text:
    PEOPLE v OLSONITE CORPORATION (WAYNE COUNTY v OLSONITE CORPORATION)
    1. Health and Environment — Air Pollution — Pollution Regulations — Legislative Intent.
    The legislative intent in including within the Wayne County Air Pollution Control Regulation a general all-encompassing section proscribing emissions of air contaminants was to include as an offense those emissions which, while not measurable by precise standards, nevertheless are injurious or actually endanger the public health or harm property (Wayne County Air Pollution Control Regulation, Art VI, § 6.5).
    2. Health and Environment — Air Pollution — Nuisance—Pollution Regulations.
    A section of the Wayne County Air Pollution Control Act which proscribes emission of air contaminants in generad is not a definition of a common-law criminal nuisance but is intended to describe conduct different than a nuisance (Wayne County Air Pollution Control Regulation, Art VI, § 6.5).
    3. Statutes — Vagueness—Constitutional Law — Due Process.
    A statute which either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
    4. Criminal Law — Constitutional Law — Statutes—Vagueness— Subjective Language.
    No one may be punished for doing an act prohibited by a statute unless an ordinary person can determine in advance what he or she may or may not do under that statute; a proscription against air pollution which is worded in subjective terms is unenforceably vague where it cannot be said that a person can determine in advance what may or may not be criminally punishable (Wayne County Air Pollution Control Regulation, Art I, § 1.3, Art VI, § 6.5).

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Pollution Control §§ 37, 43.
    [1, 3-6] Smoke: validity of regulation of smoke and other air pollution. 78 ALR2d 1305.
    [2] 61 Am Jur 2d, Pollution Control §§ 37, 43.
    [3, 4, 5, 6] 16 Am Jur 2d, Constitutional Law § 552.
    [3, 5, 6] 73 Am Jur 2d, Statutes § 346.
    [4, 6] 21 Am Jur 2d, Criminal Law § 17.
    [5] 61 Am Jur 2d, Pollution Control §§ 37, 39, 40.

      5. Health and Environment — Air Pollution — Pollution Regulations — Constitutional Law — Vagueness—Lack of Standards — Enforcement.
    A section of the Wayne County Air Pollution Control Regulation which proscribes emission of contaminants is impermissibly vague where it offers no reasonably precise standard to those charged with its enforcement (Wayne County Air Pollution Control Regulation, Art VI, § 6.5).
    6. Health and Environment — Environmental Legislation — Constitutional Law — Due Process — Definiteness.
    Environmental legislation is not exempt from the due process requirement of definiteness.
    Appeal from Wayne, Myron H. Wahls, J.
    Submitted November 15, 1977, at Detroit.
    (Docket No. 31473.)
    Decided January 23, 1978.
    Olsonite Corporation was convicted in municipal court of four separate violations of the Wayne County Air Pollution Control Regulation. Olsonite appealed to the circuit court, which granted a motion to dismiss and vacated the convictions. The people appeal by leave granted.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Donald A. Campbell and Joseph B. Klein, Assistants Prosecuting Attorney, for the people.

      Honigman, Miller, Schwartz & Cohn (by Robert A. Fineman and John Sklar), for defendant.

      Before: Bronson, P. J., and T. M. Burns and Allen, JJ.
   Allen, J.

We are asked to decide whether a regulation of the Wayne County Air Pollution Control Division declaring it unlawful and a criminal offense for any person to permit or cause the emission of air contaminants which would be detrimental to or endanger the health, comfort or safety of any person or the public, is void and unenforceable for vagueness. On August 27, 1976, the circuit court for Wayne County held it was, and granted defendant’s motion to dismiss. Plaintiff appeals by leave granted.

Article VI, § 6.5 of the Wayne County Air Pollution Control Regulation, the single section in dispute in the instant case, is preceded by §§ 6.1-6.4, each of which prescribe specific measurable standards for determining air pollution. Section 6.5 is a generally worded section not subject to definitely ascertainable measurement. It reads:

"Section 6.5 General Prohibition:
"a. It shall be unlawful for any person to permit or cause the emission of such quantities of air contaminants from whatever source in such place or manner as to be detrimental to any person or to the public or to endanger the health, comfort, or safety of any person or the public, or in such manner as to cause injury or damage to property or business. Each day wherein a violation of this section occurs shall constitute a separate offense. Any act of emission of air contaminants from any single or multiple source in violation or excess of the limitations established in or pursuant to 6.1, 6.2, 6.3, and 6.4 of this Regulation shall be unlawful, and may be ordered abated by the Director. Such abatement may be in addition to the fines and penalties herein provided.
"b. Nothing in any section of this Regulation relating to regulation of emission of air contaminants shall in any manner be construed as authorizing or legalizing the erection or maintenance of a nuisance.”

In September 1975, two complaints were filed against defendant, alleging that on five different days the defendant violated § 6.5. Following trial in the municipal court for the City of Hamtramck, defendant was found guilty of three of the four counts of the first complaint and guilty of the single charge in the second complaint and was fined $100 on each count. Defendant appealed to the circuit court which granted defendant’s motion to dismiss, and vacated the convictions.

I

Our first inquiry is whether, as plaintiff claims, § 6.5 states a separate offense or whether, as defendant contends, it only states in general language emissions which violate the specific standards spelled out in §§ 6.1-6.4. Defendant contends a 6.5 offense arises only where §§ 6.1, 6.2, 6.3, or 6.4 have been violated and cites the following passage from People v Powell, 280 Mich 699, 704; 274 NW 372 (1937):

"Where no intention to the contrary appears, general words used after specific terms are to be confined to things ejusdem generis with the things previously specified.
"When, after an enumeration, the statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named.” (Citations omitted.)

The issue posed is important because plaintiff frankly admitted at oral argument that the emissions in question did not violate §§ 6.1-6.4. The offensive nature of the violations charged was odor, which being non-sulphuric in nature, was not chargeable under § 6.3. According to plaintiff, most odors, being invisible, are difficult to define and hence are chargeable under the comprehensive language of 6.5.

There is no question but that § 6.5 is inartfully drawn and is subject to four possible interpretations. This possible four-way ambiguity primarily arises because § 6.5 specifically refers to the preceding four sections but also provides that any violation of the four sections may be abated in addition to the criminal penalties imposed. A violation of 6.5 is punishable by criminal penalty without abatement. Both litigants agree, as do we, that the regulatory provisions must be read as a whole. People v Babcock, 343 Mich 671, 678-679; 73 NW2d 521 (1955). Having read the air pollution regulations in their entirety and having considered the entire regulation in terms of the objective sought to be attained, we are convinced that the legislative intent was to include as an offense those emissions which, while not measurable by precise standards (and thus not falling within the provisions of §§ 6.1-6.4), nevertheless are injurious or actually endanger the public health or harm property. Given the multitude of emissions of varying types and the rapidity with which technology develops innovative processes and utilizes new compounds it becomes impossible to define in advance what may constitute an impermissible emission. Thus it is both rational and necessary to include in any code one general all-encompassing section. We believe this was the legislative intent in the case of § 6.5. Having made this determination, the question remains whether the language employed in § 6.5 is too inclusive or too vague. But before deciding this question, we first turn to the issue of nuisance.

II

The plaintiff claims that § 6.5 is merely a definition of a common-law criminal nuisance and thus cannot be impermissibly vague. We disagree because we believe the section purports to define conduct quite different and distinct from a common-law nuisance. Nuisance is not mentioned as such in 6.5a and there is no indication therein that it is directed at proscribing a common-law nuisance. Furthermore, subsection 6.5b states that nothing in subsection 6.5a should be construed as authorizing the maintenance of a nuisance. If 6.5a prohibited common-law nuisances, 6.5b would be unnecessary. The fact that 6.5b was included is persuasive that 6.5a was intended to describe conduct different than a nuisance.

Ill

This brings us to the crucial issue of vagueness. The law of this state and the United States on the question of statutory vagueness is summarized in the recent case of People v Posner, 79 Mich App 63, 71; 261 NW2d 209 (1977):

"It has been held that a statute which either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939), People v Herron, 68 Mich App 381; 242 NW2d 584 (1976). The constitutional requirement of definiteness is followed in Michigan. People v Austin, 301 Mich 456; 3 NW2d 841 (1942), People v Goulding, 275 Mich 353; 266 NW 378 (1936), People v Ellis, 204 Mich 157; 169 NW 930 (1918). As found by the United States Supreme Court in Giaccio v Pennsylvania, 382 US 399, 402; 86 S Ct 518; 15 L Ed 2d 447 (1966):
" 'A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.’ ”

See also, People v Purifoy, 34 Mich App 318, 320; 191 NW2d 63 (1971). Does § 6.5, when read together with the entire code of regulations, sufficiently inform potential defendants of what they may or may not do? The vague and cloudy words are "detrimental”, "comfort”, "to any person”, and "manner”. What is "detrimental” to the public? Is an odor or other emission "detrimental” when it offends some but not all people? Must there be a provable and ascertainable injury or damage to property or is it sufficient to only prove that the "comfort” of any person is endangered? When is comfort endangered? Health authorities tell us that cigarette smoking endangers health. Certainly it disturbs the comfort of many people. Is this an offense under the regulation? What disturbs the comfort of some people or what some persons believe "endangers” their comfort or health is not disturbing to others.

