author: Moore, J.

text:
    MERRIMAN v. VANDEMARK.
    Fraudulent Conveyances — Cancellation oe Instruments — Deeds — Contracts—Estates oe Decedents.
    In a suit to cancel a deed made by an intestate, wbo had arranged with bis housekeeper to reward ber care and services by devising to her bis real estate, consisting of village property worth $2,000 or upwards, but wbo conveyed the realty to defendant before bis death, conflicting testimony reviewed, and held, to warrant the decree of the lower court for the complainant administrator; also that notice to defendant of the rights and claim of the claimant (wbo bad secured the allowance of ber claim before the probate judge) was established by proof of defendant’s admissions.
    Appeal from Eaton; Smith, J.
    Submitted October 11, 1915.
    (Docket No. 34.)

    Decided December 21, 1915.
    Bill by David P. Merriman, administrator of the estate of Lewis Brooks, deceased, against Stewart 0. Vandemark to set aside a conveyance, executed in the lifetime of decedent, for the benefit of a judgment creditor of the estate. From a decree for complainant, defendant appeals.
    Affirmed.

      Hatch, McAllister & Raymond, for complainant.

      W. W. Wicker (R. R. McPeek, of counsel), for defendant.
   Moore, J.

This bill of complaint was filed for the purpose of setting aside a certain deed given by Lewis Brooks to defendant, his nephew, May 16, 1906. The deed was placed on record on June 5, 1906. The bill avers, in substance, that on June 2,1906, Lewis Brooks died intestate, and that complainant was appointed administrator; that the sole'assets of said estate consisted of the real estate in the village of Vermontville, which is the subject of controversy in this case; that at a hearing on claims the probate court allowed Helen Hammond for services rendered as housekeeper, and services rendered in caring for Lewis Brooks and his wife from 1890 until his death, the sum of $2,000; that no claims have ever been paid; that there are no personal assets in the hands of the administrator; that on May 16, 1906, Lewis Brooks executed a warranty deed to the defendant of the land in question; that said deed was not placed on record until after the death of Lewis Brooks; that said conveyance was fraudulent and void as to the creditors of Lewis Brooks; that the claim of Helen Hammond was based on a contract with Mr. Brooks whereby he agreed to will said real estate to her as compensation for her services as housekeeper and services rendered in caring for Lewis Brooks and his wife from 1890 until his death, and that the said claim accrued long prior to the making or delivery of the deed aforesaid; that there is a deficiency of assets in said estate; and that the administrator has no way of paying the claim allowed, unless the real estate described in the bill of complaint is subjected to the payment of said claim. The bill of complaint prays that the said defendant pay a sum sufficient to pay the claim aforesaid and the expenses of administering the estate, and in event of the failure of defendant to pay the debts of said estate that the deed be set aside and the premises sold to pay debts.

The substance of the answer is that the allowance of the claim of Helen Hammond against the estate of Lewis Brooks was fraudulent; that Lewis Brooks was not the owner of the lands at the time of his death; admits the giving and recording of the deed as alleged; denies that the deed was not based upon actual consideration, and alleges the deed was given for a full consideration; denies any contract between Lewis Brooks and Helen Hammond as alleged; denies the deficiency of assets in the estate and alleges that Lewis Brooks at the time of his death owned a large amount of personal property which came into the possession of Helen Hammond sufficient to pay all his debts; alleges that the proceedings in probate court in Gratiot county were taken through conspiracy between complainant and Helen Hammond to establish a false claim against the estate of Lewis Brooks, and that for eight years prior to 1906 Lewis Brooks did not reside in Vermontville, and had not been cared for and no services of any kind had been rendered him by Helen Hammond; that, on the contrary, prior to 1898 Lewis Brooks had supported Helen Hammond; that in 1898 Mr. Brooks left Vermontville, and continued to reside in Detroit until 1904; that when he left Vermontville in 1898 Helen Hammond remained on the premises, and had the enjoyment of the same and the household furniture and appliances up to the time of the commencement of this suit, without paying of rent; and that she continues to reside on the premises without payment of any consideration, excepting insurance premiums and taxes. The answer further alleges that, if any services were rendered, any claim therefor is barred by the statute of limitations.

Proofs were taken in open court, and a decree in favor of complainant was rendered. From this, decree, the case is. brought here by appeal.

The trial judge filed an elaborate opinion from which we quote:

“The claim that the property conveyed to defendant was a homestead is without merit. If there is anything in the position that one may convey a homestead, with death near at hand, in- violation of a promise before made to another to convey or devise the same, it cannot apply to this case, for the reason that defendant had not occupied the premises for more than two years, and, if the claim of defendant is sustained, it was for more than eight years.
“Taking up the case as it appears to the court from the proof, it is my judgment that the complainant has established by a fair preponderance of the evidence the following:
“First. In February, 1890, the family of Lewis Brooks lived on? the premises in- contention, and consisted of the following named persons: Lewis Brooks, aged 78, quite infirm, nearly blind, and very deaf; Mrs. Brooks, his wife, aged 80, very helplessvfrom old age and. bodily infirmities; Mr. Brown, the. brother of Mrs. Brooks, aged 85, in good health for a man of his age but very deaf. Mr. Brooks was desirous to get some one to care for them. Helen Hammond was a niece of Mrs. Brooks. She lived in Vermontville with her husband and family on a small place. She was about 50 years old, in good health, a good housekeeper, and at times did service as a practical nurse. Mr. Hammond was a laborer working his own premises and other lands. The Hammonds left their home and moved on to these premises. At that time Mr. Brooks had the property in question, consisting of the home and about seven acres, of land, and a mortgage taken on a farm in Jackson county, which he had sold, and which mortgage was for $3,300, bearing interest at 6 per cent. The arrangement first made was that Mrs. Hammond was to live on the premises, and was to be paid $4 a week for her care of the family. Mr. Hammond was to work the land on shares, having two-thirds, and giving Mr. Brooks one-third. A few months later Mr. Brooks, not making collection of interest when due on his mortgage, made another arrangement by which Mrs. Hammond was to stay there and ca,re for them as long as they lived, and was then to have the place either by a deed of conveyance or by will.
- “Second. Mr. Brooks lived there continuously until' 1898, but after that and until 1904 he stayed part of the time during the winter season with the defendant, Mr. Vandemark, in the city of Detroit. Mr. Vandemark’s mother and Mr. Brooks were brother and sister.
“Fourth. That defendant claims that Mr. Brooks did not live in the Vermontville home after 1898, but occasionally visited there. The complainant’s claim is that Mr. Brooks lived at his home in Vermontville until 1904, making visits in the winter at the home of Mr. Vandemark in Detroit. I am satisfied that the complainant’s claim has been established by the greater weight of the evidence, and that this home was his home a greater part of the time until the year 1904.
“Fifth. In the year 1904, without any fault of Mrs. Hammond, he moved to Alma, in Gratiot county, this State, into a home with his sister, Mrs. Vandemark, and his niece, Mrs. St. John, who is a sister of the defendant.
“Sixth. In the year 1899 Lewis Brooks made his will, and this will was in conformity with his agreement with Mrs. Hammond. This will remained in the custody of Mr. Benedict, who drafted it, until the year 1904, when Mr. Brooks, just before removing to Alma, called and got it, and took it away with him.
“Seventh. The fact that Mr. Brooks made the contract in question with Mrs. Hammond is beyond doubt. It is established by proof that cannot be doubted. * * *
“Eighth. It is beyond question that Mrs. Hammond carried out her agreement to the letter; that she cared for these old people in the best possible way, and well earned all she could get under said contract. * * *
“Tenth. May 16, 1906, the deed in question was made by Lewis Brooks to the defendant at Alma, Mich. Mr. Brooks at this time was of the age of 94 years.
“Eleventh. Mr. Brooks died at Alma June 2, 1906, and his body was brought to the old home in Vermont-ville for burial, accompanied by the defendant.
“Twelfth. The deed was placed on record June 5, 1906, the day of Mr. Brooks’ funeral.
“Thirteenth. December 6, 1911, complainant was appointed administrator of the estate of Lewis Brooks by the probate court of Gratiot county, in this State, filed his bond, and received his letters of administration.
“Fourteenth. After that Helen Hammond filed her claim against said estate, which claim as filed was as follows; * * *
“Fifteenth. On December 2, 1912, the claim was heard by the judge of probate of said Gratiot county and allowed at the sum of $2,000. The finding of the court is as follows:
“ ‘The evidence before the court shows that the above services were rendered to and in behalf of said deceased during his lifetime, under a contract or understanding that the said deceased should will certain property in the village of Vermontville, Eaton county, Mich., and occupied as a home by the said deceased during the years in which the said services were rendered, except the last two- years or more just prior to his death, and that no provisions were made for the said claimant in settlement for her services. The evidence also shows that the value of the services were much in excess of the property in question which the evidence showed to be worth ¡¡>2,000, which sum the court has allowed said claimant, and that the said deceased died possessed of no other property only that in question and above referred to.’ * * * ,
“Seventeenth. Mrs. Hammond has been in possession of said property since 1890, and is now in possession of it, and has during that time cared for it, paid the taxes on it, and kept it in repair.
“Eighteenth. The defendant made no claim to the premises until June, 1913, when he caused to be served on Mrs. Hammond a notice to quit possession of the premises.
“While I am without doubt as to the proper disposition of this case from the proof, yet I am of the opinion that, could the truth be known as to the disappearance of the will, and the disposition of the money belonging to Mr. Brooks, on account of the mortgage, it would materially strengthen the claim of the complainant in this case, as set forth in the bill of complaint. It is my judgment that complainant has. established á legal fraud against the defendant in the giving and taking of this deed, and has established his right to the relief he asks for, and that he should be given a decree as prayed.”

