author: Long, C. J. Per Curiam.

text:
    KINGSTON v. FORT WAYNE & ELMWOOD RAILWAY CO.
    1. Evidence—Credibility of Witness.
    Where the plaintiff in a civil case testifies in his own behalf, inquiries concerning his past' life and associations are admissible on cross-examination as bearing upon his character and credibility as a witness; but such matters are not thereby put in issue so as to be open to proof by direct testimony.
    2. Street Railways—Personal Injuries—Contributory Negligence-Intoxication.
    Whether one who, while in an intoxicated condition, stood upon the running board of a street car, having been unable to obtain a seat, and was injured, was, in view of the circumstances, in the exercise of due care, was a question for the jury, and an instruction to the effect that, if he was intoxicated at the time, he could not recover for his injuries, was erroneous.
    3. Same—Intoxicated Passenger^-Duty oe Conductor.
    The fact that the conductor of a street car knows that a person who is standing on the running board outside of the car is intoxicated imposes upon him the duty to exercise care in passing by such person for the purpose of collecting fares.
    ON REHEARING.
    Personal Injuries—Loss oe Employment—Damages—Evidence.
    Where the plaintiff in an action for personal injuries makes a claim for damages on account of the loss of probable earnings subsequent to the injury, and it appears that he was out of employment at the time of the accident, testimony that for two or three years before the injury he had been in the habit of [becoming intoxicated, and that he had been proprietor of an hotel of bad reputation, is admissible as bearing upon the probability of his securing employment, and the character and continuity of the same.
    Error to Wayne; Simpson, J., presiding.
    Submitted January 13, 1897.
    Original opinion, March 10, 1897.
    Rehearing granted September 14, 1897.
    Final opinion, in modification of the earlier one, February 16, 1898.

      Case by Thomas Kingston against the Fort Wayne & Elmwood Railway Company for personal injuries. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Moore & Moore, for appellant.

      Conely & Taylor, for appellee.
   Long, C. J.

The defendant, on October 10, 1891, owned and operated a horse railway in the city of Detroit. The plaintiff went upon one of its cars on that date, for the purpose of being transported as a passenger. It was what is called a “summer car,” open on both sides, with a step or running board, consisting of one board, extending the length of the car. The plaintiff, being unable to secure a seat, stood on the running board, and claims that the conductor in charge of the car negligently pushed him off, causing the injury complained of. The defendant claims that the plaintiff was intoxicated, and either jumped or fell off. On the trial, before a jury, the defendant had verdict in its favor. Plaintiff claims that he was not intoxicated at the time of the injury, but that, even if he were, he had a right to ride standing on the running board, and that if he was guilty of no negligence, and was pushed off the car by the negligent conduct of the conductor, he was entitled to recover. Complaint is made of the admission of certain evidence, and of the refusal of the court to charge certain requests, and also of some portions of the charge as given.

It appeared upon the trial that the plaintiff had worked for the Union Depot Elevator Company in Detroit for seven years continuously,- and that he had severed his connection with that company between two and three years before the injury. The foreman of the elevator company was called as a witness by the defendant, and was asked why the plaintiff was discharged by that company, and, under objection, was permitted to testify that it was because of his intemperance. The superintendent of the elevator company was called as a witness by the defendant, and was permitted to testify, under objection, that the reputation of the plaintiff among the people in and about the elevator was that he was a drinking man. The defendant also was permitted to show that the plaintiff was under the influence of liquor at different times a year prior to the accident. One of the police officers was called,, and permitted to testify that he knew the plaintiff when he kept a saloon; that at one time there was trouble at the saloon, and he. went in and found the plaintiff and others pretty well intoxicated. Another police officer was called, and testified that in 1891 he had seen the plaintiff under the influence of liquor. He was then asked, “ Do you know what sort of a place he had?” and answered that he considered it rather tough. This testimony was objected to by counsel for the plaintiff. Counsel for defendant insist that this testimony was competent when the plaintiff’s story and demand are taken into consideration; that his story was that the conductor treated him in a negligent manner, whereby he was caused to fall from the running board of the car; that he did not do anything in whole or in part to cause the accident; and that he was entitled to recover from the defendant, not only for the direct physical injury he received, but also for the pain and suffering, loss of time, and for loss of work which he would have received had he not been injured; that the plaintiff was called as a witness on his own behalf, and therefore put himself in the way of an attack, not only upon his honesty as a party claimant, but also upon his credibility as a witness, both generally and in respect of his version of the occurrence resulting in his injury. Counsel contend, further, that the plaintiff’s own counsel put his sobriety'in issue, and that defendant’s counsel went into the matter on cross-examination.

We think it was proper examination to make inquiry as to the plaintiff’s condition"at the time of the injury complained of, and that the question was open to defendant’s inquiry as to whether the plaintiff was or was not intoxicated at the time of the injury, and that the defendant had a right to call witnesses to show that the plaintiff was intoxicated at that time. The defendant’s conductor denied that he pushed the plaintiff off, or was in any way instrumental in his falling off the car. The defendant claimed that the plaintiff fell off by reason of his intoxication; and this was a proper subject of inquiry.

But the court was in error in permitting the defendant to introduce testimony showing that two or three or more years prior to that time the plaintiff was in the habit of becoming intoxicated. This evidence was undoubtedly prejudicial to the plaintiff’s case. It was proper matter of cross-examination of plaintiff to inquire what his past life had been, and what company he had kept in the past, as he was before the jury as a witness, and it was proper to inquire into his antecedents, as they had a direct bearing upon his credibility as a witness. The defendant, however, would be bound by his answers, as there is no rule which would permit the defendant to introduce direct testimony bearing upon those questions, thus raising a collateral issue. The general reputation of the plaintiff for truth and veracity was open to inquiry, but an attack upon his credibility, which would raise a collateral issue, was not open to the defense. In Williams v. Edmunds, 75 Mich. 92, it was held that it was proper to show whether the servant who was alleged to have committed the injury was or was not sober at the time the injury was committed, it being a part of the res gestee, but that it was not proper to show his intoxication at other times, as it was raising a collateral issue. In Fahey v. Crotty, 63 Mich. 383 (6 Am. St. Rep. 305), it was held that in a civil action the reputation of the plaintiff was not in issue. See, also. Pokriefka v. Mackurat, 91 Mich. 399; Klein v. Bayer, 81 Mich. 234; Culley v. Walkeen, 80 Mich. 443. It is apparent, therefore, that the court was in error in permitting the testimony showing the reputation of plaintiff as a drinking man prior to the time of the injury, as well as in permitting the defendant to show by witnesses called by it the character of the hotel which he kept. As we have said, these were matters proper for cross-examination, as bearing upon the plaintiff’s character and credibility as a witness, but they were not open to other proofs, as such issues are collateral and entirely foreign to the subjects of inquiry in the suit.

The court charged the jury:

“If you find that the time he was upon this place he was intoxicated, then he could not recover in this case, because in the case of an intoxicated man the company was not expected, and the law would not require of this company that it should guard an intoxicated man against injury, standing in the place he was standing.”

This charge was erroneous. It was asserted by the plaintiff that he was pushed off or thrown off by defendant’s conductor, and the fact that he was intoxicated would not give the conductor the right to push him off. The question of his intoxication was a matter to be taken into consideration by the jury in determining whether or not the plaintiff was in the exercise of due care in standing upon the running board while he was in that intoxicated condition; but his condition would be no excuse to the company if its conductor negligently and wrongfully pushed him off. In Thomp. Neg. p. 1174,it is said: “Intoxication on the part of the plaintiff at the time of the accident does not constitute negligence in law, warranting a nonsuit or a peremptory instruction for the defendant, but is a circumstance to go to the jury on the question of contributory negligence.” This seems to be the general rule. Stuart v. Machias Port, 48 Me. 477; Alger v. City of Lowell, 3 Allen, 402.

Defendant’s conductor testified that the plaintiff was intoxicated while standing on the running board. It was therefore his duty, and he was required, to exercise care in passing him upon that running board. 4 Am. & Eng. Enc. Law, 79, note 5, and cases there cited.

Some question is raised in reference to the charge of the court as to the preponderance of evidence; but, upon an examination of the whole charge, we are satisfied that that question was fairly submitted to the jury, or, at least, that the plaintiff’s rights were not prejudiced .by the charge.

For the reasons stated, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.

ON REHEARING

Per Curiam.

This cause was m this court at the January term, 1897, and an opinion was filed March 10th following. On the trial in the court below the defendant had judgment, which was reversed, and a new trial granted. The defendant thereafter moved for rehearing, which was granted.

While we are satisfied that the case was properly reversed and a new trial granted, we think there are some matters in the former opinion which should be corrected. It was there held that certain evidence should not have been admitted, showing that the plaintiff, for two or three years prior to that time, was in the habit of becoming intoxicated, and also showing the character of the house or hotel he kept. From a further examination of the case, we are convinced that the court below was not in error in admitting it. The plaintiff claimed damages on account of:

1. The direct physical injury to himself; its natural incidents,—pain, suffering, etc.

2. Loss of wages which he would probably have received during the period which intervened between the date of the accident and the date of the verdict.

3. Loss of probable future earnings.

It appears that when the plaintiff was injured he was not employed at any work, and the testimony tends to show that his habits were very dissolute; that he kept a house of doubtful character, and had before that been discharged from his employment at various places. Counsel contend that “it is not in the usual course of things that a man of dissolute habits, of more or less evil association, of bad record, and of ill repute should obtain employment as readily, or to the same extent, as if he were sober, industrious, of good fame and record; and that defendant had the right to lay before the jury, by appropriate testimony, any facts concerning the plaintiff’s conduct, habits, character, or repute which might throw light on the probability of his securing employment, and the character and continuity of the same.”