This statutory opaqueness grows even more cloudy when we look to the definition section, Article I, § 1.3 of the regulations:

"Air Contaminant: Any gaseous, liquid, or solid matter, which when present in the outdoor atmosphere contributes to a condition of air pollution, including, but not limited to dust, soot, mist, smoke, fumes, flyash, cinders, gases, vapors, aerosols, and odors.
"Air Pollution: The presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in such quantities and of such duration and characteristics which are or may tend to be injurious to human, plant, or animal life, or property, or which interfere with the comfortable enjoyment of life or property or the conduct of business.” (Emphasis supplied.)

From the underscored portions of the definitions cited above it clearly appears that a violation may occur where the emissions are not actually injurious to health or property but merely "tend to be” or "which interfere with the comfortable enjoyment of life or property or the conduct of business”. But as we have stated before, what interferes with some people’s enjoyment does not interfere with others’ enjoyment. Given these subjective words, we cannot conclude that manufacturers can determine in advance what may or may not be criminally punishable. No one can be punished for doing an act prohibited by a statute unless an ordinary person can determine in advance what he or she may or may not do under that statute. People v Goulding, 275 Mich 353, 358; 266 NW 378 (1936). A second element in determining vagueness is whether those charged with administering the statute have adequate standards to guide them.

"A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972).

Section 6.5 offers no reasonably precise standard to those charged with enforcing the regulation. Police, judges and juries are given nothing but their own subjective judgment as to what constitutes an odor or other emission which is "detrimental to any person” or "endangers * * * the comfort * * * of any person or the public”. Contrary to plaintiff’s claim that the regulation prohibits only a common-law nuisance or an emission which substantially harms the public health or property, the regulation is so inclusive that potential offenders may be in full compliance with §§ 6.1-6.4 but still be subject to criminal penalties based only on the perceptions of others as to what is detrimental to or endangers one’s comfort. The precepts of criminal enactment do not permit such imprecision.

Environmental legislation is not exempt from the due process requirement of definiteness. In Verona v Shalit, 92 NJ Super 65; 222 A2d 145 (1966), challenge was made on the grounds of vagueness to a local ordinance whose definitional terms closely parallel § 6.5 in the instant case." The court first held the ordinance invalid as in conflict with the state air pollution act but then went on to declare the act invalid for vagueness, saying:

"[2] Section 6 is invalid for another reason, because it fails to inform those to whom it is addressed of a proscribed standard of conduct, so that men of common intelligence must necessarily guess at its meaning and differ as to its application.

"In City of Milwaukee v Milbrew, 240 Wis 527, 3 NW2d 386, 141 ALR 277 (Sup Ct. 1942), in a somewhat similar situation, it is stated:

" 'To construe this ordinance as attempting to condemn as "offensive” any odor that is merely disagreeable to, or disliked by, an indefinite number of persons in a given neighborhood would render the legislation void as too vague and indefinite for enforcement, [citations] or would turn the question of the existence of a nuisance into a plebiscite of the neighborhood and amount to an unlawful delegation of authority [citations].’ ” 92 NJ Super at 69, 72; 222 A2d at 147, 149.

In defending § 6.5 against the charge of vagueness, plaintiff refers to cases from other jurisdictions which sustained air pollution ordinances. In particular, plaintiff cites three decisions which specifically addressed the vagueness issue. Southern Illinois Asphalt Co, Inc v Environmental Protection Agency, 15 Ill App 3d 66; 303 NE2d 606 (1973), Department of Health v Owens-Corning Fiberglas Corp, 100 NJ Super 366; 242 A2d 21 (1968), Air Pollution Commission v Coated Materials Co, 1 Envir Rep 1444 (Pa Common Pleas, 1970). To these decisions we sua sponte add City of Monmouth v Pollution Control Board, 57 Ill 2d 482; 313 NE2d 161 (1974), Lloyd A Fry Roofing Co v Pollution Control Board, 20 Ill App 3d 301; 314 NE2d 350 (1974), cert den 420 US 996; 95 S Ct 1438; 43 L Ed 2d 679 (1975), and Fleischmann Malting Co v Pollution Control Board, 28 Ill App 3d 659; 329 NE2d 282 (1975). We find the cases distinguishable. All deal with a definition of air pollution rather than, as in the case before us, with a general prohibition. Each definition of air pollution is more restricted and limited than the instant regulation. The Illinois cases all relate to a definition of air pollution considerably less encompassing than § 6.5. Under the Illinois statute the emission must "unreasonably” interfere with the enjoyment of property whereas under the instant regulation any detriment or endangerment to a single person’s comfort, no matter how slight, is grounds for criminal prosecution. The same distinction appears in the definition at issue in Owens-Corning Fiberglas Corp, supra. More relevant to the case at hand is Milwaukee v Milbrew, Inc, 240 Wis 527; 3 NW2d 386 (1942), where defendant, a manufacturer of yeast, was charged under a city ordinance making it a criminal offense for any business to "emit foul or offensive odors, gasses, effluvia or stenches, or which shall be dangerous or prejudicial to the public health”. In reversing a conviction, the court said:

"The word 'offensive,’ as defined in Webster’s New International Dictionary (2d ed), means 'giving pain or unpleasant sensations,’ 'revolting,’ or 'obnoxious.’ To construe this ordinance as attempting to condemn as 'offensive’ any odor that is merely disagreeable to, or disliked by, an indefinite number of persons in a given neighborhood would render the legislation void as too vague and indefinite for enforcement, (citations omitted); or would turn the question of the existence of a nuisance into a plebiscite of the neighborhood and amount to an unlawful delegation of authority.” Id. at 538.

See also State v Hayes, 17 Or App 79; 520 P2d 465 (1974), where the court struck down as impermissibly vague a statute which prohibited anyone to "set on fire or cause to be set on fire any combustible material” without first securing a permit.

Our decision that § 6.5 is impermissibly vague, while embarrassing to plaintiff, is not crippling to the cause of environmental protection. Just recently the Air Pollution Control Division of the Wayne County Department of Health secured a favorable decision from this Court under the Michigan Environmental Protection Act, MCLA 691.1201 et seq.; MSA 14.528(201) et seq., directing Olsonite Corporation to adopt a supplemental odor control system designed to prevent the future emission of the identical odors for which Olsonite is charged under § 6.5 in the instant suit. Wayne County Department of Health v Olsonite Corporation, 79 Mich App 668; 263 NW2d 778 (1977). The remedy provided in that suit is probably more effective than the penalties which were sought in the instant case.

However, we do not believe that suit under the Environmental Protection Act need be the exclusive remedy in future cases involving odor emission. At oral argument, plaintiff was asked whether § 6.3 prescribing definite standards as to sulphur oxide odors could not be expanded to include other odors. Counsel responded that while there were difficulties in so doing the division was working on and hoped to adopt a set of measurable odor standards. In this connection we note that the Federal government has adopted the United States EPA Odor Detection Chart. Such a chart employs a numerical rating system designed to eliminate the ambiguity inherent in a narrative description or citizen-registered complaint of odor intensity. Addition of this or a similar chart to § 6.3 would eliminate much of the ambiguity in the present code and provide potential offenders with a specific standard. Finally, §§ 1.3 and 6.5 could be quickly and easily reworded so as to bring them within the definitional standards approved in Southern Illinois Asphalt and Owens-Corning Fiberglas Corp, supra. Such an amendment would be in the public interest and would prevent otherwise needless litigation.

Affirmed. No costs, a public question being involved.

       Section 6.1 deals with visible emissions measured in terms of the Ringelmann chart published by the Bureau of Mines, United States Department of Interior, which is a method of grading shades of visible emissions by use of a scale from 1 to 5, or by percentage of opacity of a visible plume that is in a state that renders material partially impervious to rays of light and causes obstruction to an observer’s view. Section 6.2 pertains to particulate matter and establishes maximum allowable emissions measured in pounds of particulate per thousand pounds of exhaust gas. Violation of § 6.2 is determined by use of instrumentation which probes the stack or violating source and extracts a sample of the effluent which is being emitted into the atmosphere. Section 6.3 deals with the particular odor of sulphur oxide but does not define other odors. Section 6.4 prohibits open burning.

       The four possible interpretations are: (1) 6.5 is a totally separate violation for which criminal penalties apply. 6.1-6.4 violations are totally unrelated and, in addition to the criminal penalties imposed, may be abated. (2) 6.5 is a separate violation but can also include violations of 6.1-6.4. Where a 6.1-6.4 violation is part of the 6.5 violation, abatement is an additional remedy. (3) Only where the regulations of 6.1, 6.2, 6.3 or 6.4 have also been violated is there a 6.5 violation. Under this interpretation, compliance with 6.1-6.4 avoids violation of 6.5, but a 6.1-6.4 violation does not necessarily mean 6.5 has been violated. (4) A 6.1-6.4 violation is always a violation of 6.5. Plaintiff interprets the regulations as per interpretation (1), and defendant argues for interpretation (4).

        See III, infra.

         " 'The maintaining of anything whatsoever which is a hazard or a danger to human health, and the following specific acts, conditions or states are, each and every one, declared to be and constitute a nuisance.
      " 'The escape of any gas, fumes, smoke or other odors that may be of a menace to human life, or is by reason of disagreeable or obnoxious odors a source of physical distress to persons in the vicinity.’ ” (Emphasis supplied.) Verona v Shalit, supra, at 66-67; 222 A2d at 146.

       Section 3(b) of the Illinois Environmental Protection Act defines air pollution as "the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property”. Ill Rev Stat 1971, ch 111 1/2, paragraph 1003(b). (Emphasis supplied.)

       Section 1.10 of the New Jersey Air Pollution Control Code defines air pollution as "the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be; injurious to human health or welfare, animal or plant life or property, or would unreasonably interfere with the enjoyment of life or property throughout the State”. NJSA 26:2C-2. (Emphasis supplied.)