The bill of complaint in this cause is filed under 4 How. Stat. (2d Ed.) § 11074 (3 Comp. Laws, § 9363). This statute has been construed by this court in a number of cases. See Walker v. Cady, 106 Mich. 21 (63 N. W. 1005); Beith v. Porter, 119 Mich. 365 (78 N. W. 336, 75 Am. St. Rep. 402).

The important questions in the case are questions of fact. Dr. Snell testified to a conversation with defendant that shows the defendant knew about the arrangement between Mrs. Hammond and Mr. Brooks long before he took the deed, and, though defendant was a witness, he did not deny this conversation.

There was contradictory testimony. It would profit no one to quote the testimony. We shall content ourselves with saying that, after a careful examination of the record, we are satisfied with the decree of the court below.

The decree is affirmed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    ALPERT v. PLOTKIN.
    Evidence — Bills and Notes — Accommodation.
    Where plaiDitiff brought suit on a promissory note that defendant charged had been executed for the accommodation of the plaintiff, who, on his part, claimed that the note was given him for professional services as an attorney, the question at issue was one of fact, upon irreconcilable testimony; the trial court erred in directing a verdict for plaintiff.
    Error to Wayne; Collingwood, J., presiding.
    Submitted October 14, 1915.
    (Docket No. 100.)
    Decided December 21, 1915.

      Assumpsit by Daniel J, Alpert against Samuel Plot-kin on a note. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Beckenstein & Wienner, for appellant.

      Alpert & Alpert, for appellee.
   Moore, J.

Plaintiff is an attorney. This action is based on a promissory note dated March 4, 1914, for $250. Plaintiff claimed and gave testimony to the effect that the note sued was one of two notes the defendant executed, and that the consideration of the two notes was professional services. Plaintiff gave further testimony to the effect that defendant executed another note to contractors, which note he purchased. Defendant claimed that he executed two notes for services, and also another note some time in March, 1914, for plaintiff’s accommodation, to enable plaintiff to discount it at a bank, the plaintiff promising to meet payment of the note when it became due. Defendant further testified the note involved in the present suit' was the accommodation note, as the other two promissory notes were involved in the two suits before the justices of the peace, and judgments rendered thereon. The record discloses the following:

“Q. These notes you never paid any one, did you?
“A. I gave you two notes—
“Q. Did you pay anybody this note?
“A. This note of March 4th?
“Q. This note given for my services. I rendered services for you, didn’t I, for which you gave me this note?
“A. I gave you two notes for services.
“Q. These are the two notes you gave me for services?
“A. Yes.
“Q. You did not pay either one of them yet?
“A. No. (Defendant rests.)
“Mr. Alpert: We now ask you honor to direct a verdict in favor of the plaintiff against the defendant because he admits that the note on which we are suing has- not been paid, and he admits that neither one of these notes have been paid, and both notes given on March 4th were given for services.
“Mr. Beckenstein: He testified that two notes were signed for personal services and one note for an accommodation, and the one you were suing on is for accommodation, and the question for the jury is whether this would be the accommodation note.
“The Court ’: His last testimony was that he gave two notes on March 4th for services, and one has been paid by judgment, and this note remains and nothing has been paid on it. I will direct a judgment for the plaintiff.”

A verdict and judgment was rendered for $253.87. The case is brought here by writ of error.

Previous to his cross-examination defendant testified that the note sued upon was an accommodation note which plaintiff was to pay when it matured. He also testified that the two notes given for professional services were sued and put in judgment. We quote:

“Q. Did he say when the money became due he would take care of it?
“A. He would pay it.
“Q. And the only notes that you signed for which you owe money were the two notes ?
“A. The two notes.
“Q. You were beaten on the other two notes?
“A. On these notes.
“Q. Did you sign a bond to stay execution on those notes ?
“A. Yes.
“Q. When the time is up will you pay?
“A. Yes, I would pay them right away, but it made me mad, you know, and that’s why.
“Q. And the note which is in this suit was signed for the purpose of enabling him to get the money out of the bank?
“A. Yes, for his own use.
“Q. You received no cent of it.
“A. No.”

The record also shows a judgment before Justice Richter on a note for personal services in the sum of $251.96 and costs, and a judgment before Justice Degaw on a promissory note for services for $253.96 and costs. We think it clear this testimony raised a question of fact for the jury.

Judgment is reversed, and a new trial ordered.

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


text:
    SIKORA v. FELLOWCRAFT CLUB.
    1. Negligence — Elevators—Licensees—Landlord and Tenant.
    Where the proprietor of a building leased to defendant club the upper stories, together with a power freight elevator, for ten years, and the defendant club undertook the expense of operating and repairing the elevator, the proprietor reserving the privilege of using the elevator, to himself and other tenants, in so far as their use did not interfere or conflict with the requirements of the club, and agreed to pay a just proportion of the expenses thereof, where, also, the landlord granted to the club the use of part of the basement, at a subsequent time, to pay his part of the expenses of maintaining the elevator, the landlord was not responsible for the negligent killing of plaintiff’s intestate, who was delivering beer for defendant club, whose servant operated the elevator at the time of the accident; and upon proofs showing that the elevator was delivered to the defendant club in good condition.

    2. Same — Master and Servant — Personal Injuries.
    But the servant in control of the elevator, being employed by the club, which maintained the ápparatus, was chargeable with neglect for starting it just as decedent attempted to enter, and for his negligence the club was responsible, under the rule of respondeat superior.

      2. Same — Evidence—Res Gestee — Hearsay Rule — Exception — Elevator.

      Testimony to the effect that decedent’s superior, having charge of the delivery of beer, told deceased to remain with the horse and directed the operator to start the elevator, was admissible as part of the res gestee, and it was error to exclude it.
    4. Same — Repairs—Degree oe Care — Defective Appliances— Charge.

      Held, that it was erroneous to instruct the jury that the defendants were under obligation to maintain the elevator gate in repair, when the issue should have been limited to the simple question whether the person directing decedent had notified him to remain with the horse and whether the elevator started as decedent entered or was already in motion.
    5. Sam:e — Contributory Negligence.
    And it was improper to charge the jury that defendants owed towards the intestate a high degree of care, or to inform them that the latter was not required to stop, listen, or specially examine the elevator before entering.
    Error to Wayne; Barton, J., presiding.
    Submitted October 13, 1915.
    (Docket No. 78.)
    Decided December 21, 1915.
    Case by Frances Sikora, as administratrix of the estate of Adam Sikora, against the Fellowcraft Club and others for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Chamberlain, Denby, Webster & Kennedy, for appellants executors of Palmer Estate.

      Clark, Lockwood, Bryant & Klein, for appellant Fellowcraft Club.

      Samuel G. Thompson, Harry W. Cullen, and Cullen, Casgrain & Wurzer, for appellee.

       On liability of landlord to third person for condition of premises in possession of tenant, see notes in 26 L. R. A. 197, 50 L. R. A. (N. S) 286.

   Moore, J.

This case is brought to recover damages for injuries resulting in the death of Adam Sikora because of the. alleged negligence of the defendants.

