author: Kuhn, C. J.'

text:
    LIETZAU v. LIETZAU.
    1. Divorce — Extreme Cruelty — Evidence—Sufficiency.
    On a bill for divorce, the evidence was sufficient to warrant a divorce in plaintiff’s favor on tbe ground of extreme cruelty where the defendant wife refused to cohabit with the husband, tried to get his property away from him, and refused to provide meals for him and look after his comfort.
    2. Same — Disposition oe Property.
    A decree awarding the wife against whom the decree of divorce was rendered one-half of the property accumulated by them, including property which the husband owned at the time of marriage, was proper.
    Appeal from Wayne; Cross, J., presiding.
    Submitted June 22, 1917.
    (Docket No. 126.)
    Decided July 26, 1917.
    Bill by Max Lietzau against Hedwig Lietzau for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Bauble & Bauble, for plaintiff.

      William, Henry Gallagher, and Francis T. McGann, for defendant.
   Kuhn, C. J.'

The plaintiff, who at the time was 43 years of age, upon August 21, 1893, married the defendant, 17 years of age. He was a widower with four children living in and owning a small home on Mack avenue, in the city of Detroit, and the property stood in his name at the time of the hearing of this cause. The defendant bore unto him two sons, Alfred and Walter, who were of the ages of 19 and 18 years respectively. The defendant, when she came to the plaintiff, was without means or separate estate, and the parties lived together for about 20 years, during which time the plaintiff worked steadily as a brewer, turning his weekly wages over to the defendant regularly. In 1906 they decided to invest in a new property and to erect a two-family flat thereon. The lot, which was on Pulford avenue, was selected by them both, and the plaintiff gave the defendant the money to make the first payment. He also mortgaged his Mack avenue property for $1,000, which sum he gave to her, and it is his claim that it was agreed between them that this property should be held and owned by them jointly. The defendant, who looked after the details of the purchase, had the. deed made out in her name alone, and recorded the same and proceeded to erect a two-family flat on the lot, which, when completed, she looked after and collected the rent.

It is the claim of the plaintiff that he is. unable to read English and speaks the language imperfectly, and that he tried on many occasions to find out whether his name was included in the deed, and was finally told by the defendant that the deed had been made in her name alone. Since that time the parties seem to have been in trouble and in litigation. Plaintiff filed a bill for divorce praying, among other things, that he be decreed his interest in the Pulford avenue property. This case was referred to the domestic relations court, which was then in existence. Judge Lacy, after hearing the case in January, 1914, refused to sign a decree for divorce, but did decree to the plaintiff an undivided one-half interest in the Pulford avenue property. The defendant shortly thereafter filed a bill of review, and succeeded in having the decree with reference to the property set aside. The plaintiff in the meantime had filed another bill for divorce, and immediately upon the decree of Judge Lacy having been set aside, also filed a separate bill to have his interest in the Pulford avenue property decreed to him. These two causes were consolidated, and were heard by Judge Cross sitting in the' Wayne circuit court, who decreed a divorce for the plaintiff and ordered that the property standing in the names of the said parties, or either of them, together with all the household fixtures, be divided between them, share and share alike. It is from this decree that the defendant appeals.

It is the claim of the plaintiff that when the parties went home after the domestic relations court hearing •he endeavored again to live with the defendant, but that she refused to live with him unless he consented to have Judge Lacy’s decree set aside and give her all of the Pulford avenue property. He testified that she refused to occupy his bed, and that they lived separately from that time on, he doing his own cooking, and that she refused to care for him and her sons. We think it is unnecessary to further discuss the testimony or the facts sought to be established. It is the contention of the defendant that a decree should not be based upon a single refusal to cohabit, and, while we are not prepared to say that a decree should be granted if that were all the complaint in this case, nevertheless, on the entire record, considering the relations of the parties, her treatment of this man in trying to get his property away from him, refusing to provide proper meals for him and look after his comfort, constituted such a course of conduct, together with her refusal to live and cohabit with him, as to warrant the court in decreeing a divorce on the ground of extreme cruelty.

We are also of the opinion that the distribution of the property was exceedingly equitable and fair, and that the defendant had no reason to complain as by the decree she receives one-half of all the property accumulated by them, including the Mack avenue house which he had at the time of his marriage to her. The testimony was taken in open court, and we find nothing in this record to indicate that the conclusions of the circuit judge were not fully warranted and his decree a just one.

It is therefore affirmed, but without costs to either party.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, C. J.

license: Public Domain

text:
    SCHLOSSMAN v. ROUSE.
    1. Reformation of Instruments — Mistake of Fact — Description of Property.
    There was no evidence of a mutual mistake warranting reformation of a contract for the sale of land where the contract called for a certain number of feet off a certain lot, being the building then occupied by defendant as a drug store, all of which lot plaintiffs expected to and did acquire title to, and defendant was aware, before signing the contract, that the drug store did not cover all of the ground, and plaintiffs were unaware of the discrepancy until after signing the same.
    2. Same — Grounds—Mutuality.
    Before a contract will be reformed because of a mistake in drafting the same it must be shown by satisfactory evidence that the alleged mistake was mutual and common to both parties in interest.
    Appeal from Muskegon; Sullivan, J.
    Submitted June 11, 1917.
    (Docket No. 33.)
    Decided July 26, 1917.
    Bill by Paul J. Schlossman and others against Howard M. Rouse for a reformation of a land contract. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Carpenter & Jackson, for plaintiffs.

      Cross, Vanderwerp & Foote (Todd Limsford, of counsel), for defendant.
   Kuhn, C. J.

The bill of complaint in this case was filed for the purpose of obtaining reformation of a land contract made between the plaintiffs and the defendant. The plaintiffs have appealed from a decree dismissing the bill. It was made to appear that in. August, 1916, the plaintiffs were negotiating for the purchase of lot No. 10, block 310, of the city of Muskegon. On this lot there stood at that time a three-story brick building, which, with a similar building on lot No. 11, adjoining it on the west, formed the “Mason Block,” apparently a single building fronting on Western avenue. There were six stores in this block, and the defendant occupied the west one on lot No. 10 as a drug store. The other two on that lot had been consolidated into one, which was occupied by the Riordan Company, engaged in the dry goods business. The plaintiffs had purchased the entire lot No. 10 for the purpose of remodeling the easterly 44 feet thereof into a picture house, and this fact was made known to the defendant when he made his purchase of the westerly 22 feet of this lot. The easterly wall of the drug store is only a lath and plaster partition.The plaintiff Schlossman, acting for his firm, called on the defendant and asked him if he would be interested in buying his store at $35,000. The sale of the property was being handled by Gilbert A. Coutchie, who, after some negotiations, concluded the sale, and a preliminary contract was executed by the parties. It is as follows:

“Muskegon, Michigan, August 19, 1916.
“In consideration of $500 paid on account by H. M. Rouse to Paul J. Schlossman Company, the receipt of which is hereby acknowledged, the Paul J. Schlossman Company agrees to sell to H. M. Rouse and said Rouse agrees to buy the westerly 22 feet, thereabouts, of lot 10, block 310, of the revised plat of the city of Muskegon, being the building and ground now occupied by said Rouse for a drug store; balance of purchase price to be paid as follows; $4,500 on delivery of the contract of sale, $5,000 in 90 days thereafter, and $5,000 per year until purchase price of $35,000 is fully paid, with interest on deferred payments at 5 per cent, per annum.
“This agreement is made contingent on the purchase of the entire lot 10 of block 310 by the Paul J. Schlossman Company.
[Signed] “Paul J. Schlossman Co.
“H. M. Rouse.”

The formal contract was to be drawn by attorneys representing the parties, but before it had been completed the defendant attempted to withdraw from the agreement and sent a notice to Mr. Smith, one of the plaintiffs, of his intention so to do. The plaintiffs at once brought suit upon the contract and garnished defendant’s bank account. The formal contract as agreed upon was then completed and tendered to the defendant after the suit had been begun, and he finally signed it and made the first payment thereon. In it the property conveyed is described as follows:

“The westerly twenty-two (22) feet of lot ten (10), block three hundred and ten (310), according to the revised plat of the city of Muskegon, approved April 9, 1903, together with the building situated thereon, with the privileges and appurtenances thereunto belonging.”

Before the final contract was sighed the defendant measured the premises and ascertained that the westerly 22 feet of lot 10, which he was purchasing from the plaintiffs, included more than the land occupied by the drug store, because by actual measurement he found the drug store to be only 20 feet in width. The plaintiffs claim that they were not aware of this, and did not discover that the drug store was only 20 feet in width until the final contract had been signed, and they thereupon prepared a new contract, correcting the mistake, and tendered it to the defendant for execution. This he declined to do, and thereupon this bill was filed.