       "Under the statute one would be prohibited to light a fire in one’s fireplace, to light a cigarette, start one’s car, etc., without first obtaining a permit. A citizen could not tell what activity by him was, in fact, intended to be prohibited without first securing a permit. In terms of both its own language and of its legislative purpose, the statute is overbroad and standardless.” State v Hayes, supra at 82-83.

       During the nine-day trial in the above mentioned case, testimony was given that the Air Pollution Control Division received 59 citizen complaints against Olsonite in 1973, 38 in 1974, 24 in 1975, and 13 as of August 31, 1976. Thirteen citizens testified the odors caused nausea, burning eyes, headaches and loss of sleep. In the instant case each count in the two complaints brought under § 6.5 alleged violations in July and August 1975.

        Wayne County Department of Health v Olsonite, supra, at 676, footnotes 3 and 4.


source: Caselaw Access Project

author: R. B. Burns, P. J.

license: Public Domain

text:
    NATIONAL BANK OF ROCHESTER v MEADOWBROOK HEIGHTS, INC.
    1. Husband and Wife — Married Woman — Contracts—Separate Estate — Coverture.
    A plaintiff, in order to hold a married woman liable on a contract, must prove that the contract directly concerned the married woman’s separate estate.
    2. Husband and Wife — Married Woman — Suretyship—Coverture —Separate Estate — Contracts—Capacity to Contract — Equitable Estoppel.
    A married woman may not bind her estate by any obligation in the nature of a suretyship or by a promise to pay the debt of another; however, a married woman may be precluded from asserting her disability through operation of equitable estoppel.
    3. Estoppel — Misrepresentation—Reliance—Knowledge of Facts.
    An estoppel arises when one by his acts, representations or admissions intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief so that he will be prejudiced if the former is permitted to deny the existence of such facts; one who is cognizant of all the material facts can claim nothing by estoppel.
    4. Estoppel — Equitable Estoppel — Married Woman — Contract— Capacity to Contract — Married Women’s Act — Statutes.
    A lender who, in dealing with a person presumptively lacking capacity to contract, ignores such facts may not rely upon equitable estoppel in order to defeat the protectionist policy of the married women’s act (MCLA 557.1 et seq.; MSA 26.161 et seq.).

      References for Points in Headnotes
    [1] 41 Am Jur 2d, Husband and Wife §§ 16-20, 105, 139 et seq.

    [2] 41 Am Jur 2d, Husband and Wife §§ 39, 104, 214, 219.
    [3, 4] 41 Am Jur 2d, Husband and Wife §§ 23-25, 270.
    [3] 28 Am Jur 2d, Estoppel and Waiver § 40.
    [5, 6] 4 Am Jur 2d, Appeal and Error §§ 116, 242, 243, 909.
    [7] 4 Am Jur 2d, Appeal and Error §§ 89, 616.
    77 Am Jur 2d, Venue § 84.

      5. Judgment — Consent Judgment — Reviewability—Consent of Parties.
    A consent judgment may not be set aside without the consent of the parties thereto, and therefore may not be reviewed on appeal.
    6. Judgment — Consent Judgment — Intent of Parties — Fact Question — Court Rules.
    The issue of whether one of the parties to a judgment intended the judgment to be a consent judgment is one of fact and should be raised in the trial court (GCR 1963, 528.3).
    7. Venue — Improper Venue — Basis for Reversal — Statutes.
    Improper venue alone may not be the basis for disturbing a judgment (MCLA 600.1645; MSA 27A.1645).
    Appeal from Oakland, Robert L. Templin, J.
    Submitted December 7, 1977, at Lansing.
    (Docket No. 31522.)
    Decided January 23, 1978.
    Complaint by the National Bank of Rochester against Meadowbrook Heights, Inc. and Charles M. Wilkinson and Helen Z. Wilkinson, his wife, jointly and severally, to collect on two promissory notes. Summary judgment for plaintiff. Defendants Wilkinson appeal.
    Affirmed in part and reversed in part.

      Bebout, Potere, Cox, Hughes & Cadieux (by Mark W. Lyon), for plaintiff.

      Chilimigras, Powers & Conlon, P. C, for defendants.
    Before: R. B. Burns, P. J., and Allen and R. M. Maher, JJ.
   R. B. Burns, P. J.

This is an action to collect on two promissory notes. The trial court denied defendants’ motions for change of venue, and granted plaintiff’s motion for summary judgments against the maker of the notes, Meadowbrook Heights, Inc., against the guarantors of the notes, Mr. and Mrs. Wilkinson, jointly, and against Mr. Wilkinson, severally. Mrs. Wilkinson interposed a defense of coverture as to her several liability, but, following a trial on the merits, the trial court granted plaintiff’s renewed motion for summary judgment against Mrs. Wilkinson, severally. Mr. and Mrs. Wilkinson appeal and we affirm as to venue and reverse as to Mrs. Wilkinson’s several liability.

Meadowbrook Heights, Inc., is a close corporation owned and operated solely by Mr. Wilkinson, and was engaged in an attempt to build an apartment complex in Oakland County. To this end Meadowbrook obtained a $30,000 loan from plaintiff, in exchange for which it gave a promissory note signed by its president, Mr. Wilkinson. When the note came due, Mr. Wilkinson sought an extension plus an additional loan of $20,000. Plaintiff determined that neither Meadowbrook nor Mr. Wilkinson individually qualified for an extension or additional credit. Plaintiff, aware that Mrs. Wilkinson had assets separate from those of her husband, and acting upon Mr. Wilkinson’s representation that his wife’s sole and separate estate would benefit from the extension and additional loan, informed Mr. Wilkinson that it would allow the extension and the additional loan if Mrs. Wilkinson guaranteed both. Plaintiff prepared for the signatures of Mr. and Mrs. Wilkinson the following "letter of consideration”:

"We wish to take this opportunity to advise you that we are both very concerned about the success of Meadowbrook Heights, Inc., as we have invested heavily in this corporation the same will have a noted effect on our joint and several estates.
"We therefore are requesting that every consideration be given in the extension [sic] of credit and loans. To assure a proper line of credit and financial resources to the corporation in protection of our individual holdings we will be most happy to personally guarantee all required notes. We do so in consideration of your making the necessary funds available to Meadowbrook Heights, Inc.”

In his testimony, Mr. Wilkinson denied telling plaintiff that his wife’s sole and separate estate would benefit from the loan. Instead, plaintiff informed him that he and his wife had to sign the letter and guarantees or he would not get the loans. He did not understand the legal significance of the letter. Mrs. Wilkinson testified that, except for their house, she had always kept her property separate from that of her husband and had never commingled their separate assets. She did not expect to derive any benefit from the loans to the corporation. At the time her husband brought the "letter of consideration” to her, she was ill, and did not read it, although she did sign it. She routinely signed documents presented by her husband without reading them.

At the close of proofs, Mrs. Wilkinson moved to dismiss, and plaintiff renewed its motion for summary judgment. In an opinion delivered from the bench, the trial court ruled that Mr. and Mrs. Wilkinson’s assertions that they did not understand the significance of the letter which they were signing were not credible. Although plaintiff was "slipshod” in not pinning down Mrs. Wilkinson as to how the loans would benefit her separate estate, it did rely upon the letter to its detriment, so that it would be inequitable to permit Mrs. Wilkinson to deny that her sole and separate estate would be benefited. The court therefore granted summary judgment against Mrs. Wilkinson, severally.

In reaching its decision, the trial court resolved several factual disputes. Its decision, incorrectly labeled summary judgment, GCR 1963, 117.2(3), was actually a decision on the merits following trial. We therefore review to determine whether the trial court’s findings of fact are clearly erroneous, giving regard to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. GCR 1963, 517.1. The record indicates that both Mr. and Mrs. Wilkinson are experienced businesspersons, and had made a practice of keeping Mrs. Wilkinson’s assets separate from those of Mr. Wilkinson. From this, coupled with his determination that Mr. and Mrs. Wilkinson were not credible, the trial court reasonably concluded that they were aware of the significance of the "letter of consideration”. There was testimony that plaintiff relied upon the letter in extending credit, even though it knew that the proceeds of the loan would go to the corporation, and that Mrs. Wilkinson was not a shareholder of the corporation. We find no clear error in the trial court’s findings of fact. We therefore disregard defendants’ contention on appeal that Mrs. Wilkinson was the innocent victim of overreaching by her husband and plaintiff, and assume for purposes of analysis that all parties were aware of the law of coverture, and that the suretyship was the result of reasoned consideration of each party’s best interest.

The primary issue on appeal is whether equitable estoppel precludes Mrs. Wilkinson from asserting as a defense to her liability as a surety the disability of coverture.