Thomas W. Palmer was the owner of a large building on Washington boulevard in Detroit. The building had a basement, and was six stories high above the basement. The first story has five stores; the se'cond and third floors are used as offices. The building was completed the latter part of 1910. The lease from Mr. Palmer to the Fellowcraft Club is dated October 1, 1910, and it leases the three upper floors of the building—

“together with a first class electric passenger elevator and a proper power freight elevator, with access to said elevators and the stairways leading to said upper three floors through the main halls, in said building for the term of ten years.

In this'case it is provided that:

“it [the Fellowcraft Club] will also pay the expense of operating and keeping in repair the said passenger elevator and said power freight elevator installed in said building by the party of the first part for the use of said party of the second part, and demised hereby. * * *
“It is further mutually understood and agreed by and between the parties hereto that the said party of the first part shall have the right and privilege, for-himself and his tenants in said building of which the premises hereby demised form a part, to use the said power freight elevator furnished for the use of said party of the second part and hereby demised, provided always that such use shall not conflict or interfere with the enjoyment of the same by the said party of the seco'nd part for its uses and purposes, and provided also that said party of the first part shall pay to said party of the second part for such use of said elevator had by himself and tenants such proportion of the monthly expense of the operation and repair of the same and of insurance against accidents in operation thereof, as shall hereafter be found equitable upon the basis of the relative use of the same made by the said party of the first part and his tenants.”

In January, 1911, an agreement was made, whereby Mr. Palmer gave the club the use of a certain portion of the basement as payment of his proportion of the expense of operating the freight elevator, keeping it in repair and insuring it against accident. When the Fellowcraft Club took possession the freight elevator and its appliances were inspected. They were of approved type and in common use and were in good working order.

The Fellowcraft Club is a social club. The freight elevator has been operated* exclusively by the employees of the Fellowcraft Club. At times freight was carried on this elevator to the second and third floors of the building for the tenants occupying those floors. On July 29,1913, this elevator was operated by Ernest Law, an employee of the Fellowcraft Club. At the time of the accident the elevator was being used to take two half kegs of beer from the alley entrance to the Fellowcraft Club. The opening in the east wall of the elevator shaft at the alley level was five feet wide and seven feet high. There was a metallic fire door on the outside of this opening which rolled up like a curtain. In this opening there was a semi-automatic gate. When the elevator is brought to the level of the opening on the alley the operator lifts the gate and a dog holds it from falling. If the elevator is raised or lowered six to twelve inches this dog is released and the gate falls, closing the opening.

On July 29, 1913, the plaintiff’s intestate was employed by the Stroh Brewing Company. He was sent out as a helper with Frank Kottlefski, a driver of a one-horse truck used for delivering beer, the vehicle, horse, and beer belonging to the Stroh Brewing Company. The plaintiff produced two men who claimed to have seen the accident. One of them testified:

“When I came out into the alley I saw a beer wagon and a man in the alley. I saw a man directly in front of him, and a man up by the beer wagon. * * * There was a man directly in front of me, about eight to ten feet. Then I noticed another man up by the brewery wagon, who seemed to be covering up the wagon. He finished that, and then went towards the elevator entrance in the Palmer Building. I saw him step his right foot upon the elevator. The elevator started up immediately, and I stopped to see what happened. He slipped — it caused me to stop, and he fell face forward with his hands out on the elevator platform. His legs were hanging over the edge of the elevator. The elevator was standing still when I first saw him step, on the elevator platform. I didn’t then see any gate. I saw the man go up on the elevator in that position. When the elevator started up, and I saw the man in that position, I hesitated to see if he would recover himself, or get up, or get any assistance; but that did not happen, so I saw him going on past the upper opening. I stepped over, to the elevator to see what became of him, and I looked up the shaft, and the elevator stopped after it had got above that opening a few inches, and * * * I heard one voice say, ‘Let me down! let me down!’ that way. They all seemed to be excited, and then I heard another voice, ‘Let him down! let him down!’ and some one said, ‘All right! all right!’ Instead of the elevator coming down, it started up again. I heard a crackling sound, as if timber or wood were breaking, then I realized what had happened, and I was heartsick. I stepped back across the alley from the place just on a diagonal across the alley out of the way. When I first noticed the man step on the elevator, I could see just the back of a man and the edge of a beer keg. My range of vision was not so it would permit me to see on the inside of the elevator, but I could see the outer edge of the elevator and the entrance to it.”

The second witness for the plaintiff testified:

“As I came up near the Palmer Building the first thing that caught my sight was a wagon, and I saw a man there at an elevator. I stopped and lit my cigar, and naturally coming on down more, as I lit my cigar, it went out and I stopped again to light it, then started on down. By that time I was within at least ten feet of the elevator entrance. Then I saw a man leave from the elevator and go towards the wagon. The wagon seemed to have beer or something in it, and had a cover. Then I heard a man say, ‘Go and cover the wagon John, and come back.’ I understood him to say ‘John.’ That is what I heard him say. By that time I walked on down. I had nothing in particular to do, and I used to walk to work at the Fellowcraft Club, and I stopped to watch them taking it up, and I walks back, and I stopped in front of it just like I am here (indicating) and I saw this man step on the elevator. When he stepped the elevator started up; it was absolutely still until he stepped on it and it started up and caught the man midway of the back. Well, from the position that I was looking at and where I was at, he had one leg doubled up; it seemed that he tried to make it upon there, and then the first stop was it caught him; it seemed to be the middle through the back and stomach, and then I ran up, of course; I was excited to see, so I ran up and I says to this — I run up there, looked at the outfit, and it suspended about a minute, and then the man says, ‘Lower me down! lower me down V He says, T am all right now.’ Well, then it was there for just about, I reckon, about 30 seconds, or a minute, possibly, before the elevator took another start; then the shriek and the breaking, and then I looked up, thought possibly something had happened ; then I heard excited voices talking; then the elevator started down. I heard the timber breaking, and I heard the man shriek. The elevator shot down to the basement. * * * When I first saw Adam Sikora enter this elevator, there was a white man sitting on the right-hand side and a colored fellow was standing over on the left, on the side fronting towards Washington boulevard. I have ridden on this elevator many times. The cable that operates the elevator is on the left-hand side and next to the inner portion of the building. Whatever the operative force is, it is on the left-hand side and towards the inner portion of the building. I saw Adam Sikora step on the elevator while it was standing still. The operator was standing with his face toward the boulevard and his back towards the alley. The other person on the elevator was sitting in the same position, facing in the opposite direction away from the alley.”

At the time of the trial the operator of the elevator at the time of the accident was dead.

On the part of the defendant Frank Kottlefski testified in part:

“I am working for Stroh’s Brewery. I have worked for them going on two years next June. I was working for them at the time of the accident to Mr. Sikora. * * * Mr. Sikora was employed by Stroh’s Brewery. He was only extra man. * * *
“Q. Under whose supervision, whose charge, was Sikora?
“A. I was boss at that time.
“Q. When he was with you?
“A. Yes, sir. * * * I remember the day that Mr. Sikora was injured. * * * On the day in question we were to take some beer from the brewery to the Fellowcraft Club. * * * I was driving what they call a single truck. It was drawn by one horse. I came from Grand river into the alley and up through the alley going north, going toward Clifford street, so when I got up in front of the door I got off the wagon. So did my helper Mr. Sikora. I drove somewhere between two and three feet off from the building. The back end of my wagon came just about even to the door that went into the building. The horse was north of the door. I got off the truck and rang the bell for the ele-, vator to come down. There was a bell right on the side there, just pressed the button in the wall of the building. There was a gate over this opening. It was down from the hole. It was hanging down, so the elevator man came down with the elevator and stopped and shoved the gate up. After he shoved the gate up nobody had to hold it; it stays right up there. After that I took a half barrel of beer off to put it on the elevator, then I took another off and put it on the elevator.. Two half barrels I put on. Sikora did not help to handle these half barrels. He was on the other side of the truck, on the east side of the truck. After I put the two half barrels on the elevator, I walked on the elevator, and I told Mr. Sikora— We always called him ‘John,’ and I says, ‘Cover up the beer and watch the horse,’ and-he says, T do so.’ And I says to Mr. Sikora, ‘On the way coming back I will go right down to the basement, there is Some empties and I will bring them up,’ and I said, ‘Be sure and don’t go away from the horse.’ He said, ‘All right; I will do so.’ So I turned around and sat down on the half barrel, and I said, ‘Let it go.’
“Mr. Wurzer: Just a minute. I move to strike out that last.
“The Court: Yes; what he said to the elevator man hardly would be competent.
“Judge Lockwood: Here is a man who was looking and talking with the only other man there, and he says ‘All right, go ahead!’ and the man then starts it. I think that is competent to show that.”