It is the contention of counsel for the plaintiffs that it was the intention of the parties to this transaction to sell nothing more than the drug store, and thus the contract did not express the true intention and meaning of the parties, and that therefore equity should reform the instrument to accord with the true intention of the parties. It does not conclusively appear, however, that the defendant was simply negotiating in this transaction for- the purchase of the drug store. The record is rather convincing that he had in mind the frontage, which it is conceded is valuable. The plaintiff Schlossman himself testified:

“I remember, during the time that we were negotiating with Rouse and trying to persuade him to buy this property, the westerly 22 feet of lot 10, telling him that Judge Clink claimed the property on Western avenue along there was worth $2,000 a foot.”

The defendant testified as follows, in reference to this conversation:

“He made some reference to Judge Clink at one time after this contract of August 19th had been signed. I think it was after I had sent this note of August 25th, in which I wanted to drop the whole matter. He was passing along the street. I stood out in front, and he made the remark that Mr. Clink, Judge Clink, said that real estate along the avenue was worth $2,000 a foot, and then he figured it out to me that the difference between $85,000 and $44,000 was a nice little sum to make in a deal.
“Q. How many feet did you understand that they were proposing to sell you ?
“A. I understood one-third of the block there. At the time I agreed to pay $35,000 I knew what the Schlossman Company were paying for the entire lot. I think about that time; just at that time, I don’t know. He had a contract.”

We are of the opinion that what was intended to be done, according to the understanding of the parties, was that plaintiffs were to sell the defendant 22 feet fronting on Western avenue, because in the initiatory agreement, and also in the formal contract, both of which were prepared by an attorney for the plaintiffs, the property is so described. Indeed, it is admitted that at the time these agreements were signed they supposed the drug store situated upon the premises was 22 feet in width. This is what they were trying to sell, and this is what the defendant bought. The only misapprehension, if any, upon the part of the plaintiffs, was in assuming that the drug store occupied the entire width of the property which they were contracting to sell. We áre satisfied by the proof that the plaintiffs intended to sell, and the defendant intended to buy, one-third of the entire lot 10, which was 66 feet in width. We are therefore forced to the conclusion that there was no mistake which would warrant the court in granting the relief sought.

Moreover, conceding that there was a mistake, it was not a mutual mistake, because it is conceded that defendant knew the exact width of the drug store to be only 20 feet at the time the contract was signed. Before a contract will be reformed because of a mistake in drafting the same, it must be shown by satisfactory evidence that the alleged mistake was mutual and common to both parties in interest. West v. Mahaney, 86 Mich. 121 (48 N. W. 709); Burns v. Caskey, 100 Mich. 94 (58 N. W. 642); Eberle v. Heaton, 124 Mich. 205 (82 N. W. 820); Stapleton v. Schaffer, 146 Mich. 346 (109 N. W. 665); Miles v. Shreve, 179 Mich. 679 (146 N. W. 374).

The decree of the lower court, dismissing the bill, is affirmed, with costs to the defendant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    PEOPLE v. WABASH RAILWAY CO.
    1. Nuisance — Criminal Prosecution — Evidence—Sufficiency.
    On a prosecution of a railroad for maintaining a nuisance consisting of a crane for loading and unloading cars, evidence held, sufficient to show that the neighborhood was not residential in character, but was a railroad terminal.
    2. Same.
    A public nuisance is not created by the operation day and night of a crane used in loading and unloading cars at a railroad terminal, which is made necessary by the demands of the public.
    Error to recorder’s court of Detroit; Jeffries, J.
    Submitted June 7, 1917.
    (Docket No. 10.)
    Decided July 26, 1917.
    The Wabash Railway Company was convicted of maintaining a nuisance, and sentenced to pay a fine of $100.
    Reversed, and no new trial granted.

      Beaumont, Smith & Harris, for appellant.

      Harry J. Dingeman, Corporation Counsel, and Thomas P. Penniman, Assistant Corporation Counsel, for the people.
   Kuhn, C. J.

The defendant was convicted in the recorder’s court of the city of Detroit upon a complaint which charged:

That the defendant on the 29th day of December, 1916, did “then and there unlawfully and wilfully allow a nuisance to exist on said premises, consisting of the operation of a crane for the loading and unloading of cars, which operation caused a loud and continuous noise, to the serious annoyance of the neighborhood.”

The plea was not guilty, and the trial was by jury.

The crane in question is of an elaborate mechanical construction of the overhead type capable of operating a clam shell or bucket adapted to the unloading of coal from cars. It is about 75 feet high, and travels about 150 feet in its work over a radius of 83 to 84 feet. It crosses five tracks, picks up the coal from the cars, and carries it to the tenders of the engines. It also handles the cinders from the cinder pits. There are six of these pits under the incoming tracks about 15 feet deep, 30 feet long, and the width of two tracks. These pits are filled with water, and the cinders are dumped into them from locomotives. From there they are picked up by the crane and loaded into cinder cars. The crane was constructed in 1913 according to a plan and device approved by the engineers of the defendant railroad as providing the best crane to be erected at this point, taking into consideration every factor of railroad operation; it being considered the most modern device in use at that time.

An idea of the location of the crane with reference to the surrounding property can be obtained from the annexed sketch of the locality.

It shows roughly the roundhouse, machine shop, crane, and tracks, and the residences of each one of the people complaining. The crane itself is represented by an oblong figure just northerly of the rail-, road tracks and westerly of Harbaugh avenue just south of Cedar street. Westerly of the crane appears another parallelogram representing a machine shop, storeroom, boiler room, and certain offices. Still westerly of the machine shop, but close thereto, is the Detroit roundhouse of the Wabash Railway Company, devoted to the customary use to which a railroad roundhouse is put. This roundhouse is continually in active operation, and the crane is located adjoining thereto, so that the loading can be accomplished when necessary on incoming and outgoing locomotives at a point adjacent to where they are stored and repaired. The whole plant is adjacent to and convenient to the main freight and switching yards of the Wabash, which are just across Harbaugh avenue to the east.

It further appears that the whole territory surrounding the location of the crane is a network, of railroad tracks, and in this respect has not changed for a period of 30 years or more. South of the roundhouse and crane are five tracks outside of the tracks that are used in connection with the roundhouse proper, and all of the Wabash and Pere Marquette trains entering the city pass this point; the Delray station of these two roads being just across the tracks to the south and a little, west of the roundhouse. The testimony showed that a great number of trains pass over these tracks during each 24 hours, as well as over the main tracks of the Michigan Central and Lake Shore roads operating between Detroit and Toledo, which tracks are just to the north as shown by the sketch. South of the west tracks and of the crane is located the manufacturing plant of the Michigan Gray Iron Castings Company and between this plant and Harbaugh avenue is the new and large plant of the Detroit Steel Products Company. Just northerly of the crane and machine shop runs Cedar street, east and west, and fronting on this street facing the south reside most of the parties who appeared to testify for the people in this matter. In the triangle bounded by Harbaugh avenue on the east, Cedar street on the south, and the Michigan Central Railroad tracks on the northwest there are only ten houses, and across from Harbaugh avenue and east of Cedar street there are only four houses.

The trial judge in a carefully stated charge submitted to the jury the question as to what was the preponderating character of the neighborhood, whether it was residential in character,, and instructed them that unless they found it was of that character, so as not to make the noise of the operation of the crane one of the incidents of a manufacturing or a like district, their verdict would, be not guilty.

A careful examination of this record and of the evidence offered on the trial satisfies us that the court erred in submitting this question to the jury and should have directed a verdict for the defendant as requested by it on the ground that under the undisputed proofs the preponderating character of this neighborhood is not residential, but that it is a railroad terminal, and was such at thé time that the people now living there sought the locality in which to live. The character of the neighborhood is not determined by the facts as to whether or not there are residences in this neighborhood, but it is rather, What is the preponderating character of this neighborhood? It is through this section of the city that the main arteries of railroad traffic enter the great and growing metropolis of this State. An examination of the maps which were submitted and introduced as exhibits and made a part of this record discloses that this is clearly a railroad terminal. The operation of railroad trains in this locality has been incessant, and the erection of this crane must be said to have only added another facility demanded by the increase of this terminal and the tremendous growth of this city. We are therefore satisfied that the neighborhood itself cannot be said to be a residential neighborhood, since the great preponderance of its activity is railroading and manufacturing, and the people’s witnesses who came to reside there must be held to have come knowing that their homes would be in the center-of one of the most congested railroad terminals of Detroit. Here the main arteries of the railroads which run between Detroit and Toledo and all the trains of the Pere Marquette and Wabash systems converge to make the station of Delray, which has been known for years as a railroad junction.

We are satisfied that the operation of the crane by day and night was made necessary by the demand of the public upon the facilities of the railroad, and that under these circumstances it cannot be said that a public nuisance was.created.

Being of the opinion, as before stated, that the trial judge should have directed a verdict for the defendant, the judgment will be reversed, and no new trial granted.

Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, J., did not sit.


text:
    MUSLINER v. DETROIT UNITED RAILWAY.
    1. Witnesses — Cross-Examination—Appeal and Error..
    In an action by an interurban car passenger for personal injuries received while attempting to board one of defendant’s cars, it was proper to cross-examine the claim agent of defendant as to his purpose in gathering statements from witnesses of the accident for the purpose of showing that the statements made by him were as favorable to the company as possible where the only reference to an attempt to settle the case was made by defendant itself.
    2. Street Railways — Personal Injuries — Evidence — Sufficiency.
    In an action by an interurban car passenger for personal injuries sustained while attempting to board one of defendant’s cars, held, that the evidence was sufficient to sustain a verdict for plaintiff.
    3. Damages — Personal Injuries — Excessive Verdict — Permanent Injury.
    A verdict for $3,500 for personal injuries ini favor of a traveling man for permanent injury to one of his legs due to the fracture of both bones thereof, financial loss of $1,774 and confined to the hospital for upwards of six weeks, was not excessive.

    Error to Wayne; Hosmer, J.
    Submitted June 18, 1917.
    (Docket No. 76.)
    Decided July 26, 1917.
    Case by Louis S. Musliner against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody (Frederick T. Harwwrd, of counsel), for appellant.

      Lodge & Brown, for appellee.

      On excessiveness of verdicts in actions for personal injuries other than death, see note in L. R. A. 1915F, 30.

   Kuhn, C. J.

The plaintiff, a commercial traveler 50 years of age, on April 27, 1913, was injured while attempting to board a car of the defendant company at the intersection of Woodward and Gladstone avenues in the city of Detroit. It is his claim that an interurban car going south came to the place where he was standing and stopped, that he put his right foot upon the step, took hold of the handle of the car, and that thereupon the car started, causing him to fall in such a way that he landed upon his left foot breaking his left leg below the knee. It is the contention of the defendant, which also found support in the evidence, that the car did not come to a stop, but that plaintiff attempted to board it while it was moving. The disputed questions of fact were submitted to the jury, who found for the plaintiff, and rendered a verdict in the sum of $3,500 damages. A motion for a new trial was made on the ground that the verdict was against the weight of the evidence, and that it was excessive. The denial of this motion is made the ground of assignments of error.

Thp second, third, fourth, and fifth assignments of error relate to the testimony of Joseph Mason, a claim agent of the defendant company, who was put upon the stand by the defendant to prove the signed statement of Philip S. Beamer, one of plaintiff’s witnesses. The following transpired upon the cross-examination of Mr. Mason:

“I worked for the Detroit United Railway for six or seven years; employed in the claim department all the time. Part of my duty was to go out and get these statements. The rest of my duty was adjusting claims and investigating and all work connected with claims.
“Q. There is a department down there that is devoted entirely to the business of settling up claims arising out of what are claimed to be the negligence or carelessness of the employees of the Detroit United Railway, is that right?
“A. Yes, sir.
“Q. And your business is there partly to adjust and arrange with people who have been injured through what they claim at least to be the carelessness and negligence of employees of the railroad, is that right?
“A. Yes, sir.
“Q. Now, then, you did get so far — part of your duties were, so far as you could, get the people to agree on the sum for which they would séttle, is that right? (Objected to.)
“The Court: I think that is competent. (Exception.)
“A. In certain cases; yes, sir.
“Q. And the other part was to get a statement similar to this, is that right?
“A. To make investigations; yes, sir. I get the names of the people to see and get their statements from the list of names that are turned in by conductors and motormen; that is the general way.
“Q. Would it be your duty afterwards to settle claims where you had taken statements?
“A. Oftentimes.
“Q. And I presume in making a statement it was your duty to get as low a settlement as you could, wasn’t it? (Objected to. Incompetent, irrelevant, and immaterial.)
“A. It all depends upon the circumstances of the case.
“Mr. Harwwrd: He is trying to inveigle in here that he was up there to see about settling this case, and that is improper.
“Mr. Lodge: That is not my purpose.
“The Court: Go ahead.
“Q. I presume in making settlements you make use of your statements, do you not, that you had taken? . (Objected to as incompetent, irrelevant, and immaterial.)
“The .Court: Answer the question. Note an exception.
“A.'Those statements, of course, govern the liability, and my purpose in making the statement or getting the statement was to get whatever bears upon the liability of the company.
“Q. You in no case acted as an attorney for a man who was injured, did you?
“A. I was not any attorney, anyway.
“Q. I say, you in no way acted in Ms interest? You were acting in the interest of the company that employed you? •
' “A. Well, I worked for the company; yes, sir. Why, I have informed certain claimants of the investigations and what the investigations showed.
“Q. Sure; that is where you were making a settlement, wasn’t it?
“A. In talking it over; yes, sir.
“Q. And you would tell him what it showed when it showed that there was no liability, wasn’t that it?
“A. Well, it all depended on the case.
“Q. But, in other words, you used these statements to show the claimant either that there was no liability, or that he was not so badly injured as he claimed; in other words, you used the statement to help you to get a low settlement, didn’t you? (Objected to.)
“The Court: Answer the question. Note an exception.
“A. The statements were used to find out all the 'facts regarding the case, and, of course, where investigation was made, why, your settlement was generally based upon the outcome of your investigation.”

It is urged that this cross-examination was prejudicial because it is claimed that the evident purpose of the questioning was to intimate to the jury that Mr. Mason was endeavoring to settle the case at bar. In this we cannot agree with counsel because the only reference to an attempt to settle the case in question was made by counsel for appellant. The witness had testified before any objection was made as to what his duties were, and we think that the examination of the witness was entirely competent for the purpose of showing that the statements which he took were made as favorable as possible to the defendant, which purpose is disclosed by the questions asked.

There was a sharp conflict in the evidence between the witnesses of the plaintiff and the employees of the defendant company. Plaintiff’s theory of the case, however, finds support in the testimony of witness Beamer, who at the time was driving an automobile at the rear of the car in question, and who testified that it was his impression that the car had stopped, or apparently stopped, at the time the plaintiff attempted to get on. We are not satisfied that the verdict was so against the weight of the evidence as to justify us in finding that the learned trial judge erred in refusing to set it aside on that ground. See Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and cases there cited.

Neither are we of the opinion that the verdict was excessive. Plaintiff proved undisputed financial loss of $1,774. He suffered a fracture of both bones of the leg, and was ¿confined to the hospital for upwards of six weeks. Dr. McAlpin, the surgeon who attended him, said:

“This man’s leg will never be in the same condition as it was before he was injured. It is a permanent injury.”

Considering this testimony and his pain and suffering, in addition to the financial loss that he proved, we are not prepared to say that the verdict is excessive.

We are unable to find any error in the record, and the judgment should be, and is hereby affirmed.

Stone, Ostrander, Bird, Moqre, Steere, Brooke, and Fellows, JJ., concurred.


author: Stone, J.

text:
    LAU v. SCRIBNER.
    1. Mortgages — Foreclosure—Notice—Statute.
    A substantial compliance with the provisions of 3 Comp. Laws, § 11136 (3 Comp. Laws 1915, § 14952), relating to the contents of a notice of foreclosure of a mortgage on real estate by advertisement is necessary.
    2. Same.
    A notice of foreclosure by advertisement complies substantially with the provisions of the statute where the date of the mortgage, the names of the mortgagors and mortgagees, and the volume and page of the record are correctly given, even though the date of recording is not given.
    3. Same.
    There is a compliance with 3 Comp. Laws, § 11135 (3 Comp. Laws 1915, | 14951), providing that the notice of the foreclosure of a real estate mortgage by advertisement shall be published in a newspaper in the county where the premises are situated and the sale is effected without fraud where the property is located in a large city and. the advertisement is inserted in a newspaper in a small town twenty miles away in the same county, and, although the property is sold for one-half of its value, and the mortgagor has no actual notice of the sale until after the expiration of the year for redemption, it is purchased by the mortgagee for the amount due for principal, interest, taxes and costs, the county records being open for inspection.
    Appeal from Wayne; Bridgman, J., presiding.
    Submitted June 21, 1917.
    (Docket No. 106.)
    Decided July 26, 1917.
    Bill by Z. Lau against Moses Scribner and others to set aside the foreclosure of a mortgage. From a decree dismissing the bill plaintiff appeals.
    Affirmed.

      Jerome Probst (Harry M. Lem, of counsel), for plaintiff.

      Ralph L. Aldrich, for defendants.
   Stone, J.

The bill of complaint in this cause was filed to set aside a statutory foreclosure sale by advertisement of certain premises in the city of Detroit, and to redeem from the mortgage. It appears that on April 29, 1902, one Harry M. Lau and wife executed a mortgage upon the premises to Moses Scribner for $2,500, payable three years from date, with interest at the rate of 6 per cent, per annum, payable semiannually. Afterwards, and on August 29, 1906, the said Harry M. Lau and wife conveyed the premises to the plaintiff subject to the mortgage in question.