The married women’s act of 1855 was passed to protect married women from the improvidence or predations of their husbands and from the husbands’ creditors. Artman v Ferguson, 73 Mich 146, 150; 40 NW 907, 909 (1888), Tong v Marvin, 15 Mich 60, 71 (1866), Note, The Impact of Michigan’s Common-Law Disabilities of Coverture on Married Women’s Access to Credit, 74 Mich L Rev 76 (1975). The act, MCLA 557.1 et seq.; MSA 26.161 et seq., provides that married women may acquire, hold, and devise property separate from their husbands’ influence and not subject to their husbands’ debts, with "like effect as if * * * [they] were unmarried”, MCLA 557.1; MSA 26.161, and may be held liable on any contract made in relation to their sole property, MCLA 557.4; MSA 26.163. The act did not confer upon married women a general power to contract. West v Laraway, 28 Mich 464, 465 (1874). In order to hold a married woman liable on a contract, a plaintiff must prove that the contract directly concerned the married woman’s separate estate. See, e.g., Koengeter v Holzbaugh, 332 Mich 280, 283; 50 NW2d 778, 779 (1952), Judd v Judd, 187 Mich 612, 615; 154 NW 31, 32 (1915), Kenton Insurance Co of Kentucky v McClellan, 43 Mich 564, 565; 6 NW 88 (1880). In Koengeter v Holzbaugh, supra, a married woman was held not severally liable on a note she made with her husband, where the makers told the holders of the note that the loan was to provide working capital for a corporation of which the wife was the sole stockholder. The Court held that the contract was for the benefit of the corporation and, absent fraud or misuse of the corporate device, the contract was not for the benefit of the woman’s separate estate. In Monroe State Savings Bank v Orloff, 232 Mich 486, 490; 205 NW 596, 597 (1925), the Court stated that a married woman "may not bind her estate by any obligation in the nature of suretyship, or by a promise to pay the debt of another”. Accord, West v Laraway, supra. Such a contract does not concern her separate estate.

In the instant case it was undisputed that Mrs. Wilkinson signed as a surety, and that the loan went to a corporation owned by her husband, for the purpose of attempting to build an apartment complex. Mrs. Wilkinson lacked capacity to make this contract, and the contract is therefore void. Judd v Judd, supra.

A married woman may be precluded from asserting her disability through operation of equitable estoppel. See National Lumberman’s Bank v Miller, 131 Mich 564, 567; 91 NW 1024, 1025 (1902), overruled on other grounds, Judd v Judd, supra, Detroit Newspaper Industrial Credit Union v McDonald, 9 Mich App 146; 156 NW2d 62 (1967).

"It is a familiar rule of law that an estoppel arises when one by his acts, representations, or admissions, * * * intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.” Kole v Lampen, 191 Mich 156, 157-158; 157 NW 392, 393 (1916).
"One who is cognizant of all the material facts can claim nothing by estoppel.” Cudahy Brothers Co v West Michigan Dock & Market Corp, 285 Mich 18, 26; 280 NW 93, 96 (1938).

Plaintiffs reliance upon Mrs. Wilkinson’s "letter of consideration” cannot be said to be rightful, in light of its knowledge that she was acting as a surety, and that the loan was going to Meadow-brook, in which she was not even a stockholder. Plaintiff must be charged with knowledge of facts from which it could have deduced Mrs. Wilkinson lacked capacity to make the contract. In dealing with a person presumptively lacking capacity to contract, see Judd v Judd, supra, a lender who ignores such facts may not rely upon equitable estoppel in order to defeat the protectionist policy of the married women’s act. Since Mrs. Wilkinson is not estopped from denying her incapacity to contract, plaintiff may not recover against her separate estate.

The second issue on appeal is whether we may review the trial court’s grant of summary judgment against Mr. and Mrs. Wilkinson, jointly. This judgment is labeled as a consent judgment in the lower court record. As a general rule a consent judgment may not be set aside without the consent of the parties thereto, and therefore may not be reviewed on appeal. Sauer v Rhoades, 338 Mich 679, 681; 62 NW2d 634, 635 (1954), In re Estate of Meredith, 275 Mich 278, 289; 266 NW 351, 354; 104 ALR 348, 352 (1936). The issue of whether defendants intended the judgment to be a consent judgment is one of fact, and should have been raised in the trial court. GCR 1963, 528.3. "This Court is limited on review to the issues decided by the trial court.” Hernandez v Consumers Power Co, 51 Mich App 288, 291; 214 NW2d 846, 848 (1974). We therefore accept the record as it stands, and decline to review this grant of summary judgment.

The third issue on appeal is whether the trial court erred by not granting defendants’ motions for change of venue. This issue is moot as to Mrs. Wilkinson’s several liability because of our disposition of the first issue, and we do not reach the issue as to Mr. and Mrs. Wilkinson’s joint liability because of our resolution of the second issue. The motions were based upon a factual dispute as to whether Meadowbrook was doing business in Oakland County. If it was, then venue was proper as to all defendants. MCLA 600.1621; MSA 27A.1621, MCLA 600.1625(b)(iv); MSA 27A.1625(b)(iv), MCLA 600.1641; MSA 27A.1641. Mr. Wilkinson made no record on this issue; hence, we have nothing to review. Improper venue alone may not be the basis for disturbing a judgment. MCLA 600.1645; MSA 27A.1645. We therefore detect no prejudice which would require remand for supplementation of the record.

Affirmed in part; reversed in part. No costs, neither side prevailing in full.

       An additional statutory abrogation of the common law permits a married woman to become jointly liable on a contract with her husband, MCLA 557.51-557.52; MSA 26.181-26.182, but limits liability to property owned jointly with him. MCLA 557.53; MSA 26.183. Except as to venue, Mrs. Wilkinson did not contest her joint liability as a surety.

       Had Mrs. Wilkinson’s testimony that she signed the "letter of consideration” without reading it been accepted by the trial court as true, the misrepresentation would have been a result of culpable negligence, so that, had all other elements of equitable estoppel been shown, the doctrine would apply. See Collateral Liquidation, Inc v Manning, 287 Mich 568, 572; 283 NW 691, 692-693 (1939).

       This statute was amended after this suit was begun. 1976 PA 375.

       This statute was repealed after this suit was begun. 1976 PA 375.

       Although the trial transcript reveals Meadowbrook was doing business in Oakland County, Mr. Wilkinson and Meadowbrook were not parties to that trial and therefore are not bound by it.


author: Danhof, C. J. M. J. Kelly, J.

text:
    PEOPLE v ALLEN
    Opinion op the Court
    1. Criminal Law — Instructions to Jury — Included Offenses — Request for Instructions — Timely Requests.
    A request for an instruction on the lesser included offense of unarmed robbery in a prosecution for armed robbery is timely where the request is made before the jury begins its deliberations.
    2. Criminal Law — Instructions to Jury — Included Offenses— Armed Robbery — Unarmed Robbery.
    Evidence that establishes the greater offense always supports the giving of instructions on necessarily included offenses, and unarmed robbery is a necessarily included offense of armed robbery.
    3. Appeal and Error — Robbery—Instructions to Jury — Lesser Included Offenses — Armed Robbery — Unarmed Robbery — Remand — Prosecutor’s Option.
    The remedy for a trial judge’s error in refusing to instruct a jury on the lesser included offense of unarmed robbery where the defendant was charged with and convicted of armed robbery is to remand for entry of judgment of conviction of the lesser offense and for resentencing; however, if the prosecuting attorney, in his discretion, determines that justice would be better served by retrial on the armed robbery charge, the trial court shall, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction of unarmed robbery and grant a new trial on the armed robbery charge.
    4. Criminal Law — Sentence—Separate Crimes — Single Sentence —Failure to Specify Convictions — Error.
    Conviction of two separate crimes requires that the judgment of sentence shall reflect the sentence imposed on each conviction and a trial judge commits error when he fails to specify whether the single sentence he imposed applied to both convictions.

      References for Points in Headnotes
    [1, 2, 6] 75 Am Jur 2d, Trial §§ 876-881.
    [3] 5 Am Jur 2d, Appeal and Error § 976.
    [4] 5 Am Jur 2d, Appeal and Error § 953.
    [5] 5 Am Jur 2d, Appeal and Error §§ 624-627.

      5. Appeal and Error — Criminal Law — Prosecutor’s Remarks— Failure to Object — Curative Instruction — Elimination of Prejudice.
    A claim of prosecutorial misconduct raised for the first time on appeal does not require reversal where an objection and a timely curative instruction could have alleviated any potential prejudice flowing from the prosecutor’s remarks.
    Dissent by M. J. Kelly, J.
    6. Robbery — Armed Robbery — Unarmed Robbery — Instructions to Jury — Lesser Included Offenses.

      Denial of a defendant’s request for instructions on the offense of unarmed robbery in a trial for armed robbery was not reversible error where evidence supported the armed robbery charge, and where the trial took place prior to December 18, 1975, the date of a decision of the Supreme Court which holds that unarmed robbery and larceny from a person are necessarily included offenses of armed robbery.

    Appeal from Saginaw, Hazen R. Armstrong, J.
    Submitted December 6, 1977, at Grand Rapids.
    (Docket No. 31568.)
    Decided January 23, 1978.
    Ronald Allen was convicted of armed robbery and first-degree criminal sexual conduct. Defendant appeals.
    Affirmed in part, modified in part and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.

      Craig H. Dill, for defendant on appeal.
    Before: Danhof, C. J., and T. M. Burns and M. J. Kelly, JJ.
   Danhof, C. J.

Defendant was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, and first-degree criminal sexual conduct, MCLA 750.520b(l)(e); MSA 28.783(2)(l)(e), and sentenced to 12 to 20 years imprisonment. He appeals by right.

Defendant’s attorney at first declined an instruction on the lesser offense of unarmed robbery when the possibility of such an instruction being given was discussed in chambers, but later, before the jury began its deliberations, defense counsel did request such an instruction. The trial judge denied the request on the ground that it was not timely. In this he erred; the request for instruction prior to the beginning of deliberations was sufficient to preserve this issue for review. People v Jones, 71 Mich App 270, 272-273; 246 NW2d 381 (1976).

