text:
    FOX v. BENHAM MANUFACTURING CO. JOHNSON v. PENINSULAR STATE BANK. PENINSULAR STATE BANK v. BENHAM MANUFACTURING CO.
    1. Mechanics’ Liens — Enforcement—Claims.
    It is not error not to compel a building contractor to elect ■ under wbicb of two statements of lien he will claim, where a second statement relating to the same debt is filed within the statutory time, because it is supposed the first statement has omitted an essential matter, and the claim is the same claim mentioned in the first statement.
    2. Same — Statement of Claim — Notice—Bankruptcy.
    A statement of claim for a mechanics’ lien may be served upon the bankrupt owner in whose name the title stands of record, even though a trustee in bankruptcy has been appointed.
    3. Same — Statement of Claim — Statutes—Construction.
    The contention that the statement of claim for a lien filed by a contractor is not a just and true statement of account of amount due the contractor, as required by 3 Comp. Laws, § 10714 (3 Comp. Laws 1915, § 14800), is untenable, although the contractor includes in the statement an amount of money loaned to the owner by indorsing notes of the owner so that the latter can obtain funds for the continuance of the building, and the owner is duly credited with every dollar paid to the claimant.
    4. Same — Enforcement—Waiver—Bona Fides.
    There was no waiver by the contractor of his right to a lien upon the property because the contract progressed slowly, owing to the owner’s lack of funds, and the work extended over a long time and was intermittent, where he acted in good faith and diligently pursued the remedy allowed by statute.
    Cross-appeals from Wayne; Perkins, J., presiding.
    Submitted April 6, 1917.
    (Docket No. 66.)
    Decided September 27, 1917.

      Bill by Norman W. Fox against the Benham Manufacturing Company, Fred R. Johnson, and another, to foreclose a mortgage. Defendant Johnson filed an answer in the nature of a cross-bill for the foreclosure of a mechanic’s lien. The Peninsular State Bank filed a separate bill against the Benham Manufacturing Company and others to foreclose another mortgage. The cases were consolidated and heard as one. From a decree sustaining the priority of the lien over the mortgages, plaintiffs appeal.
    Affirmed.

      Berger & Milbwm, for appellants.

      Bailey & Bradley, for appellees.
   Moore, J.

In the year of 1912 the Benham Manufacturing Company was the owner of real estate. Fred R. Johnson in August entered into a contract with the Benham Manufacturing Company to erect for the Benham Manufacturing Company a factory building. The arrangement was that Mr. Johnson was to pay for the labor and materials used in the building from the funds turned over to him by the Benham Manufacturing Company, and in addition was to receive as his compensation for the superintending of the construction 15 per cent, of the total cost of the labor and materials. The work on the building was started August 31, 1912. On August 20, and September 22, and October 16, 1913, the Benham Manufacturing Company executed to the Peninsular State Bank three mortgages, of amounts $7,000, $5,000, and $10,000, respectively, for money advanced to pay for labor and materials. It is claimed by the cross-plaintiff Fred R. Johnson, that the last of the labor and materials were performed and furnished on August 11, 1914. Money was advanced to Mr. Johnson by the Benham Manufacturing Company from time to time during the period.

On the 10th of September, 1914, Fred R. Johnson filed a statement of account and claim of lien in the office of the register of deeds for Wayne county, claiming a lien upon the real estate and building of the Benham Manufacturing Company, for the sum of $5,187.38. This lien named the Benham Manufacturing Company as the owner. On October 5, 1914, the Benham Manufacturing Company was adjudicated a bankrupt and the Union Trust Company was appointed its trustee in bankruptcy. On October'8, 1914, Fred R. Johnson filed a second statement of account and claim of lien for the same amount and containing the same information as the first one, filed on September 10, 1914, and named the Benham Manufacturing Company as the owner. May 13, 1914, the Benham Manufacturing Company, to secure a loan made to it by Norman W. Fox, executed to him a mortgage of $5,000 on the property upon which was the factory building. On September 26, 1914, Norman W. Fox filed his bill in the Wayne circuit court to foreclose his mortgage.

December 10,1914, Norman W. Fox purchased from the Union Trust Company, trustee in bankruptcy, the real estate in question, thereby merging his mortgage with his title to the property. On December 14, 1914, Norman W. Fox sold the real estate to the A. C. Knapp Company on land contract, and a short time thereafter conveyed the same real estate to the appellant, Emanuel T. Berger, subject to the land contract interest of the A. C. Knapp Company. On March 12, 1915, the lien claimant, Fred R. Johnson, filed his answer and cross-bill in the suit brought by Norman W. Fox for the purpose of foreclosing his lien.

On June 26, 1915, the Peninsular State Bank filed its bill of complaint in the Wayne circuit court for the purpose of foreclosing one of its mortgages on the same property and building. The two suits were consolidated and tried as one cause. The cross-bill of the lien claimant was for $5,178.38.

On the trial the court entered a decree allowing the lien of Mr. Johnson for the full amount claimed by him, and allowed it as a prior claim to the mortgages of the Peninsular State Bank. The case is brought here by appeal.

The Peninsular State Bank has been paid its mortgages. The only matter of contest now' is as to the validity of the lien claimed by the cross-plaintiff.

It was contended on the trial in the lower court: (1) That the cross-bill of Mr. Johnson should be dismissed, unless he elected which of the two statements of lien filed by him he chose to rely upon. (2) That by reason of the failure to file with the register of deeds a proof of service of either of the statements of lien, and no service having been made upon the Union Trust Company, and by reason of the failure of the lien claimant to give the name of the correct owner of the property in either one of the statements of lien, and no showing being made' that the name was unknown, that the requirements of the statute in this regard had not been complied with and therefore the lien claim was invalid. (3) That as the verified cross-bill of complaint of Fred R. Johnson did not allege the service of either statement of lien or the filing of proof of such service with the register of deeds, the lien claimant failed to make out a prima facie case by the introduction of his verified cross-bill in evidence. (4) That the claim of lien filed by Johnson was not a just and true statement of account of the amount due him over and above all legal set-offs, as required by section 10714, 3 Comp. Laws (3 Comp. Laws 1915, § 14800), but by reason of the fact that it contained items totaling $4,600 of money loaned by the lien claimant to the Benham Manufacturing Company it was so excessive as to be fraudulent, and that therefore the whole lien is illegal and void. (5) It was also claimed by the cross-defendants and appellants that the right to claim a lien had been waived and lost by the lien claimant Johnson, and that neither of the claims of lien was filed within 60 days from the date of furnishing or performing of the last of the material or labor under the contract, as provided by section 10714, 3 Comp. Laws. We will consider these claims in the order in which they were presented.

It is contended that, as claimant filed two statements of lien, it was error not to compel him to elect under which of them he would claim; counsel citing Barnett v. Clooney, 68 Mo. App. 146, and other cases. An examination of the cases cited show them distinguishable from the case before us. Here the two statements related to the same debt. The second statement Was filed because it was supposed the first statement omitted an essential matter, but it was the same claim mentioned in the first statement, and* both were filed within the time given by the statute. See J. C. Vreeland Building Co. v. Refining Co., 15 Am. & Eng. Ann. Cas. 1086 (75 N. J. Law, 551); Barnett v. Clooney, 67 Mo. App. 664.

This claim is based upon the contention that the service should have been made upon the Union Trust Company, trustee, who should have been named as owner. We think this contention has no merit. The corporation with whom the contract was made and in whom the record title stood was served with the contractor’s sworn statement and was named as owner. See 3 Comp. Laws, § 10715 (3 Comp. Laws 1915, § 14801).

It is contended by claimant that if there was any failure to make out a prima, facie case, and it is not admitted that there was, the failure is cured by the testimony of Mr. Johnson and Mr. Keynolds. We think this contention is true.

This claim is based upon the claim that $4,600 is included in the statement of amount due of money that was loaned by claimant to the Benham Manufacturing Company. The record shows that to enable the corporation to go on with its building operations the claimant indorsed notes of the corporation, which passed through the bank, thus enabling it to continue building; but it also clearly shows that the corporation was duly credited with every dollar that was paid to the claimant. See section 10734, 3 Comp. Laws (3 Comp. Laws 1915, § 14820).

This claim is based upon the fact that the contract progressed slowly, owing to the corporation's lack of funds, and the work extended through a long period of time. It is claimed that, because of the intermittent character of the work and the delay thereof, the later items' cannot be said to be in fulfillment of the contract. A reading of the record satisfies us that claimant acted in good faith in the performance of his contract, and that he has diligently pursued the remedy allowed by the statute. See section 10714, 3 Comp. Laws (3 Comp. Laws 1915, § 14800), and the cases cited in the note.

The decree is -affirmed, with costs to the claimant Fred R. Johnson.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BARBER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Carriers — Termination of Liability for Goods Shipped— Warehouses. *
    A delay of more than 6 days in removing shipments of potatoes from the terminal warehouse in the winter time, after notice to the consignees, relieves the carrier from liability for damages by freezing.

    2. Same.
    Where any finding that if the produce had reached its destination within the time required it would not have been frozen would be mere conjecture, the carrier was not liable.
    Error to Ionia; Davis, J.
    Submitted April 13, 1917.
    (Docket No. 11.)
    Decided September 27, 1917.
    Case by Thomas S. Barber and others, copartners as the Saranac Produce Company, against the Detroit, Grand Haven & Milwaukee Railway Company for the freezing of potatoes in transit. Judgment for plaintiffs. Defendant brings error.
    Reversed, and no new trial ordered.

      Harrison Geer (W. K. Williams and L. W. Smith, of counsel), for appellant.

      Ellis & Ellis, J. Clyde Watt and R. A. Colwell, for appellees.