We think the doctrine cannot be carried to the extent claimed by counsel. The defendant undoubtedly had the right to lay before the jury any facts concerning the plaintiff’s habits or conduct which might throw light on the probability of his securing employment, and the character and continuity of the same, but we know of no rule which would permit the defendant to go into proof of the plaintiff’s character or repute. In this view of the case, we think the court below was not in error in admitting the testimony, or in the charge to the jury upon that question. Metropolitan Street R. Co. v. Kennedy, 82 Fed. 158.

A new trial being had, we have made this correction of the former opinion.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    HUELLMANTEL v. VINTON.
    1. Trial—Motion for Nonsuit—Waiver.
    An objection that the court erred in overruling defendant’s motion to direct a verdict in his favor, offered at the conclusion of plaintiff’s proofs, will not be considered on appeal, where the defendant proceeded to introduce evidence in defense of the action, and did not thereafter renew the motion.
    $. Chattel Mortgages—Execution Levy—Action Against Officer-Defenses.
    The fact that a chattel mortgagee had other security sufficient to satisfy his demand, or that the mortgagor was solvent and able to pay the same, is not available to an officer as a defense in an action against him by the mortgagee for a wrongful levy upon and sale of the mortgaged chattels.
    3. Same—Payment—Mitigation of Damages.
    The price of land sold to the mortgagee by a chattel mortgagor, under an agreement that its value should be applied on the mortgage indebtedness, should be considered in reduction of the damages in an action by the mortgagee against an officer for the conversion of the mortgaged property.
    Error to Grand Traverse; Corbett, J.
    Submitted January 15, 1897.
    Decided March 10, 1897.
    Trover by Julius Huellmantel against Medad Vinton. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Dodge & Covell, for appellant.

      Foster & Crotser, for appellee.
   Hooker, J.

The defendant, in the capacity of sheriff, levied upon and sold a stock of goods to satisfy an execution against the owner; and the stock, being bid in by the execution creditors for $1,800, was turned over to them. Previous to the time of the levy, Pohoral, the owner, had given several mortgages upon the stock, the first being to Clara Louden, his sister, for $3,500; the second to the plaintiff, his brother-in-law, for $1,000, subject to the Louden mortgage; and the third to his attorneys, for $1,500, subject to the two mortgages before mentioned. At the time of the seizure of the stock by the defendant, Pohoral claims to have been in possession of the stock as representative of the mortgagees. Clara Louden brought an action of trover against the defendant, and recovered a judgment for $3,184.65 and costs; and this, being affirmed by this court (108 Mich. 313), was paid by Buhl Sons & Co., the execution creditor. Thereafter this action of trover was brought by the plaintiff, owner of the second mortgage, and, from an adverse judgment of $659.50, the defendant has appealed. We will endeavor to dispose of such questions as we think it necessary to discuss, in the order in which they were raised.

At the conclusion of the plaintiff’s evidence, counsel for the defendant moved the court to direct a verdict for his client, which being denied, he proceeded to introduce evidence in defense of the action. As he did not see fit to rest his case at that point, we need not consider this question.

The defendant introduced evidence tending to show that the plaintiff had received from Pohoral a deed of a city lot worth from $300 to $600, and asked the court to charge the jury that the amount of Pohoral’s indebtedness to him, if there was such indebtedness, should be reduced to the extent of the value of said lot, which request was refused. The plaintiff claims that the only interest that he had in this property was a lien upon it for a debt, but the defendant maintains that, if this were so, it would make no difference. Had his debt been paid or partly paid, such payment would go in reduction of the damages. But, if he had other security merely, it is another matter. The logical result of the defendant’s last contention is that, in all cases of levy'on a portion of the property covered by a chattel mortgage, the defendant in % suit brought by the mortgagee for conversion by levy and sale upon execution running against the mortgagor would be a,t liberty to defend on the ground that, while he levied upon and sold a part of the mortgaged property wrongfully, yet, as he had left sufficient to pay the plaintiff’s debt, the plaintiff had suffered no injury. In a case like the present he might defend upon the ground that the plaintiff had ample security under another instrument, e. g., a real-estate mortgage; although this defense, if allowed, might subject the plaintiff to the annoyance, expense, and delay of foreclosure of such mortgage, to. say nothing of its violation of the rule that the creditor may choose between securities, and avail himself first of one or the other, at his option. In Jones on Chattel Mortgages (4th Ed.), § 448, it is said that “he [the mortgagee] is not obliged to look to the personal responsibility of his debtor, or to show his insolvency before recovery of the wrong-doer. Neither is he required to first look to any other security he may hold.” See cases cited, note 2. In the case of Worthington v. Hanna, 23 Mich. 532, this subject was discussed upon an objection that the declaration failed to allege the insolvency of the mortgagors, and that the mortgagee had no other security. Mr. Justice Campbell said:

“We do not think this objection well founded. It is based upon an idea that there is some substantial difference between the damage done to a mortgagee in possession and to a mortgagee out of possession, by the seizure and conversion of the goods. It is not questioned that a mortgagee in possession may sue in trover, and recover for the conversion of property, whether he has other security or not, and whether or not his debtor is solvent. We see no possible foundation for holding that possession or present right of possession should make any difference in regard to the quantum of damages, within the extent of the security. The doctrine alleged would be equivalent to holding that no person could have a legal right to complain of being deprived of a security unless he could show the insolvency of his debtor; or, in other words, that any wrong-doer could, at his pleasure, compel the holder of a security against a solvent party to look only to the personal remedy, and give up the security. This is too unreasonable á doctrine to be entertained.”

But there is evidence tending to show that Pohoral sold this lot to the plaintiff, and, while the price was not stated, there is opportunity for the claim that it was designed to he applied on Pohoral’s indebtedness. We think this question should have been left to the jury, and, if they so found, the price or value of such lot should have been applied in mitigation of damages. For this error the judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    CHISHOLM v. PREFERRED BANKERS’ LIFE ASSURANCE CO.
    1. Trial—Instructions—Conclusions from Testimony.
    In an action for breach of contract, where the character of the contract was in question, a requested instruction, embodying a conclusion as to what the contract was as gathered from plaintiff’s testimony, was properly refused; it being for the jury, in determining the understanding of the parties, to decide as to the effect of such testimony.
    2. Contract of Employment—Damaoes fob Breach.
    The right of an employe to recover in full the damages sustained by reason of a wrongful discharge before the expiration of his term of service is not lost by his failure to avail himself of an opportunity to work for his employer at reduced wages, where the proposition was such that its acceptance might have been construed as a consent to a modification of the original contract, and as an abandonment of his claim thereunder.

      3. Same—Duty to Seek Other Employment—Unreasonable Delay.
    Whether 18 days is an unreasonable length of time for an employé, who has been wrongfully discharged, to spend in seeking an adjustment with his employer, so that he should be charged, in an action for a breach of the contract, with the amount that he might have earned in other employment during such period, is a question for the jury.
    Error to Ingham; Person, J.
    Submitted January 14, 1897.
    Decided March 10, 1897.

      Assumpsit by D. Hewitt Chisholm against the Preferred Bankers’ Life Assurance Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Ira E. Randall (Frank E. Robson, of counsel), for appellant.

      Arthur D. Prosser, for appellee.
   Hooker, J.

The plaintiff’s action rests upon a contract of hiring under which he claims that he engaged to solicit life insurance, for which service the defendant agreed to pay him $100 per month for two months, beginning November 20, 1893, and that he should receive a commission on certain business, also a premium for which agents of his class were to compete, if his business should entitle him to it. He claims that he .was wrongfully discharged, and brings action to recover the balance of his salary of $100 per month, and the premium of $50, which he claims to have earned, waiving a claim for commissions. The ’defendant admits that there was a contract of hiring, service, and discharge, but asserts that the contract was a hiring to work under the direction of the defendant upon commission, said commission to be guaranteed to amount to $100 per month. It also claims that the plaintiff did not faithfully discharge his duty under the contract, and refused to be directed by defendant, and that this was a sufficient cause for defendant’s putting an end to contract relations, by discharging him; and, third, it alleges that after such discharge the plaintiff had an opportunity to work for the defendant during the unexpired period, upon other terms, which would have lessened his injury had he seen fit to avail himself of the opportunity. The errors relied on are:

First. The refusal of the court to instruct the jury as requested by the defendant, viz.:

“(1) The contract for employment, as testified to by the plaintiff himself, is that he was employed on a guaranty of $100 per month for two months and if the earnings of the plaintiff, based upon 80 per cent, of the membership fee on the insurance written by him, amounted to more than $100, plaintiff was to have such excess; and -that he was also to have a right to compete during 60 days for the premiums offered by the company,—for the agent who should, within 60 days from November 20th, write the largest amount of insurance, $75; the next largest, $50; and the third largest, $25.
“(2) The testimony of the plaintiff, taken together, shows that the contract was intended to be a commission contract, and that the effect of the guaranty was that such commission should amount to at least $100 a month. This is apparent from the fact that, for the plaintiff to secure the full compensation he might be entitled, to under the contract, it was necessary for him to keep an account of the membership fees, and to compute 80 per cent, thereon.” \

Second. The exclusion from consideration by the jury of the circumstances offered by way of mitigation of damages.

Third. The refusal to give defendant’s fifth request to charge, viz.:

“ (5) Even though Mr. Randall employed Mr. Chisholm for two months, and agreed to guarantee him $100 a month for two months, yet Mr. Chisholm was bound to work faithfully under the direction of Mr. Randall; and if the jury find that Mr. Chisholm did not so work, but neglected or refused to work when and where he was directed by Mr. Randall, Mr. Randall had a right to terminate the employment; and, if he did so terminate the employment for such reason, then the plaintiff cannot recover for any time after such employment was ended.”