The court granted the motion to strike out any statement made by the witness as to what he said to the operator on the elevator. Witness (continuing):

“I saw Mr. Sikora after the elevator started. As the elevator started, just as the elevator started, he was on the east side of the truck, right by the hind wheel covering the beer. After this elevator was started I sat down on a half barrel and turned my face toward the elevator man. The elevator was in motion when I sat down, and the elevator was in motion when I saw Sikora at the hind wheel of the wagon. The next thing I heard or saw, the elevator was going up and I was sitting down, and at once I heard a holler and he said, ‘Oh, gee, stop! stop!’ and I looked around, and I said, ‘Good God, stop quick!’ and just as I hollered the 2x4 or 4x4, that little gate is hung on — there is a little pulley there, and a rope goes there holds the gate up there —that came out, and at the same time the fellow on the elevator, he turned around and he stopped, but while he stopped he was up between the elevator and the beam already.
“Q. Now, will you show to the jury how Mr. Sikora was with reference to the elevator at that time? You can stand up and show, if you want to.
“A. He was this way (indicating) on the elevator, laying over like that (indicating). One leg he had down and the other one he had like this here (indicating) , lying over like that (indicating).
(The indication made by the witness showed that Sikora was lying upon his face upon the floor of the elevator with the lower part of his body extending out easterly beyond the edge of the elevator.)
“Q. Did the colored man stop ?
“A. Yes; he stopped right there. At the time the elevator stopped the man Sikora was a few inches from the bottom of the beam, between the elevator and the beam. He was pressed between the elevator and the top of the beam.
rt “Q. What happened to the gate as you heard him holler?
“A. Well, I just heard the gate crackling, and I know that 2x4 — I call it a 2x4 — that broke out of one end. That 2x4 was a piece to which the rope was attached that holds the gate up. The gate shoved up’ against it. The cross-piece where the gate hangs broke.
“Q. Now what was the next thing done after the elevator stopped?
“A. Well, I hollered to him to lower down.
“Mr. Wurzer: Just a minute; ! make this same objection.
“The Court: Not what you said — what was done.
“Witness (continuing) : Well, he lowered down the elevator. He lowered it somewhere around two feet, something like that. I got hold of him (Mr. Sikora) around his shoulders like, you know, and by the leg and I twisted him around and put on the elevator, straightened out on the elevator. From the time the elevator stopped it did not start up again. It did not go up any more after it stopped. After I had straightened this man out on the floor of the elevator he was taken down in the basement.”

There was a long cross-examination of these witnesses, but the testimony quoted is the substance of the testimony of all the witnesses who claim to’ have seen the accident. Each of the defendants asked for a directed verdict. The judge submitted the case to the jury in a long charge. From a verdict and judgment of $6,000 in favor of the plaintiff the case is brought here by writ of error.

The defendant the Palmer Estate claim a verdict should have been directed in its favor for several reasons, among them:

(a) The only negligence disclosed by the testimony, if there be any negligence, is that of the operator of the elevator who was hired by and was under the exclusive control of the defendant the Fellowcraft Club.
(b) Because the deceased came to the freight elevator upon the invitation of the defendant the Fellow-craft Club, and not on the invitation of the executors,
(c) Because at the time the accident happened the freight elevator, was in the exclusive control of the defendant the Fellowcraft Club, and the executors or the tenants of the executors because of its use by the Fellowcraft Club would have no right to use it on their own account.
(d) That the executors are not responsible for negligence of a servant or servants of the Fellowcraft Club.

Counsel for the appellee contend that as the elevator might be used to carry freight for all the tenants in the building the landlord was bound to see not only that the elevator was in good* repair, but was also obliged to have it operated without negligence, citing Shoninger Co. v. Mann, 219 Ill. 242 (76 N. E. 354, 3 L. R. A. [N. S.] 1097), and Sciolaro v. Asch, 198 N. Y. 77 (91 N. E. 263, 32 L. R. A. [N. S.] 945). A reference to these cases will show them distinguishable from the instant case. In .the first of them “defendant retained the control of the halls, entry, and elevator in the building for the common use of its several tenants.” The elevator was in charge of a servant of the defendant. The plaintiff was in the employ of tenants who were entitled to the elevator service.

In the case of Sciolaro v. Asch, supra, the record shows that plaintiff was in the employ of a firm who occupied the ninth floor of a building under a lease given them by defendant which “with other privileges included steam heat and usage of passenger and freight «levators in common with other tenants in the building.” In disposing of the case the court said in part:

“While the lease referred to may not measure or limit the rights of the plaintiff as an employee of the tenant, its covenants relating to the furnishing of elevator service by the appellant tended to establish the duty of the latter in respect of that service. The building was one occupied by a number of tenants, who were to have in common the use of the steam heat and the elevators. As to these things, which were to be furnished by the appellant, he had a general control and a corresponding duty. This control and duty were reciprocal and inseparable. The right.to control and manage carried with it the obligation to do so with reasonable care and prudence.”

So far as this case is applicable to the case we have before us it does not sustain the contention of the appellee.

In 9 R. C. L. p. 1250, it is said:

“Where the owner of a building leases different floors or rooms to different tenants, but retains the control and management of an elevator in the building, he is responsible for injuries to tenants, their employees and such other persons as may lawfully use the elevator. But if the tenant has the sole control and management of an elevator in a leased building, he, not the landlord, must give warning and look out for the safety of the persons whom he invites to use the elevator.”

In Peake v. Buell, 90 Wis. 508 (63 N. W. 1053, 48 Am. St. Rep. 946), appears the following:

“The elevator was operated by the defendant’s tenants, and not by him-. The defendant owed the deceased no duty in respect to the operation of the elevator. To constitute actionable negligence, the defendant must be guilty of some wrongful act or breach of positive duty to the plaintiff. Griswold v. C. & N. W. R. Co., 64 Wis. 652 [26 N. W. 101]; Cole v. McKey, 66 Wis. 510 [29 N. W. 279, 57 Am. Rep. 293]; Dowd v. C., M. & St. P. R. Co., 84 Wis. 116 [54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917]; Goff v. C. R. & M. R. Co., 86 Wis. 245, [56 N. W. 465].”

There is a discussion of the doctrine of respondeat superior in Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81), that is helpful. See, also, Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834); Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615, 45 L. R. A. [N. S.] 699, Am. & Eng. Ann. Cas. 1915A, 1163); and Janik v. Motor Co., 180 Mich. 557 (147 N. W. 510, 52 L. R. A. [N. S.] 294).

In the instant case the condition of the elevator was good at the time it was delivered by the landlord to the Fellowcraft Club. From that time the obligation to keep in repair was upon the Fellowcraft Club. The elevator was in its charge. If the deceased had any right upon the elevator it was because he was helping to deliver the beer to the Fellowcraft Club by means of an elevator that was in its control and operated by its employee. Under these circumstances we think it should be said as a matter of law that the Palmer Estate is not liable, and that a verdict should have been directed in its. favor.

The defendant the Fellowcraft Club urges many assignments of error, some relating to rulings upon the admission of testimony, some relating to the refusal to give requests, and some to the charge as given. We think it was not error to refuse to charge there could be no recovery against the Fellowcraft Club. As we have seen, the testimony was in sharp contrast, and presented an issue of fact for the jury.

It is said the court erred in striking out the testimony of Mr. Kottlefski as to what he said to the eleva-tor man just before he started the elevator. In this connection it should be recalled that the deceased was under the direction of this witness, and according to his testimony had nothing to do with placing the half kegs of beer upon the elevator, and was directed by the witness to remain with the horse. The testimony stricken out was not only part of the res gestas, but it bore directly upon the question of whether the elevator man was negligent. He had been called to bring the elevator to the opening that the two kegs of beer might be delivered, presumably he knew Mr. Kottlefski was in charge of that delivery, and when the beer was upon the elevator he heard the direction given to the deceased to remain with the horse, and was then told by Mr. Kottlefski “to let her go.” We think it was error to strike out this, testimony.

The court was requested to charge thqre was no testimony that the injury to deceased was caused by a want of repair in the gate or elevator. The court declined to give these requests, and charged the jury at great length upon the duty of each of the defendants to keep the gate and the elevator in repair. We have already quoted the substance of the testimony given by those who claimed to have seen the accident. This testimony made the issue a very simple one. Was the elevator started when the deceased having the right was getting upon it as claimed by the witnesses for the plaintiff, or was he directed by one having the right to direct him to remain with the horse, as claimed on the part of the defense. We think the lengthy charge of the trial judge upon the duty of repair tended to confuse the simple issue. See Hall v. Murdock, 114 Mich. 233 (72 N. W. 150).