Though long past due, interest was paid .upon this mortgage to April 29, 1909, the last indorsement of interest on the note bearing date May 4, 1909. Foreclosure of this mortgage was had by statutory advertisement, and the property was bid in at the sale by Moses Scribner, the mortgagee, on September 2, 1909, for the sum of $2,734. This deed became operative on September 2,1910. The plaintiff testified that she had no knowledge of this sale until after the year of redemption had expired, but that she learned of it from Mr. Scribner about October 1,1910, when he went into possession, and since which time he or those holding under or through him have been in continued possession. The plaintiff had been accustomed to pay the interest through her uncle, said Harry M. Lau, to whom shef gave the checks, and who attended to the business for her. Plaintiff had collected the rent of the premises prior to October 1, 1910. She paid no taxes after 1908, and tendered no interest after May 4, 1909.

No complaint is made concerning the validity of the foreclosure sale except:

First. That the notice of the mortgage sale did not state the date when the mortgage was recorded, but did state the names of the mortgagors and of the mortgagee, the date of the mortgage, and that it was recorded in the proper office in Liber 444 of Mortgages on page 138.
Second. That such notice of mortgage sale was published in the Belleville Enterprise, a newspaper printed and circulated in the county of Wayne, and that said newspaper was an obscure newspaper, printed in the village of Belleville, 25 or 30 miles from Detroit.

Our statute (section 13931, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 14952) reads as follows:

“Every such notice shall specify:
“1. The names of the mortgagor and of the mortgagee, and the assignee of the mortgage, if any;
“2. The date of the mortgage, and when recorded;
“3. The amount claimed to be due thereon at the date of the notice; and
“4. A description of the mortgaged premises, conforming substantially with that contained in the mortgage.”

At the hearing the court held that the foreclosure proceedings were fatally defective under the first objection, but dismissed the bill, upon the ground of five years’ possession by defendants, under section 14119, 5 How. Stat. (2d Ed.), (3 Comp. Laws 1915, § 12311). The plaintiff has appealed.

Referring to the first objection, the learned circuit judge was of the opinion that the precise question here involved has never been determined by this court, and followed the holding of the supreme court of Minnesota in Martin v. Baldwin, 30 Minn. 537 (16 N. W. 449), and held that the notice was fatally defective. Clifford v. Tomlinson, 62 Minn. 195 (64 N. W. 381), is to the same effect. The doctrine there announced is that:

“The proceeding is one in derogation of common law, and the remedy must be strictly and closely pursued.”

We have no doubt that a substantial compliance with the statute is required.

We are of the opinion that the question is not a new one in this State. In Lee v. Clary, 38 Mich. 223, it was held that a statutory foreclosure sale was invalid if the notice of sale did not give the mortgagor’s name correctly.

In Reading v. Waterman, 46 Mich. 107 (8 N. W. 691), the notice of sale gave the date of the mortgage once correctly and once incorrectly. Upon that subject Justice Campbell said:

“The notice gave the date of the mortgage once correctly, and once incorrectly. The date and place of record and the volume and page were also given accurately. It was manifest on the face of the notice that one of these dates was wrong, and the means of correction were given by the record. * * * It is not * * * supposed that purchasers under foreclosure sales look at the dates of instruments without consulting the records to ascertain the state of the. title. The information given by this notice directed every one immediately to the record, and that necessarily explained the true date of the two dates set out in the notice itself. We cannot imagine that any one could be deceived by the imperfection. We are therefore of opinion that none of the mistakes were substantial, or operated in any way to the prejudice of Waterman.”

In speaking of the rule that should be applied in such cases Justice Campbell in the same case said:

“Authorities are cited and arguments made on this matter which relate to proceedings which are * * * of a hostile character and ex parte, where it is commonly held that .such action contrary to the usual course of law, and against persons who have not the common-law benefits of self-protection, should be held invalid, unless conforming strictly to statutory authority. We held in Lee v. Clary, 38 Mich. 223, that statutory foreclosures did not come in all respects within the same mischief. The statutes regulating them are made to enlarge, and not to cut down, the rights of mortgagors. Before such statutes were passed, sales made under a power of sale contained in a mortgage were governed by the same rules applicable to sales under any other power, and courts, in the absence of statutes, have never applied to such powers any such technical rules, as would impair the security of purchasers. The power is part of the contract, and should be construed on principles applicable to contracts, and not as hostile process.
“The.statutes were intended to prevent surprise or unfairness, and they should be enforced in everything substantial. Courts cannot disregard any of their positive provisions. But, on the other hand, those provisions cannot be enlarged or unreasonably construed so as to render mortgage sales unsafe, or to make bidding hazardous. The law was designed to encourage, and not to destroy, recourse to these simple and cheap remedies; and while no substantial right should be disregarded, substantial regularity is all that should be held imperative.”

The same question and growing out of the same land title was before the Supreme Court of the United States in Bacon v. Insurance Co., 131 U. S. 258 (9 Sup. Ct. 787). Justice Lamar, referring to Reading v. Waterman, said:

“As the question involved the legality of proceedings provided for by the statutes of the State, and is thus a question of the construction of a State statute by the highest court of the State, or, more properly, perhaps, a rule of property in that State, we would follow the ruling of the Michigan Supreme Court upon it even though we might have some doubts upon it as an original proposition. * * * But in our opinion that question was properly decided by that court.”

In Brown v. Burney, 128 Mich. 205 (87 N. W. 221), it was held that a notice of foreclosure of mortgage by advertisement which incorrectly gave the date of the instrument as March 31st instead of March 21st was not fatally defective, where it stated the correct date of the recording of the mortgage, and the volume and page where it was recorded, even though the statute provides that the notice shall specify the date of the instrument. Justice Long said:

“This error in setting out the date of the mortgage did not invalidate the notice. No one could be misled by it, as the mortgage was otherwise fully identified” —citing Reading v. Waterman, supra.

For an extended review of the authorities on the subject see McCardia v. Billings, 10 N. D. 373 (87 N. W. 1008, 88 Am. St. Rep. 729); also 27 Cyc. p. 1467.

In the instant case the date of the mortgage, the names of mortgagors and mortgagee, and the volume and page of record were correctly stated in th¿ notice, but the date of the record was not given. It is manifest that, if a foreclosure notice giving an incorrect date of a mortgage can be supported on the theory that other items in the notice furnish means of identification, as was the case in Brown v. Burney, supra, the notice in the instant case should be held sufficient; and in our opinión it was sufficient, as a substantial compliance with the statute.

Notwithstanding the Minnesota cases to the contrary, we think that the weight of authority outside the State of Michigan is in accord with our views as above stated.

It is claimed that the publication of the notice in the “Belleville Enterprise” rendered the sale void. The statute (section 13930, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 14951) provides that the notice shall be published in a newspaper printed in the county where the premises are situated. It is not claimed that the publication was not made in a newspaper published in the county of Wayne, but it is urged that the publication of the notice in an obscure village paper, in a distant part of the county, was not such a notice as is contemplated by the statute, and that, in connection with the purchase of the property by the mortgagee for less than one-half its value, was a fraud on the plaintiff. It appears from the record that the property was at that time worth from $5,000 to $5,500. It was sold for the amount due for principal, interest, taxes, and costs. Under the circumstances, can it be said that such a sale was a fraud on the plaintiff? We think not. The records of Wayne county were at all times open to inspection, and the sale was conducted under the forms of law, and we think in compliance with the statute. The plaintiff remained quiet for five years from the time the deed became operative, and in the meantime the premises had been sold by Scribner on contract, and more than one-half the purchase price had been paid by such purchaser.

Counsel has called our attention to the case of Newman v. Ogden, 82 Wis. 53 (51 N. W. 1091). That was an action to set aside á sale of real estate made on the foreclosure of a mortgage by advertisement and to redeem the premises. It appeared that the mortgagee inserted a notice of the sale in a newspaper published in another city than the one where the land was situated ; that he thereby kept the mortgagors and probable bidders in ignorance of the foreclosure; that he purposely refrained from asking for the money due him; that he discouraged at least one possible bidder from attending the sale; that he swelled the amount of the claim in the notice by including the principal, which was not then due, and by including a solicitor’s fee for $50 when the alleged employment was merely nominal; that he made no effort to obtain bidders, but bid off the property himself at about one-sixth its real value. Under such circumstances it was held that the facts would justify the court in setting aside the sale. We think that the facts stated clearly distinguish the cases. Mr. Scribner has died since the bill was filed, and his death has been suggested, and the suit revived in the name of his executors. The defendant Fannie Thompson sold her contract interest to the defendant J. A. Graham at an agreed price of $6,800, and a disclaimer was §led by Mrs. Thompson.

Having reached the conclusion above stated, it is unnecessary to pass upon the question of the statute of limitations. The equities of the case are with the defendants, and the bill of complaint was properly dismissed.