      For authorities passing on the question as to what is a reasonable time for removal of goods by consignee, after which the liability of the carrier as such terminates, see notes in 8 L. R. A. (N. S.) 240; 16 L. R. A. (N. S.) 935; 25 L. R. A. (N. S.) 938.

   Moore, J.

Thomas S. Barber, Gilbert Ayers, Win-field S. Allen, and Charles E. Huhn, copartners doing business under the name of the Saranac Produce Cornpany, brought this action May 8, 1915, seeking to recover damages for a loss through the freezing of potatoes shipped during the winter of 1911-1912; two cars were consigned to Norfolk, Va., and two to Pitts-burg, Pa. From a judgment for the plaintiffs of $1,-324.27, the case is brought here on writ of error.

The errors relied upon are discussed under the following heads:

(1) The judge erred in refusing to direct verdict for defendant as requested.
(2) The judge erred in holding there was a question for the jury as to whether there has been a deviation from the route which had orally been agreed upon or understood between the carrier and Mr. Huhn, manager for plaintiffs.
(3) It was error to submit the question of whether there had been an oral agreement as to the routing which the Norfolk shipments should take.
(4) It was error to hold that the burden of proof was on defendant to show the plaintiffs understood the routes inserted in the bills of lading covering the Norfolk shipments.
(5) It was error to submit to the jury the question of defendant’s liability for the Pittsburg shipments.
(6) It was error for the trial judge to charge the jury that demurrage is an extension of freight rates.

It was the claim of the plaintiffs that they had shipped produce in refrigerator cars furnished by defendant which was carried through to Norfolk in the same car into which it was loaded at Saranac. They claim they ordered two refrigerator cars for potatoes to go to Norfolk, and that the agent knew for what purpose they were ordered; that the cars were furnished and were loaded with potatoes, and the plaintiff in each instance made out a bill of lading in triplicate, giving the number of the car, its contents, and the destination of the shipment, but did not put in the route by which the shipment would be made. The bill of lading was then turned over to the local agent of the defendant, who put in the route the shipment was to take and signed the triplicates, retaining one and returning the other two to the plaintiffs. The plaintiffs claim that the two cars were ordered and loaded as through cars to Norfolk, Va., and that the agent should have so routed them, and that instead of doing so he routed them so that the cars went only to Baltimore, where the potatoes were transferred to a packet steamer which conveyed them to Norfolk. Defendant claims plaintiffs knew just how the potatoes were routed. This claim will be stated more in detail later.

We quote from the brief of counsel for the plaintiff:

“Plaintiffs claim from the above statement of facts, that, they having selected the mode of transportation, to wit, in refrigerator cars, such mode should not be changed by the defendant, and while the defendant was entitled to send the refrigerator cars over any line which could transport such cars, and which would be equally advantageous to the plaintiffs, it was not authorized to send said potatoes, unprotected by refrigerator cars, on a packet line, and defendant was not authorized to use a line over which cars could not be sent, and therefore the defendant wrongfully changed the mode or manner of shipment, and used that as an excuse to ship the produce over a line not authorized, and by reason of the change of mode of shipment, defendant became an insurer, and that while the plaintiffs should conduct themselves as an ordinary prudent man would to make the damages as small for the defendant as they reasonably could, still the entire net loss occasioned by the change of method and route of shipment must fall upon the defendant.”

The trial judge charged the jury in part as follows:

“One of the first things for you to consider in this case and determine is: What was the contract between the plaintiff and the defendant relative to the shipments made to Norfolk, Va.? If you find from the evidence that the plaintiff ordered refrigerator cars to ship potatoes in to be delivered on the railroad tracks at Norfolk in the cars, and that the defendant by its agent furnished the cars for that purpose, and that they were loaded with potatoes as agreed by the parties, and that after they were loaded and the cars closed the plaintiff took to the defendant’s agent a statement containing the contents of the cars, or car, as the case might be, one at a time, and that the defendant knew that the plaintiffs intended and had directed that the cars should be shipped by rail to Norfolk, then It was the duty of the defendant to ship the cars by rail to Norfolk, and the defendant would have no right to ship them any other way without the knowledge or consent of the plaintiffs. The fact, if you find it to- be a fact, that the agent of the defendant inserted a different routing in the bills of lading and turned the same over to the plaintiffs, or their agent, would have no force or effect in this, cáse, unless you find that before the goods were shipped the effect of such routing, and that such routing would amount to sending the cars part of the way by rail and the contents the rest of the way by water, was understood and known to the plaintiffs, and they consented thereto (when I say plaintiffs I mean Mr. Huhn; whatever was done by Mr. Huhn was done by the plaintiffs he represented). That is to say, if the plaintiffs had made an oral contract or agreement where and how these cars should be shipped and they loaded the cars with that intention and- under such contract, then they had the right to rely on- the oral contract, and if the defendant by its agent inserted a different routing without the knowledge or consent of the plaintiffs, such routing in the bill of lading would have no force or effect in this case; and in such case it would be the duty of the defendant to ship these cars all of the way by rail and deliver them at Norfolk, Va., with the contents in the cars, or else be liable for such damage as might occur by reason of their deviation from the understanding that had been made. * * *
“In determining who is right' concerning the oral contract, you should take into consideration all of the surrounding circumstances, the time of the year, the object and the purpose for which refrigerator cars were ordered, the manner in which they were protected and. loaded, the rights of the parties concerning the use of the cars at Norfolk on their arrival, and all ■other facts that will show you what the object and purpose of these parties were at the time the refrigerator cars were ordered and furnished, and from such facts and the papers you are to determine whether there was a prior oral agreement, and whether the defendant did agree to ship the cars all rail to Norfolk.
“The printed matter which appears upon the back of the contract that was made in this case must be taken as a part of the conditions of the contract, and by which it appears these parties had 48 hours as a reasonable time in which to take the potatoes from the car after it reached Norfolk, and as much further reasonable time as they might desire by paying demur-rage fees of so much for each day. I do not mean by that a man can, for weeks or months, regardless of the necessities of the occasion, keep cars in demur-rage, and still say that the company would be held for what might happen to them during that time. The reasonable time fixed by both parties in which some attention should have been paid to the matter was 48 hours.
“Provided, now, that their minds met, and that they agreed upon the shipping that was finally made. If the shipping was not made over the road as agreed upon as indicated by the plaintiffs, then, of course^ there is a different theory will obtain in this case; there is a greater liability as against the defendant. A party shipping in the ordinary way, by rule they would have their 48 hours in which to make some move to protect their potatoes or remove them, and further time for their removal and protection if it becomes necessary by paying demurrage rates, which is an extension of freight rates to them.”

To state the claim of defendant more in detail it is that the cars ordered and furnished were Baltimore & Ohio cars, and that the station agent explained to the manager of the plaintiff that these cars could go no farther than to Baltimore, when the potatoes would be transferred to the packet steamer and thus conveyed to their destination at Norfolk. He also testified that he put this routing in the bills of lading which he delivered to the plaintiff, and when they were produced they so show, but plaintiff explains that he did not notice the routing in them, and testified that he never heard of the packet steamer line until notified by the consignee that the potatoes came by the packet steamer line.

The claim of the station agen„ would seem to be corroborated, not only by the bills of lading, but by the following letter:

“Saranac, Michigan, December 11, 1912.
“Mr. E. Arnold,
“Freight Claim Agent of the Grand Trunk Railroad,
“Montreal.
“Dear Sir: We have deferred replying to your favor of November sixth relative to claim No. 36318 of $869.91 for damage by freezing of B. & 0.14597, 4137 and 14137 in which we communicated further with the consignee and I inclose you copy of his letter. We would further state our instructions to your agent at Saranac were to route cars by N. & W. which he refused to do, claiming he was compelled to route B. & O. cars Baltimore Steam Packet Co. If cars had been routed N. & W. the same as all of our previous shipments, there would have been no necessity for unloading and putting in warehouse, cars could have been heated during cold weather if necessary. We are satisfied our claim is legitimate and we shall endeavor to collect the claim. Kindly return our papers referring to........at once in order that we may proceed further as we may be advised.
“Very respectfully,
“Saranac Produce Company.”

The writer of the letter explained that a year had elapsed between the shipment of the potatoes and the writing of the letter, and that he must have confused subsequent talks he had with the station agent with the conversation he had at the time of the shipment.

There is a phase of the case disclosed by the record that makes it unnecessary and unprofitable to dwell upon the contradictory claims of what was said at the time of the shipment, and whether the charge of the court based thereon is error. During the progress of the trial the plaintiif, against the objection of the defendant, was permitted to amend his declaration. The record shows the following:

“Mr. Ellis: We claim they were routed contrary^ to agreement; that they were sent over a packet line from Baltimore; that when we took them, when they were delivered over to us, instead of being delivered in the cars, they were unloaded in an open warehouse, and at that time they froze.
“Mr. Smith: At the time they were unloaded in Baltimore?
“Mr. Ellis: That is, they were frozen — I don’t care whether frozen in the warehouse, but they weren’t delivered to us so we could use them.
“The Court: Where do you claim they were frozen?
“Mr. Ellis: I don’t know where they were frozen, but when we found them they were frozen. They were lost as we claim, and when they changed the manner in which they should have been shipped, they became warrantors; that is all.”