We are of the opinion that the defendant was not entitled to the instruction embodied in its first and second requests. It was not for the court to state a conclusion as to what plaintiff testified, or the effect of his testimony, it being for the jury to determine the understanding of the parties. The plaintiff gave some testimony tending to show that he was to be paid $100 per month, and, if commissions computed at 80 per cent, of certain fees received exceeded $100 per month, he was to be paid such excess. It is said that it was important that these requests should be given, because it affected the question of damages; that the plaintiff tried his case upon the theory that his action was for wages. The charge submitted the case upon the special count, and the jury were instructed that, if the plaintiff failed to establish the contract as alleged, he could not recover; and we see no reason for determining whether that was an agreement to work according to directions at $100 per month for two months, or upon a guaranty that commissions computed at an agreed percentage of earnings should equal $100 per month. The court instructed the jury that the plaintiff could not recover unless (1) he established the contract; (2) it was shown that the defendant broke the contract by unjustly discharging the plaintiff; and that (3), these things being established, the measure of damages was the agreed price. Under the evidence, we fail to see how the-case could have been submitted upon any other theory.

In mitigation of damages, counsel for the defendant sought to show that the plaintiff was given an opportunity to perform the same work for a less price, and did not avail himself of the opportunity. No complaint is made that the court improperly excluded evidence upon this subject, but complaint is made that it was not submitted to the jury, and that the court erred in refusing to give defendant’s third request, viz.:

“(3) It is claimed by defendant that, at the close of the first month, Mr. Randall told the plaintiff that he could not continue the guaranty for another month, but that he might continue to work on commission as before; that plaintiff refused to work unless the guaranty was continued; and the plaintiff says he made no effort to get other employment. If the jury find from'the evidence that plaintiff was discharged from his employment, but that he could have continued such employment on the basis of 80 per cent, of the membership fee, then, under such circumstances, it was his duty to continue his work, and do the best he could to earn the sum he claimed was guaranteed to him, and to look to the company only for any deficiency.”

The request was refused, but the court instructed the jury that—

“The plaintiff should be allowed damages at the contract price, just the same as if he had worked, unless he wrongfully and improperly failed to get employment during the balance of the period, * * * providing always that he had worked faithfully and honestly in the employ of his employer, the defendant.”

He add,ed:

“Now, to make it square upon the record, I want to state this: It is the duty of a man, when he is discharged wrongfully from employment, to avail himself of any opportunity that he may have to work for some one else, and thereby reduce the amount of loss. It is not necessary to go outside of his city or township to hunt work, neither is it required that he shall accept work of a lower or different grade. But, gentlemen, for the purpose of meeting a certain feature of this case here,-—namely, that Mr. Randall offered to continue the employment, as Randall claims, for a certain commission,-—-I will say to you that need not be taken into consideration. I have, since last night, had an opportunity to reflect upon the matter, and examine the law regarding it, and I say that an offer of an employer who breaks the contract by discharging the employe, to. continue the employe at a lower rate of wages, or in a less beneficial manner for the employed, will not and need not be taken into consideration as a mitigation of damages or to reduce them. So, you need not take into consideration the question of damages, if you come to that, any offer on the part of Mr. Randall, if it was made, to continue the employment of Mr. Chisholm at a lower or less beneficial scale of wages. As I said, gentlemen, it is the duty of a man who has been wrongfully discharged from a- contract of labor to avail himself of every reasonable opportunity that offers itself to get employment and earn wages, except as limited by the rules I have given you; and in that behalf it becomes his duty to reasonably look around in his vicinity for employment of the same general grade and character as that from which he has been discharged, unless he is excused from so doing by reasonable and proper circumstances. It was the duty of Mr. Chisholm to endeavor reasonably to obtain employment in the city of Lansing, of such a general grade as he had been employed in, and was discharged from, if he was discharged, unless he had some excuse for not doing so. He alleges as an excuse that the time which elapsed between the time of his alleged discharge, on the 2d of January, and the expiration of the contract, on the 20th, was occupied by him in endeavoring to effect a settlement with the defendant assurance company, both by seeing Mr. Eandall and seeing the trustees of the company ; and that he worked in good faith and honesty to obtain such settlement, and for that reason did not look around for other employment.”

Under the cases of Farrell v. School District, 98 Mich. 43, and Allen v. Whitlark, 99 Mich. 492, the burden of showing a failure by the plaintiff to lessen the damage, by availing himself of an opportunity to get other work, is upon the defendant. It is claimed that he should have accepted an offer of the same work upon another or different contract offered him by the defendant. Some cases are cited in support of the proposition that it was the plaintiff’s duty to accept this offer, and they seem to sustain it. Bigelow v. Manufacturing Co., 39 Hun, 599, Beymer v. McBride, 37 Iowa, 114; Birdsong v. Ellis, 62 Miss. 418; Squire v. Wright, 1 Mo. App. 172. On the contrary, in the case of People’s Co-operative Ass’n v. Lloyd, 77 Ala. 387, it was held that an offer by the employer to retain the employé in its service if he would consent to a reduction of wages might be rejected, for, if he had so consented and remained in the service, this would have operated as a modification of the contract and an abandonment of all claims to higher wages. 14 Am. & Eng. Enc. Law, p. 796, § 10, and note. It is clear that one who has been prevented from performing a contract of service should not be required to accept a new employment under circumstances which permit the claim that he consents to a modification of the contract, and an abandonment of his right of action; and, ordinarily, acceptance of service in silence would at least give color to a claim that the contract was modified by consent, tacit if not express. See Brighton v. Railway Co., 103 Mich. 426, and cases cited. It is, of course, possible that an offer of employment might be couched in such terms as to save the rights of a discharged servant, and, when it is, it may be that the evidence should go.to the jury, with a view to mitigation of damages; but we discover no evidence in this case tending to show that such employment was offered under circumstances inconsistent with the condition that such employment should be a modification of the contract, and the plaintiff could not safely accept the offer. Hence the instruction given by the court upon the subject should not be held erroneous, were we to accept the doctrine contended for.

The plaintiff testified that for a period of 18 days ne sought no other employment, for the reason that he spent the time in an endeavor to adjust his claim against the defendant. The court left it to the jury to determine whether this was a reasonable excuse for not seeking other employment. It is contended that this was error. The plaintiff had a right to try to obtain justice from the defendant, and to use some time for the purpose. How much time was necessary and proper depends upon the circumstances, and is a question of fact. We think it was not the duty of the trial court to fix a limit to the time to be so used, and his only alternative was to submit the question to the jury.

The judgment is affirmed.

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


author: Long, C. J.

text:
    JENNISON HARDWARE CO. v. GODKIN
    1, Sale—Purchase Price—Set-off.
    The right of the seller of chattels to maintain an action for the purchase price is not impaired by his failure to assert his claim by way of set-off in a suit by the purchaser for damages on account of alleged defects in the goods sold.
    3. Same—Pendency of Suit—Abatement.
    Hence, where the claim of set-off is not so interposed, the pendency of the purchaser’s action against the seller is no ground for the abatement of the latter’s suit.
    Error to Bay; Maxwell, J.
    Submitted January 14, 1897.
    Decided March 10 1897

      Assumpsit by the Jennison Hardware Company against John Godkin for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. L. Collins, for appellant.

      J. L. Stoddard, for appellee.
   Long, C. J.

The plaintiff commenced the present suit in the circuit court for the county of Bay, filing a declaration therein upon all the common counts in assumpsit, with the following bill of particulars annexed:

Bay City, Mich., Oct. 35, 1895.
The Jennison Hardware Co.
Sold to John Godkin.
1895.
June 37. 6 No. 5 dies for park swage, 75------------ $4 50
July 19. 3 53 ft. x 10 x Ga. 14 band saws, $183...$864
Less 50-10 per cent____________ —........ 168 80
Boxing saws------------------------------ 1 35
Prepaid express ........................ 11 45
$181 00

A copy of this account, together with an affidavit that the same was a correct account of the claim of plaintiff against the defendant over and above all legal set-offs, was served upon the defendant. To this declaration the defendant interposed a duly-verified plea in abatement, which recited that—

“Before the filing of the declaration in this suit, to wit, on the 10th day of October in the year 1895, this defendant commenced a suit against the above-named plaintiff, in justice’s court, before Alfred M. King, a justice of the peace in and for Bay City, in the county of Bay and State of Michigan, and this defendant, in that suit, which is an action in assumpsit, has declared against the defendant therein, being the plaintiff in this suit, in a cause of action the determination of which involves, and which suit will adjudicate, the cause of action as is set forth in the plaintiff’s declaration in this suit, by means of which there is in said justice’s court an action of assumpsit pending, in which and whereby the same cause of action will be litigated and adjudicated as in this suit; and this defendant further says that the parties in this and the said former suit are the same, and not other or different parties, and that said former suit, so brought and prosecuted, is still pending in the said court; and this the said defendant is ready to verify. Wherefore he prays judgment,” etc.