The charge was a very long one. In it appeared the following:

“The persons having charge or control of the maintenance and operation of this elevator were bound to use and exercise that care and caution to prevent injury to passengers upon this elevator that an ordinarily prudent person under like circumstances would use, having in mind the nature, kind, character, and construction of the elevator, and the presence or absence of danger under all the surrounding facts and circumstances in this case. This may be said, under the circumstances in this case, to be a high degree of care. * * * The deceased was required to use and exercise such reasonable care as a person of ordinary prudence would exercise under like circumstances for his own safety. But, under ordinary circumstances, an open door at a stationary elevator constitutes an invitation to all persons desiring and entitled to do so, to enter or leave at will, and the plaintiff’s intestate, Adam Sikora, had a right to assume if the door or entrance to the elevator was open and the elevator was at a standstill, that he might enter the elevator safely. And under such circumstances the plaintiff’s intestate was not charged with the duty of stopping to look, to listen, or to make a special examination.”

The use of the words, “This may be said under the circumstances in this case to be a high degree of care,” “and under such circumstances the plaintiff’s intestate was not charged with the duty of stopping to look, to listen, or to make a special examination,” placed too high a duty upon the defendant the Fellowcraft Club, and too little responsibility upon the part of the deceased. The charge also ignored the testimony to the effect that deceased was told to remain with the horse. See Henson v. Beckwith, 20 R. I. 165 (37 Atl. 702, 38 L. R. A. 716, 78 Am. St. Rep. 847); Bennett v. Butterfield, 112 Mich. 96 (70 N. W. 410); Hall v. Murdock, 114 Mich. 233 (72 N. W. 150); Patterson v. Hemen way, 148 Mass. 94 (19 N. E. 15, 12 Am. St. Rep. 523).

We do not think it necessary to discuss the other assignments of error, as they are either not well taken, or will not occur again.

Judgment is reversed, and a new trial ordered.

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


author: Steere, J.

text:
    LERNER v. HARVEY.
    1. Brokers — Real Property — Sale—Principal and Agent— Compensation.
    Piaintiff, who was engaged in the business of real estate brokerage, interviewed defendant as to the sale of a certain terrace owned by defendant, who fixed a price of $18,-000. Plaintiff stated that he would expect a commission. Defendant asked how much and the reply was three per cent. Defendant said he thought two per cent, was sufficient on so large a transaction. No writing was made.The plaintiff introduced one of his customers to defendant, who- declined an offer of $15,000 for the realty, saying that $17,000 was the least he would accept. Defendant claimed that he only agreed to pay the commission if plaintiff secured a price of $18,000 for the property. Over a year later defendant sold the terrace to the said purchaser at $17,000. In defense of an action for the commissions for making the sale, it was urged that the contract had terminated by lapse of time. Held, that the conflicting testimony with regard to the terms of the oral contract presented a question of fact and whether or not the plaintiff was the procuring cause of the sale was for the jury.

      2. Same — Modification of Pbice — Commission.
    The fact that the owner finally sold the property at a price $1,000 less than the agreement called for was not conclusive of defendant’s right to a verdict, upon testimony of the plaintiff that he had general authority to secure a customer ready and willing to purchase the property and that defendant fixed the price at $18,000, later reducing it to $17,500 and, finally, to $17,000; if the jury believed plaintiff’s version their verdict was warranted.

    Error to Wayne; Mandell, J.
    Submitted October 11, 1915.
    (Docket No. 6.)
    Decided December 21, 1915.
    Assumpsit in justice’s court by Abraham Lerner against Fred C. Harvey for broker’s commissions. From a judgment for plaintiff defendant appealed to the circuit court, where plaintiff obtained a judgment. Defendant brings error.
    Affirmed.

      William W. Wicker, for appellant.'

      John D. Harger, for appellee.

       As to when real estate broker is considered as procuring cause of sale, see note in 44 L. R. A. 321.

      The effect upon the right to commission of fact that owner sells to brokers’ customer at reduced price is discussed in notes in 15 R. R. A. (N. S.) 272, 34 R. R. A. (N. S.) 1050.

   Steere, J.

Plaintiff recovered from defendant in the circuit court of Wayne county a verdict of $340 as commission on the sale of certain real estate. The action was commenced in justice’s court, and pleadings were oral. Plaintiff declared in assumpsit on the common counts, and defendant pleaded the general issue. The property sold was a terrace of six houses and the land on which they were located, upon Theodore street in the city of Detroit. It belonged to defendant and was sold to a man named Lieberman for $17,000. Plaintiff’s bill of particulars was for a commission of 3 per cent, of that amount. Defendant’s most prominent assignments of error relate to refusal of the court to grant his motion for a directed verdict in Ms behalf, refusing requests to charge, and the charge as given.

The alleged contract of brokerage, or agency, was oral. The court left it to the jury to determine what contract, if any, was made, and, if there was a mutual understanding between them, what was done under it. The three witnesses in the case are plaintiff, defendant, and the purchaser. The testimony of plaintiff and defendant cannot be reconciled in important particulars, while that of Lieberman, the purchaser, cannot in all respects be reconciled with itself. From the somewhat confusing and conflicting testimony, of the witnesses the undisputed facts stand out that defendant offered this property for sale at $18,000, and plaintiff, having some kind of agency or authority to sell or produce a buyer for it, hunted up Lieberman as a prospective purchaser, took him to defendant and introduced him as such, thus bringing the eventual buyer and seller together, and ultimately Lieberman bought the property for $17,000.

It is the contention of defendant that their agreement, so far as any contract for a commission was made, consisted of his answer to plaintiff’s solicitation for an opportunity to negotiate a sale, that if plaintiff produced a customer ready and willing to pay the sum of $18,000 in cash for this property he would pay him a commission of 2 per cent.; that all efforts of plaintiff and negotiations upon that basis ended in failure over a year prior to the time when he himself sold the property to Lieberman through new and independent negotiations; that, having failed in performance of his express contract, plaintiff can sustain no claim for compensation under an implied one.

Plaintiff’s contention is that defendant proposed and agreed without limit of time that if he produced a purchaser who would buy the property at the price which he then asked or, by inference, any other satisfactory sum, he would pay him a commission; that, acting upon such understanding between them, he found a purchaser and introduced him to defendant, which resulted in a sale of the property at a price satisfactory to defendant; that under the circumstances shown,, even though the sale was effected at a lower price than that originally asked, he is entitled to his commission upon the general principle that when a real estate owner has given to a broker authority to sell lands on commission, and himself, without canceling the broker’s authority, effects a sale to the party whom the broker has found and brought to him, the commission is earned.

The court submitted the case to the jury with instruction as to the law upon these conflicting theories. Defendant claims the undisputed evidence supports only his theory.

It appears that plaintiff, who testified that he had been in the real estate business about three years, learned in some manner that the property in question was for sale, and who owned it; that some time in July or August, 1912, he went to defendant’s office and inquired if it was for sale, telling him that he was working on commission. All that each testified to on direct examination touching an agreement as to a commission, agency, and introduction of the ultimate'purchaser (stated in the bill of exceptions in narrative form) is as follows:

Plaintiff testified:
“That he went to Harvey’s office in the Moffat Building and asked him if the property was for sale, and Harvey said it was. Harvey asked him how he was working and he replied that he was working on commission. He asked what Harvey would take for the property and Harvey said $18,000. Harvey asked him what commission he asked and he replied 3 per cent. Harvey said that on a big deal he thought 2 per cent. was enough, and witness replied that when a big deal was made the agents liked to get full commission. He showed the property to a Mr. Lieberman, and then took Lieberman to Mr. Harvey’s office. He told Mr. Harvey that Mr. Lieberman was a prospective purchaser. Lieberman said the buildings needed a lot of repairs and $18,000 was too much, and Harvey said the best he Would take would be $17,000; $5,000 down, and Lieberman said he would give about $3,000 down.”
Defendant testified:
“That Mr. Lerner came to his office and asked him if the property was for sale and the price asked. That he told him the price was $18,000 cash. That he asked Lerner if he wanted to buy it and Lerner told him that he did not, that he was a real estate dealer. That he then asked him what commission he asked, and Lerner replied that the usual commission was 3 per cent. That he told Lerner if he would find a purchaser for $18,-000 cash he would pay him 2 per cent, commission; that he would not pay 3 per cent, commission on a deal of that kind. That Lerner left the office and within three or four days brought Mr. Lieberman and introduced him. That he had never seen Mr. Lieberman prior to that time. That Lieberman asked the price of the property and he told him $18,000. That Lieberman said he would not pay that much, and he and Lerner left the office.”