Evidence that establishes the greater offense always supports the giving of instructions on necessarily included offenses, and unarmed robbery is a necessarily included lesser offense of armed robbery. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). Since Ora Jones and Chamblis have been given retroactive application, People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), People v Jackson, 70 Mich App 478, 480-481; 245 NW2d 797 (1976), we must reverse defendant’s armed robbery conviction. Retrial on that charge is not required, however; instead, we remand for entry of a judgment of conviction of the lesser included offense of unarmed robbery and for resentencing, People v Herbert Ross, 73 Mich App 588, 594; 252 NW2d 526 (1977), provided, however, that if the prosecuting attorney, in his discretion, determines that justice would be better served by retrial on the armed robbery charge, the trial court shall, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction of unarmed robbery and grant a new trial on the armed robbery charge. People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976), People v Herbert Ross, supra, at 594.

The trial judge failed to specify whether the single sentence he imposed applied to both convictions, and because that single sentence must be vacated because of the error committed, defendant shall be resentenced on his conviction of first-degree criminal sexual conduct, as well. The judgment of sentence shall reflect the sentence imposed on each conviction.

Defendant’s claim of prosecutorial misconduct, which he raises for the first time on appeal, does not warrant reversal; if defendant had objected timely a curative instruction could have alleviated any potential for prejudice flowing from the prosecutor’s remarks. People v Humphreys, 24 Mich App 411, 414; 180 NW2d 328 (1970).

Affirmed in part, modified in part, and remanded for further proceedings consistent with this opinion.

T. M. Burns, J., concurred.

M. J. Kelly, J.

(dissenting). Judge Kelly dissenting would affirm for the reasons stated in the majority opinion of People v Wilkinson, 76 Mich App 109; 256 NW2d 48 (1977).


author: H. L. Heading, J.

text:
    WILSON v FIREMAN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY
    1. Equity — Contracts—Money Damages — Breach of Contract— Courts.
    The invocation of a court’s equitable powers is inappropriate in an action for money damages based upon a claimed breach of contract.
    2. Insurance — Intent of Parties — Mutual Mistake — Contracts— Reformation — Third Party.
    Both parties to an insurance contract must share a specific intent to justify reformation of the contract to give effect to that intent; that one of the parties and a stranger to the contract intended its terms to be different than set forth in the contract of insurance is not sufficient to justify applying the doctrine of mutual mistake.
    3. Insurance — Assumption of Risk.
    An insurer cannot be .held liable on a risk which it did not elect or choose to assume.
    4. Insurance — Judgment—Evidence—Contracts—Proof of Obligation.
    A trial court may not award a recovery under an insurance contract for loss of contents of an insured dwelling where no evidence establishing such a loss was presented at trial and no contractual obligation for such an award was properly proved.
    5. Indemnity — Contracts—Indemnification Agreements — Consideration.
    An indemnification agreement which is unsupported by consideration is void.
    References for Points in Headnotes
    [1] 27 Am Jur 2d, Equity § 112.
    [2] 43 Am Jur 2d, Insurance § 358.
    [3] 17 Am Jur 2d, Contracts § 145.
    [4] 44 Am Jur 2d, Insurance § 1454 et seq.

    [5] 41 Am Jur 2d, Indemnity § 7.

      Appeal from Saginaw, Fred J. Borchard, J.
    Submitted October 11, 1977, at Lansing.
    (Docket No. 77-395.)
    Decided January 23, 1978.
    Leave to appeal applied for.
    Complaint by Clendry and Ruth Wilson against Fireman’s Insurance Company of Newark, New Jersey, and Christian J. and Esther York for damages for failure to include the plaintiffs as insureds or as payees on an insurance policy. Cross-claim by Fireman’s against Esther York on an indemnity agreement, and counterclaim by Esther York against plaintiffs for damages for breach of contract. Judgment for plaintiffs. Defendant Fireman’s Insurance Company appealed. Judgment vacated and remanded for further proceedings, 60 Mich App 76 (1975). On remand, judgment for plaintiffs. Defendant Fireman’s Insurance Company appeals.
    Reversed.

      Joseph J. Trogan, for plaintiffs.

      Denenberg, Tufñey & Thorpe (by Charles R. Tufñey and llene Gordon), for defendant.
    Before: Danhof, C. J., and Allen and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   H. L. Heading, J.

Fireman’s Insurance Company brings this appeal from a judgment of the trial court awarding plaintiffs $6,993.76 under a contract of insurance between the insurance company and defendants Christian and Esther York. This case was previously before us on appeal, and was remanded to the trial court for findings of fact and conclusions of law as mandated by GCR 1963, 517.1, Wilson v Fireman’s Insurance Company of Newark, New Jersey, 60 Mich App 76; 230 NW2d 315 (1975). Defendant insurance company now alleges several errors in those findings of fact and conclusions of law.

On February 28, 1966, plaintiffs entered into a land contract to purchase a certain house from defendants Christian and Esther York for a total price of $4,500. The contract contained a provision requiring plaintiffs to insure the premises against fire for the benefit of sellers, any proceeds from that insurance to be paid to sellers and applied against the balance due on the land contract. The contract further provided that if the buyers failed to maintain insurance, the sellers could obtain insurance and add the amount of the premium to the balance owed on the land contract. Plaintiffs never obtained insurance coverage, and the Yorks continued the policy in effect at the time the land contract was entered into, adding the cost to the balance of the land contract. The policy limits were $6,000 on the house and $3,500 on its contents.

On December 3, 1970, the house and its contents were destroyed by fire. On September 26, 1971, the insurance company paid Mrs. York (Mr. York having died on December 14, 1970) the sum of $2,506.24 in payment of her claim under the insurance policy, representing the value of her interest in the insured property. Before receiving payment on the policy, Mrs. York was required to sign an agreement indemnifying the insurance company against claims by plaintiffs and by the estate of her husband, Christian York, to the insurance proceeds paid her.

Subsequently, plaintiffs filed this lawsuit against the insurance company and Mrs. York claiming a right to payment under the contract of insurance between the Yorks and the insurance company for the loss they suffered through the destruction of the subject property by fire. By stipulation of the parties, the case was submitted to the trial court, sitting without a jury, for decision on the pleadings, depositions and exhibits.

In his findings of fact and conclusions of law, the trial court articulated the basis for his judgment in part as follows:

"The Insurance Company may not withhold payment of the full amount of the policy, merely because the Land Contract vendor’s insurable interest in the property did not equal the amount of the policy benefits. The Insurance Company was required to pay the full benefits to the vendors who then hold the remaining amount in a constructive trust for the benefit of the vendee. Since this is an equitable action, it is unnecessary at this time to require payment to the vendor, but this Court will order payment of the balance owed to be paid to the vendee. Defendant’s position that they are not required to make such a payment because they have no privity of Contract with the vendee is inapplicable in the instant case, because the vendees were third party beneficiaries. This was clearly a mistake on the part of the insuring vendors, since they had a Contract with the vendee, and equity may intervene to carry out the intent of the parties, the Insurance Company would not have changed its policy if they had known, but would have provided for a division of proceeds. Therefore the Insurance Company cannot claim they are prejudiced by the result. Since the vendee had paid for the Contract they are entitled to the proceeds, less the amount of the vendor’s insurable interest in the property.”

It appears that the trial court concluded that the policy of insurance covered not merely the York’s interest in the insured premises, but all interests therein to the full value of the property up to the limits of liability set out in the policy; that the Yorks intended that plaintiffs’ interest be protected under their policy; and that the fact that the premiums were charged to plaintiffs under the terms of the land contract gives them an equitable interest in the proceeds.

We note first of all that plaintiffs based their claim on contract, asking only for money damages, and that the trial court’s invocation of his equitable powers was inappropriate to this action. Weinhardt v Addison Community Schools, 347 Mich 683; 81 NW2d 240 (1957), Arnold v Ellis, 5 Mich App 101; 145 NW2d 822 (1966).

As to the trial court’s conclusion that the insurance policy issued to the Yorks covered not only their interest, but also plaintiffs’ interest in the subject property, the evidence is to the contrary. In a memorandum of insurance issued by the insurance company, the following appears:

"[F]or the term of years specified above from inception date shown above At Noon (Standard Time) to expiration date shown above At Noon (Standard Time) at location of property involved, to an amount not exceeding the amount(s) above specified, does insure the insured named above and legal representatives, to the extent of the actual cash value of the property at the time of the loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture, nor in any event for more than the interest of the insured, against all DIRECT LOSS BY FIRE, LIGHTNING AND BY REMOVAL FROM PREMISES ENDANGERED BY THE PERILS INSURED AGAINST IN THIS POLICY, EXCEPT AS HEREINAFTER PROVIDED, to the property described herein while located or contained as described in this policy, or pro rata for five days at each proper place to which any of the property shall necessarily be removed for preservation from the perils insured against in this policy, but not elsewhere.” (Emphasis supplied.)

There is nothing in the record to indicate that defendant Fireman’s Insurance intended to extend its coverage beyond the limits set out above.

Neither is there clear evidence that defendants York intended to purchase insurance for anything beyond their own interest. A letter from Mrs. York to plaintiffs, dated November 24, 1970, is offered by plaintiffs as evidence that Mrs. York believed that plaintiffs’ interest in the subject property was insured. In the letter, Mrs. York urges plaintiffs to obtain insurance coverage, noting that the policy maintained by the Yorks would expire on December 4, and that plaintiffs would not be covered thereafter. She goes on to warn that if a loss occurred, plaintiffs would lose their entire investment. Although this might be interpreted as plaintiffs suggest, it is equally likely that Mrs. York intended to warn plaintiffs that they were about to lose even the limited benefit provided by the Yorks’ insurance, any proceeds from which would be applied to reduce the land contract balance. In the absence of other evidence that defendants York intended to insure plaintiffs’ interest, the latter interpretation of the letter seems most plausible.