The plaintiff in this suit joined issue upon said plea by filing a replication thereto. The issue thus framed on the plea in abatement came on to be heard before the court without a jury, and, after hearing the evidence therein, the court found the said plea to be true, and that a determination of said suit involved and would adjudicate the cause of action set forth in the plaintiff’s declaration in this suit, except the claim of plaintiff in this suit on account of the item of goods sold at $4.50. The court further found that the action in justice’s court had been determined in favor of the plaintiff in that suit, and had been appealed by the defendant in that suit to the circuit court, wherein and whereby the same cause of action would be litigated in that suit as would be litigated and adjudicated in this suit, and that the parties in this suit are the same as in the former suit. The pleadings in the former suit are set out in the findings. In the declaration in that suit it is alleged that the defendant sold to the plaintiff a certain band saw, at and for the price of $92.75; that it was a part of the agreement with the plaintiff, in the sale of the band saw, that it should be 53 feet in length by 10 inches in width, and should be of even thickness, and of the thickness of 14 gauge, and suitable for, and of the quality and description to do, the work required of such band saws; that, after the purchase, the plaintiff received it from the defendant at Bay City, and shipped it to his mill in Chippewa county, paying for boxing, freight, and teaming the sum of $7.55; that the plaintiff put the same into his mill, and had proceeded to operate it in the proper manner, when he was compelled to take it down by reason of defects found therein. These defects are stated to be that it was thicker than agreed; was a 13 gauge, instead of 14; was of uneven thickness, and would not do the work that could be done with a 14 gauge. It is alleged that, by reason of its thickness and unevenness, it cracked in working, became useless, and plaintiff was compelled to shut down his mill, and lost the use of it for several days, by reason of such defects; that the plaintiff afterwards shipped said saw to Bay City, and tendered it to defendant, who refused to accept the same; and that by reason of the foregoing facts, and the breach of the conditions of the sale, he lost the price of said saw (which in this action he seeks to recover), and the sum of $7.55, incurred in taking the saw to his mill, and the sum of $12, in taking it from his mill to Bay City, and the sum of $15 in repairing said saw. A second count was added to the declaration, in which damages were claimed for the loss of time the mill was kept idle, and for the loss of time of men employed about the mill, and which also sets up an alleged offer to return said saw to defendant, who refused to receive the same, to the plaintiff’s damage of $290. An amendment to the declaration was also made, alleging the loss of sawing 420,000 feet of lumber in the season of 1894; also, alleging that when the said plaintiff discovered the condition of said saw, and its defects, he notified defendant thereof, and that, upon defendant’s being advised that the saw was 13 gauge, instead of 14, the defendant refused to furnish the 14 gauge, by reason of which fact the plaintiff was compelled to and did order two additional saws, and was compelled to and did operate said saws at a disadvantage. To this declaration the defendant orally pleaded the general issue. Upon this finding the court below held, as matter of law, that the pendency of this former suit did not abate the present suit, and gave the defendant in this suit five days to plead to the merits. Such a plea was filed, and a notice was attached thereto that the defendant did not buy or accept or receive the saws described in the bill of particulars in this case; that said saws were worthless and of no value, and that prior to the commencement of this suit the defendant offered to return said saws to the plaintiff, and still offers to return said saws, and holds them for plaintiff; that the items of $1.25 and $11.45 in said bill of particulars are for boxing and freight payments on the same saws in said bill of particulars described. There was verdict and judgment for the plaintiff of $188.35.

The errors assigned, upon which the defendant' in the present suit relies, are:

1. That the court erred in finding and determining, as matter of law, that the pendency of the former suit referred to in the findings of fact and law was not a bar to the further progress of this suit, and did not abate said cause in the court below.

2. That the court erred in entering an order or judgment overruling the defendant’s plea in abatement.

3. That the court erred in entering final judgment in favor of the plaintiff.

The plaintiff’s contention is:

1. That the court below entered no final judgment upon the plea in abatement; that the order made did not finally dispose of the case, and is not reviewable by writ of error.

2. That no exceptions were taken to the findings of the court, either upon the facts or law, by the defendant, and that, therefore, the finding of law is not reviewable in this court.

3: That the findings of fact show that the matters involved in this and in the former suit were not the same; that the pleadings in the former suit are set out in the findings; that the first count is based upon the purchase by Godkin of a band saw in 1894, and that under that count, as amended, Godkin claimed as follows: Expense in taking the saw to the mill, $7.55; expense in taking it from the mill to Bay City, $12; repairing saw, $15; loss of sawing 420,000 feet of lumber (amount not stated); that the second count is based upon a breach of warranty with respect to two saws purchased by Godkin in July, 1895, and under this count his claim is: Freight and teaming on saws to mill, $10; putting them up and attempting to work them, $10; loss of time of mill, $50; lost time of men employed in mill, $50; expense of returning saws to Bay City, $12; loss and damages in attempting to operate saws (amount not stated); that, in the ad damnum clause in the declaration, damages in the sum of $290 were claimed. It is further insisted that it was not possible, under the pleadings in the former suit, for the Jennison Hardware Company, the defendant therein, to have recovered judgment for its claim as set forth in the declaration and copy of account in this case; that even if the claim might have been interposed as a defense to the former suit, by way of set-off, if due notice of set-off had been given under the plea of the general issue, it is certain that, under the plea of the general issue alone, the right of the Jennison Hardware Company to recover judgment upon its claim was not involved, and judgment in that case would not determine the right of the Jennison Hardware Company to recover the amount of its claim, and therefore would not be a bar to this suit.

4. That the Jennison Hardware Company was not bound to offset its claim against that made by Godkin in the first case.

We may pass the first, second, and third points made by counsel for the plaintiff, as we are satisfied that his fourth point is well taken. The Jennison Hardware Company was not bound to offset its claim against that made by Godkin in the first suit, and it appears that it was not so used. The Jennison Hardware Company pleaded the general issue only, and there is nothing in the record indicating that it attempted to prove any set-off. The general rule is that matters of set-off or counterclaim, which a party may set up or not, are not regarded as included in the definition of a defense to an action. If the matter of set-off or counterclaim is presented and passed upon in a suit, it is barred by the judgment; if not, the defendant may make it the subject of a separate and distinct action. 1 Herm. Estop. & Res Jud. § 266; Huntoon v. Russell, 41 Mich. 316; Mimnaugh v. Partlin, 67 Mich. 391; Seventh-Day Adventist Publishing Ass’n, v. Fisher, 95 Mich. 274. In the last case it was said:

“No set-off was pleaded in that case [referring to another suit which had been litigated between the same parties], but the association denied any liability, and rested upon that defense. In the present case the circuit judge finds as follows: ‘ None of the items involved in this claim were before the court by evidence; nor were the same, or either of them, considered, allowed, applied, or adjudicated on said trial.’ It is distinctly returned that the present bill of exceptions does not contain all the evidence, and also that there was evidence showing that none of the items claimed for in this action were included in the former case referred to. This finding is therefore conclusive, unless it be held, as a matter of law, that, through its failure to plead set-off, the plaintiff is concluded from afterwards bringing suit upon its counterclaim. Such is not the law,”—citing Huntoon v. Russell, supra, and other cases.

It was further said:

“The authorities cited by defendant’s counsel are cases in which the counterclaim was set up by the defendant, and was within the issue tried.”

We are therefore satisfied that the court below was not in error in holding, as matter of law, that the commencement of the suit' by Godkin, and its trial in the justice’s court, was not a bar to thé plaintiff’s action in the present suit.

The judgment, therefore, will be affirmed.

The other Justices concurred.


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    BLAKESLEE v. CONSOLIDATED STREET RAILWAY CO.
    1. Street Railways—Collision with Loaded Wagon—Negligence.
    Whether the motorman of an electric car was guilty of negligence in attempting, at an increased speed, to pass a wagon loaded with barrels moving in the same direction a few feet ahead, is a question for the jury, where there is evidence that the wagon was driven within the line of the car when it was from 30 to 50 feet distant, and that the motorman at the time had his car under complete control.
    2. Same—Contributory Negligence—Question for Jury.
    A driver who occupies such a position in front of a load as to render it difficult for him to see an electric car approaching from the rear, and who, for the purpose of avoiding an obstruction, drives so near to the track that a collision and runaway result, is not, as a matter of law, guilty of contributory negligence precluding a recovery for his injuries, where it appears that the car was from 30 to 50 feet distant when he turned in towards the track, and that the motorman increased the speed of the car as he approached the load.
    Error to Kent; Adsit, J.
    Submitted January 14, 1897.
    Decided March 10, 1897.
    Case by Charles B. Blakeslee against the Consolidated Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Kingsley & Kleinhans, for appellant.

      Earle & Hyde, for appellee.
   Long, C. J.

This case was in this court at the April term of 1895, was reversed, and remanded for another trial. The opinion filed is found in 105 Mich. 462. Judgment was reversed upon the ground that the trial court did not properly instruct the jury upon the question of the plaintiff’s contributory negligence. Speaking of that charge, it was said in the majority opinion:

“This naturally tended to give the jury to understand that turning suddenly upon the track in front of an approaching car, so close that a collision would necessarily ensue unless the motorman, by extremely prompt and vigorous action, should prevent, would not be contributory negligence, unless the plaintiff knew that the car was only a few feet away, or unless he could have reasonably ascertained the fact from his seat in front of the barrels. In other words, the charge seems to imply that a man may place himself in any position that his convenience or the exigencies of his calling may require, and drive upon the track, without taking correspondingly greater precautions than would be necessary if in an open wagon; relying upon the proposition that he has the same right there that the car has, and that the motorman is required to avoid the collision. The evidence shows that the plaintiff made no effort whatever to ascertain whether a car was coming or not. In the case of a covered milk wagon this was held to be negligent, and the rule should be the same in this case. Whether or not this negligence contributed to the injury is another question, which we cannot determine, it being for the jury.”

Upon the second trial the case was submitted to the jury upon the theory stated in the opinion of this court.