On cross-examination plaintiff testified that the best offer Lieberman then made was $15,000, which defendant would not accept. Lieberman testified that he first learned of the property through plaintiff who took him to defendant’s office and introduced him; that witness said he would think it over and let defendant know, and defendant said he had a man who took care of the property whom he would send down to show witness through there; but the man never showed up and after waiting several weeks he went up to see defendant and so informed him; that defendant then gave him a note to a certain number saying, “You go in and that lady will let you look at the property inside,” which he did, and then went down the same week, without plaintiff, “and made Harvey a proposition.”

“Q. What proposition did you make?
“A. I don’t remember; I think it was $16,000 or $17,000, and Harvey turned it down; he wanted $17,-500, and we finally struck up a deal for $17,000. * * * That he saw Lerner several times after he took him up to Harvey’s office; Lerner bothered the life out of him, and he finally told him there was no use bothering him. That Lerner came to him repeatedly and urged him to buy the property. Lerner said he knew several pieces of property and showed him several pieces of other property. Lerner also sold some property for him.”

His “finally” was, like other of his statements, somewhat indefinite, but he subsequently stated on cross-examination that they made the “actual bargain” some time in July or August, 1913. His contract to purchase appears to have been signed November 20, 1913. He further testified on cross-examination that he was in defendant’s office at the time of closing the deal and had been there about a week or so before, which was the first time he saw defendant after being there with plaintiff, but explains that he was there several times before when defendant was away on his vacation, as a lady in the office informed him. Without going into details it may be said that the testimony of this witness is far from satisfactory as to dates and sequence of events, and an. examination of it leads to the impression that his memory often failed to sustain him- consistently both as to past events and what he had just previously testified to. Plaintiff testified as to his efforts in negotiating a sale that he saw Lieberman “quite a few times” and tried to prevail upon him to purchase the property at the price offered, and he got him to say he would pay $16,000 for it, but when they talked he was always saying he was “thinking the matter over,” and the last time he talked with him and. tried to induce him to buy the property was the last part of June, 1913; that he did not know exactly when Lieberman actually bought the property, but first learned the fact in September or October, 1913, when he was passing by there and saw Lieberman fixing the porches; that he could not exactly remember how many times altogether he talked with Mr. Harvey about this proposition but “it was four times I have seen him personally, I was several times up and telephoned, but could not get him.”

Many of the facts testified to by Lerner and Lieberman are denied by Harvey, who claims he did not see either of them for nearly a year after they were in his office together, and did not recognize either of them when they came to him again, and first knew that Liebermaa was the man brought to him by Lerner when Lerner came to his office in December, 1913, and told him who he was, claiming a commission for his services in the sale of the property. The credibility of these witnesses as to matters which are in dispute is of course for the jury.

If, as defendant claims and testified, plaintiffs agreement with him and undertaking was limited to selling or finding a purchaser of the property for $18,-000 cash, it is undisputed that he did not produce a purchaser ready, able, and willing to buy the property at the price fixed, and, having failed in such express contract in relation to which his services were performed and to which they must be ascribed, he cannot recover on the theory of an implied contract to pay for them, even though beneficial, and the court so plainly charged the jury. But this record contains testimony which tends to show a contract of general agency in which defendant controlled and modified the selling price.

Plaintiff did not declare upon a special or express contract. His declaration is upon the common counts. According to his evidence he presented himself to defendant as a real estate agent and inquired if the property in question was for sale, telling him he was working on commission; that defendant said it was for sale and he would take $18,000 for it, asking what commission he expected; that he replied 8 per cent., and defendant told him he thought 2 per cent, was enough on a big deal; that he showed the property to Lieberman and then took him to defendant’s office as a prospective purchaser, where, during the course of their conversation while all three were together, defendant stated a price of $17,000 as “the best he would take;” that thereafter he tried to find a buyer at $17,000 and labored with Lieberman from time to time to induce him to purchase the property, he having shown an interest in and offered $15,000 for it; but was unwilling to pay the price asked, though saying he was thinking it over, and about May raised his offer to $16,000; that he saw defendant several times and did not abandon his efforts, that his last talk with Lieberman to induce him to buy the property was in the last part of June, 1913, and in July or August Lieberman bought the property for $17,000, the price defendant had given, when they were all together, as the best he would do.

It appears undisputed that plaintiff was well acquainted with Lieberman and had done other business for him; that he first called his attention to this property, and after the unsuccessful interview in defendant’s office did not abandon his efforts or expectation of effecting a sale, but alone followed up the subject, urged the property upon him, and continued efforts to induce him to buy it. In the language of Brooks v. Leathers, 112 Mich. 463 (70 N. W. 1099), we think that

“it was for the jury to say whether the influence of plaintiff remained, or whether the sale was effected by defendant independently of him.”

There was no time limit fixed upon this agency, nor any notice that it was revoked. The inference that the purchase resulted from plaintiffs efforts and influence is not without evidential support.

Whatever contractual relations existed between these parties arose from oral negotiations, the somewhat scant substance of which each give^ his version and construction of, varying as to the language used, but both parties accepting the interview as indicating some kind of an agreement. Under such circumstances, and particularly in the light of what was said and done afterwards, it was for the jury to determine and construe the dialogue, find upon what propositions the minds of the parties met, and decide what contract was actually made. There is testimony in this case which, if believed, would sustain the jury in finding that a contract of general agency existed between these parties under which the seller retained control of the price, which he modified during negotiations, and that plaintiff found the purchaser, brought the parties together, and was the procuring cause of sale which, under such a contract, is the meritorious question. Wood v. Smith, 162 Mich. 334 (127 N. W. 277).

As was said in Prindle v. Allen, 164 Mich. 553 (129 N. W. 695):

“That the sale was made at a price lower than defendant was first instructed to ask, is a matter of no moment, if plaintiffs version of the contract was correct” (citing cases).

In that case there was evidence that defendant told plaintiff if the latter would find a purchaser for the former’s farm, fixing the price at $16,000, he would pay him a stated commission, and, having at first offered at the price named, to a prospective purchaser whom plaintiff produced, the farm and certain additional crops and personal property as an inducement to effect the sale, or the bare farm at $14,500, ultimately sold the property to the same party for $15,500, and it was held that such evidence warranted the jury in finding a contract of ordinary agency in which the vendor controlled the selling price, and the agent, having produced a purchaser who bought the property at a price the owner' was willing to accept, had earned his commission.

We think the court in its charge fully and fairly stated the conflicting claims and theories of the respective parties, with correct instructions as to the principles of law applicable to both theories, and by which the verdict should be governed, according as the facts were found to be.

We discover no reversible error, and the judgment is therefore affirmed.

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


author: Steere,, J.

text:
    SLOMAN v. BENDER.
    1. Partnership — Name—Attorney and Ghent — Actions.
    Attorneys associated as copartners are required, under Act No. 164, Pub. Acts 1913, to file a certificate showing the members of the copartnership, their address, and the partnership name; failure to comply with the statute is a sufficient ground to deny recovery in an action of assumpsit upon an assigned account or claim.
    2. Same — Business or Profession.
    Interp'reting the provisions of said act, the language “carrying on any business as copartners,” includes the profession or practice of law.

      3. Same.
    When, the law prescribes a method for determining the existence of qualifications for a specified calling, and in compliance therewith one who has been found qualified is vested with authority to follow the calling which is otherwise forbidden to him, he becomes subject to legislative regulation, as, are other citizens engaged in legitimate pursuits; and the legislature is vested with authority to control the practice of law, as in other business or professional relations, by classifying copartnerships with other pursuits or lines of' business. In the absence of any exception in the act no ground for excluding a copartnership of attorneys is to be found. Act No. 164, Pub. Acts 1913 and Act No. 101, Pub. Acts 1907.
    Error to Wayne; Lamb, J., presiding.
    Submitted October 12, 1915.
    (Docket No. 47.)
    Decided December 21, 1915.
    Rehearing denied April 21, 1916.
    Assumpsit by Adolph Sloman and another, as co-partners in the name of Sloman & Sloman, against Frederick Bender on open account. Judgment for defendant on a directed verdict. Plaintiffs bring error.
    Affirmed.

      Leon H. Hamberger (Adolph Sloman and Edmund, M. Sloman, of counsel), for appellants.

      George P. Palmer, for appellee.
   Steere,, J.