Whatever was said or done at the time the potatoes were shipped they in fact reached Norfolk. The potatoes which were loaded December 12th reached Norfolk December 22, 1911. The potatoes that were loaded in the other car reached Norfolk December 28,1911. They were both consigned to J. W. Leigh & Co., who were commission merchants and were to sell the potatoes, and after deducting commission and proper charges were to remit to the plaintiif the proceeds which they afterwards did, for the potatoes were not all frozen. On the same day the potatoes arrived the consignees were notified. The first load of potatoes was not removed from the warehouse until January 19th, and the other load until January 11th. The potatoes were in sacks, and upon their arrival were put into the warehouse. The monthly weather reports kept for the United States department of agriculture show the maximum and minimum temperatures between December 22, 1911, and January 4, 1912, to be 70 degrees and 30 degrees, respectively. These reports further show that upon but two occasions between the above-mentioned dates did the temperature at Norfolk reach the freezing point, namely, December 28th, 32 degrees, and December 29th, 30 degrees for part of the 24 hours. The weather report shows:

Date. ' Maximum. Minimum.
January 5...................37 degrees 11 degrees.
“ 6...................21 ,£ 11
'
“ 7.....'.............. 33 ££ 17
“ 8................... 53 21
“ 9................... 48 ££ 28
<£ 10................... 42 " 25
“ 11................... 39 “ 30
“ 12................... 34 ££ 20
“ 13...................20 “ 13
“ 14................... 26 . “ 14'
“ 15................... 31 ££ 20
“ 16................... 26 “ 11
“ 17................... 36 “ 10
“ 18........ 53 ££ 35
“ 19........!.......... 60 “ 32

During this cold weather J. W. Leigh, one of the consignees, went to the warehouse to protect the potatoes as appears in his testimony.

The' deposition of Mr. Leigh was offered in evidence by the plaintiff. In it appears the following:

“Q. In what condition were these’ potatoes when they arrived here (Norfolk) ?
“A. I could not.say positively. They arrived at a time when potatoes were not selling, just around the Christmas season, and I had no reason, to suppose there was anything wrong with them, and I do not think I went to look at them just at that time; I am not positive of that. I was making efforts to sell the potatoes, and, as I said, I had no reason to suppose there was anything wrong with them. * * * The cold weather set in, I think, about the 4th, or 5th of January. I got some tarpaulin and put over one lot, and the other lot I do not know whether I could get anything to put over that or not, I think I put some bags over it, the only thing I could get hold of at that time. The weather was very cold, colder than we had experienced for a number of years. I think the river was frozen at the time. I knew the potatoes were frozen as soon as the cold weather came on. I didn’t know to what extent, as I couldn’t tell that until the weather moderated. When the weather moderates frozen potatoes start running water.
“Q. Did you make every effort to try to sell the potatoes in the meantime?
“A. Yes.
“Q. Why were you not successful?
“A. The produce trade were not buying potatoes at, that time. It was during the holiday season, and trade were buying holiday goods. * * * I don’t recall the day I went down to the dock and took the precautions I have testified to, I don’t recall the date, but it was when the weather seemed cold enough to require it. I was familiar with the location of the dock, and was there a number of times. I knew the sort of warehouse it was, and the facilities that the steamboat people had for storage. I may have received additional notices from the company of the shipments and a request to receipt for them and remove them. * * * I made no protest to the Baltimore Steam Packet Company, as I remember, concerning the location of these potatoes in their warehouse. So far as I could see one part of the warehouse was as good as another.
“Q. If you had disposed to do so, could you have removed these shipments at any time after their arrival in Norfolk by payment of the freight?
“A. Yes, if I had a place for them.
“Q. But having no place for them, and having no sale for them, you allowed them to remain there until you could sell them late in January?
“A. Yes.”

The case of the United Fruit Co. v. Transportation Co., 8 L. R. A. (N. S.) 240, 104 Md. 567, 65 Atl. 415, 10 Am. & Eng. Ann. Cas. 437, is one in which, various questions involved in the case before us are discussed. In the opinion appears the following:

“There is a decided conflict in the authorities as to when the carrier’s liability as such ceases and its liability as warehouseman only begins. One class of cases adopts what is known as the ‘Massachusetts rule,’ while another class of cases follows what is called the ‘New Hampshire doctrine.’^ The Massachusetts rule is this: When the transit is ended, and the carrier has placed the goods in his warehouse to await the delivery to the consignee, his liability as carrier is ended also, though no notice is given to the consignee, and he is responsible as warehouseman only. Thomas v. Railroad Corp., 10 Metc. (Mass.) 472 (43 Am. Dec. 444), approved in Norway Plains Co. v. Railroad, 1 Gray (Mass), 263 (61 Am. Dec. 423). This rule has been adopted or followed in Georgia, Illinois, Indiana, Iowa, Missouri, North Carolina, New Jersey, and Pennsylvania. The New Hampshire doctrine holds that the carrier’s liability as insurer continues after the arrival of the goods at their destination and until the consignee has had a reasonable time in which to call for and remove them, and that the carrier is bound to notify the consignee of the arrival of the goods, and that the reasonable time does not begin to run until such notice, where practicable, has been given. Moses v. Railroad, 32 N. H. 523 (64 Am. Dec. "381), where it was said, in commenting on the rule laid down in Norway Plains Co. v. Railroad, supra, that the Massachusetts rule was of ‘a plain, precise and practical character,’ but that ‘by it the salutary and approved principles of the common law are sacrificed to considerations of convenience and expediency.’ The lead of New Hampshire has been followed by the courts of Alabama, California, Connecticut, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, New York, Ohio, Vermont, and Texas. * * * The precise question we are considering does not seem to have been passed on in Maryland. We adopt as the more reasonable view the New Hampshire rule, and the doctrine of the English cases; and this brings us to inquire what is a reasonable time within which, after notice to the consignee of the arrival of the goods, he is required to remove them if he does not wish the liability of the carrier as such to terminate while the goods are still actually undelivered. _ ‘Reasonable time’ has been defined as being such time as would enable one who resided in the vicinity of the place of delivery, and was informed of the probable time of the arrival of the goods and of the course of the carrier’s business, to inspect and remove the goods during business hours. 5 Am. & Eng. Enc. Law (2d Ed.), p. 270, and cases cited in note 3. Thus where the consignee was notified after 10 o’clock Saturday morning of the arrival of his goods, and the day was a very stormy one, it was held that a finding that the following Monday morning was a reasonable time for removal would not be disturbed on appeal. Solomon v. Steamboat Co., 2 Daly (N. Y.), 104. In Lemke v. Railway Co., 39 Wis. 449, where it appeared that the goods arrived at the place of destination on a Saturday evening, and were destroyed by an accidental fire on the Tuesday following, about noon, it was held that the owner had had a reasonable time in which to remove them, and that the company’s liability as insurer had ceased. In the case at bar the goods arrived early on Friday morning, and notice of their arrival was given to the consignee some time before noon of the same day. There was the rest of that day and the whole of the ensuing day, Saturday, during which the consignee could have removed the goods from the wharf of the appellee. That period was a reasonable time within which the consignee could have removed the goods. When the facts are undisputed, the question of what is a reasonable time is one of law. 6 Cyc. p. 455, note 47.”

In that case it was held that a delay of 1% business days after notice to a consignee of the arrival of his goods terminates the liability of the carrier as such. In the notes there is an interesting discussion, citing cases, as to what constitutes reasonable time.

In the case of Stapleton v. Railway Co., 133 Mich. 187, there is a discussion of the duties and liabilities of carriers of goods and of consignees of goods with quotations from many standard authorities. The case is so accessible that we content ourselves by referring to it. One may scan the record of the case before us in vain for any testimony from which the inference may be fairly drawn that the potatoes were frozen previous to the 5th day of January, 1912. At that time one load of them had been in the warehouse to the knowledge of the consignee more than six days, and the other one more than 12 days. It is not believed a case can be found in the books that holds the carrier liable -under such circumstances. As to the Norfolk shipment the trial judge should have directed a verdict in favor of the defendant.

■ We may now consider the shipments made to Pitts-burg. These shipments were made in refrigerator cars in which stoves might have been placed but were not. One of the cars was consigned January 5, 1912. It arrived at Pittsburg January 13th, and the consignees were notified at'once. Some of the potatoes were frozen. The second car was consigned February 28th, and arrived early in the morning of March 9th, and within two hours the consignees were notified.' Some of these potatoes were frozen.

It is the claim of the plaintiff that each of these cars should have reached Pittsburg three days earlier than they did, and that because of the delay the defendant should pay for the frozen potatoes. It is not shown at what time the potatoes were frozen.

In the case of the Michigan Cent. R. Co. v. Burrows, 33 Mich. 6, a claim was made for damages because of the freezing of apples which it was claimed was caused by delay in transportation. In the opinion occurs the following:

“If in the ordinary course of events a certain result usually follows from a given cause, then we may well consider the immediate relation of the one to the other to be established. Cold, freezing weather does not, however, in the ordinary course of events, follow from mere delay; such is not the natural and direct result of the delay. It is true that in certain climates and at certain seasons such an injury would be much more likely to result from delay, while at others there would be not even a possibility of such a result following. It is very evident, therefore, that as we approach the one or the other we must enter upon debatable ground, where it would be very difficult, if not indeed, impossible, to say what the result of a given delay would be. Where fruit is to be carried a long distance, especially in such a country as this, where the climate is so changeable, it would as frequently result that delay would be the cause of averting such an injury as of contributing to it. It may be true that had there been no delay whatever on the part of defendant, the loss would not have happened. The law, however, cannot enter upon an examination of, or inquiry into, all the concurring circumstances which may have assisted in producing the injury, and without which it would not have occurred. To do so would only be to involve the whole matter in utter uncertainty, for when once we leave the direct, and go to seeking after remote causes, we have entered upon an unending sea' of uncertainty, and any conclusion which should be reached would depend more upon conjecture than facts. Lord Bacon said: Tt were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with -the immediate cause, and judgeth of acts by that, without looking to any further degree.’ Bacon’s Maxims. The following cases are so directly -in point, and the reasoning therein so satisfactory, that a reference thereto will render any farther discussion unnecessary: Denny v. Railroad Co., 13 Gray [Mass.], 481 (74 Am. Dec. 645); Railroad Co. v. Reeves, 10 Wall. (U. S.) 176; Morrison v. Davis & Co., 20 Pa. 171 (57 Am. Dec. 695); Hoadley v. Transportation Co., 115 Mass. 304 (15 Am. Rep. 106).”