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

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


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    ARMOUR & CO. v. FREEMAN BAKING CO.
    1. Frauds, Statute of — Sale—Delivery—Burden of Proof.
    In an action to recover the market .price of merchandise, where defendant claimed the delivery was on a verbal order for over $50, void under the statute of frauds (3 Comp. Laws 1915, § 11835), the burden of proof is upon defendant to show that delivery was upon the verbal order, taking it out of the statute.
    2. Same — Delivery—Intent—Evidence—Sufficiency.
    Evidence held, insufficient to show that delivery was intended by plaintiff to be on the verbal order and at the contract price.
    3. Same.
    In order to validate a contract of sale of merchandise for over $50 under the statute there must be a delivery under the contract and in pursuance of it.

      Error to Kalamazoo; Weimer, J.
    Submitted June 18, 1917.
    (Docket No. 79.)
    Decided July 26, 1917.
    Assumpsit by Armour & Company against the Freeman Baking Company for goods sold and delivered. Judgment for plaintiff non obstante veredicto. Defendant brings error.
    Affirmed.

      Alfred J. Mills, for appellant.

      Jackson & Fitzgerald, for appellee.
   Stone, J.

This was an action in assumpsit to recover the market price of certain lard, which it was admitted was sold and delivered by the plaintiff, and received and accepted by the defendant, and invoiced by a statement accompanying the delivery, at the then market price of 11 cents a pound. The case was tried by a jury, which returned a verdict for the defendant of no cause of action. ■ At the close of the evidence the plaintiff moved for a directed verdict. The decision of the motion was reserved by the court until after the verdict, under the provisions of Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568). After verdict arguments were heard upon the motion, and a judgment was entered for the plaintiff for the amount of its claim; there being no controversy as to the quantity or the market price. At the trial the defendant claimed that the lard was delivered and received pursuant to a verbal agreement for 100 tierces of lard at 10 cents a pound. It was undisputed that a tierce of lard weighs between 350 and 400 pounds. A notice of recoupment was filed, in which the defendant set forth that the plaintiff failed and refused to perform such contract in full, and claimed damages by reason thereof.

The conceded facts are that prior to November, 1915, the defendant had purchased lard and lard products from the plaintiff, through its traveling salesman; that on or about November 16, 1915, an agent of the plaintiff called at the office of the defendant, and, after some conversation, a verbal order was given him by the defendant for 100 tierces of lard at 10 cents a pound. No written acceptance of the order was ever made by the plaintiff. No payment was made thereon, nor was any portion of said 100 tierces then delivered. Upon the trial defendant claimed that it was the understanding of the parties that the lard should be ordered by the defendant from time to time, as it might require the same, but that none should be ordered out until defendant’s supply then on hand should be exhausted.

It was the plaintiff’s claim that the contract was made in contemplation of a well-established custom of the trade that all the orders so taken, and prices so made, should control only as to merchandise taken by the purchaser within 30 days thereafter; in other words, that no prices were ever given, or fixed for a longer period than 30 days. There does not appear to be any question that this verbal contract for sale of goods exceeding $50 was void under the statute. Section 11400, 4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 11835. It is further admitted that after making this invalid contract on or about November 16th, a clerk in the office of the defendant gave the first order for á few tierces of lard over the telephone on January 5th following, without making any reference whatever to the contract, or price, and that the order was filled without delay in the usual course of trade, but billed at the then market price in an amount exceeding 10 cents per pound. Another order was shortly thereafter given and filled in like manner. The defendant caused the amounts of the invoices for those orders to be paid without protest or comment as to price. Thereafter, orders were given, filled, and billed in the same manner, which deliveries of lard were accompanied by invoices, and in each instance the invoice price was not less than 11 cents per pound, and in several it was in excess of that price. These last invoices were the ones sued upon here.

The defendant claimed at the trial that the two invoices covering deliveries in January, in which the then market price in excess of 10 cents per pound was charged, were paid through inadvertence or mistake on its part, and that when the same was discovered the payment of subsequent invoices for amounts in excess of 10 cents per pound was refused, and that demand was then made upon the plaintiff to make deliveries at 10 cents. There is no dispute that such demand was made and refused, the plaintiff contending, as already stated, that the contract contemplated delivery of the entire 100 tierces within 30 days, under the custom of the trade. It was the claim of the defendant that the invalid verbal contract for 100 tierces was saved from the operation of the statute of frauds, by the delivery in January and thereafter, of a part of the merchandise in pursuance of said contract, or at least that there was a question of fact for the jury to determine whether the delivery of the lard in January was intended by the plaintiff to be in pursuance of the contract, so as to remove it from the operation of the statute, or was intended to be in the usual course of trade at the then market price. The case was sub-' mitted to the jury upon this theory. From the judgment entered by the trial court, under the statute, the defendant has brought the case here upon writ of error, and assigns error in setting aside the verdict in favor of the defendant, and entering a judgment for the plaintiff for the amount of its claim against the defendant.

An examination of the briefs and arguments of counsel for the respective parties satisfies us that the pivotal question in the case is whether there was any evidence that delivery was made under the verbal order. The burden lay upon the defendant to prove delivery on the particular contract. We are of the opihion that the record is barren of any evidence to support defendant’s claim that delivery was intended by the plaintiff to be upon the verbal order of November and at the' contract price. This being so, the learned trial judge did not err in granting plaintiff’s motion, notwithstanding the verdict.

The authorities seem to support the proposition that the delivery must have been intended, by both parties, to have been made and accepted upon the verbal order, to take the case out of the statute of frauds. In 1 Mechem on Sales, § 355, the rule is stated as follows:

“There must be a delivery of the goods by the seller in pursuance of the contract, and with the intention to pass the title. This delivery must also be the voluntary intentional act of the seller. If, therefore, the purchaser acquires possession of the goods without the seller’s consent, by mistake or fraud, or by legal process, or without the seller’s knowledge, or after his order for the delivery has been countermanded, or from an agent whose authority was not sufficient, or had expired, there will not be such a delivery as the statute contemplates.”

See, also, 20 Cyc. p. 247.

Delivery, to validate a contract of sale under the statute of frauds, must be a delivery under the contract, and in pursuance of it. Matthiessen & Weichers Refining Co. v. McMahon’s Adm’r, 38 N. J. Law, 536; Davis v. Eastman, 83 Mass. 422; Young v. Ingalsbe, 151 App. Div. 375 (135 N. Y. Supp. 939); Van Boskerck v. Torbert, 184 Fed. 419 (107 C. C. A. 383, Am. & Eng. Ann. Cas. 1916E, 171); Washington Ice Co. v. Webster, 62 Me. 341 (16 Am. Rep. 462). The above authorities appear to support the rule above stated.

Johnson v. Morrison, 163 Mich. 322 (128 N. W. 243), is cited by counsel for defendant. We cannot agree with counsel that this case supports defendant’s contention. Delivery and acceptance of the goods sold, or some part of them, or part payment of the contract price, whether at the time of making the contract, or subsequently, are the acts of part performance, which are prescribed by the statute as necessary to the validity of a contract of which no written evidence has been provided. To have this effect the delivery and acceptance, or payment, must obviously be referable to, and be in part execution of, the contract which is hereby to be made valid. Brown on Frauds, § 326.

The judgment is affirmed.

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


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    CHARLET v. TEAKLE.
    1. Appeal and Error — Scope oe Review — Specific Performance —Amendments—Variance—Leases—Oral Agreements.
    An amendment to the bill, in a suit for specific performance of an agreement for a lease, setting out the oral agreement so as to correspond with the proof, may be made on appeal, where there is a variance between the bill and the proof, although the question of 'variance is first raised on appeal.
    2. Specific Performance — Landlord and Tenant — Oral Agreements — Improvements—Leases—Part Performance — Statutes —Construction.
    Where improvements are made by a tenant, and he takes possession of other buildings, and pays the specified rent, including that for the other buildings, there is such part performance of an oral agreement whereby the landlord agreed that if the tenant would make specified improvements and rent certain other buildings the lease would be extended for a specified period, as to warrant specific performance of the agreement under 3 Comp. Laws 1915, § 11979, providing that nothing in this chapter shall be construed to abridge the powers of the court of chancery to compel specific performance of agreements in case of part performance.
    3. Same — Oral Agreements — Leases—Improvements—Evidence.
    On a bill for specific performance of an oral agreement for a lease, evidence held, sufficient to show an oral agreement that if plaintiff made certain improvements and rented additional buildings the lease would be extended for a certain period. “

      4. Equity — Rehearings—Newly-Discovered Evidence — Cumulative Evidence.
    A motion for a rehearing, in a suit for the specific performance of an agreement for the extension of an oral lease on the ground of newly-discovered evidence, is properly denied where the evidence, a sublease by plaintiff in which he stated he had no lease, was merely cumulative, and such evidence could have been discovered while the trial was in progress.
    Appeal from Wayne; Hally, J.
    Submitted April 13, 1917.
    (Docket No. 110.)
    Decided July 26, 1917.
    Bill by Frank Charlet against Robert T. Teakle for the specific performance of an agreement for a lease. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Stellwagen & MacKay, for plaintiff.

      Harvey S. Durand (Stevenson, Carpenter, Butzel & Backus, of counsel), for defendant.
   Stone, J.