Moreover, even if there were sufficient evidence to establish an intent on the part of the Yorks to insure plaintiffs’ interest, it was not the intent of the insurance company to do so, and the insurance company cannot be charged with a duty to carry out the Yorks’ intent absent, at a minimum, knowledge of that intent. The insurance company, however, denies any knowledge whatsoever of the plaintiffs or their interest in the property. Plaintiffs, on the other hand, allege only that they knew of the existence of the insurance policy and believed that it covered their interest. To justify reformation of the insurance contract to give effect to the intent of the parties, both parties must share that intent. The court was, in effect, applying the doctrine of mutual mistake, Kidder v Collum, 61 Mich App 281; 232 NW2d 384 (1975). That one party and a stranger to the contract intended its terms to be different than set forth in the contract of insurance is not sufficient. Thus, the trial court’s finding that the insurance policy should be reformed to give effect to the intent of the parties is clearly erroneous.

Finally, the trial court found that the fact that plaintiffs were required under the terms of the land contract to pay the cost of the premiums on the insurance policy gave them an equitable interest in the proceeds, and on that basis awarded plaintiffs the excess of the policy limits over the amount paid Mrs. York for her interest. Whatever plaintiffs’ claim to the proceeds payable under the insurance policy, a matter governed by the terms of the land contract, their interest is derivative of the interest of the named insured and cannot be imposed as an additional liability on the insurance company. "It is elementary that an insurer cannot be held liable on a risk which it did not elect or choose to assume.” Consolidated Mortgage Corp v American Security Insurance Co, 69 Mich App 251, 256; 244 NW2d 434 (1976).

As to that portion of the award to plaintiffs which represented recovery for loss of the contents of the dwelling, we note that no evidence establishing such a loss was presented at trial. Therefore, this portion of the recovery was barred by lack of proof as well as lack of contractual obligation.

The judgment in favor of plaintiffs must be reversed, and a judgment of no cause for action entered. In view of the result reached, we find it unnecessary to consider defendant Fireman’s Insurance Company’s claim that the trial court erred in holding that the insurance company was not entitled to indemnification from Mrs. York. We note, however, that the indemnification agreement signed by Mrs. York appears to be unsupported by consideration and therefore void, Milks v Tritten, 264 Mich 414; 250 NW 262 (1933).

Defendant York in her brief asks us to remand to the trial court for a determination of her counterclaim against plaintiffs, alleging that the trial court erred in failing to rule on her counterclaim. The claim of error, however, is not properly before this Court because defendant York failed to file a claim of appeal. We therefore decline to consider it.

Reversed. Costs to appellant.


author: Per Curiam.

text:
    PEOPLE v SECRETO
    1. Criminal Law — Criminal Sexual Conduct — Rape—Conviction— One Act.
    A defendant may be convicted and sentenced only once for a single act of criminal sexual conduct.
    2. Criminal Law — Instructions to Jury — Necessarily Included Lesser Offenses.
    It is reversible error to refuse to give requested instructions on necessarily included lesser offenses.
    3. Criminal Law — Criminal Sexual Conduct — Rape—Instructions to Jury — Necessarily Included Lesser Offenses — New Trial —Prosecutor’s Option.
    A proper remedy, where a defendant has been convicted of first-degree criminal sexual conduct and the trial court erred by not giving the defendant’s requested instructions on the necessarily included offenses of second and fourth-degree criminal sexual conduct but did give a requested instruction on third-degree criminal sexual conduct, is to remand the cause for entry of judgment of conviction of second-degree criminal sexual conduct and resentencing; a conviction for second-degree criminal sexual conduct is warranted because the jury was given the choice between first and third-degree criminal sexual conduct, which under the theory presented, that injury was caused to the victim and force or coercion was used to accomplish sexual penetration, differ in that first degree includes the causation of personal injury as a statutory element while third degree does not and the jury necessarily found that an injury resulted from the act; however, if the prosecutor is of the opinion that justice would be better served by a new trial, the trial court should, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction and grant a new trial on the original charge.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 165.
    65 Am Jur 2d, Rape § 32.
    Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense. 4 ALR3d 874.

       21 Am Jur 2d, Criminal Law §§ 185, 494.
    Instructions as to conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged. 47 ALR2d 890.

       65 Am Jur 2d, Rape § 110
    What constitutes penetration in prosecution for rape or statutory rape. 76 ALR3d 163.

      4. Criminal Law — Criminal Sexual Conduct — Rape—Lesser Included Offenses — Commission of Other Felony — Statutes.
    Third-degree and fourth-degree criminal sexual conduct are not lesser included offenses to the greater offense of first-degree criminal sexual conduct where the first-degree criminal sexual conduct charge is based on the theory of sexual penetration occurring under circumstances involving the commission of any other felony (MCLA 750.520b[l] [c]; MSA 28.788[2] [1] [c]).
    Appeal from Oakland, William R. Beasley, J.
    Submitted December 8, 1977, at Lansing.
    (Docket No. 27769.)
    Decided January 24, 1978.
    Leave to appeal applied for.
    Phillip J. Secreto, Jr., was convicted of two counts of first-degree criminal sexual conduct and one count of unarmed robbery. Defendant appeals.
    Affirmed in part, reversed in part, and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James L. McCarthy, Assistant Appellate Counsel, for the people.

      Lustig & Friedman, P. C, for defendant on appeal.
    Before: R. M. Burns, P. J., and Allen and R. M. Maher, JJ.
   Per Curiam.

Phillip Joseph Secreto, Jr., appeals from two convictions and sentences for first-degree criminal sexual conduct, MCLA 750.520b(l)(c) and (f); MSA 28.788(2)(l)(c) and (f), and a conviction and sentence for unarmed robbery, MCLA 750.530; MSA 28.798.

There was no error in the trial court’s voir dire of prospective jurors and the criminal sexual conduct statute was not unconstitutionally vague as applied to the facts of the case.

However, the case must be remanded for vacation of the first-degree criminal sexual conduct convictions and sentences, and a conviction for second-degree criminal sexual conduct entered and the appellant resentenced.

The appellant was convicted and sentenced twice, under different theories, for the one act of criminal sexual conduct with which he was charged. A defendant may only be convicted and sentenced once for a single act of criminal sexual conduct, People v Willie Johnson, 75 Mich App 221; 255 NW2d 207 (1977). Therefore, one conviction and sentence must be vacated.

Further, regardless of which count the appellant were to be convicted on, the conviction and sentence for first-degree criminal sexual conduct must be vacated and a conviction for second-degree sexual conduct entered and the appellant resentenced.

On Count I, brought under MCLA 750.520b(l)(c), the appellant requested an instruction on the necessarily lesser included offense of second-degree criminal sexual conduct (under MCLA 750.520[c]; MSA 28.788[3]). The request was denied, a reversible error under People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977).

On Count II, brought under MCLA 750.520b(l)(f), the appellant requested instructions on the necessarily included lesser offenses of second (under MCLA 750.520c[l] [f]; MSA 28.788[3] [1] [f], third (under MCLA 750.520d[l] [b]; MSA 28.788[4] [1] [b], and fourth (under MCLA 750.520e[l] [a]; MSA 28.788[5] [1] [a]), degree criminal sexual conduct. The trial court granted the request to instruct on third-degree criminal sexual conduct, but denied the requests for instructions on second and fourth degree, reversible error under Ora Jones; supra, and Thompson, supra. The conviction must be vacated, but a conviction under second, rather than fourth, degree criminal sexual conduct should be entered, and the appellant sentenced accordingly.

Because the jury was given the choice between first and third-degree criminal sexual conduct, which under the theory of Count II differ in that first degree includes the causation of personal injury as a statutory element while third degree does not, the jury necessarily found that an injury resulted from the act. Second and fourth-degree criminal sexual conduct, under the theory charged in Count II, differ from each other in the same respect. Thus a conviction for second-degree criminal sexual conduct is warranted.

Under Count I there are no crimes corresponding to third and fourth-degree criminal sexual conduct and thus those offenses are not lesser included offenses, necessarily or otherwise, to the greater offense of first-degree criminal sexual conduct brought under MCLA 750.520b(l)(c).

However, if the prosecutor is of the opinion that justice would be better served by a new trial, the trial court should, upon notification by the prosecutor prior to resentencing, vacate the judgments of conviction and grant a new trial on the original charges, Thompson, supra.

The conviction and sentence for unarmed robbery is affirmed.

Reversed and remanded in part, affirmed in part.