In the recent case of Lardie & Son v. Railroad Co., 192 Mich. 77 (158 N. W. 31), the defendant was sued to recover damages for the freezing of potatoes. Justice Kuhn, speaking for the court, cited with approval the case of Michigan Cent. R. Co. v. Burrows, supra, and it was held there was no liability. See, also Herring v. Railroad Co., 101 Va. 778 (45 S. E. 322).

In the instant case can it be said with any certainty that if the potatoes had reached Pittsburg within the five days which it is conceded it should have taken to reach there, none of them would have been frozen? We think the answer would have been mere conjecture. Applying the principles stated in the cases cited to the case before us, we think the trial judge should also have directed a verdict as to the Pittsburg shipments in favor of the defendant.

The case is reversed; and, as no different case is likely to be made on a new trial, none will be granted. The appellant will recover costs.

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


author: Steere, J.

text:
    LA DU v. LA DU.
    Divorce — Extreme Cruelty — Evidence—Sueeiciency.
    In a suit by a wife for divorce evidence held, insufficient to warrant a decree in ber favor on tbe ground of extreme cruelty.

    Appeal from Ingham; Collingwood, J.
    Submitted April 5, 1917.
    (Docket No. 51.)
    Decided September 27, 1917.
    Bill by Mabel G. La Du against Bert N. La Du for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Rhoads & Reynolds, for plaintiff.

      C. W. & W. S. Foster, for defendant.

      On relations existing between one spouse and relatives of other as affecting question of desertion or cruelty, see notes in 13 L. R. A. (N. S.) 222; 34 L. R. A. (N. S.) 758; L. R. A. 1915E, 161.
      On the question of failure to support as cruelty in action for divorce, see note in 43 L. R. A. (N. S.) 260.

   Steere, J.

The parties to this suit are husband and wife. Plaintiff filed her bill of complaint in the circuit court of Ingham county in chancery to obtain a divorce from defendant on the grounds of extreme cruelty, failure to properly provide for her, and neglect. Defendant filed an answer of denial and cross-bill, asking a divorce from plaintiff on the ground of extreme cruelty in charging him with extreme cruelty as set out in her bill of complaint, to which she filed answer of denial and reaffirmance of her charges. The testimony was taken in open court, and makes a record of ample proportions. At conclusion of the evidence and submission of the cause, the trial court pronounced it “in many ways a most unusual case,” commented in kindly tenor on the testimony, showing that “both parties are of a high grade of morality and conduct in every way,” offered the suggestion that plaintiff was of such extremely sensitive nature that perhaps the conduct of others caused her pain when not so intended, intimated that the really cruel aspect of the case was destroying their domestic happiness and breaking up their home by permitting petty differences to keep them apart, found that the facts relied upon as ground of divorce did not, as a matter of law, sustain the charges of extreme cruelty made by either, and decreed dismissal of both bill and cross-bill, from which plaintiff has appealed to this court.

Both parties were and are residents of Lansing. They had known each other for about two years prior to their marriage, which took place at the home of her parents on May 5, 1909. Both are shown to be reputable persons, of good families and good character. She is a graduate of the Ypsilanti Normal Conservatory of Music and an accomplished musician. She at times taught music both before and after her marriage. He was and is favorably regarded by his employers and associates as a competent and trustworthy man in the business world, his employment being' in the sales departments of manufacturing institutions. When married he was a traveling man in the employ of the Olds Gas Power Company, earning a fair salary and had saved a few hundred dollars. At the time this case was tried he was in the employ of the Reliance Engineering Company, in charge of engine sales and service work, on a salary of $166 per month. During their married life he, or they together, had acquired household. effects, valued at about $600, their home valued at over $4,600, incumbered by a mortgage of $200, also another house and lot valued at. $2,200, with an incumbrance of $1,200. Title to the real estate was taken and stands in their joint names as tenants by the entireties. They have no children.

Immediately after their marriage they took a trip to California and were gone about three months. On their return they stayed two or three months at her parents’ home, and then settled down to housekeeping by themselves, first in apartments and later'in their home on Pine street. While yet living in the apartments plaintiff passed through a serious illness resulting from childbirth which detrimentally affected her health thereafter. The infant did not survive.

Plaintiff was an only child, and. soon after they settled in their own home on Pine street her parents removed there also, under arrangements then mutually satisfactory to all parties, and remained there near three years. They eventually left because of a growing lack of cordiality between them and defendant, which culminated in a disagreement over the removal of some ashes from the cellar. The probability of some such termination of the two families living in one house is sounded in the testimony of plaintiff’s mother, who stated she had noticed a coolness in defendant’s conduct towards her daughter as early as when the young folks were with them, and felt that he did not really like herself, but she and her husband went at their suggestion, and states:

“For the welfare of my daughter I moved into a house with a man I knew I did not like, or my husband.”

After the parents moved to a separate house plaintiff freely and frequently visited them with the knowledge and consent , of defendant, but said she did not ask him to go with her “because the feeling was so I thought it would not be wise,” although he subsequently bought Christmas presents for her parents and asked her to deliver them, which she stated she did not do because she felt they were not given in a Christmas spirit. That the dislike of her mother for defendant and lack of cordiality between him and her parents put her in a trying position, and became a disturbing factor in this case, seems very manifest, and an examination of the testimony with reference to that feature discloses much- running through the record, confirming the conclusion of the trial court “that from the evidence produced the parties would now be living together if it were not for the interference of the parents of plaintiff.”

On August 21, 1915, plaintiff left her husband and went to her parents, refusing thereafter to return to her own home and him. She left when their relations were apparently pleasant and there was no disagreement or friction. She went with his knowledge and approval, temporarily as he supposed, to visit her mother, as she frequently had done before. They had then recently been on their vacation, taking an automobile trip north with some friends to Clifford Lake. Plaintiff testified that during this trip they had an enjoyable time, and everything was pleasant between herself and defendant; that the evening of the day following their return she gave a dinner for the party, at which everybody seemed to have a good time and defendant was agreeable. This was the week of his summer vacation, and he was free to remain at home. She states:

“That week he was helping I think about the house a little, a little more than usual, because he had the time.”

The morning following this dinner she was not feeling well, but wanted to do some ironing, and defendant remained around the house assisting her. In the afternoon they attended the theater together at his suggestion. She complained of not feeling well during the performance, and at its conclusion expressed her intention of going to her mother’s. He testifies that he told her, when she complained of feeling unwell, that he—

“would be glad to go with her and look after her and get medicine, and she said she thought she had better go down home; that is, to her mother’s.”

This she does not deny. He accompanied her to the street car. She testified that when she left him she promised to call him up later, which she did, telling him she was not feeling any better, and would stay at her parents’ that night, to which he answered, “All right, stay; it is all right with me;” and requested her to call him up again in the morning, but she was unable to do so, owing to her condition. Not hearing from Ms wife the next morning as he expected, defendant attempted to call her up. He testified that the call was answered by her father, who replied with a brief negative to the inquiry if she could come to the phone, and, when asked why not, answered she was sick, apparently then hanging up the receiver, as defendant could get no further response; that subsequent calls by him upon that day and the next were answered by the mother, who replied briefly to his inquiries and offers of service that his wife was ill, but had good care, and there was nothing desired of him. In answer to his question she told what physician had attended plaintiff. Asking again that he be called if there was anything he could do, defendant thereafter interviewed the physician as to his wife’s condition, and enlisted a mutual friend to make inquiries for him by telephone, but for a time refrained from personally calling; deterred, as he claimed, by the fact that his efforts were rebuffed and Ms offers rejected by her parents at whose house he was persona, non grata. Plaintiff remained ill at her parents’ home for a time, seriously as she states, the doctor diagnosing her case as scarlet fever on his first call, owing to her being broken out, but on the next visit he said to her:

“No, you have no more scarlet fever than I have; it is broken down nerves, you have all gone to pieces.”

One of her charges of extreme cruelty is defendant’s neglect of her during this illness. It is undisputed that he was solicitous as to her and with offers of assistance tried to keep in touch with her, telephoning from time to time and, eventually, calling at the house, more than once. The number of times he called and manner in which he was received is not made clear, but she testified on cross-examination that he called and saw her once while she was ill, kissed her when he came into the room, asked when she was coming home, requested her to call him up the first time she was down stairs, relating the conclusion and sequence of the interview as follows:

“He said, Ts there anything you want?’ I said, ‘No.’ He said, Ts there anything you want, anything I can do; call me up or let me know’ — something of that sort, and he left me. * * * When he came to see me that day I said, T expected you to see me before, Bert.’ He said he did not know whether to come or not. Then I called him over the telephone again— no, he called me over the telephone, and said I had not called him as I said I would. T told him no, I did not call him because I felt if he was really interested he would call me or let me know he was interested in some way, and that was about all our conversation amounted to over the telephone.”

That evening, as she states, she wrote him “a nice long. letter,” of which she kept a copy, detailing in graphic and far from complimentary terms his shortcomings and her grievances as she saw them, at the conclusion of which she informed him she felt she had “come to the end of the road. Our paths must part, we must go in different directions.”