It is contended by counsel for defendant that in the former record there was evidence that the car was run at a high rate of speed, and that the plaintiff was upon the track when the car was 100 feet away, but that in the present record it appears that the car was not moving at an unlawful rate of speed, but was going at a slower rate than the ordinance authorized; and, again, that there was no evidence given on the trial that the car was over 30 to 50 feet away when the plaintiff turned upon the track. It is conceded that the present record does not show that the car was being driven to exceed six miles an hour. This was the testimony given by the motorman, Johnson. But it is contended that that fact would tend more strongly to show that the plaintiff was not guilty of contributory negligence; for one might be negligent in driving upon the track when the car was approaching at the rate of 15 miles an hour, if the car was in close proximity, while, if the car was running at the rate of only six miles an hour, he might not be guilty of negligence in driving upon the track. We think there is great force in this contention. From the plaintiff’s testimony, it appears that he had traveled after turning upon the track, or at least within the line of the car on the track, something like 35 feet before he was struck. There was testimony on the present trial, given by Mr. Groskopf, that he saw the wagon turn towards the track, to go around Carbert’s buggy, and that at that time the car was from 30 to 50 feet north of the rear end of the wagon. It is apparent that this brought the wagon within the line of the car, and, if the defendant’s contention is correct, that the car was running at the rate of only six miles an hour, it would appear from the testimony of Mr. Johnson, the motorman, that it could have been controlled and stopped before it reached the plaintiff’s wagon. At least, these are questions which were proper to submit for the consideration of the jury. Mr. Johnson testified that he came down Bridge street, and turned up Canal street; that, when he came across the tracks onto Canal street, the wagon with the load of barrels was just about a wagon length ahead of him; that when he got across the track, and onto the west side of Canal street, the wagon was just two wagon lengths ahead of the car. He was then asked to state what took place from that time on, and testified: “Well, sir; we ran along side by side there— Well, the wagon was about a wagon length ahead of me, as I say, and we slowly gained on the wagon until we were side by side; pretty nearly side by side; and I thought I had room enough to go by the gentleman.” He testified further: “The team gradually pulled in towards the car, and the barrels rubbed against the windows, and that frightened the team.” He testified further that after he got across the street, and onto the west track in Canal street, he increased the speed of his car, and that at the time the wagon was struck he was running at the rate of six miles an hour.

The theory of the plaintiff on the first trial was that he was compelled to drive around Carbert’s buggy, and in doing so was obliged to pass within the line of the car on defendant’s track; and that, when he first so drove within the line, defendant’s car was -approaching, and was then 100 feet or more in his rear; and that, if the defendant had not been guilty of negligence, no injury would have resulted from the situation; but that defendant’s car was driven at an unlawful rate of speed, and overtook plaintiff’s wagon, and passed along by the side of it without an attempt being made to stop or retard it, and that on account of this negligence on the part of the defendant the plaintiff was injured; and it is insisted that this was precisely the theory of plaintiff on the second trial; that it was a question for the jury to say whether it was proper for defendant’s car to approach this wagon, under the circumstances, and pass partially by it, at the rate of six miles an hour, and whether that was not a high rate of speed considering the position of the wagon on the track, and whether such conduct was not careless and negligent. Counsel for defendant contend that the case is controlled by Graff v. Railway Co., 109 Mich. 77; Guilloz v. Railway Co., 108 Mich. 41. We think the present case plainly distinguishable from those, and that the court very properly submitted, not only the question of defendant’s negligence, but the plaintiff’s contributory negligence, for the consideration of the jury.

It is further contended by defendant’s counsel that the court erred in instructing the jury that it was the duty of the motorman in running the car to be cautious, diligent, etc., not to run it at a dangerous rate of speed, and to check or stop it when apparently necessary to avoid obstructions or collisions; and, if he observed an obstruction on the track ahead of his car, he had no right to recklessly run into such obstruction, and, if he did so, that that would be negligence on his part. The contention is that there was no evidence that the motorman was guilty of any negligence, or that he ran the car at a dangerous rate of speed, or that he recklessly ran into the wagon. We need but refer to the testimony of the motorman to answer these propositions. If his testimony is true, he had full control of his car when within a wagon length of the plaintiff’s wagon, but increased his speed so that he could pass. This testimony, taken in connection with that of Grroskopf that the wagon turned in towards the track while the car was from St) to 50 feet distant, shows that the motorman was reckless under the circumstances. We think there was no error in this part of the charge.

We have examined the other questions raised by defendant’s counsel, and think they must be overruled. The trial was fairly conducted, and the court charged the jury fully upon the legal questions involved; and, both questions being for the jury to determine, we find no error in the record.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    KLUMPH v. BOUSFIELD & CO.
    Sale—Issue of Fact.
    Where plaintiff claimed, that material was sold to defendant, who agreed to pay therefor on presentation of an order signed by W., and defendant claimed that the sale was made to M., and that defendant was to pay the purchase price only out of funds in his hands belonging to M., upon the latter’s order, there was an issue of fact for the jury.
    Error to Bay; Maxwell, J.
    Submitted February 2, 1897.
    Decided March 10, 1897.

      Assumpsit by Charles H. Klumph against Bousfield & Company, a corporation, for goods sold and delivered. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Lyon & Pierce, for appellant.

      McDonell & Hall, for appellee.
   Moore, J.

Plaintiff sued to recover for the value . of 32,000 bricks. It is his claim that Mr. Williams ordered the bricks, and said they were going into kilns belonging to defendant, and that it would pay for them; that, before selling the bricks, he had a talk with the officers of the defendant, and was told by them that they had $1,300 due Mr. Williams, that they were to pay for the material, that it would be proper to ship the bricks, and that, upon the order of Mr. Williams, they would pay for them as fast as the bricks were delivered; that they were shipped to defendant, and used in the rebuilding of the kilns; that he presented defendant with an order from Mr. Williams, and payment was refused. The defendant claims that, when the plaintiff visited it, he said he wanted to see about the pay for some bricks that Mr. Williams had bought, and wanted to know how he was going to get his pay; that Williams had agreed to give him an order from the Michigan Clay Company on defendant for pay for the bricks. It was the defendant’s testimony that Klumph said he had sold the Michigan Clay Company some bricks, and that he was told that the defendant had agreed to advance the money on an order from the Michigan Clay Company to pay for all the material; that he was told about the Michigan Clay Company’s contracting to put up the building originally; that it had collapsed; that they had agreed to rebuild it; that#the defendant had agreed to make the advances for the material, and would pay him on an order from the Michigan Clay Company; that the money it was going to advance to pay for the bricks belonged to the Michigan Clay Company; that defendant never agreed to pay for the bricks on an order signed by Mr. Williams. The testimony on the part of defendant was that no order was ever presented by Mr. Klumph from the Michigan Clay Company, but one was presented from Mr. Williams. The cross-examination of the plaintiff disclosed that upon his books the bricks were charged to the Michigan Clay Company. Against the objection of the defendant, the trial judge directed a verdict for the plaintiff, and this is assigned as error.

The record shows that the plaintiff claims that the bricks were sold to defendant, and were to be paid for as delivered, upon the presentation of an order signed by Mr. Williams. It was the defendant’s claim that the credit was extended to the Michigan Clay Company, and the debt was to be paid for out of funds belonging to that company, in the hands of the defendant, upon presentation of its order. This raised an issue of fact, which the defendant had a right to have submitted to the jury. Grants. Masterton, 55 Mich. 161; Burroughs v. Ploof, 73 Mich. 607; Michigan Pipe Co. v. Michigan Fire & Marine Ins. Co., 92 Mich. 482.

We have not overlooked the cases cited by counsel for plaintiff. These cases determine that if there is an unconditional promise to pay for material used by the contractor, and the material is delivered, such a promise would not, because it was a promise to pay the debt of another, be within the statute of frauds, because the promisor had received the benefits for which the promise was made. In the case before us the question is whether the promise was in fact made by the defendant to pay for the goods as claimed by plaintiff, or whether it was a conditional promise, the conditions of which are unfulfilled. This was a question for the jury.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


text:
    GRENELL v. DETROIT GAS CO.
    Corporations—Sale op Property—Rights op Creditors.
    A corporation, which acquires the entire property of another corporation under an arrangement which has the effect of distributing the assets of the latter among its stockholders, to the exclusion of creditors, takes the property subject to the payment of the debts of its vendor, including a judgment subsequently recovered against it in an action for negligence which was pending at the time of the transfer.
    Appeal from Wayne; Donovan, J.
    Submitted February 2, 1897.
    Decided March 10, 1897.
    Bill by Inez B. Grenell against the Detroit Gas Company and others to establish a trust in the property of the Michigan Gas Company, transferred by it to the defendant the Detroit Gas Company, sufficient to satisfy a judgment in favor of complainant. The defendant the Detroit Gas Company appeals from an order overruling its demurrer to the bill.
    Affirmed.

      Fraser & Gates, for complainant.

      Wells, Angell, Boynton & McMillan, for appellant.
   Hooker, J.

The complainant’s bill charges that on June 28, 1895, she recovered a judgment against the Michigan Gas Company of Detroit for damages sustained through its negligence on December 2, 1891, upon which action was begun April 9, 1892; that execution issued, and was returned unsatisfied for want of property upon which to levy the same; and that the amount is now due and unpaid. It alleges, further, that said company is a domestic corporation, with an authorized capital of $3,000,-000, and that on December 2, 1891, said company was possessed of a large amount of property, real and personal; that it was then engaged in supplying and selling gas to the public; that on November 22, 1892, the Detroit Gas Company, another domestic corporation, was organized, its capital stock being fixed at $4,000,000, its objects including all of the objects for which the Michigan Gas Company was formed; that Frank P. Byrne, theretofore manager of the Michigan Gas Company, was instrumental ■ in organizing the Detroit Gas Company; and that it was designed by its organizers to be, and in fact was, the successor of said Michigan Gas Company. It is alleged, further, that on February' 1, 1893, the stockholders' of the Michigan Gas Company held a meeting, and adopted a resolution whereby it purported to authorize its officers to sell and convey to the Detroit Gas Company all of its property; and that it was on February 1, 1893, duly conveyed to one Camille "Weidenfield, by said officers, who, in turn, conveyed the same to the Detroit Gas Company, said Camille Weidenfield being a mere instrument through whom said conveyance to the Detroit Gas Company was made, and never having had any personal interest in the concern or its property. It is alleged, further, that the real consideration for said conveyance was, in part, the transfer by said Byrne, to the stockholders of the Michigan Gas Company, of shares of stock in the Detroit Gas Company, in furtherance of the arrangement theretofore made, and that they were the real owners of such stock, instead of said Byrne; that the officers, directors, and stockholders of said Michigan Gas Company, or at least some of them, were aware of the complainant’s claim and the pendency of her action, and yet joined in such a transfer as to place all of the property of said company beyond the reach of execution. The bill prays discovery, and that said Detroit Gas Company be decreed to hold the said property of said Michigan Gas Company in trust for the payment of complainant’s said claim, and that it pay the same, or that sufficient of said property be sold to that end. A demurrer was filed, which was overruled, and the defendant the Detroit Gas Company appeals.