The bill in this cause was filed to oh tain a decree for the specific performance of an agreement for a lease claimed to have been made by defendant with the plaintiff. The case was heard upon the pleadings and testimony taken in open court, and the learned circuit judge who heard the case filed a written opinion therein. In the absence of a proper statement of the facts of the case by counsel, we here insert the said opinion, to wit:

“In this case the complainant, being a saloon keeper, went into possession of certain property upon Grand River avenue as a tenant of the West Side Brewery Company, whose lease of the premises would expire April 30,1914. In 1909 the complainant, accompanied by a Mr. Meyer, who is connected with the West Side Brewery Company, went to the office of Robert T. Teakle, the defendant. While there, they talked of an extension of the lease, and it is the contention of complainant that it was there agreed that if he made certain improvements, the lease would be extended until the year 1919. Subsequently, as a part of the general plan, he was to táke over two additional buildings. Immediately following this conversation in 1909, the complainant made the improvements, and subsequently took possession of the two additional buildings and paid, and has paid, the rent specified for the two additional buildings. Later on, he importuned the defendant for a lease. The defendant, saying he was in a hurry, gave a writing to the complainant which is as follows:
“ ‘Detroit, Mich., July 17th, 1911.
“ ‘Re Property 16th, Warren Ave., Grand River Ave.
“ ‘Total rent of entire bldg, to April 30th, 1914, to be $117 per month. Total rent of building from 1914 to April 30th, 1919, to be $150 per month. R. T. Teakle.
“ ‘P. S. The $50.00 per month additional on present lease to commence when possession of two remaining stores is given.
“•R. T. T.
“ ‘1042 :Grand River,
“ ‘1044 “
“ '1002 16th St.' ”

(This paper in the record is known as Exhibit 2.)

“It is the defendant’s contention that this writing was a proposal made by him to the complainant, which was never accepted. He in like manner denies in toto the conversation concerning the extension of the lease and the improvements to be made, which would justify the extension. From May, 1910, the complainant went into possession of the two additional buildings, and from that time to the time of the institution of this suit has been paying the rent that was specified in the conversation, as well as in the writing given by the defendant. A question of fact being at issue, I have read all of the testimony given at the trial, and have reached this conclusion:
“The conversation and consequent agreement contended for by complainant is corroborated by Mr. Meyer. The possession of the additional buildings and the payment of the rent by the complainant is a corroborating circumstance, which leads me to find the facts to be practically as the complainant has said they were. Mr. Meyer’s presence when Exhibit 2 was prepared is admitted, but his version of the conversation had at this time differs from defendant’s, and the defendant does not deny this, as he denied the conversation concerning the repairs, and the extension of the lease in 1909.
“A part of the agreement between the parties having been performed, the matter is not within the statute of frauds, and complainant is entitled to a decree, with costs.”

A decree was entered accordingly. An examination of the pleadings shows that the claimed oral agreement of 1909 was not set forth in the bill. No objection was made to the evidence tending to show this agreement, on the ground of a variance between the pleadings and the evidence, at the hearing, but the point is urged for the first time in this court. Had the objection, on the ground of variance, been made at the hearing it would have been competent to have permitted an amendment of the bill in that respect.' Under our very liberal statute permitting amendments (section 12969, 5 How. Stat. [2d Ed.], 3 Comp.' Laws 1915, § 12478), the bill probably would have been amended.

The case seems to have been heard upon the merits, and the whole question of the verbal agreement claimed by the plaintiff was gone into and - considered by the court, and no surprise was claimed or motion made to postpone the hearing. This court has said recently:

“Amendments as to matters germane to the case can be allowed at any time in chancery suits to conform with the proofs, protect the substantial, equitable rights of the parties; and secure the ends of justice-even in the appellate court.” City Bank & Trust Co. v. Hurd, 179 Mich. 454, 464 (146 N. W. 299, 303), citing Morrison v. Mayer, 63 Mich. 238 (29 N. W. 698); Babcock v. Twist, 19 Mich. 516; Seymour v. Long Dock Co., 17 N. J. Eq. 169.

Under such circumstances, technical rules of pleading and practice should not be applied in the appellate court, where it appears -that a case has been fully heard upon its merits in the court below. We do not think that the decree should be disturbed on this ground.

Upon the merits of the case there was evidence on behalf of plaintiff that after the verbal arrangement with defendant claimed by him he expended over $2,-500 in improvements upon the saloon and fixtures. Plaintiff testified that defendant said to him:

“Go ahead and do the repairing. As long as you don’t tear down the four walls, you can do all the repairing you like, and I will give you an extension of the lease.”

An examination of the record satisfies us that upon the questions of fact the plaintiff sustained the burden of proof. He took possession of the other building — really a part of the same block — and paid the rent. We are of the opinion that the facts and circumstances tend strongly to corroborate the claim of the plaintiff, and that there was such performance of the oral agreement of 1909 (which really terminated in the making of Exhibit 2) as to satisfy section 11397, 4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 11979, which reads as follows:

“Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements, in cases of part performance of such agreement.”

See cases cited in note to this section.

It is not necessary to decide whether or not Exhibit 2 satisfies section 11395, 4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 11977, although we think it was made in recognition of the oral agreement of 1909. It appears that there was a motion for a rehearing. While this case was pending the plaintiff rented or sublet one of the store buildings in question and basement, and in the written lease or agreement he stated:

“However, it is understood that I have no lease, but this agreement holds good as long as this property is in my hands.”

This paper coming to the attention of the defendant, it was claimed to be newly-discovered evidence, and was made the basis of the motion. A counter affidavit was made by plaintiff in which he stated that the reason why he inserted said clause in the agreement was the fact that he was in litigation with defendant over the matter of lease, and that he inserted the clause as a matter of precaution. The motion for a rehearing was denied, and we think properly so. There was no merit in the point; the evidence would have been merely cumulative, and as the court said in refusing the motion:

_ “In the present case the tenants have been in possession and openly conducting business on the premises since its date. The inquiry which brought it to light if made while the trial was in progress would have been just as effective as it was when made. I can see iuTgood reason for reopening the case to admit this incident, and the prayer of the petition will be denied.”

We are of opinion that the learned circuit judge reached the correct conclusion, and the decree below is affirmed, with costs to plaintiff.

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


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    EAST SIDE TRUST & SAVINGS BANK v. McGINNIS.
    1. Pleading — Admissions — Matters Not within Issue — Court Rules.
    In an action on a noto given for corporate stock, a corporation plaintiff may not invoke Circuit Court Rule No. 23, § 6, providing that any statement of fact set forth, in a notice added to a plea shall be treated as an admission by the defendant, and may not avail itself of a statement in such plea that plaintiff was involved in financial difficulty and its affairs were placed in the hands of a trustee or receiver for liquidation where the declaration simply consists of the common counts by a payee against a maker of a promissory note and nowhere refers to the insolvency of plaintiff or the fact that it was engaged in liquidation,
    2. Bills and Notes — Consideration—Defenses—Evidence.
    A want of consideration may always be shown in defense of a promissory note upon suit between the original parties.
    3. Same — Consideration—Corporations.
    There is no consideration for a note for stock given merely to enable a corporation to obtain its charter, contrary to law.
    4. Same — Consideration—Public Policy.
    A contract void as against public policy furnishes no consideration for a promissory note.

      Error to Bay; Houghton, J.
    Submitted June 14, 1917.
    (Docket No. 48.)
    Decided July 26, 1917.
    Assumpsit by the East Side Trust & Savings Bank against Francis F. McGinnis for the amount of a promissory note. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Gilbert W. Hand and Karl V. FiscMer, for appellant.

      Arthur Otto and James Donnelly, for appellee.
   Stone, J.

The plaintiff is a loan and trust company, located at Hammond, Ind., organized under an act of the general assembly of the State of Indiana (Laws 1893, chap. 161), entitled.

“An act to authorize the organization and incorporation of loan and trust and safe deposit companies, and defining their powers, rights and duties,” etc.

The declaration is upon the common counts in assumpsit, to which was attached, under the usual notice, a copy of a promissory note made by the defendant, reading as follows:

“$500.00. Hammond, Ind.; Dec. 24,1913.
“Nine months after date, I promise to pay to the order of East Side Trust & Savings Bank, at East Side Trust & Savings Bank, Hammond, Indiana, five hundred dollars ($500).
“For value received, with interest at the rate of 6 per cent, per annum from date, payable semiannually, with reasonable attorneys’ fees, without relief from valuation and appraisement laws. The drawers and indorsers severally waive presentment for payment, protest and notice of protest, and nonpayment of this note. In default of payment of interest when due the whole amount of this notice shall thereupon become due and payable.
“F. F. McGinnis.”