This he did not answer, traverse, or deny to her, but in a conversation over the telephone admitted in reply to her inquiry that he had received it, and said he was surprised. She states that the next time she saw him after sending the letter they met in the post office and had a short conversation, in which he told her it was hard for him to be alone, and he wished she would come home. Her letter was written on September 3d and on September 25th this suit was begun. Defendant, however, continued his efforts to induce his wife to return to him, finally seeking the intervention of mutual friends and relatives of hers, including her uncle, who had known both of them for years and her since childhood, and the pastor of the church which she attended. Several of these parties, undisputedly old friends and well-wishers of both, apparently actuated by no sinister motives, some of whom were not even cross-examined, testify to her telling them she had no ground for divorce, that she desired to return to her husband and home, and would do so but for the objection of her parents, particularly her mother. Their testimony to that effect is emphatic and convincing. His efforts were partially successful, and they met by appointment at the home of a cousin of plaintiff, where they visited together with manifestations of mutual affection, reconciled their misunderstandings, and it was agreed that she would return to him. They arranged for her to join him soon in their own home, and that the first Sunday after they resumed living together her father and mother should be invited over to dine with them, and defendant would then propose, as she states, “that bygones be bygones.” They separated with expressions of endearment, and she returned temporarily, as was then understood, to her parents, but for reasons upon which the testimony is at variance, the arrangement was not carried out, and this suit was thereafter pressed. This failure to consummate their reconciliation, or the intervention of her parents in opposition to it, are only material and competent to consider here to the extent her then conduct and admissions bear upon her subsequent testimony. /

Many of plaintiff’s charges of cruelty range in a field of delicate consideration and sentiment beyond the commonly recognized scope of legal' relief. In that aspect it may be conceded that as to certain of the amenities they tend to relegate defendant to that unfortunate but not uncommon type of husbands who fail to rise to the prenuptial ideals of their wives. She tells of noting a change in his demeanor after marriage, and of her first awakening to this reality, while they were yet living at her parents’, in the following incident:

“Mr. La Du suggested that we go out for a walk one evening, and he said to me — it had been raining —and he said I had better wear my rubbers. I said ‘All right, will you kindly bring them to me?’ And he seemed very much surprised, and said, ‘Why, can’t you wait upon yourself?’ I said, ‘Yes, I can,’ and I went and got my rubbers. It was a small matter, but it hurt me very much because Mr. La Du had been very kind and wanted to do everything he could for me until that time. It was quite a shock to me and hurt me very much. * * * That was what I call my first disappointment.”

Other incidents of somewhat similar bearing are related by her as showing neglect and lack of affection. She, however, acquits defendant of most of the more glaring and familiar acts of extreme cruelty with which the courts are accustomed to deal, testifying of him on cross-examination in part as follows:

“Mr. La Du was not given to drinking to excess, nor gambling to my knowledge, nor swearing, nor cursing at me. He did not strike me. He did not threaten to strike me. He did not choke me. * * * He was not a dead beat. He always tried to pay his bills. * * * Mr. La Du helped me about the house with the housework. He wiped the dishes for me sometimes. I do not know that he ever washed the dishes. Once in a while he turned the wringer while washing the clothes. I did not have to ask him; he was very kind. He did not volunteer much after we left the flat while I was in a delicate condition. He was very kind to help me, while we were living in the flat and while I was in my delicate condition. I would say that Mr. La Du did all he could to help me. He could have used more affection and helped me that way. I never required him to do the housework. I expected to take care of that part myself. * * * Mr. La Du always kissed me when he left the house, because I expected it. Sometimes it lacked affection, but he always went through the form. In my mind it was not done in the proper spirit.”

She defined her grounds for divorce as follows:

“Specifically that cruelty consists in his failure to treat me nicely and affectionately, and at times he treated me crossly, and his financial failure to provide for me as stated here in my testimony.”

Her general charge of financial failure to provide for her is not borne out by the record. His earnings are shown to have been fairly devoted to their family finances and payment on property taken in both their names. He first bought in their joint names a pleasant home, which was comfortably furnished, where they lived until she left him. While together they had an account with a leading grocer, upon which she could order as she saw fit. They had a joint bank account, upon which she could draw at any time. That she was a capable housekeeper, made their home attractive, and managed their household affairs economically is not questioned. She was equally interested with him in their joint prosperity, and while living together each evidently had confidence in and co-operated with the other for their common welfare. The following statement by defendant as to their financial affairs is fairly sustained by the record and supported by her testimony in many particulars:

_ “I was not laying aside any savings account of any kind, any money unknown to her, in which she did not have a share. She and I were on the same basis so far as family finances were concerned. We have had a joint bank account in which both our names were good at the bank practically ever since we were married. It was the State Savings Bank. There was always a balance there. Sometimes large, and sometimes small. It was never overdrawn. Mrs. La Du was at liberty to draw checks on that account. The bank was informed her signature was good. It was never refused that I know of. She drew checks on account. We usually had one check book, and sometimes I had the check book and sometimes it was home. When I was away from home it was always left home. * * * I never refused her money or a check when I had it.”

It was shown that she drew numerous checks on this account for a variety of proper purposes in connection with their family expenses, including butcher, light, and fuel bills, decorating, repairs, building and loan payments, books, wearing apparel for herself, etc. She admits there was no limit to the amount she could order on the grocery account, and her husband did not limit her on the amount she could spend for clothes, but states he would sometimes ask her, “Do you have to pay that much for it?” which naturally offended her.

The charge is made in her bill that defendant neglected and refused to provide her necessary and proper medical attendance at the time of her confinement and later. If fairly put in issue by conflicting testimony, this would call for most serious consideration, but the farthest her testimony suggests in that direction is lack of proper manifestations of sympathy and solicitude for her, which he strenuously denies. It appears from her own testimony that at the time of her serious illness during confinement she was provided with two trained nurses, and three physicians attended her. Of this she says:

“During my confinement I think he did all that was expected at that time. He did not neglect or refuse to provide médical attendance.”

But she claims that he was indifferent about and neglected to provide for a subsequent surgical operation, which the physicians advised, to relieve her of conditions resulting from her confinement. The operation was not performed, and their testimony is at variance as to defendant’s active interest in providing for, or favoring it, but the physician she at one time expressed a preference for testified that defendant consulted him regarding the matter; that an examination was held and arrangements were made for him to perform an operation, and Mr. La Du seemed quite anxious to have it, but it was not carried out, and witness did not know why. Defendant testified that he had raised money on his life insurance, and told his wife she could then have the operation if she desired. This she does not deny, and admits she was at that time relying on Christian Science, saying:

“I thought if I could make it do it would save expense. * * * Immediately after the examination by Dr. Russell when the subject of operation was up I began to take Christian Science treatments to relieve myself.”

We find no occasion to disagree with the, findings and conclusion of the trial court that, eliminating from consideration defendant's evidence, plaintiff has failed to prima jucie present such a case of extreme cruelty and failure to provide as charged in her bill, or recognized by the courts as constituting legal ground for divorce.

Defendant has not appealed from dismissal of his cross-bill. His only indicated grievance against his wife is the charges which she made against him and her refusal to return to him, which are not now .here for review or consideration beyond their connection with her demand for divorce.

The decree is affirmed, without costs.

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


author: . Steere, J.

text:
    LIEBETREU v. LIEBETREU.
    1. Homesteads — Abandonment by Wife — Evidence—Sufficiency.
    Evidence held, insufficient to show an abandonment of the homestead by the wife of the owner during the husband’s lifetime.
    2. Same — Land Contracts — Specific Performance — Evidence— Sufficiency.
    Evidence held, insufficient to establish an oral contract for the sale of a portion of the homestead, which could be enforced by decree for specific performance.

    Appeal from Wayne; Perkins, J., presiding.
    Submitted April 5, 1917.
    (Docket No. 40.)
    Decided September 27, 1917.
    Bill by Wilhelmina Liebetreu and others against Anna M. Liebetreu and others for the partition of certain real estate. Defendants filed an answer in the nature of a cross-bill for the specific performance of a land contract. From a decree for defendants, plaintiffs appeal.
    Reversed.

      Silas E. Champe, for plaintiffs.

      Lloyd L. Axford, Henry W. Axford and Max Hulett, for defendants.

      On conveyance of homestead by husband after abandonment by wife, see notes in 8 L. R. A. (N. S.) 565; L. R. A. 1915D, 551.
      As to power of husband without wife’s consent to abandon homestead or to convey the premises by his sole deed after abandonment, see note in 37 L. R. A. (N. S.) 807.
      As to validity of conveyance or incumbrance of homestead by wife after abandonment by husband, see note in 36 L. R. A. (N. S.) 1024.

   . Steere, J.

This suit was begun by a bill for partition of lot 18 in Weitzel’s subdivision of the city of Detroit, between the heirs of "August Herman Liebetreu, who died intestate on December 16, 1911, seised in fee of the property, which had been his home for many years. The lot lies on the west side of Eighteenth street, with a frontage of 50 feet, extending back that width for 150 feet. The serious matter in difference between these parties is, however, the title to the southerly 22.2 feet of said lot, claimed by defendants under an oral contract of purchase, accompanied by possession. Plaintiffs are the widow, Wilhelmina, and the two living children of August, while defendants are the widow and minor child of his deceased son, Ernest.

August Herman, the deceased, bought this lot in 1873. It was thereafter the home of himself and family for many years. Just when he moved upon it, and its condition at that time, are left by the record to conjecture; but the dwelling house upon the lot, called by witnesses “the old homestead,” which he, with .members of his family, all or part of them, occupied until he died, was located on the north 27.8 feet of the lot, and a small building, called a “shanty,” was located in later years upon a portion of the remaining southerly 22.2 feet. An old acquaintance of deceased testified that the latter first lived on the lot in a shanty, and then moved it over on the other side of the lot. While the ages of members of the family and the dates of many events testified to áre not given, it is shown that August and his wife had three children, Selma, Albert, and Ernest, who were all living, of mature years, and had married when the father died. A sister-in-law of Ernest ventured the belief that he was married about two years before 1910. Selma and Albert had married and gone to homes of their own long before — just when is left to inference; but Selma, who it was claimed separated from her husband, returned with four children to live with the old folks about the time Ernest married, and Albert’s wife died in November, 1909, when the mother, Wilhelmina, went' and stayed at his home to help him out, as he states, “so I would not be alone.” When Ernest was married, he took his wife to his father’s home, where they remained about two months, and then moved into the “shanty,” where they remained for a time, and about April, 1910, he moved the shanty to the back of the lot and purchased a house, which he placed on the south 22.2 feet, making water and sewer connections, etc., and occupied it as his home thereafter; defendants continuing to live there following his death.