If this transaction be viewed in the light that the defendant appears to desire it to be, viz., that these corporations are separate entities, and that the Detroit Gas Company purchased the property of the Michigan Gas Company, yet the bill shows that such purchase included all of the property of the vendor. It must have known, or, if not, it was its duty to understand, that nothing was reserved to pay outstanding indebtedness, if there were any. It paid nothing to its vendor for this plant, but dealt with its stockholders, paying to them, in its own capital stock, the price of its purchase; thus, in effect, closing out the corporate business, and dividing its assets among its stockholders. Under such circumstances, we think a legitimate inference is that the purchase was made subject to the application of so much of the property as might be necessary to the payment of the debts of the Michigan Gas Company, if not with the understanding that all debts should be paid by the purchaser. Berry v. Railroad Co., 52 Kan. 774 (39 Am. St. Rep. 381). Again, a corporation cannot sell all of its property, and take in payment stock in a new corporation, under an arrangement that has the effect of distributing the assets of the vendor among its stockholders, to the exclusion and prejudice of its creditors; and a company making such a purchase, in consideration of an issue of its own stock to such stockholders, takes the property subject to the rights of creditors. Such an arrangement is a diversion of the trust fund.

It is said that there is nothing to show an intention to defeat the creditors of the Michigan Gas Company, as this was not a liquidated claim at the time this transfer was made. See Schaible v. Ardner, 98 Mich. 70. Under the arrangement, the promoters and stockholders of the Detroit Gas Company knew that it was getting all of the property of the Michigan Gas Company, without provision for its debts, if there were any. It was bound to know that this property was charged with such debts, and ought not to be distributed among the stockholders to the exclusion of creditors. It was a party, then, to a diversion of the trust fund, and, having in its possession such fund, holds it subject to the payment of debts. It cannot be called a bona fide purchaser of the property, as against existing creditors. See Chicago, etc., R. Co. v. Third Nat. Bank of Chicago, 134 U. S. 276; Vance v. Coke Co., 92 Tenn. 47. Counsel cite the following cases, which seem to support this view: National Bank of Jefferson v. Texas Investment Co., 74 Tex. 437; San Francisco, etc., R. Co. v. Bee, 48 Cal. 398; Blair v. Railroad Co., 22 Fed. 36; Mott v. Insurance Co., 16 Fed. 140; Hibernia Ins. Co. v. St. Louis, etc., Transp. Co., 13 Fed. 516; 5 Thomp. Corp. §§ 6542, 6543. See, also, Schaible v. Ardner, 98 Mich. 70.

We think it unnecessary to discuss the other questions raised. The decree is affirmed, with costs, and the cause remanded, with leave to the defendant to answer within 20 days after the filing of the decree of this court.

The other Justices concurred.


text:
    ALLEN v. CONKLIN.
    1. Guardian and Ward—Estates oe Decedents—Accountings —Equity Jurisdiction.
    Equity lias jurisdiction to require the executors of the estate of a deceased guardian to account for funds of the ward fraudulently appropriated by the deceased, and to decree a sale of lands in the possession of his heirs and devisees to satisfy the amount found due, although the period within which the probate court might act in relation to the claim has expired.
    2. Same—Limitation oe Actions—Fraudulent Concealment.
    Where a guardian fraudulently conceals the fact that certain property belongs to his ward, and appropriates the same to his own use, the statute does not begin to run against the ward’s right to an accounting until his discovery of the fraud. 2 How. Stat. § 8724.
    3. Appeal—Review—Questions not Involved.
    The Supreme Court, upon affirming an order of the circuit judge overruling a demurrer to a bill in equityf with leave to defendant to answer over, declined to pass upon certain questions discussed by counsel, which might or might not arise in the case, depending upon the nature of the proofs.
    Appeal from Montcalm; Davis, J.
    Submitted February 2, 1897.
    Decided March 10, 1897.
    Bill by Edith A. Allen against Egbert S. Conklin and another, executors of the last will and testament of Richard Low, deceased, Jonah Low, and Peter Van Vleck, for an accounting with the estate, and to establish a lien upon land devised. Defendants Low and Van Vleck appeal from an order overruling their demurrer to the bill.
    Affirmed.

      Lemuel Clute and Miller & Clute, for complainant.

      N. O. Griswold, for appellants.
   Moore, J.

Complainant filed her bill of complaint, alleging, in substance, that she is now 36 years old; that she is a daughter of David Low, who was killed at the battle of the Wilderness; that her mother died when she was about sis weeks old; and that when about four months old she was adopted by William M. Richardson and wife, and lived with them about two years, and then was taken by Edward Thombrey and wife, with whom she resided in Clinton county, Mich., until about eight years of age, when she was taken by her foster parents to Lambton county, Ont., where she still resides. The bill alleges that Richard Low, who is now deceased, was appointed her guardian, and received, as guardian, a large amount of money from the "United States government as a pension, which she was entitled to by reason of her being one of the children of David Low, who was a volunteer in the United States army. It further alleges that said guardian made an application for said pension, and it was paid to him for her use and benefit; that said pension amounts to at least the sum of $707.09; that he also received some bounty money and back pay, in which she has an interest; that said guardian never filed any account in the probate court as such guardian, or in any other way accounted to complainant, nor to any public officer, for said funds, and that he has never given her any knowledge or information whatever concerning the matter, nor ever stated to her or brought to her knowledge any facts concerning it that would put her upon inquiry concerning her interests therein; that she never had any knowledge of the facts until November, 1895, which would put her on inquiry as to her rights in the premises; and that he has fraudulently suppressed the facts from her concerning it. The bill alleges that Richard Low died in 1883, testate; that his will has been probated in Montcalm county; that among the provisions in said will the heirs of David Low are given the sum of $150, to be divided equally among them; that she has never had her share of said legacy; and that she is one of David Low’s heirs. She further alleges that her said guardian intended to defraud her out of said pension money.

The bill alleges that commissioners were appointed to hear and allow claims against the estate of Richard Low, deceased, on or about November 26, 1883. It also alleges that subsequent proceedings in relation to such commission have been irregular, and not in compliance with law, and therefore void, and that they in no way operate as a bar to the prosecution of further claims against said estate; that all subsequent purchasers or incumbrancers of any of said estate take their title subject to any claims against said Richard. Low, deceased, and are not good-faith purchasers or incumbrancers thereof as against complainant’s claim; that Jonah Low was one of the heirs and legatees of said Richard Low, deceased, and that he is now in possession of a valuable piece of real estate belonging to said estate, worth more than enough to pay all complainant claims, after all the other debts are paid; that there is no personal estate out of which to satisfy such a decree; that he had full knowledge of the fact that an accounting in her behalf had been suppressed by said .guardian, and that he is in possession of said premises with full knowledge of all her rights; and that Peter Van Vleck is a subsequent purchaser or incumbrancer of said premises, with full knowledge of all her rights. Said bill of complaint also alleges that no facts have come to complainant’s knowledge which would set the statute of limitations in motion; that she has been entirely ignorant of all her rights in the premises until November, 1895; that, -from the fraudulent conduct of her guardian, she is entitled to come into a court of chancery, and have an accounting, and a lien declared on the land left by her guardian, and an order of sale made; that she is entitled to a lien by virtue of her claim herein stated, prior to any rights therein of either said Jonah Low or Peter Van Vleck to said lands. The bill prays for an accounting by the executors of her deceased guardian, and that the amount which shall be found due to her from her said guardian, as well as her share of said legacy given her by the will, shall be decreed as a prior lien, upon the lands described in the bill of complaint, to any interest claimed therein by Jonah Low and Peter Van Vleck, and that the land may be sold by an order of the court to satisfy such lien. She does not claim any preference as a creditor over other creditors of said estate. Jonah Low and Peter Van Vleck filed a demurrer to the bill of complaint, alleging (1) a general want of equity, (2) a misjoinder of parties, (3) a statement in the nature of a disclaimer by them of any interest in the subject-matter in litigation. The demurrer was overruled, and Low and Van Vleck appeal.

It is claimed that sections 5892-5894, 2 How. Stat., determine the time in which claims against estates can be presented; that so much time has elapsed that the probate court could not allow this claim, nor could it make any order for a sale of the real estate to pay it; and that, as complainant has no case against the property in question, the defendants Low and Van Vleck should not be required to answer,—citing Brown v. Forsche, 43 Mich. 492; Winegar v. Newland, 44 Mich. 367; Pratt v. Houghtaling, 45 Mich. 457; Willard v. Van Leeuwen, 56 Mich. 15. We do not think any of these cases meet the case stated in the bill. Suppose it is true that so much time has now elapsed since the death of Richard Low that complainant could get no relief in probate court; does it follow that equity cannot aid her ? The bill alleges that Richard Low obtained large sums of money, as guardian, belonging to complainant, for which he never accounted, but fraudulently appropriated them to his own use, and prays for an accounting. Unless the statute of limitations has cut off her remedy, she has stated a case entitling her to the aid of a court of equity. Crain v. Barnes, 1 Md. Ch. 151; Tompkins v. Hollister, 60 Mich. 470; Perrin v. Pepper, 72 Mich. 454; Dodson v. McKelvey, 93 Mich. 263. 2 How. Stat. § 8724, reads that ‘£ if any person who is liable [in personal actions] shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such cause of action.” Tompkins v. Hollister, 60 Mich. 470. In equity the rule is stated to be:

“ Courts of equity not only act in obedience and in analogy to the statutes of limitations in proper cases, but they also interfere, in many cases, to prevent the bar of the statutes where it would be inequitable or unjust. Thus, for example, if a party has perpetrated a fraud which has not been discovered until the statutable bar may apply to it at law, courts of equity will interpose, and remove the bar out of the way of the other injured party. A fortiori they will not allow such a bar to prevail, by mere analogy, to suits in equity, where it would be in furtherance of a manifest injustice.” 2 Story, Eq. Jur. § 1521: 13 Am. & Eng. Enc. Law, 680.