       We do not believe it is error to charge a defendant under more than one theory of criminal sexual conduct for a single act, but it is error to enter more than one judgment of conviction and sentence for a single act.


text:
    PEOPLE v BRECKENRIDGE
    1. False Pretenses — Indictment and Information — Time Variances — Prior Events — Prejudice.
    Time is not of the essence of the offense of obtaining money by means of false pretenses and a prosecutor may introduce evidence of events prior to the time of the charged crime specified in an indictment, particularly where the defendant does not allege prejudice and where the evidence of prior events is essential to an understanding of the crime charged.
    2. False Pretenses — Indictment and Information — Amendments —Time Variances — Proofs.
    It is not error to permit the amendment of an information during trial to enlarge the time period during which the crime of obtaining money by false pretenses occurred; the prosecution is not required to set forth in the information the false pretenses by which the offense was accomplished, and proof of the crime is not restricted to the exact transaction as it took place between the complaining witness and the accused.
    3. False Pretenses — Indictment and Information — Continuances —Evidence—Prejudice—Appeal and Error.
    Failure to ask for a continuance in a prosecution for obtaining money by false pretenses, where the defendant is entitled to one, leads the Court of Appeals to presume that the defendant was not prejudiced by the failure of the prosecution to indicate at an earlier time that it was going to introduce evidence of events occurring prior to the time specified in the indictment.
    4. False Pretenses — Instructions to Jury — Evidence—Material Misrepresentations — Harmless Error.
    An instruction on "continuous misrepresentation” in a prosecution for obtaining money by false pretenses, which defendant asserts is a non-existent doctrine, is harmless error even if there is no such doctrine where there was considerable evidence of material misrepresentations over an extended period of time and sufficient evidence of defendant’s misrepresentations during the time specified in the indictment to render any error harmless.

      References for Points in Headnotes
    [1-3, 5] 32 Am Jur 2d, False Pretenses §§ 21, 61.

       32 Am Jur 2d, False Pretenses § 72.

       32 Am Jur 2d, False Pretenses § 49 et seq.

    [7, 9, 10] 69 Am Jur 2d, Securities Regulation — State § 10.

       69 Am Jur 2d, Securities Regulation — State § 38.

      5. False Pretenses — Indictment and Information — Evidence— Admissibility of Prior Events — Statutes.
    A statute permits evidence of events occurring within a 6 month period following the time stated in an information or indictment to be admitted in a trial for obtaining money by false pretenses; there is no limitation in the statute on the admission of events occurring prior to the time stated in the information or indictment and no authority exists which supports the proposition that the statute prohibits the admission of such evidence (MCLA 767.60; MSA 28.1000).
    6. False Pretenses — Elements—Reliance.
    Failure to establish the element of reliance in a trial for obtaining money by false pretenses is reversible error.
    7. Statutes — Uniform Securities Act — Security Transactions— Courts — Court Responsibility.
    The Uniform Securities Act makes unlawful various acts in connection with the offer, sale or purchase of any security and whether or not a particular transaction comes within the purview of the act depends upon the language of the statute and the real nature of the transaction; it is the court’s responsibility to ascertain the substance of the transaction and the real intent and purpose of the parties (MCLA 451.501, 451.809; MSA 19.776[101], 19.776[409]).
    8. Statutes — Security Laws — Stockholders and Promoters— Frauds and Impositions — Hazardous Undertakings.
    The purpose of securities laws, in general, is to prevent stockholders and promoters from perpetrating frauds and impositions on unsuspecting investors in hazardous undertakings and to protect credulous and incompetent persons from their own inclinations to speculate in hazardous enterprises.
    9. Statutes — Uniform Securities Act — Business Enterprises— Venture Capital — Security Transactions.
    The salient feature of securities sales under the Uniform Securities Act is the public solicitation of venture capital to be used in a business enterprise; subjection of the investor’s money to the risks of an enterprise over which she or he has no managerial control is the basic economic reality of a security transaction as defined in the act.
    10. Statutes — Uniform Securities Act — Economic Realities— Loans — Purchase of Securities — Statutory Protection of Investors.
    Security statutes must turn on the economic realities underlying a transaction and where the underlying realities establish that a loan was made rather than the offering, selling, or purchase of securities there is no violation of the Uniform Securities Act, which was intended to protect investors, not persons engaged in commercial loan transactions.
    Appeal from Kent, John T. Letts, J.
    Submitted November 1, 1977, at Grand Rapids.
    (Docket No. 28463.)
    Decided January 24, 1978.
    Leave to appeal denied, 402 Mich 915.
    Don Breckenridge was convicted of obtaining money by false pretenses and violation of the Uniform Securities Act. Defendant appeals.
    Affirmed as to Count I, reversed as to Count II, and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, Donald A. Johnston, III, Chief Appellate Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      Cholette, Perkins & Buchanan (by Robert A. Benson), for defendant.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   Per Curiam.

On January 29, 1976, a jury convicted Don Breckenridge of obtaining money by false pretenses, MCLA 750.218; MSA 28.415, and of violating the Uniform Securities Act, MCLA 451.501, 451.809; MSA 19.776(101), 19.776(409). Defendant was sentenced to a term of imprisonment for not less than 3-1/2 nor more than 10 years.

Defendant Breckenridge was a divisional manager for Investor’s Diversified Services (IDS), a company which sells mutual funds, saving certificates, tax exempt bonds and insurance.

In January or February of 1973, defendant approached Dale Discher, vice-president and treasurer of Amway Corporation, about obtaining loans, apparently for construction.

Discher testified that by an arrangement made in February, 1973, Amway Corporation was to loan money to Mr. Breckenridge against 30-day promissory notes which would be secured by shares in defendant’s Investor’s Stock Fund Account worth not less than 140% of the loan amount. An assignment of the shares accompanied each note.

As a result of the February, 1973, arrangement, a series of 30-day notes was given by defendant over the next year until, in February, 1974, there were 56 different notes. On February 11, 1974, all the then-outstanding notes were consolidated into one note for $650,000. A security agreement, accompanying the note, provided that defendant Breckenridge granted to Amway a security interest in 41,800 shares of IDS stock.

Also accompanying the note was a document entitled "Funds Change of Name, Ownership or Beneficiary”. This document provided that Don Breckenridge did "assign for value received * * * 41,800 shares described above”. The issuing company was listed as Investors Stock Fund, Inc. The name of the assignee was not provided. The form stated "ALL STOCK CERTIFICATES MUST BE ATTACHED”. No stock certificates were attached.

Three more notes for a total of $200,000 secured by additional shares in the Investor’s Stock Fund Account were given by defendant. The method for exchanging the notes for the loans did not change throughout the period. Kenneth S. Gfeller, an assistant to Discher, delivered checks to defendant and picked up documents prepared in connection with the loan. The notes and accompanying materials were always prepared by Breckenridge.

In May, 1974, defendant resigned his position with IDS, apparently after IDS auditors examined his personal books in his absence. Defendant never held more than 148 shares in his Investor’s Stock Fund Account.

Count I of the indictment alleged that on or about the 11th day of February, 1974, and on divers other dates between that date and April 17, 1974, defendant did, with intent to defraud, obtain $850,000 from the Amway Corporation by use of false pretenses.

As to this count, defendant alleges three errors, two of which relate to representations occurring a year before the date of the crime specified in the indictment. Defendant first charges that the trial court erred by instructing the jury that it could consider representations which occurred more than one year before the date of the crime specified in the indictment.

February 11, 1974, the first date cited in the indictment, was the date on which outstanding promissory notes given for loans were consolidated into one note for $650,000. The testimony concerning occurrences prior to February, 1974, was essential to understand and explain the February, 1974 note.

Time is not of the essence of the offense of obtaining money by means of false pretenses. It is therefore perfectly proper to permit an amendment at trial changing the dates to that shown by the testimony. People v Hoffmann, 142 Mich 531; 105 NW 838 (1905). Similarly, in People v Clum, 213 Mich 651; 182 NW 136 (1921), the Court held, in a prosecution under the blue sky laws, that it was not error to permit an amendment of the information during trial to enlarge the time period during which the charged crime occurred. The holding was based on the fact that time was not of the essence of the offense.

In the present case, following the precedents in People v Hoffmann, supra, and People v Clum, supra, the court could have permitted the indictment to be amended. There was no amendment, but the omission does not constitute reversible error.

In People v Winslow, 39 Mich 505 (1878), defendant was convicted of conspiracy to defraud by false pretenses. The Court stated that it was not necessary, in a case of this sort, to set forth in the information the false pretenses by which the offense was accomplished; nor in the proof of them can the prosecution be restricted to the exact transaction as it took place between the complaining witness and the accused. 39 Mich at 507. It reasonably follows that a prosecutor may introduce evidence of events occurring prior to the time of the charged crime specified in the indictment, particularly when, as in this case, the defendant does not allege prejudice and when the evidence of prior events is essential to an understanding of the crime charged.

Defendant, had he asked for one, would have been entitled to a continuance. See People v Clum, supra. His failure to so ask leads us to presume he was not prejudiced by the failure of the prosecution to indicate at an earlier time that it was going to introduce evidence of events occurring prior to February, 1974.

The judge, wishing to portray for the jury the series of events leading up to the February 11 consolidation, instructed on "continuous misrepresentation”, a doctrine defendant asserts is nonexistent. The argument is more semantic than legal.

It cannot be denied that defendant, up until February 11, 1974, and for two months afterwards, continued to misrepresent his position. Even if there is no doctrine of continuous misrepresentation, it was harmless error, if error it was, to use the term. There was considerable evidence in this case of material misrepresentations over an extended period of time. Apart from those misrepresentations, there was sufficient evidence of defendant’s misrepresentations during the time specified in the indictment to render any error harmless.

Defendant also contends that MCLA 767.60; MSA 28.1000 prohibits in a trial for obtaining money by false pretenses consideration by the jury of representations which occurred more than one year before the date of the crime specified in the indictment. .

The statute permits evidence of events occurring within a 6-month period following the time stated in the indictment to be admitted in a trial for obtaining money by false pretenses. There is no limitation in the statute on the admission of events occurring prior to the time stated in the indictment. No authority exists which supports the proposition that the statute prohibits the admission of such evidence. We must therefore reject defendant’s contention.

Defendant’s final claim of error under Count I is that the prosecution failed to establish the element of reliance requisite to the charged crime.