The plea was the general issue, with a lengthy notice setting forth that the note was given upon an illegal consideration and agreement, and was a violation and avoiding of the provisions of the banking laws of the .State of Indiana by the plaintiff; that said note was given purely as an accommodation by defendant to plaintiff, at the request and solicitation of its officers, to enable plaintiff to procure a charter under the laws of Indiana and begin business; that said note was executed and delivered without consideration of any kind, or without any value whatever at any time or in any way coming to the defendant therefrom; that defendant never paid any interest or charges of any kind on said note, either upon the original or renewal note, and was never asked by plaintiff or its officers to pay any interest or charges of any kind upon the said note, and no demand by plaintiff pr any one in its behalf was ever made upon defendant to pay said note or any part thereof, until plaintiff became bankrupt, or involved in 'financial difficulty, and its affairs were placed in the hands of a trustee or receiver for liquidation; that under the banking and other statutes of Indiana said note is absolutely void. For these and other reasons it is claimed that said plaintiff cannot maintain this action.

The record shows that the plaintiff was organized and commenced business in the month of November, 1912; that it purported to have an authorized capital stock of $25,000; that at that timé the defendant was a resident oif Hammond, and was solicited by the promoters of the plaintiff to subscribe for capital stock of the bank; that defendant declined to subscribe, claiming that he was unable to do so. He was finally induced to give the promissory note to enable the officers of the plaintiff corporation to make a certificate that the capital stock had been all paid in. It is practically undisputed that at the time of the making of the note by the defendant it was agreed between him and the promoters that he should not be called upon to pay said note, but that it should be treated' as an accommodation paper and carried by the bank until such time as they could sell five shares, of $100 each, of the capital stock of the bank which remained unsubscribed. It also appears that the defendant, at the time he signed the original note, of which this is a renewal, was induced to place his name on the back of a blank certificate of stock then remaining in the stockbook, he having refused to subscribe for any stock, and there is no evidence in the record that he ever authorized the filling up or the issuance of said certificate to him. It appears, however, that the certificate was later filled up as though issued to the defendant, and remained in the possession of the plaintiff; it never having been delivered to the.defendant, Who claims never to have been a stockholder of the plaintiff corporation.

Soon after the note was signed, the plaintiff, through its board of directors, filed a certificate with the proper officers, certifying that it had completed its organization, elected its officers, filed its articles of incorporation with the secretary.of State, and that the capital stock had been paid in cash as required by section 5 of the act authorizing the organization. The evidence is also undisputed that all of the above facts came to the knowledge of the directors soon after the making of the original note. The original note not having been paid at its maturity, the defendant, at the request of the plaintiff, made a renewal note, which is the note here sued upon; that such renewal note was made because plaintiff represented that it could not carry overdue notes.

There is a claim made by the plaintiff that it is in the course of liquidation, and that this suit is brought in the interest of its creditors. There is nothing in the pleadings or in the evidence to indicate that the plaintiff was in the course of liquidation when this suit was brought, and there is nothing in the evidence showing that it has ever brought itself within the provisions of the statutes of Indiana authorizing the voluntary liquidation of such companies. Our attention is directed to Act No. 267 of the Public Acts of Indiana for the year 1913. The first section of that statute provides that any loan and trust and safe deposit company organized under “An act to authorize the organization and incorporation of loan and trust and safe deposit companies, and defining their powers, rights and duties^ and other matters connected therewith” (approved March 4, 1893), may, upon petition of its owners holding 80 per cent, of its capital stock, go into voluntary liquidation. Said petition shall be filed with the auditor of State of Indiana, and upon the filing of said petition, as aforesaid, said auditor of State shall cause to be made an examination of the business of said company by the banking department of his office. If said auditor shall find from said examination that said company is solvent, and has sufficient assets with which to pay all of its depositors and its other liabilities, he. shall at once enter an order directing the others of said company, without delay, to liquidate its business and settle up all of its affairs by paying, first, all of its depositors in full; and, second, after all of its other liabilities are fully liquidated and paid, they shall pay out and distribute all of the remaining assets of the company, share and share alike, to the owners of its capital in proportion to the shares of the capital stock of said company respectively owned by them.

There is no allegation nor evidence in this record showing that the auditor of State ever took any action or entered any order directing the officers of the plaintiff to liquidate its business. For aught that appears in this record, this plaintiff is a solvent corporation, and is suing as the payee of this promissory note. There is no evidence that a receiver has ever been appointed, or that any court has been applied to for the appointment of such receiver, as required by the statutes of Indiana in cases of insolvent corporations. The statute of the State of Indiana providing for the organization of such corporations contains a provision that no such corporation shall be authorized to transact any business or exercise any powers as such until the whole of its capital stock, where the same does not exceed $100,000, shall have been subscribed and paid in; and it provides for the filing of the certificate to that effect, hereinbefore referred to.

The trial resulted in a directed verdict and judgment for the defendant; and in the course of its charge the court, in speaking of the certificate which was filed upon the organization of the plaintiff, said:

“Now, that application and that certificate to the State was unlawful; it was untrue, because these five shares of stock were not paid for. Under the laws of Indiana that note was absolutely void; when given for the purpose for which it was given, it was absolutely void; the stock was not paid for; the representation by the board of directors of that bank to the State was at least constructive fraud upon -the State in obtaining from the State their charter on which to do business.
“It is fundamental in law that two parties, or where two parties perpetrate a wrong, neither one can enforce against the other and profit by it. Under the law, if the bank in this instance was a going concern, the proposition that is put before the court in this case could not maintain an instant, because the officers of the bank, in endeavoring to enforce payment of a note that was given without any consideration, and was given and accepted as an absolutely void and illegal transaction, could not possibly be in force. The testimony shows in this case that the note was without any consideration, that the defendant received nothing in consideration for his note. The only serious contention in this case is by the plaintiff that the general rules of equitable estoppel estop the defendant from asserting a claim or asserting any such defense. The note was some months overdue before the bank became — before the change was made, and before any attempt of liquidation was instituted.
“It is the charge of this court that since the note was without any consideration whatever, and the directors of the bank under the laws of that State perpetrated a constructive fraud upon the State, and by that act, if any loss was sustained by their conduct, that they would be individually liable for anybody injured to the extent of the injury, and that in this case the total failure of consideration may be shown, and in view of that fact I am constrained to direct you to bring in a verdict of no cause of action.”

The plaintiff has brought the case here upon writ of error, and by its assignments of error claim that the court erred in permitting the defendant, over the objection of the plaintiff, to testify to the alleged agreement under which he signed the note, and put his name on the back of the certificate of stock in question, claiming that the defendant was estopped from so testifying, and that the court erred in refusing to direct a verdict for the plaintiff at the close of the proofs, and that it erred in its charge in the language above set forth.

It is also urged by the appellant that under the admission in the notice attached to the plea the defendant had admitted that the plaintiff was “involved in financial difficulty and its affairs were placed in the hands of a trustee or receiver for liquidation,” and section 6 of Circuit Court Rule No. 23 is relied upon as the basis of this claim. It is sufficient answer to this to say that, the declaration nowhere having referred to the insolvency of the plaintiff, or the fact that it was engaged in liquidation, but consisted simply of the ordinary declaration upon the common counts by a payee against a maker of a promissory note, the plaintiff is in no position to invoke the aid of the rule in question, as such, matter was wholly immaterial and foreign to the issue. The negotiable instrument act of the State of Indiana is the same in substance as our act, and contains the following provision (Burns’ Ann. Stat. 1914, § 9089c 1):

“An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a. holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”

We are of opinion that the trial court did not err in directing a verdict for the defendant, and well might have placed its decision upon the sole ground of want of consideration. A want of consideration may always be shown in defense of a promissory note upon suit between the original parties. We think the following cases are controlling of the instant case upon the subject of want of consideration: Lovell v. Willard, 28 Mich. 346; Teed v. Marvin, 41 Mich. 216 (2 N. W. 20); Macomb v. Wilkinson, 83 Mich. 486 (47 N. W. 336); Kelley v. Guy, 116 Mich. 43 (74 N. W. 291); Graham v. Alexander, 123 Mich. 168 (81 N. W. 1084); Nowack v. Lehmann, 139 Mich. 474 (102 N. W. 992); Fanning v. Insurance Co., 37 Ohio St. 339 (41 Am. Rep. 517).

There is authority to sustain the position that, the note having been given solely to enable the plaintiff to obtain its charter, contrary to the provisions of the statute, there was no consideration for the note. Coddington v. Canaday, 157 Ind. 243 (61 N. E. 567). This court held in Hubbard v. Freiberger, 133 Mich. 139 (94 N. W. 727), that a contract void as against public policy furnishes no consideration for a promissory note.