If the allegations of the bill are proven, we think a bill in equity will lie to reach the property still in the hands of the heirs, devisees, or legatees of Richard Low, deceased. 2 How. Stat. § 5940; Chewett v. Moran, 17 Fed. 820.

We are asked to decide in advance some features of this case which may or may not arise, depending upon what the proof discloses. This we decline to do.

The decree is affirmed, with costs, and the case is remanded to the circuit court in chancery. Defendants are allowed 20 days from the date of notice of this decree in which to answer.

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


author: Grant, J.

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    IRON DUKE MINE v. BRAASTAD.

      1. Mining Lease—Lien for Royalties—Waiver.
    A reservation in a mining lease of .a lien on “all ore mined,” to secure the payment of royalties, is not, as between the parties, waived or destroyed by a further provision contemplating that the ore will be shipped to the customary market in another State before payment of royalty.
    2. Same—Sale by Lessee—Torts.
    A lessee of a mine, who disposes of ore in such a manner as to deprive the lessor of a lien for royalties expressly reserved to him by the lease, is liable to the latter in an action of tort.
    Error to Marquette; Stone, J.
    Submitted February 3, 1897.
    Decided March 10, 1897.
    Case by the Iron Duke Mine against Frederick Braastad for wrongfully depriving plaintiff of its lien for royalties under a mining lease. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    The declaration contains two counts,—one for trover, the other in case. The second count sets forth the lease under which the royalty for iron ore mined was payable, and which provided a lien upon it to secure the royalty; that defendant wrongfully removed and disposed of the same without paying the royalty, and thereby deprived plaintiff of its lien. Defendant is assignee of the lease, plaintiff being the lessor. By its terms, the lessees agreed that they would, on the 20th days of April, July, October, and January in each year, pay for all the iron ore mined and removed from said land during the three months preceding the 1st day of the month in which payment was to be made, at the rate of 30 cents per ton for soft, and 40 cents per ton for hard, ore. The lease also contained the following provisions:
    “It is understood that the party of the first part reserves, and shall at all times have, possess, and hold, a lien upon all ore mined, and all improvements made on said premises by the parties of the second part, as a security for any unpaid balances of money due under this contract, which lien may be enforced against such property in like manner as liens on like property are entitled to be enforced under the laws of the State of Michigan.”
    “The parties of the second part, at the time of such payment, shall transmit to the party of the first part an exact and truthful statement of the amount of iron ore removed during the three months for which such payment shall be made. The iron ore so taken by the parties of the second part from said land shall he weighed by the railroad company transporting the same from said land, which weights shall determine the quantity as between the parties hereto. Said parties of the second part shall furnish the party of the first part monthly statements showing the aforesaid weights, the right, however, being hereby conceded to the party of the first part to inspect, review, and test the correctness of said railway company’s scales and weights at any time, and in such manner as it may see fit to adopt, it being understood that any error in these respects, when ascertained, shall be recognized and corrected in their accounts.”
    The defendant shipped the ore to Cleveland, Ohio, to his agents, by whom it was sold. Three shipments were made in June, 1894, and were sold in November and December of the same year. The total amount of the sales was $11,461.14, which was paid to defendant. The royalty amounted to $1,640.11. Soon after the ore was shipped, defendant’s agents advanced to him $8,560.90. Defendant did not pay the royalty, and this suit was instituted to recover it, upon the theory that the defendant had wrongfully disposed of the ore without paying the royalty or preserving the lien, and was therefore liable in an action of tort. The court directed a verdict for the plaintiff.

      Hayden & Young, for appellant

      Ball & Ball, for appellee.
   Grant, J.

(after stating the facts). The learned counsel for the defendant contend (1) that plaintiff had no lien upon the ore, and (2) that, if it had, it was waived, and that defendant committed no tort in disposing of it.

We deem it unnecessary to discuss the first point. The lease expressly provided for a lien upon “all ore mined,” and was not confined to the ore mined and upon the premises when proceedings should be taken to recover the royalty and enforce the lien.

Is the lien waived by the terms of the lease or by the customary methods of sale? There is nothing in the lease inconsistent with the existence of the lien. It would be an anomalous instrument which created a lien as security, and then destroyed or waived it by providing for the shipment (to the usual market for sale) of the ore there mined. Defendant introduced evidence to show that Cleveland, Ohio, was the customary market for iron ore mined in the Marquette district; that, by the universal custom of the district, the iron ore was shipped from the mines to this market by railroad and lake vessels; and that the sales agents made advances thereon of the cost of transportation, and sometimes also upon the purchase price of the ore. If this was the universal custom, the-lease was made with reference to that custom, and expressly provided for the lien. The custom, therefore, cannot annul the plain provisions of the contract. The permission to ship the ore for sale in the customary market in another State did not of itself destroy the lien. An innocent purchaser might take the property discharged of the lien, but this would not relieve the defendant from the consequences of his wrongful act in disposing of the property without preserving the lien or paying the royalty. It was in his power, as it was his duty, to pay the royalty, or preserve the lien. He could easily have accomplished this by directing his agents, in making the advance and the sale, to reserve the amount due for royalty, and pay the same to the plaintiff. Instead, he chose to take the entire purchase price, and refuse or neglect to pay. In so disposing of the ore, he, perhaps without intending any wrong, destroyed the lien, and committed an act for which he is responsible, under either count in the declaration.

The judgment is affirmed.

The other Justices concurred.


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    HARRIS v. STEWART.
    Trial—Requests to Charge.
    A judgment will not be reversed because of the refusal of the circuit judge to give all of the instructions requested by the appellant, if those given fully presented his theory of the case, and covered the entire controversy.
    Error to Antrim; Corbett, J.
    Submitted February 10, 1897.
    Decided March 10, 1897.
    Trover by Max Harris against Henry W. Stewart. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Sloman, Groesbeck & Robinson (Leavitt & Guile and C. E. Densmore, of counsel), for appellant.

      William S. Mesick (George E. Nichols, of counsel), for appellee.
   Grant, J.

Defendant was sheriff of Antrim county, and levied upon a stock of goods belonging to one Gold-stick, under certain executions issued from justices’ courts. Plaintiff had a mortgage for $2,000 upon said stock of goods, and at the time of the levy was in possession thereof under his mortgage. The creditors directed the sheriff to proceed with his executions in hostility to plaintiff’s mortgage. Plaintiff brought trover. The issue upon trial was whether the mortgage was made with intent to defraud the creditors of Goldstick. The testimony upon this point was in direct conflict, and the jury have settled it in favor of the plaintiff. The first 13 pages of appellant’s brief are taken up in detailing his version of the facts. This was unnecessary, since the testimony was in conflict, and his counsel concede that the question of fraud was properly left to the, jury. Two questions are raised upon the admission of testimony, but we do not consider them of sufficient importance to discuss. The ruling of the court thereon was correct.

Several errors are assigned upon the charge of the court and the refusal to give certain of defendant’s requests. He preferred 22 requests, of which 16 were given. These 16 cover the entire controversy and theory of the defendant. The principles governing such cases are familiar, and the present case involves nothing the discussion of which would be of any practical use as a guide in other cases.

It is sufficient, therefore, to say that we find no error, and the judgment is affirmed.

The other Justices concurred.


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    MINEAR v. PHELPS.
    1. Sale—Tender of Payment—Demand—Replevin.
    A purchaser of cattle, who had paid a part of the purchase price, met the seller two days after the time set for payment of the balance and for delivery of the cattle, at a place two miles from the place where they then were, and stated to him that he “was after the cattle, and had the money to pay for them.” The seller paid no attention to the statement. Held, that this did not constitute such a demand and tender as would entitle the purchaser to maintain replevin.
    2. Same—Waiver—What Constitutes.
    The return by the seller of cattle of money paid upon the purchase price, and a subsequent statement that he does not own the property, and that the sale must be declared off, do not establish the fact that demand and tender of the balance of the purchase price would be unavailing, so as to justify the purchaser in treating them as waived.
    Error to Osceola; McMahon, J.
    Submitted February 2, 1897.
    Decided March 10, 1897.
    Replevin by John Minear and George Wells against Aaron Phelps. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Sweet, Perkins & Judkins, for appellants.

      Charles A. Withey, for appellee.
   Hooker, J.