This action was brought in the circuit court of Wayne county by plaintiffs, as copartners, to recover from defendant the balance claimed due upon an open account originally owing by the latter to C. H. Ritter & Co. The declaration is upon the common counts in assumpsit, with an added postscript notice that upon the trial plaintiffs would “give in evidence a certain assignment of account, a copy of which is given below.” The copy is as follows:

“For value received, we hereby sell and assign to Sloman & Sloman our account and claim against Fred«rick Bender, of Detroit, Michigan, and authorize them •to enforce collection as fully as we might or could do, hut at their expense.
[Signed] “C. H, Ritter & Co.,
“By Anthony Bodde, Treas.
•“May 25, 1908.”

The declaration is not dated, nor its date of filing given in the printed record, as required by rule 35 of this court, but plaintiffs’ counsel stated during the trial that the case was “started in December, 1913,” while defendant’s brief states, “The suit against Bender was commenced by summons on December 16, 1913,” which, being undisputed, we assume correctly discloses when the action was begun.

Defendant pleaded the general issue with special notice of the defenses that recovery was barred by the statute of limitations, and that plaintiffs, havng sued ;as copartners, were precluded from prosecuting said ;action by reason of failure to file with the county clerk :a certificate stating who comprised said copartnership, :in compliance with the requirements of either Act No. 101, Pub. Acts 1907, or Act No. 164, Pub. Acts 1913. Upon the trial, held May 10, 1915, objection was interposed by defendant to any proof in substantiation -of a claim which had accrued to C. H. Ritter & Co., on :the ground that plaintiffs had not declared as assignees, but personally under the common counts. A jnotion for leave to amend the declaration to meet this alleged defect was granted against defendant’s objection.

In the trial court it was shown by undisputed evidence, or conceded as true, that the account in question became an account stated in favor of C. H. Ritter & ■Co. on May 18, 1907, defendant having made his last •payment upon the same on that date; that an involuntary petition in bankruptcy was filed against him iby Ritter & Co. and others, as petitioning creditors, on May 29, 1907, and that he was adjudicated a bankrupt in the United States bankruptcy court on June 14, 1907; that the claim in question, then amounting to $1,667.75, was duly proved in that proceeding and allowed by the referee in bankruptcy, and two dividends, amounting to $542.08, were paid Ritter & Co. upon said claim out of the bankrupt’s estate on or before December 30, 1907; that on October 19, 1908, the United States District Court of the Eastern District of Michigan denied defendant’s petition for discharge in bankruptcy, plaintiffs, as counsel for Ritter & Co.* having opposed the same, and that, on May 25, 1908,, the account in question was assigned to them for their professional services in that connection; that plaintiffs’ were attorneys at law engaged exclusively in the practice of their profession and had not filed in the office of the county clerk any certificate of copartnership in compliance with either of the acts urged by defendant as a prerequisite to commencing this action.

Defendant’s counsel urged in the court below and argues in his brief that plaintiffs ought not to recover* because the account was barred by the statute of limitations ; that, not having declared as assignees, but personally, proof of the assigned account from Ritter & Co. was inadmissible under the declaration, and to permit an amendment was to introduce a new cause of action otherwise barred by the statute of limitations* and for the further reason that they had failed to observe the requirements of either of the statutes relative to filing a certificate of copartnership.

At conclusion of the testimony, after hearing argument, the court held that, as plaintiffs had concededly not complied with the requirements of either of the acts touching the duty of copartners to make the names, of those constituting the firm a matter of public record, they were not in a position to maintain their action, and directed a verdict for defendant.

Counsel for appellants say .in thefr brief:

“Concisely stated, the only proposition involved in the appeal is: Is the practice of the law a profession or a business ?”

We are impressed that it is both. The courts, in discussing questions involving the practice of law, so designate it, and plaintiffs’ pleadings and proofs tend to confirm this view. A member of the firm testified that “for a period of ten years preceding the trial they were engaged in the practice of law,” and “that they were not during said period, as copartners, engaged in any other businesswhile the first paragraph of their declaration states that:

“Adolph Sloman and Edmund M. Sloman, copartners, doing business as Sloman & Sloman, plaintiffs herein, by Sloman & Sloman, their attorneys, complain of Frederick Bender, defendant herein, of a plea of trespass on the case upon promises, he having been heretofore duly summoned.”

.In Wheatley v. State, 79 Tenn. 262, a statute exempting practicing attorneys from jury duty was held not to include all members of the bar licensed and legally qualified to practice law, but only “a party who follows the business of the profession of law as his avocation or calling.”

In Breckenridge v. Shrieve, 4 Dana (34 Ky.), 375, the practice of law is also recognized as a “business,” with a limitation not always recognized, the court saying that “the borrowing of money is no part of the professional business of an attorney and counselor, or of a firm associated for the pursuit of that business,” for which reason it was held that one member of a law firm was not, under the circumstances disclosed, bound by his copartner’s activities as a borrower in the name of the firm.

The general definition of “business” is:

“That which occupies the time, attention, and labor of men for the purpose of livelihood or profit.” Black’s Law Dictionary.

See, also, 6 Cye. p. 259.

Nothing in the act suggests its limitation to those capitalized copartnerships organized for trade, manufacturing, or commerce, to the exemption of that numerous class of nontrading partnerships in occupation or employment, the capital of which consists chiefly of especial skill, experience, and learning in a particular calling.. In this age of general education and applied science the old classification limiting the so-designated learned professions to divinity, law, and medicine has largely lost its significance. Many other pursuits and professions now demand equal educational attainments and mentality, with equal years of rigid preparatory training to successfully follow them.

“There is nothing particularly sacred in the profession or business of a lawyer which puts him above the legislative power to place on his shoulders his just share of the necessary burdens of the State.” Cousins v. State, 50 Ala. 113 (20 Am. Rep. 290).

While recognized as a responsible and necessary officer of the court in the conduct of its business, exercising by legislative authority a privilege or franchise in that particular, he is not a public officer in the constitutional or statutory sense of that term.

It is true, as pointed out in appellants’ brief, that “a layman may not practice law,” while a member of the bar who has once successfully passed his examinations and been admitted to practice as an attorney at law is entitled to follow that profession thereafter, unless disbarred for good cause, but that empty honor affords him few privileges and scant emoluments, unless he industrializes it by engaging in the business of practicing his profession for a livelihood or profit, either alone or in combination with others. The fact that he is entered upon the attorney rolls as a member of the bar furnishes no information as to any partnership combinations he may form, and the reiterated purpose of the two acts in question is to make such information as to all copartnerships carrying on any business a matter of public record, certain and readily available for those having occasion to do business with them. The two acts are along the same lines. After the first act had been construed as denying the right of. those doing business under fictitious names to enforce their contracts when they had not complied with its requirements, the legislature, without repealing the first statute, enacted Act No. 164, Pub. Acts 1913, requiring the filing of certificates of partnership, signed by each partner, with his address, for the purpose, as stated in the title, of fixing the liability of the copartners, and imposed that prerequisite without qualification as to the kind of copartnership upon any two or more jpersons engaged in “carrying on any business as co-partners.”

That the act does not by express language or by implication except attorneys from its provisions is clear. It is unquestionably within the power of the legislative department of the government to include them. While their duties are of such a character and such importance to the public that a standard of qualification is required, and the legislature has delegated to this court with its auxiliary board of law examiners the duty of examination and determination, the matter of regulating the admission of persons to practice law is primarily the subject of legislative control and action. The courts have no more common-law power in that particular than they have over any other pursuit for which special qualifications or a license may be imposed by law. When the law requires and prescribes a method for determining the existence of qualifications for a specified calling, and in compliance with such method one found qualified is invested with general authority to follow such calling which is otherwise forbidden him, while engaged in it he is subject to legislative regulation in reference to it in like manner as other citizens are in reference to other legitimate pursuits in which they are engaged. It is for the legislature, not for the courts, to say whether there should be any classification of copartnerships, or exceptions to the provisions of such statute. None is expressed or implied in the acts under consideration.

As the other questions raised by defendant are not involved in appellants’ assignments of error and do ,. not, under the conclusions reached upon the question reviewed, become essential to a final determination of the case, it is not deemed necessary or proper to pass upon them here.

The judgment is affirmed.

Brooke, C. J., and Person, Kuhn, Stone,' Ostrander, Bird, and Moore, J j., concurred.