Selma, who was administratrix of her father’s estate, demanded rent of defendant Anna, or payment of interest on a note for $1,500 which Ernest had given his mother, and trouble developed, which led to this bill for partition. Answers were filed by and in behalf of defendants, with cross-bills, asking specific performance by plaintiffs, as August’s heirs, of a claimed oral land contract, defined in their cross-bills as follows:

“That prior to the 1st day of January, 1910, the said August Herman Liebetreu and Wilhelmina Liebetreu were seised in fee simple of the lands described in paragraph 1 of complainant’s bill, and occupied the northerly 27.80 feet thereof; that on or about January 1, 1910, the said August Herman Liebetreu and Wilhelmina Liebetreu agreed to and with the said Ernest Liebetreu, their son, now deceased, that if he the said Ernest Liebetreu would improve the southerly 22.20 feet of said premises with a dwelling house, and use and occupy the same for a home for himself, they would convey the premises last above described to said Ernest Liebetreu; that pursuant to such agreement the said August Herman Liebetreu delivered possession of said premises last above described to said Ernest Liebetreu, and on or about April 1, 1910, the said Ernest Liebetreu purchased a dwelling house and caused the same to be moved upon the premises last above described, and connected the same with city water and sewer, and from that time to the time of his death used and occupied the same as a home for himself, this defendant, the said Ervin Ernest Liebetreu, and Anna M. Liebetreu, and since the death of said Ernest Liebetreu this defendant has been in possession of said premises, claiming to own the same in behalf of himself and the said Anna Liebetreu as heirs at law of said Ernest Liebetreu, deceased.”

Full performance on the part of Ernest at an expenditure of about $1,800, and continuous possession of the premises, were- alleged. Pleadings were completed by answers to the cross-bills and replications. Upon the record evidence of August’s title in fee absolute and the unquestioned kinship shown, the title passed upon his death to his surviving wife and three children, as the probate court found and assigned — a one-third, or three-ninths, to the widow, Wilhelmina, and two-ninths each to the children, Selma, Albert, and Ernest.

To prove this oral contract of sale of the part of lot 18 claimed by defendants, they called three witnesses to admissions of deceased, whose testimony, to that point, is as follows: ,

Frank Drezen, who connected the house Ernest moved upon the lot with the public sewer, testified that when he got it dug he called the old gentleman over to see the job, and he replied:

“Frank, I know nothing about that; it don’t belong to me; it belongs to Ernest. He will pay you.”

Michael Schultz, an old acquaintance, who once worked for deceased, told where Ernest’s house was located, and said:

“Ernest’s father told me he had given Ernest that lot.”

Augustus Steppke testified that once, after lunch, he talked with deceased about different things, and in the conversation the latter said of the property where Ernest’s house stood:

“This don’t belong to me; it belongs to my son. He bought the house and lifted it over to this lot, and he is going to fix it up to suit himself. I have nothing to do with it.”

The testimony of two of these witnesses indicates the house and its improvements constituted the subject of discussion, rather than the ownership of the land. Schultz’s testimony tends to prove a consummated gift, rather than a contract to convey, and the record is totally barren of any testimony connecting Wilhelmina, deceased’s wife, with the alleged oral agreement of January 1, 1910, or one of any other date. Concededly, if this lot was the homestead of deceased and his wife, any contract, to which she was not a party, made by him to sell and convey all, or any portion, of it, was of no validity.

In avoidance of this, it is claimed that lot 18 was not her homestead at that time, because she had left her husband on January 1, 1910, having gone in November, 1909, to live with Albert, where she made her home until her husband died. We see little force in this. There is no evidence that she went contrary to her husband’s wishes, or without his consent. Their daughter had returned home with her children, and remained with her father. Albert’s wife had died, and she went and stayed with him, as he testifies, “to help me out, so I would not be alone. She returned to her home frequently. She went home every week.” A neighbor, named Elizabeth Blazer, testified that the relations between the old people were friendly; that Mrs. Liebetreu lived with Albert, and visited her home about every week; that she was an old lady, and it was hard for her to walk that distance, and “she told me her son needed somebody to live with him, and she might as well go, because her daughter and children were at her home with the father, were living to home, I and he would not be alone.” Even though there was[ friction in the family, as is intimated, and she preferred to be with their son, the circumstances shown negative the proposition that she had abandoned their homestead, or surrendered any of her rights as a wife. Ernest paid his father nothing for the land he occupied, so far as is disclosed, and paid mrtaxes upon any portion of lot 18, either before or after his father’s death, for the lot was always taxed in its entirety, and the taxes paid by August or his estate. Their intentions and expectations as to a sale or donation of a portion of the old homestead lot, to which the mother was not a party, even though Ernest relied and acted upon them, falls far short of a legal contract for the sale of real estate which can be inforced by a decree for specific performance.

At the conclusion of the evidence the trial judge announced the following conclusion as to defendants’ claim of title:

“I don’t believe there is any testimony here which would justify the court in finding as a matter of fact that there was a contract for the transfer of this property. The parties who were living there as a family had held this one lot, and they were all trying to make the best use of it they could, and they were doing pretty successfully I should imagine; each member of the family was using the lot in such, a way as to get the best out of it.”

Other features of the case were discussed by the court, and counsel were told:

“I think you may prepare a decree to that effect, along the lines of this announcement.”

It was also then suggested by the court that each counsel prepare a statement showing what defendants’ share in lot 18 would be in case specific performance were decreed, and what it would be in case specific performance was denied, and an order entered for partition, giving defendants credit for improvements made by Ernest. These were furnished. Plaintiffs then conceded, and now concede, that under the ruling in Fenton v. Miller, 116 Mich. 45 (74 N. W. 384, 72 Am. St. Rep. 502), defendants are entitled to the value of the improvements, amounting to “about” $1,800, made by Ernest in connection with the house he moved on the lot, less any insurance, rent, taxes, etc., not paid by him, which it is claimed should be deducted from the same. Later the court delivered another oral opinion, radically modifying that previously announced, followed by a decree granting defendants specific performance of the claimed oral land contract, ordering the northerly 28.8 feet of the old homestead sold, and, after paying costs, expenses, etc., that the proceeds be divided — 15/27 to Albert, 6/27 to Selma, 2/27 to Anna, Ernest’s widow, and 4/27 to his minor son, Ervin Ernest. It was shown at the hearing that the mother, Wilhelmina, had died on May 19, 1915, after this bill was filed, and it may have been conceded, although the record does not so disclose, that she left her estate to Albert.

As before intimated, we cannot conclude that defendants have sustained the burden of proof required to establish an oral contract for the sale of land, which can be enforced by decree for specific performance, and that, when August Liebetreu died intestate, seised of said lot 18, it was inherited by his heirs named, and in the proportions named, by the probate court. Apparently the property is such that its partition amongst the heirs is impractical, and it should be ordered sold as asked by plaintiffs. That Ernest’s heirs are entitled to credit for the approximately $1,800 improvements made upon the property, less proper countercharges, under Fenton v. Miller, supra, is conceded.

As stated in the briefs of counsel, the primary object of this appeal is a final adjudication upon the title to the southerly 22.2 feet of said lot 18. While details of an accounting between the parties are argued and their determination asked, we are impressed, from the tenor of counsel’s briefs, that, with the question of title out of the way, counsel will adjust most of them, if their clients permit, and where any substantial disagreements arise the matter should first be presented, to the trial court, under conditions as they then exist. The record is not such that this court can now understandingly and satisfactorily decree as to details.

The decree of the lower court is therefore reversed,, with costs to plaintiffs, and a decree may be entered here as above indicated, authorizing either party to apply to the trial court for such further proceedings in harmony with this opinion as they may be advised.

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


text:
      In re FAY’S ESTATE. FAY v. MOST.
    1. Wills — Mental Incompetency — Undue Influence — Burden of Proof.
    In will contests the burden of proving mental incompetency, as well as undue influence, rests upon the contestant.
    2. Same — Competency—Evidence—Sufficiency.
    In a will contest evidence held, sufficient to show mental competency of testator.
    3. Same — Undue Influence — Character of Proof — Evidence— Circumstantial Evidence — Sufficiency.
    Undue influence may be shown by indirect and circumstantial evidence, but it must be evidence of probative force beyond mere suspicion.

      4. Same — Undue Influence — What Constitutes.
    The test of the exercise of undue influence upon a testator is whether his free agency is destroyed and he acts under such coercion, compulsion, or constraint that the will does not truly proceed from him.
    5. Same — Testamentary Capacity — Right of Testator.
    Where a testator is of testamentary capacity, he has an absolute right to dispose of his estate as he chooses, even to the total exclusion of his heirs, or to give it to any one of them whom he prefers.
    6. Same — Undue Influence — Evidence—Sufficiency.
    The fact that a testator left more property to his son, who lived near him and with whom he had been in closer relations for many years, or that he left more to his four grandsons than to both his son and daughter, is not evidence of undue influence.
    7. Same.
    The unfriendly and rude conduct of a preferred son and his wife towards a sister in connection with their father’s sickness and funeral, or failure to notify her of the probation of his estate, has no legal probative force to establish the fact that the will of deceased, executed years before, was the result of undue influence.
    8. Same.
    That after making his will testator continued to visit his daughter, to whom he had given very little of his property in his will, manifested the same regard for her, or assured her that she was well provided for in the will which he had made, does not raise any inference that he was unduly influenced in making it.
    9. Same.
    Declarations of a testator as to whether a preferred son asked testator to make a will are inadmissible to show undue influence.
    10. Same.
    Undue influence on a testator will not be inferred from opportunity.
    11. Same — Testamentary Capacity — Undue' Influence — Mental Competency — Evidence—Admissibility.
    In a will contest, as bearing upon the questions of testamentary capacity and undue influence based on senile decay, a liberal latitude of inquiry touching testator’s domestic relations, peculiarities, habits of life, likes and dislikes, power to hold continuous conversations, statements showing condition of mind, etc., are admissible.