The findings of fact in this cause state that the plaintiff Minear bargained with the defendant for a yoke of oxen, at the price of $100, to be paid for on delivery. The bargain was made on Sunday, and the defendant promised to deliver the oxen on the following Wednesday at Evart. On the day appointed the defendant did not deliver the cattle, but went to Evart, where a pew contract was made, whereby he agreed to let the plaintiff Minear have the cattle for $100, to be paid upon the following Tuesday, when Minear was to go-to the defendant’s place for them. Five.dollars was then paid and accepted upon the trade. Afterwards, and on the same day, the plaintiffs offered to pay more upon the cattle, but defendant said, “The cattle are yours now, and you can have them next Tuesday.” The plaintiffs replevied the cattle some days after the time set for delivery, and upon the trial a judgment was rendered for the defendant, for want of demand and tender of payment, and, return of the property being waived, his damages were assessed at $95. It is alleged that this is erroneous, it being claimed that the findings show that demand and tender were waived. The findings upon this subject are:

1. A day or two after the Wednesday bargain, the defendant returned, by registered letter, the five dollars which had been paid. The plaintiffs, suspecting the contents of the letter, refused to receive it.

2. On Sunday, two days before the time set for the delivery, the plaintiff Wells was at defendant’s house, talking about the oxen, and defendant said that he did not own the cattle, had no right to sell them, and that he had returned the money, and the trade must be called off.

8. A day or two after the time set for plaintiffs to call for the cattle, Minear went after them, and met the defendant in the road a mile and a half from his house. He told the defendant that he was, after the cattle, and had the money to pay for them. Defendant paid no attention to him, and passed on. The money was not produced and tendered, and no other demand was made at that time.

The writ in this case was then sued out, and afterwards, but before service, a tender of $95, and demand for the cattle, were made and refused. It is plain that no demand accompanied by lawful tender was made before suit. A demand unaccompanied by a tender, or, so far as appears from the findings, without present ability to pay the money, was made two days after the time set for payment, at a place 1% miles distant from the place where the cattle then were, which was received by silence on the part of the defendant. Standing alone, this was insufficient, for several reasons: (1) Not being at the appointed time, the defendant was under no obligation at that time to go home and deliver the cattle; (2) the money was not exhibited and offered; (3) there is nothing to show that Minear had any money. The question then gets to the point where, to sustain the plaintiffs’ contention, we must say that the return of the money, and the statement made on Sunday that defendant did not own the cattle and had no right to sell them, and that the trade must be declared off, constituted a waiver of the demand and tender, or, if it did not, so explained and colored defendant’s conduct as to justify the conclusion that his silence on the subsequent occasion was equivalent to a statement that no demand or tender need be made, for the reason that he should not deliver the cattle. The effect of the plaintiffs’ contention is the destruction of the defendant’s lien,' and to deprive him of the cattle without payment, leaving him to rely upon the personal responsibility of the plaintiffs for compensation. Under such circumstances, the court would not have been justified in lightly inferring a waiver of demand and tender. Up to the time that the parties met in the road, there had been no demand or tender, nor had there been a clear refusal to perform the contract. Potts v. Plaisted, 30 Mich. 149; Engle v. Hall, 45 Mich. 57. On that day the demand was not made at the proper place; nor was there any refusal to deliver at a proper time and place, upon tender. Furthermore, it does not appear that the plaintiff Minear had the money with him, i. e., “that he was ready and willing to pay the money.” The burden of proving the waiver was upon him, and we think the court was not in error in holding that it was wanting. By the waiver of return, and assessment of $100, or thereabouts, as damages, substantial justice has been done. The plaintiffs could easily have put this matter beyond question before commencing this action, but did not do so.

We are of the opinion that no error was committed, and the judgment is affirmed.

The other Justices concurred.


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    GRIFFIN v. GRIFFIN.
    Equity Pleading—Gross-Bill—Parties.
    A defendant in a- bill for a partnership accounting may set up by way of cross-bill, after denying the partnership, a claim that, as a result of the dealings between the parties, a large amount is due him from complainant as trustee, where the transactions are the same as those referred to in the original bill, and may bring in complainant’s wife as a defendant to the cross-bill, where she is in privity with the complainant.
    Appeal from superior court of Grand Rapids; Burlingame, J.
    Submitted February 2, 1897.
    Decided March 10, 1897.
    Bill by Michael F. Griffin against Thomas Griffin for a partnership accounting. Defendant filed a cross-bill, making Gertrude T. Griffin, complainant’s wife, a party defendant. From an order overruling her demurrer to the cross-bill, Gertrude T. Griffin appeals.
    Affirmed.

      D. E. Corbitt, for appellant.

      Wolcott & Ward, for defendant.
   Hooker, J.

The complainant filed a bill against Thomas Griffin for a partnership accounting, alleging that they entered into partnership without a special agreement to do so, but by a course of dealing. The defendant, Thomas Griffin, answered, incorporating by way of cross-bill a detailed statement of his dealings with the complainant, and with his (complainant’s) wife in connection therewith, which he alleges constituted them his trustees as to property therein mentioned. The wife, Gertrude, was brought in as a party defendant. Complainant answered the cross-bill, while his wife filed a general demurrer, which being overruled, she brings the question here; contending that the cross-bill should be limited to questions connected with the partnership alleged in the original bill, and that, inasmuch as the answer denies the existence of any partnership, it cannot consistently be claimed that the enforcement of a trust is in any way connected with the relief sought in the bill.

A cross-bill for relief must be strictly confined to the matters which are involved in the original bill, and is filed to enable the defendant in the original bill to fully avail himself of some defense by making his redress complete through the granting of affirmative relief, which could not be done under the original bill and answer. Andrews v. Kibbee, 12 Mich. 94. In his original bill the complainant alleges a partnership involving many transactions, but these are not set out in detail, nor specifically designated. It prays an accounting. The defendant, after answering and denying the partnership, filed a cross-bill, admitting that the parties had dealings, and claiming that as a result there was a large amount due him, as cestui que trust, from the complainant, and praying for an accounting and affirmative relief. It also alleges that the dealings and transactions are the same that are referred to in the original bill.

As between the original parties, it would seem proper to file this cross-bill. The nature of the dealings, and the circumstances under which they occui’red, must be examined to determine the question of partnership; and if it be found that they establish a trust relation, instead of a partnership, there seems no good reason why the defendant should not have a decree enforcing the trust. This would entitle him to an accounting upon the theory of a trust, instead of being required to account as a partner. The facts are germane to the matter involved in the original bill, and, if the allegations of the answer are true, as we must assume, are such facts as the court should have before it in deciding the questions raised in the original suit, and in such cases cross-bills may stand. 5 Enc. Pl. & Prac. 640, 641. The complainant appears to recognize the propriety of filing a cross-bill, by answering the same, and the case is here upon the demurrer of Gertrude Griffin alone, who was not made a party by the original bill.

It may be doubted if the practice of bringing in new parties by a cross-bill is not an innovation. The origin and purpose of cross-bills indicate it, and until a comparatively recent date the practice was not usual, if it was permitted under any circumstances. Mitford, Copper, and other early writers, are silent upon the subject, except as they imply that it is not permissible by stating that the cross-bill is designed to afford complete relief to the parties to the original bill. Most of the text writers pass without mention the subject of bringing in new parties by cross-bill. In the case of Shields v. Barrow, 17 How. 130, Mr. Justice Curtis said:

“ A cross-bill, ex vi terminorum, implies a bill brought by a defendant against the plaintiff in •the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill,”—citing Story, Eq. Pl. § 389; 2 Daniell, Ch. PI. & Prac. 1548.

Continuing, the distinguished jurist said:

“New parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires, to make new parties, he amends his bill and makes them. If the interest of the defendant requires their presence, he takes the. objection of nonjoinder, and the complainant is forced to amend, or his bill is dismissed. And the rule that a general demurrer will not lie to a cross-bill, and the reason given for it, viz., ‘that, as the defendant is drawn into court by the complainant in the original bill, he may avail himself of the assistance of the court without being obliged to show a ground of equity to support its jurisdiction,’ are sufficient, for it is manifest that this cannot be said of one who is brought into court by the cross-bill.”

The views of Mr. Justice Curtis have been criticised in several cases, and upheld in others. The following are a few of them: Brandon Manfg. Co. v. Prime, 14 Blatchf. 371; Jones v. Smith, 14 Ill. 229; Allen v. Tritch, 5 Colo. 222; Wright v. Frank, 61 Miss. 32. Of these, many will be found where the new party was apparently brought in without objection, and therefore the question was not discussed; others are based upon the provisions of a code or statute; and, of the remainder, some, at least, will be found that imply that the courts deciding them recognized that they were on doubtful ground. Thus, in Jones v. Smith, 14 Ill. 229, the court, in sustaining the practice, says that—

“Were a precedent wanted, we are prepared to furnish it. But counsel have referred us to Blodgett v. Hobart, 18 Vt. 414, where a new party was brought in by a cross-bill; and, if the court did not examine the question and expressly affirm the? practice, it was because counsel did not raise the objection.”

But, considering the more recent cases, reinforced by statutes and codes, the trend is towards the practice; and the statement that “the undoubted weight of authority is to the effect that if a cross-bill is brought for relief as well as for defense, and shows that persons not parties to the original bill are necessary parties to the cross-bill, they may properly be made such,” is probably true. 5 Enc. Pl. & Prac. 648; Story, Eq. Pl. § 399, and note; 2 Daniell, Ch. Pl. & Prac. 1549, and note.

As we have seen, the complainant asks an accounting upon certain transactions. The defendant asks the same, and the fact, if true, as he alleges, that the transactions created a trust, which would, if proved, be a perfect defense to the bill, and therefore proper to be shown, justifies a cross-bill, with a view to affirmative relief ; and if Gertrude T. Griffin is in privity with the complainant, and allegations of the cross-bill relate to the identical matters upon which the original bill is based, as they purport to do, and not to transactions between' herself and the complainant in the cross-bill alone, it is probable that a court of equity may find these facts germane and decree relief. At all events, we are not able to say that they are not so.

The decree of the circuit court in chancery is affirmed, with costs, and the record remanded, with leave to Gertrude T. Griffin to file an answer to the cross-bill within 20 days after the decree of this court shall be filed.

The other Justices concurred.