Failure to establish the element of reliance in a trial for obtaining money by false pretenses is reversible error. People v Wilde, 42 Mich App 514; 202 NW2d 542 (1972). The record may not support a finding that Discher, the person with whom defendant dealt directly, relied upon defendant’s misrepresentations. Kenneth Gfeller, however, was also an agent for Amway, the victim of the alleged crime. Gfeller testified that he reviewed the documents signed by defendant to be assured of their correctness.

The evidence of reliance in this case was sufficient, if believed by the trier of facts, to establish that element. Gfeller testified that he reviewed the documents; the documents declared that defendant owned a large amount of stock which was pledged as collateral for the various loans. The jury could reasonably have inferred that if Gfeller found the documents were not in order, no loan would have been made. The element of reliance was sufficiently established by the evidence.

Count II of the indictment alleged a violation of the Uniform Securities Act, MCLA 451.501, 451.809; MSA 19.776(101), 19.776(409), that in connection with the offer, sale or purchase of securities, the defendant employed a device, scheme or artifice to defraud, make untrue statements of material facts, or engage in an act, practice or course of business which operated as a fraud or deceit upon Amway Corporation, and that he sold securities in the form of promissory notes secured by the pledge of 56,300 shares of stock as collateral.

The Uniform Securities Act makes unlawful various acts in connection with the offer, sale or purchase of any security.

The word "sale” is defined in the Uniform Sales Act at MCLA 451.801(j)(l); MSA 19.776(401)(j)(l). The word sale does not include "[a]ny bona fide pledge or loan”. MCLA 451.801<j)(6)(A); MSA 19.776(401)(j)(6)(A).

Whether or not a particular transaction comes within the purview of a state securities law such as the Uniform Securities Act depends on the langauge of the statute and the real nature of the transaction. State v Hodge, 204 Kan 98; 460 P2d 596 (1969). The court must ascertain the substance of the transaction and the real intent and purpose of the parties, looking beyond labels and devices. People v Blankenship, 305 Mich 79; 8 NW2d 919 (1943).

Whatever the parties may call it, the nature of the transaction between defendant and Am way strongly suggests a loan was made. Defendant was given money by Amway for his temporary use. Each time defendant obtained money from Amway, he promised to repay that money in 30 days. This was accomplished with a series of promissory notes. Defendant promised to (and did) pay interest; he also purported to give collateral for the money obtained by assigning stock.

The crucial question, then, becomes whether the transaction is within the regulatory purpose of the law. Sarmento v Arbax Packing Co, 41 Cal Rptr 869; 231 Cal App 2d 421 (1964). Are the promissory notes of such a character as fairly to fall within the scope of the statute?

We cannot say that the transaction is one intended to be covered by the Uniform Securities Act. The purpose of state securities laws, in general, is to prevent stockholders and promoters from perpetrating frauds and impositions on unsuspecting investors in hazardous undertakings and to protect credulous and incompetent persons from their own inclinations to speculate in hazardous enterprises. Meek v State, 54 Okla Cr 415; 22 P2d 933 (1933).

Mindful of this purpose, a court, in interpreting the Uniform Securities Act, must ascertain whether a party’s activities constituted an offer or sale of securities as those terms are defined. Hardtke v Love Tree Corp, 386 F Supp 1085 (ED Wis, 1975).

Defendant’s activities here were not of such a character as to constitute an offer or sale of securities. The salient feature of securities sales under the Uniform Securities Act is the public solicitation of venture capital to be used in a business enterprise. Subjection of the investor’s money to the risks of an enterprise over which she or he has no managerial control is the basic economic reality of a security transaction as defined in the context of the Uniform Securities Act. See State of Hawaii by its Commissioner of Securities v Hawaii Market Center, Inc, 52 Hawaii 642; 485 P2d 105 (1971).

Any securities statute must turn on the economic realities underlying a transaction. United Housing Foundation, Inc, v Forman, 421 US 837; 95 S Ct 2051; 44 L Ed 2d 621 (1975). The underlying realities of the transaction in this case establish that a loan was made. Breckenridge was not asking Amway to venture risk capital in an organization he was running. He was borrowing money secured by notes, not offering, selling, or purchasing securities.

In interpreting Federal securities acts, pertinent provisions and definitions of which are similar to those presently at issue in the Uniform Securities Act, courts have made a point of distinguishing loans from other transactions.

"The question whether a note constitutes a covered security depends on whether the note was procured for purposes of speculation or investment or for purposes of making a commercial loan. As a matter of policy, this distinction is a valid one. The federal securities laws are designed to protect investors, not persons engaged in ordinary consumer or commercial loan transactions * * * . Thus courts have restricted application of the Acts to those notes procured for investment and have excluded notes issued in the context of a commercial loan transaction.” Bronstein v Bronstein, 407 F Supp 925, 930 (Ed Pa, 1976). (Emphasis supplied.)

The Uniform Security Act adopted by the state of Michigan is likewise intended to protect investors, not persons engaged in commercial loan transactions, as was defendant here.

In McClure v First National Bank of Lubbock, Texas, 497 F2d 490 (CA 5, 1974), one of the issues raised was whether a pledge of corporate stock for renewal of a bank loan constituted a sale within the meaning of the Securities Exchange Act of 1934. The court held that the pledge of stock, in the circumstances of the case, did not constitute a sale.

"A commercial bank in accepting a pledge of stock as additional consideration for the extension of an overdue commercial loan does not necessarily affect the securities industry * * * mere acceptance of a stock pledge as collateral in a privately negotiated transaction between borrower and lender does not, of itself, bring within the scope of the federal securities acts a transaction otherwise outside their purview.” 497 F2d at 495.

While the interpretation Federal courts have placed upon tefms under the Federal securities acts is not binding upon state courts as they interpret the Uniform Securities Act, the similarity of the purpose and provisions of the state and Federal securities statutes, particularly those purposes and provisions pertinent to the facts at hand, cannot be ignored. Interpretation of one offers valuable guidelines as to the interpretation of the other.

As a matter of law, we find that the transaction between Breckenridge and Amway, in which defendant gave Amway a series of notes secured by shares he did not own in exchange for $850,000, constituted a loan which by definition is exempt from the Uniform Securities Act.

Defendant’s conviction as to Count I is affirmed; as to Count II, the conviction is reversed. Remanded for resentencing.


text:
    PEOPLE v JACKSON
    Criminal Law — Bench Trial — Findings of Fact — Appeal and Error — Harmless Error.
    A judge who sits without a jury in criminal cases is obliged to articulate for the record the reasons for his decision in findings of fact, but a judge’s failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it, and that it would not facilitate appellate review to require further explication.
    References for Points in Headnote
    76 Am Jur 2d, Trial § 1250 et seq.

    Validity and construction of federal criminal procedure Rule 23, dealing with trial by jury or by the court. 13 L Ed 2d 1119.
    Appeal from Recorder’s Court of Detroit, Thomas L. Poindexter, J.
    Submitted December 6, 1977, at Detroit.
    (Docket No. 28698.)
    Decided January 24, 1978.
    Theron D. Jackson was convicted of felonious assault. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert Monk, Assistant Prosecuting Attorney, for the people.

      Robert Mann, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   Per Curiam.

Charged originally with a single count of assault with intent to murder, MCLA 750.83; MSA 28.278, defendant appeals his conviction, following a bench trial, of felonious assault, MCLA 750.82; MSA 28.277.

He raises a single issue: whether the trial judge erred reversibly in rendering a general guilty verdict rather than finding the facts specially and separately stating his conclusions of law.

The record clearly establishes by defendant’s admission that he stabbed the complainant in the shoulder with a knife during an altercation that arose out of an automobile accident. Defendant rear-ended the car driven by complainant when complainant stopped suddenly at a red light. Although defendant claimed to have acted in self-defense, he admitted that he exited his car with a hunting knife in hand and that neither the complainant nor his companion were armed when they emerged from their car. The testimony by the prosecution’s witnesses indicates that defendant was the unprovoked aggressor.

The only issues for the trial judge to determine were whether the defendant acted in self-defense and whether he assaulted complainant with an intent to murder. These decisions rested on the credibility of the defendant as compared to that of the complainant, his companion, an off-duty police officer who disarmed the parties and broke up the fight and two officers who responded to the scene. Clearly, a reading of the record discloses the paths that the trial judge followed in reaching his verdict, namely, that defendant did not act in self-defense and that he lacked the mens rea necessary for assault with intent to murder.

The most recent Supreme Court decision on the applicability of GCR 1963, 517.1 to criminal bench trials, People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973), serves to clarify a previously confused rule:

"We are now of the opinion that in criminal cases as well as civil cases a judge who sits without a jury is obliged to articulate the reasons for his decision in findings of fact. Findings of fact in a nonjury case serve a function paralleling the judge’s charge in a jury case, that of revealing the law applied by the fact finder.

We are of the opinion that this case falls squarely within the exception to the rule as enunciated in Green, supra, and approved by the Supreme Court in Jackson. No purpose would be served by remainding this case to the trial judge for findings of fact and conclusions of law.

Before closing, however, we would remind the trial court that needless appeals can be eliminated if, in future cases, somewhat greater effort is expended in satisfying the letter, as well as the spirit, of GCR 1963, 517.1.

Affirmed.

      " 3 A judge’s failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result as, for example, where the only factual issue is identification. See People v Green, 32 Mich App 482; 189 NW2d 122 (1971). See, also, People v George Scott, 21 Mich App 217-218; 175 NW2d 312 (1970).”