter v. Harper, 95 Mich. 221, and note; Needham v.

        King, Id. 303; and for an exhaustive discussion of the question of liability for setting fires which spread to pfoperty of others, see note to Brown v. Brooks, 21 L. R. A. 255.

   McGrath, C. J.

This suit is brought to recover damages alleged to have been caused by negligence in setting a fire on defendant’s premises, and in negligently allowing said fire to escape to the premises of plaintiff.'

The parties owned adjoining farms. There was what is termed a “cathole” upon defendant’s land, the west side of which was some 23 rods east from plaintiff’s line. There had been no rain for some weeks. The cathole was grown up with grass, weeds, and underbrush, and it contained a number of old logs. There was no water upon the surface, but it was very wet just beneath the surface; so much so that, when defendant’s servant undertook to use a horse therein on the day previous to the fire, the horse got mired, and was extricated with difficulty. On the day before the fire was set, one Seabury, defendant’s servant, cut the grass, weeds, and brush, and placed the same in heaps, and plowed a furrow around the border of the cathole. At 8 o’clock on the following morning, during a calm, and while a heavy dew was on, the fire was ignited by Seabury, who had prepared himself with a bucket and water, and remained on the ground to watch it. At about 11 o’clock the wind began to blow violently, and what is termed a whirlwind" took up some of the fire, and carried it over the furrow some four rods beyond the edge of the cathole. Seabury attempted to fight it, and gave the alarm, but the fire ran through the stubble, and all efforts to arrest 'it proved futile. The jury found for defendant.

Plaintiff insists that the court should have instructed the jury that the setting of - the fire, under the circumstances disclosed, was negligence; but we cannot concur in this view. In Needham v. King, 95 Mich. 303, 311, after a very full examination of the authorities, it is said that a party,. having taken reasonable precaution to avoid the spread of fire, may, on a calm morning in a dry time, set fire to rubbish upon his premises; and if, during the necessary progress of the fire, a violent wind causes the fire to escape to his neighbor’s premises, it cannot be said, as a matter of law, that he was negligent. As was further said in that case:

“The burning of a fallow and of brush, logs, and rubbish on the surface of one’s own land is of frequent necessity in husbandry, and is a lawful act, unless the fire is set at an improper time, or is carelessly managed."

In determining whether or not the fire was set at an improper time regard must always be had to the character of the land, and the practical necessity for setting the fire at that particular time in order to accomplish the object in view. In the present case the land was swampy, and had evidently but recently reached a status when a fire could be made available. The case was, we think, one for the jury.

Error is assigned upon the admission of the answer to the following question put to defendant:

“At the time of the fire, did you have any intention of injuring Mr. Bolton by the fire?"

The declaration alleged that defendant had wrongfully, willfully, and negligently lighted the’fire, and had wrongfully, willfully, and negligent^ allowed it to escape- The court, howeyer, eliminated the question of intent from the case, by instructing the jury that the question of intent was not material, and, if the admission of the testimony was error, it was without prejudice.

The judgment is affirmed.

The other Justices concurred. •

       The fire was set September 7, 1889.