    12. Same.
    In a will contest the rejection of evidence of a conversation with a child that a preferred son asked testator about making a will and as to how testator came to talk with witness about the matter, was harmless error in view of convincing and undisputed evidence as to testator’s mentality and state of mind at the time he made the will and evidence of capacity before and after making the will.
    Error to Lapeer; Williams, J.
    Submitted April 13, 1917.
    (Docket No. 25.)
    Decided September 27, 1917.
    Stephen Fay presented for probate the last will of Thomas Fay, deceased. The will was allowed, and Nellie Most appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.

      Florian, Moore & Wilson (Benjamin F. Reed, of counsel), for appellant.

      Elmer Shumar and Tiieo. D. Halpin, for appellee.

      On effect of unnatural testamentary disposition on the question of undue influence, see notes in 6 L. R. A. (N. S.) 202; 22 L. R. A. (N. S.) 1024.

   Steere, J.

Thomas Fay, whose will is the subject of this litigation, died on August 28, 1915, at the home of his son Stephen Fay in Goodland township, Lapeer county, Mich. He was then nearly 79 years of age, and his surviving heirs who would inherit his estate had he died intestate were his son Stephen, aged 53, with whom he had resided during most of the time since the death of his wife in 1909, and the contestant Nellie Most, a married daughter 49 years of age, then living in Highland Park,village adjacent to Detroit.

Deceased was a farmer during his active years and an early settler in Goodland township, where he had resided for about 60 years, having in 1855.purchased and established his home upon an 80 acres of land in that territory which is now part of his estate. As he was able and opportunity arose he made subsequent additions to his real estate until at the time of his demise he owned 260 acres of land. His estate, consisting mainly of farm land in Goodland township, is indicated to have a value somewhere between $17,000 and $20,000. His personal property, including deposits in bank, is approximated at $2,000. He left a will dated April 25, 1911, with a codicil attested August 14, 1914. Aside from the formal parts and customary provisions for an executor, payment of funeral expenses, just debts, etc., it disposes of his estate as follows:

“Third. I give, devise and bequeath to my son, Stephen Fay, the use and income of all my real estate during the term of his natural life.
“Fourth. I give, devise and bequeath to my grandsons, Laverne and Stephen Fay, Jr., equally, share and share alike, the east half of the west half of the northwest quarter of section eleven, town eight north, range twelve east, subject to life use thereof to Stephen Fay, my son, as mentioned in paragraph three.
“Fifth. I give, devise and bequeath to my two grandsons, Marcus Fay and Orlie Fay, equally, share and share alike, the rest and residue of my real estate subject to life use thereof of Stephen Fay, my son as above mentioned.
“Sixth. As a further consideration of the bequest of use and income of my real estate to my son, Stephen Fay, he is to pay my daughter, Nellie Most, the sum of six hundred dollars within one year after my death, or before that time at his option.
“Seventh. I give, devise and bequeath to my two grandsons, Laverne Fay and Stephen Fay, Jr., all personal property of every name and nature to be divided equally between them share and share alike.”

The added codicil of 1914 is as follows:

“Thomas Fay, of Goodland, Lapeer county, Michigan, being of full age and sound mind, do hereby make and execute the following codicil to foregoing will: In paragraph seven, I give, devise and bequeath to my grandsons, Láveme and Stephen Fay, Jr., all personal property of which I die seised, I hereby revoke this paragraph wholly and after payment of my just debts and funeral expenses from ‘personal,’ I give devise and bequeath residue of same to my son, Stephen Fay, of Goodland, Michigan.”

Both will and codicil were executed in compliance with statutory requirements, in the presence of two witnesses who signed the attesting clauses as such at his request, in his presence and in the presence of each other. Both were prepared at his request and on his initiative by the cashier of the Lapeer County Bank with whom he had been acquainted and done business for many years. When executed he left the will at the bank for safe-keeping, and also after the codicil was added.

The will and codicil were probated in the probate court of Lapeer county on petition of the son, Stephen Fay, and allowed as the last will and testament of deceased by an order in usual form dated October 11, 1915. Personal notice of the hearing was not served on the daughter, Nellie Most, and she was not present or represented in the probate court when the matter was heard. She thereafter took an appeal from the order probating the will to the circuit court of Lapeer county where on trial by jury the order of the probate court was affirmed and the will sustained.

Aside from certain technical objections which are not seriously pressed here and need not be discussed, the more important grounds of contest urged against the validity of the will in the trial court, and to which the testimony was chiefly directed, were undue influence and unsoundness of mind, or lack of testamentary capacity. Many witnesses were called and examined along that line of inquiry.

The trial court submitted contestant’s claim of deceased’s mental unsoundness and lack of testamentary-capacity to the jury, under fair and full instructions upon that issue, but held as a conclusion of law that there was no competent evidence of undue influence to carry the contention to the jury, and refused to submit it as an issue of fact for their determination. This refusal and rulings of the court adverse to certain questions of contestant, which it is claimed excluded a line of competent testimony tending to show undue influence, are the questions most strenuously urged and worthy of consideration.

Deceased was a native of Ireland, coming to America when a boy. He was possessed of an inquiring and active mind. After he had married and settled in Goodland township he gradually prospered as a successful and thrifty farmer. He is described by his neighbors as a man of business ability within the range of his calling, intelligent, well-informed, positive in his opinions, and with a marked individuality. His strength of character,' independence, and intelligence when in possession of his normal faculties are not questioned; the issue being directed to claimed mental decadence during the closing years of his life, which contestant dates from the death of his wife in 1909, saying, “I don’t think he was ever right after mother died.”

Deceased’s characteristics as noted and described by old neighbors and other acquaintances of long standing mark him as a vigorous minded man, a reader, and apparently well informed, independent, and positive in his views, disposed to form his own conclusions, and given to stoutly contending for them when questioned, especially upon religious matters and construction of the Scriptures, in which he was actively interested. He was a prompt and regular attendant at the country church in his neighborhood, and it is related that during the services he sometimes expressed approval of the doctrine preached with a loud “amen,” while at other times he manifested disapproval in a manner which attracted attention. An old neighbor who was in the same Sunday school class with him for years said:

“He was a very logical reasoner and quoted more Scripture than most any other person in the class; * * * he was quite set in his ways.”

This witness states that he observed no signs of forgetfulness or failing mentality, and up to the time he removed from the neighborhood in December, 1911, deceased remained the same in mind, manner, and church activities.

His relations with his two children were always friendly so far as shown, both before and after they married and left his home, although the drift of their lives in later years brought him in closer association with his son than with his daughter. The only disclosed unpleasantness in any of their family relations was some ill feeling of long standing between contestant and Stephen’s wife, and perhaps for a time with other members of the family, which Stephen’s wife states had its origin when “the difficulty arose concerning my character.” The circumstances of this affair are not shown, and it is only mentioned by her in vindication of her rude and discourteous conduct towards contestant when she called to inquire for her father the summer before he died. That the two women were not on visiting terms and avoided each other so far as possible is made plain, but the relations of deceased with his children and their families, and of his two children with each other, were apparently friendly.

Stephen stuck to the calling at which he was raised, remaining at home and working on his father’s farm until some time after his marriage, when he bought a 40 acres within 100 rods of his parents’ home, and, after repairing some old buildings upon it, established his home there, subsequently adding to his hbldings an adjoining 40 acres. He thereafter made that 80-acre farm his home, where he permanently resided with his wife and children in close proximity to and association with his parents as long as they lived.

The daughter, Nellie, married and left the neighborhood, at what time and age is not shown, but she makes mention of her father paying off a mortgage of between $400 and $500 on her place “soon after the death of my husband, Mr. Sommerville,” and had been married over 12 years to her subsequent husband, Mr. Most, a contractor, with whom she was living at Highland Park, apparently in good circumstances when her father died.

Stephen, who remained with or near his father all his life, was helpful to him, and had from boyhood until his father’s death worked more or less upon the farm which deceased left to Stephen’s sons. He continued to work for his father for a time after he was married, and later worked the place on shares, assisted by his boys as they grew up. He is described as an industrious and competent farmer, and his boys are said to be steady, industrious, and good workers. They remained with their parents after they grew up, and followed farming, working from time to time on their grandfather’s farm. The substance of the undisputed testimony of numerous witnesses of that community as to Stephen standing by his father is summed up by one of them as follows:

“Stephen Fay helped to make that farm a good farm. He worked there ever since he was a boy. As long as Thomas Fay lived on his own farm he did his own business, and Stephen went ahead with the work.”

Stephen was working his father’s farm on shares when his mother died. After her death testator went to live with. Stephen. He then sold his stock and other personal farm property and rented his place to Stephen for $150 per year and the taxes. His years of business activity were then over and his old home broken up by the death of his wife, whom it is said he greatly missed and mourned. He had an abundance at his command in his own name to use as he saw fit, was free to go where and able to live as he chose. He preferred to make his home with Stephen in the community where he had lived so many years, near his old home, where he had raised his family and where his wife of half a century had died. He went and came as he was inclined, going at times to visit his daughter Nellie, where he was welcome and remained so long as he cared to, first at Brown City, where she resided with her husband until the spring of 1912, and later at their home in Highland Park. He first visited them and stayed for a time during the winter following his wife’s death in 1909, and the last visit he made them was at Highland Park in 1914, when he remained about two weeks and went home alone by train. The Thanksgiving before contestant left Brown City he went to her home and remained until the February following. He had then already made the will in controversy here, so far as it related to her. The subsequent codicil was only to make a change of the interests in that portion of his estate left to Stephen and his sons.