This note being void as between the original parties, and this suit having been brought, not in the interest of creditors, but in the plaintiff’s own right as payee, the plaintiff was not entitled to recover under any view of the case as presented by this record, and the judgment of the court below is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


author: Fellows, J.

text:
    ITHACA ROLLER MILLS v. ANN ARBOR RAILROAD CO.
    1. Carriers — Delivery—Prima Facie Owner.
    Where goods are shipped through a carrier to a third party, on delivery to the shipper of a bill of lading, the consignee is prima fade the owner.
    2. Same — Delivery—Presumptions—Intent—Evidence.
    The presumption that the consignee Is the owner of goods shipped through a carrier to a third person, on delivery to the shipper of a bill of lading, may be overcome by proof of facts showing the actual transaction and the intent of the parties.
    8. Same.
    Where a contract for the purchase of goods requires delivery at the purchaser’s town and the carrier acknowledges receipt of the goods for transportation from the seller, the contract is with the seller and the latter is the owner of the goods until delivery to the consignee, and can maintain an action in his own name for negligent performance of the contract of carriage causing damage to the goods.
    4. Same — Injury to Goods in Transit — Right oe Consignee.
    A consignee of flour is not bound to accept it from a carrier when it is in an unmerchantable condition and his contract is with the shipper for delivery at the purchaser’s town.
    5. Same.
    There was no acceptance of the goods by the consignee by making an inspection of the flour in the railroad freight-house in his town, so as to constitute a good delivery.
    6. Same — Injury to Goods in Transit — Damages—' Claims — Waiver.
    The refusal by a carrier to pay to the consignor of goods a claim for damages on distinct and definite grounds, constitutes a waiver of its right to insist, after the consignor has incurred the expense of litigation, on other defenses known to it, including the defense that a claim for loss in writing was not made within four months after the loss.

    7. Appeal and Error — Scope of Review — Defenses Not Relied on in Trial.
    A defense which was not raised in the trial court may not be raised for the first time on appeal.
    Error to Gratiot; Searl, J.
    Submitted June 7, 1917.
    (Docket No. 9.)
    Decided July 26, 1917.
    Assumpsit in justice’s court by the Ithaca Roller Mills against the Ann Arbor Railroad Company for flour damaged in transit. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alexander L. Smith, Gustavus Ohlinger and O. G. Tuttle, for appellant.

      John W. Myers, for appellee.

      On waiver or extension of time stipulated in carrier’s contract for claim or suit against carrier, see note in L. R. A. 1916D, 1049.

   Fellows, J.

At the time the controversy here involved arose Voorheis Bros, were conducting a general store at Homestead, and plaintiff was conducting a flouring mill at Ithaca. Both towns are within the State, and are located on the line of defendant’s railroad. Voorheis Bros, ordered five barrels of flour of plaintiff in one-eighth barrel sacks. The price agreed upon was, $5 per barrel for which price plaintiff agreed to deliver the flour to Voorheis Bros, at Homestead. On June 8, 1912, plaintiff delivered the flour to defendant for shipment, and a straight bill of lading was issued acknowledging receipt from plaintiff of the flour, naming it as the shipper, and Voorheis Bros, as consignees. Defendant has a freighthouse at Homestead, but did not have an agent there. Within an hour after the arrival of the flour at Homestead a member of the firm of Voorheis Bros, went to the freighthouse and found that 20 of the sacks of flour were soaked with oil, that 10 others'were torn, the flour spilled out, and only 10 sacks were in good condition. They declined to accept the shipment, notified plaintiff, who at once sent forward another shipment of like amount and notified defendant’s agent at Ithaca of the loss. Later a claim in writing was made to defendant. Nearly a year after receiving this written claim defendant refused to adjust the matter on grounds which we shall presently relate, and this suit was instituted in justice’s court. On appeal the case was tried before the court without a jury, resulting in a judgment for plaintiff, to review which defendant sues out this writ of error.

Plaintiff sues in his own right and as assignee of Voorheis Bros. It is insisted by the defendant that it cannot maintain this action in its own right, that the title to the flour was in Voorheis Bros., and that there is no sufficient proof of assignment of the cause of action from them to plaintiff; therefore plaintiff must fail.

The bill of lading, as drawn, made Voorheis Bros. prima, facie the owner of the goods shipped; this upon the theory that, where goods are shipped through a carrier to a third party, on delivery to the shipper of a bill of lading, the consignee is prima facie the owner. But this presumption may be overcome by proof of facts showing the actual transaction and the intent of the parties. Sturges v. Railway Co., 168 Mich. 231 (131 N. W. 706); Turnbull v. Railroad Co., 183 Mich. 213 (150 N. W. 132). In the instant case the proof is conclusive and undisputed that plaintiff’s contract with Voorheis Bros, called for delivery of the goods to them at Homestead; the defendant acknowledged receipt of the goods for transportation from the plaintiff; named it in the bill of lading as the shipper; the contract of carriage was with it. Beyond question the plaintiff was the owner, of the goods until, their delivery to Voorheis. Bros., was the owner when the damage was done, was the party with whom defendant contracted, and therefore can maintain this action in its own right for the negligent performance of the contract of carriage entered into between it and defendant. It therefore becomes unnecessary for us to determine whether the assignment by Voorheis Bros, to plaintiff of any cause of action they might have against defendant is as full and complete as may be necessary, or what the measure of damages is whére the action is brought by the consignee, or in his right.

It is insisted that the consignees should have accepted the goods and brought an appropriate action for their damages against defendant. We do not hold that they could not have maintained such an action had they accepted the goods, but they were not bound to take the goods in their damaged condition. Voorheis Bros, had no contract with defendant. Their contract was with the plaintiff; it was a contract for the delivery of five barrels of flour merchantable and suitable for use. The flour tendered did not comply with their contract with plaintiff. They were not bound to accept it. Indeed, if they had accepted it, they would have been obligated to pay the contract price. Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690); Columbus, etc., Iron Co. v. See, 169 Mich. 661 (135 N. W. 920). In declining the shipment Voorheis Bros, acted fully within their rights; nor did they, by inspecting the goods upon their arrival at Homestead, accept them and thereby make a good delivery to them. Yuille-Miller Co. v. Railway Co., 164 Mich. 58 (128 N.W. 1099).

The bill of lading contained the usual clause requiring claims for loss to be made in writing within four months. We have already stated that as soon as plaintiff learned of the loss it notified defendant’s agent at Ithaca, and later filed a claim in writing. The written claim, however, was not made until May 21, 1913. Papers relative to the claim were then attached to it and it was delivered to the defendant. This claim, with the papers attached to it, was kept by the defendant until February 11, 1914, without any protest or suggestion that it was filed too late. On the last-mentioned date defendant wrote plaintiff the following letter:

“The Ann Arbor Railroad Company.
“Toledo, Ohio, Feb. 11, 1914.
“Refer to...... 125648.
“Ithaca Roller Mills,
“Ithaca, Mich.
“Gentlemen: Herewith returning all papers in your claim amounting to $25.00, for loss of flour consigned to Voorheis Bros., Homestead, Mich.
“Beg to state that recently we have cleaned up the entire system of all this kind of freight, however, am sorry to say that these 48 sacks of flour were not in the Homestead freighthouse. Evidently your customer has removed this shipment.
“I would, therefore, suggest that you communicate with him, as there is no question but what a good amount of salvage could be realized on this flour.
“Yours truly,
“GES-D [Signed] L. L. Shepard, F. C. A.”

Having placed its refusal to adjust the claim on distinct and definite grounds, it has waived the right to insist, after plaintiff has incurred the expense of litigation, on other defenses then known to it, as this defense was. In the case of Taylor v. Columbian League, 135 Mich. 231 (97 N. W. 680, 106 Am. St. Rep. 392), Mr. Justice Montgomery, speaking for the court, said:

_ “As to the question arising out of the first contention, it may be stated that a waiver of this defense was clearly made out. After the death of Mr. Taylor, it appears that the defendant’s officers were in correspondence with Dr. Pitcher, and were informed by him that he had treated Mr. Taylor for an acute ailment some four or five years earlier. With this information before them, they wrote plaintiff’s attorney, in response to a letter demanding a settlement of the claim, declining on the distinct ground that John I. Taylor never paid an assessment. No mention of any other defense is made; the ground of refusal being distinctly stated that the deceased never became a member of the order. This constituted a waiver of other known defenses, and defendant will not, after expense of suit has been incurred, be permitted to shift ground, and assert additional grounds of defense.”

To the same effect see Power v. Insurance Co., 121 Mich. 364 (80 N. W. 111), and authorities there cited; Wallace v. Railway Co., 133 Mich. 633 (95 N. W. 750); Soper v. Railroad Co., 113 Mich. 443 (71 N. W. 853).

But it is urged that a waiver operates as a discrimination, and is therefore not permissible within the case of Georgia, etc., R. Co. v. Milling Co., 241 U. S. 190 (36 Sup. Ct. 541). Defendant filed request for findings of fact and conclusions of law. There were 17 requests for findings of fact and 10 requests for conclusions of law. In none of these is there an intimation that this question is raised, nor are we able to discover anywhere in the record a suggestion of this question. Not having raised this question in the court below, it is not available here.

Finding no error in the record to the prejudice of the defendant, the judgment is affirmed, with costs.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Brooke, JJ., concurred. Ostrander, J., did not sit.