After deceased had made his home with his son for near a year and a half, in the meantime visiting his daughter’s home as often as he wished, he went, on April 25, 1911, alone and without the knowledge or solicitation of any member of his family, as they all testify, to the Lapeer County Bank, at Imlay City, of which he then was and had been a customer for many years, and requested its cashier, John Boland, Jr., whom he had known for 37 years, to make his will for him. This being assented to, he related how he desired to dispose of his estate, of which Boland made a memorandum in writing. From this he prepared the will as dictated by testator. John Boland, Sr., an old gentleman who had known deceased for 50 years, and describes him as "always quite positive,” was present at the bank, and with his son witnessed deceased’s execution of the will at testator’s request. After he had executed the instrument he left it at the bank with the cashier for safe-keeping. In 1914 he again went to the bank alone, and requested the cashier to make the change for him in his will appearing in the codicil, which he executed after it was prepared as he desired and read over to him, again leaving the instrument there for safe-keeping. A clerk in the bank who knew deceased acted as one of the witnesses on that occasion. These three ■ witnesses to the instrument, who knew deceased well and long, testified positively that on both occasions he came alone, to all appearances was in full possession of his mental faculties, knew and told what property he had and how he wanted to leave it, and that there was nothing in his manner or appearance to indicate he was disturbed in mind, acting under undue influence or on the suggestion of any one else. The cashier who drew the instrument testified:

"I did not at any time obtain any of the information that enabled me to draw the will and codicil from any other person than Thomas Fay.”

Deceased survived his wife about 6 years, and lived over 4% years after he had made this will, which remained in the bank, unchanged as to contestant. The principal part of his-estate, consisting of realty, he left to his four grandsons, burdened with a life estate to their father. They perpetuated the pioneer family name in that locality-to the third generation, and had grown up under testator’s observation; were industrious young men who had remained at home in the commuixity where they were raised to follow the calling of their father and grandfather. With his son and daughter otherwise comfortably provided for, it was not a strange or unnatural thing under such circumstances for him to make these grandsons the chief objects of his bounty and provide that his old homestead and land holdings should ultimately be theirs.

The testimony of claimant and certain of her witnesses was to the effect that after his wife died testator aged rapidly, and manifested evidence of senile dementia; that he became childish, forgetful, and irritable, at times manifesting his mental weakness by crying, talking to himself, failing to recognize those whom he knew well, etc., his mind being enfeebled to such an extent that in their opinion he was not capable of recalling what property he owned or who his heirs were, nor of independently deciding upon, dictating, or understanding the nature and contents of his will. While proponent testified and introduced evidence by many witnesses, old neighbors and long acquaintances, who knew and saw him frequently after his wife’s death, to the effect that until near the time of his own death his mind was active and his mental faculties well preserved; that he retained his interest in current events, was able to discuss intelligently his busixxess affairs and the various subjects which interested him, asserting as positive views as formerly, and was, in their opinion, capable of independently exercising his judgment in the disposition of his property by will, with full knowledge of what he possessed and who his lawful heirs were, and to dictate the same without prompting or suggestion.

The jury found against contestant oh the issue of mental incompetence, and their verdict is supported by an abundance of convincing testimony, given by many apparently disinterested witnesses. In will contests the burden of proving mental incompetency, as well as undue influence, now rests upon contestant (Soule v. Henry, ante, 473 [163 N. W. 944]), but, were the burden of proof in this State as formerly, the propriety of the verdict as to testamentary capacity would not, in our opinion, be open to question. With that established, testator’s undisputed natural intelligence, independence of mind, and positive disposition when in control of his faculties militate strongly against the theory of undue influence; although not necessarily conclusive, as a matter of law, if competent evidence of the exercise of an undue and dominating influence over him was in the. case.

The record is destitute of any direct proof of acts or efforts by Stephen or his family, or by any one for them, to unduly influence deceased to dispose of his property otherwise than as he independently desired. Contestant claims, however, that there was sufficient inferential evidence in the case to carry the question to the jury, that in connection with the evidence of testator’s weakened mental condition, with the unnatural disposition of his estate and testimony of testator that he told her he intended to divide his property between his two children and had made a will in which she was well provided for, together with proof of rude and unfriendly conduct towards her by Stephen and his wife before and at the time of testator’s death and funeral, followed by failure to name or notify her in the proceedings to probate his will, all taken together fairly justify an inference of undue influence on their part, and raise an issue upon that contention which it was error to withdraw from the jury. Unquestionably undue influence may be shown by indirect and circumstancial evidence, but it must be evidence of probative force beyond mere suspicion, and we do not think it can be fairly said as a matter of law that the incidents urged raise inferences that deceased’s free agency was destroyed and he acted under such coercion, compulsion, or constraint that the will did not truly proceed, from him according to his wishes, which is the test of undue influence. In re Williams’ Estate, 185 Mich. 97 (151 N. W. 731).

As before intimated, it cannot be said that testator’s disposition of h.s property was so contrary to natural justice as to raise the inference it was against his own judgment and desire. If of testamentary capacity, he had absolute right to dispose of his estate as he chose, even to the total exclusion of his heirs or to give it to any one of them whom he preferred. He had helped his daughter during her widowhood, and he remembered her in his will. That he left more to his son, who lived near him and with whom he had been in closer relations for many years, or that he left more to his four grandsons than to both his son and daughter, is not any evidence of undue influence under the circumstances disclosed here.

“This court has often said that the mere fact that decedent so disposed of his property as to do an apparent injustice to one or more of his relatives would not nullify the transaction. Courts are not permitted to make equitable distribution of estates, but are concerned only in giving effect to the legal acts of decedents.” Pritchard v. Hutton, 187 Mich. 355 (153 N. W. 705).

See, also, In re Merriman’s Appeal, 108 Mich. 454 (86 N. W. 372).

The unfriendly and rude conduct of Stephen and his wife towards his sister in connection with their father’s sickness and funeral, or failure to notify her of the probation of his estate, while a reflection on’ them which might give rise to surmise and criticism, has no legal probative force to establish the fact that deceased’s will executed years before, was the result of undue influence. Neither do the facts that after making his will deceased continued to visit his daughter, manifested the same regard for her, or assured her that she was well provided for in the will which he had made, raise any inference that he was unduly influenced in making it. Blackman v. Andrews, 150 Mich. 322 (114 N. W. 218).

Of those complained of, perhaps the most questionable ruling by the court was in sustaining objections to the following questions:

“Q. Mrs. Most, what did your father say to you about your brother Stephen Fay asking him to make a will?
“Q. How did he ever talk with you about it; that Steve wanted him to make a will, your brother Stephen?”

As framed, the indicated object of these questions was to show undue influence. The objection seems to have been argued and decided upon that theory, although counsel eventually stated, after a ruling was had, that the testimony was offered as bearing upon testator’s state of mind when he made the declaration. No effort or offer was made to show when such conversations took place, and each of the questions assumed a fact not proved. Claimant had, however, testified that her father told her he had made a will, soon after he did so, and that when he visited her the last time (which was in 1914) he told her she was well provided for in his will. In Zibble v. Zibble, 131 Mich. 656 (92 N. W. 348), it is said that such declarations are admissible as bearing upon the testator’s state of mind, and “may be shown to establish everything pertaining to the testator himself, as distinguished from matters which go to show the act of influence.” Other testimony had been introduced in that case tending to show direct efforts and acts of testator’s wife in the exercise of an undue influence upon him, and it was recognized that, in connection with other affirmative proof of the fact of undue influence, it was competent to show his declarations as to her importunities for its bearing upon his state of mind, but this court there held that refusal of a request to charge that his declarations upon the subject were not evidence of undue influence was error, and reversed the case. That such declarations by the deceased are not evidence of undue influence and cannot be received for that purpose is well settled; neither will undue influence be inferred from opportunity. Leffingwell v. Bettinghouse, 151 Mich. 513 (115 N. W. 731); In re Kennedy’s Estate, 159 Mich. 548 (124 N. W. 516, 28 L. R. A. [N. S.] 417, 134 Am. St. Rep. 743, 18 Am. & Eng. Ann. Cas. 892); In re Provin’s Estate, 161 Mich. 28 (125 N. W. 743); Pritchard v. Hutton, supra. The trial court correctly ruled that no substantive proof was made or offered of facts with inferential force sufficient to carry the question of undue influence to the jury.

It is true that in this class of cases, involving the two claims of testamentary incapacity and undue influence based on senile decay, a liberal latitude of inquiry touching testator’s domestic relations, habits of life, likes and dislikes, peculiarities, power to hold continuous conversation, statements showing condition of mind, etc., is recognized as permissible. Aside from the one somewhat narrow ruling referred to, this record discloses that free and wide range was allowed by the court in that particular. While the inquiry suggested by the two questions adversely ruled upon might have been permissible as bearing upon testator’s state of mind when he made the declarations, they were technically objectionable, and not admissible to show undue influence in any event. We are not prepared to hold that their rejection was reversible error in the light of the convincing and undisputed testimony as to testator’s mentality and state of mind when he made his will on April 25, 1911, by all the witnesses then present and the circumstances surrounding the transaction, together with the volume of supporting evidence by apparently disinterested witnesses as to his understanding and capacity at about that time, both before and after the will was executed.

Upon this record as a whole we find no occasion to question or disturb the result reached, or any error which can be affirmatively found to have resulted in a miscarriage of justice.

The judgment is therefore affirmed.

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