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    BARBER v. McMICKING.
    1. Equity — Demurrer—Effect—Pleading.
    The defendant’s demurrer to a bill in aid of execution admits the facts charged in the bill.
    2. Same — Creditor’s Suits — Bill in Aid of Execution.
    A bill in aid of execution lies to relieve shares of stock levied upon by complainant from a claim arising out of a transfer in fraud of creditors; relief is not confined to executions against real estate. '
    3. Same — Execution—Debtor and Creditor.
    Notwithstanding section 436, 1 Comp. Laws, affecting executions against property of a debtor that have been returned unsatisfied and authorizing a discovery, etc., a complainant who levied on corporate stock standing in the name of the judgment debtor could file a bill in aid of execution when the debtor disclaimed ownership, but declined to say who held the stock, serving a notice to that effect on the complainant as he was about to sell the property upon execution sale.
    4. Same — Bill in Aid of Execution.
    It is not essential to the jurisdiction of the court of equity that the complainant should sell the property levied on before applying for the remedy in aid of execution.
    5. Same — Execution Sale — Creditors’ Suits.
    After securing a lien by execution levy, if a fraudulent obstruction has been interposed to prevent carrying out the sale, the creditor may apply to chancery for a discovery and to remove the obstruction.
    Appeal from Wayne; Shepherd, J., presiding.
    Submitted October 18, 1915.
    (Docket No. 139.)
    Decided December 21, 1915.
    Bill by William W. Barber and others against Robert L. McMicking and others in aid of an execution at law. From a decree overruling a demurrer to the bill of complaint, defendant appeals.
    Affirmed.

      William, G. Fitzpatrick and Joseph F. Kropidlowski (M. Hubert O’Brien, of counsel), for complainants.

      Prentis & Mulford, for defendants.
   Steere, J.

Defendants appealed from an order of the Wayne county circuit court in chancery, overruling their demurrer to complainants’ bill filed in aid of execution, which also asks discovery and injunctive restraint.

The essential substance of complainants’ somewhat lengthy bill material to an understanding of the issue, raised is as follows: On April 22, 1912, complainants recovered a judgment in the Wayne county circuit court against defendant Robert L. McMicking and R. S. Dodds, indorsers of notes given by the Norris Laundry Company, a defunct corporation, for $5,576.23 damages, with costs taxed at $22.90. On May 5, 1913, for the purpose of collecting such judgment, they caused a writ of execution to be issued and put in the hands of the sheriff of Wayne county who, on the 22d of May, 1913, levied under said execution upon 1,001 shares of stock in the defendant Standard Laundry Company, a corporation doing business in the city of Detroit, which stock at the time of the levy was owned by and stood in the name of defendant McMicking, as appears upon the records of said company and as shown by a certificate obtained from Mr. Henry, secretary and treasurer of said Standard Laundry Company; but said Henry notified the sheriff when such levy was made that said shares of stock had previously been assigned to some third party, refusing, however, to disclose to whom or at what time such assignment was made. On June 2, 1913, the sheriff gave legal notice, and duly advertised that said shares of stock would be sold, on June 6, 1913, under the levy which, he had made, at the Congress street entrance of the Wayne county building in the city of Detroit. At the time and place for which said sale was noticed the sheriff publicly offered the shares of stock for sale, and, no bidders being present, the sale was regularly adjourned to the 26th of June, 1913, at the same time and place, notice of which adjournment was duly published in the manner provided by law, and on the 26th of June, 1913, the sale was again so adjourned for want of bidders to July 7, 1913, on which day, at the time and place appointed for the sale, the sheriff was served with a written notice, signed by defendant Robbert L. McMicking, in which he disclaimed and denied ownership and title, then or at any time, to said shares of stock, but did not give any information as to who claimed or pretended to be the owner. Thereupon said sale was adjourned in the same manner to the 21st day of July, 1913, and again to the 4th day of August, 1913. While complainants are informed and believe that said McMicking at the time of such levy was and yet continues to be the actual owner of said shares of stock just as shown by the books of the laundry company, they are unable to learn whether any assignment or transfer of the same was ever made in fact by him which was not entered upon the books and records of said Standard Laundry Company, and charge if any transfer or assignment was made, it was without consideration and a pretended one, “a mere sham, and was made to hinder, delay, and defraud the creditors of said R. L. McMicking and with the intention of defrauding the estate of George D. McNichol, deceased, and your orators,” and said stock is held by his assignee without consideration, and in trust for said McMicking; that by reason of such alleged assignment and written notice thereof served upon the sheriff the title and true ownership of said stock has become clouded and in doubt, so that no bidders can be procured for said shares when offered for sale under said levy, and the sheriff is unable to safely and satisfactorily proceed with the sale. The complainants therefore ask that by an order of the court defendants be compelled and directed to discover and disclose the true and rightful owner of said shares of stock, and make answer to certain interrogatories set out in said bill; that the alleged assignment be set aside and declared null and void as to complainants and any purchasers of said stock at execution sale, and the true ownership at the time of the levy declared and decreed to be in said defendant McMicking; that complainants5 lien upon said stock by virtue of its levy be sustained and the sheriff authorized and directed to proceed in the execution of said writ; that defendants be restrained by injunction from incumbering or transferring, or in any way interfering with, the title of said shares of stock during the pendency of said suit — concluding with a prayer for general relief.

Defendants’ grounds of demurrer are:

“(1) Because the complainants have not, in and by their bill, made or stated such a case as entitles them to maintain their bill, in that the execution has not-been returned unsatisfied on the judgment obtained by them, as required by section 436 of the laws of Michigan as compiled in the year 1897.
“ (2) Because the bill in aid of execution cannot be maintained where the interest is in personal property.
“(3) Because complainants have a full, complete, and adequate remedy at law.”

Defendants’ demurrer admits the truth of the allegations in complainants’ bill. As framed, it is not a judgment creditor’s bill filed to reach equitable assets not subject to legal execution, a prerequisite of which is an execution returned nulla bona, indicating that all legal remedies have been exhausted. The bill shows: that complainants did find personal property subject, to execution belonging to one of the defendants, and levied upon it. They had an unsatisfied valid judgment and a lien upon the property through levy of an execution issued to satisfy such judgment. The bill is filed in aid of that execution, which it is alleged defendants are hindering, delaying, and seeking to defeat by a :false and pretended assignment, fraud, and concealment, thus interposing inequitable impediments in the way of a proper and legal enforcement of the execution.

The rules applicable to judgment creditors’ bill and bills in aid of execution are not the same, neither are the latter confined to levies upon real estate. Gibbons v. Pemberton, 101 Mich. 397 (59 N. W. 663, 45 Am. St. Rep. 417); Hodge v. Gray, 110 Mich. 654 (68 N. W. 979); Schelowski v. Pawlowski, 168 Mich. 664 (134 N. W. 997); McKenna v. Crowley, 16 R. I. 364 (17 Atl. 354); Chardavoyne v. Galbraith & Co., 81 Ala. 521 (1 South. 771).

Complainants by the scheme of their bill are creditrors, with a lien invoking the original, common-law jurisdiction possessed by courts of equity to entertain suits of creditors who have proceeded to judgment and have an execution lien, which is rendered unavailable by some impedient which the debtor has fraudulently interposed to further successful progress in the action at law, and the chancery court is asked to aid in enforcing the lien by removing the fraudulent obstruction.

“In such a case equity is. resorted to in aid of the law, to enable the creditor to sell the property to better advantage.” McKenna v. Crowley, supra, where numerous authorities are cited.

That it is not necessary or proper in all cases to first. sell the property levied on at execution sale before applying to a court of equity for aid, as defendants contend should be done, is clearly indicated by the above quotation and sustained by this court in Cranson v. Smith, 47 Mich. 189 (10 N. W. 194).

As a general proposition equity courts recognize the right of a judgment creditor to attack any fraudulent conveyance, subterfuge, or device,resorted to by the debtor for the purpose of hindering, delaying, or defeating the creditor from realizing upon his judgment. This principle as applicable to the instant case is digested, and we think well supported, by decisions of this court and other jurisdictions in the following annotation to section 436,1 Comp. Laws:

“Where a lien has been acquired by levy of execution, or where there is an outstanding execution in the hands of an officer and a fraudulent obstruction is interposed to prevent its being levied, a bill may be sustained for a discovery and to remove such obstruction.”

Such we find to be the purport of this bill.

’ The order overruling defendants’ demurrer is hereby affirmed, with costs.

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


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    LACEY v. LACEY.
    1. Divobce — Criminal Law — Separate Maintenance — Husband and Wife.
    Punitory proceedings for contempt of tAe court of cAancery against a AusAand wAo neglects to pay alimony awarded Ay a decree of divorce are contingent upon Ais being found witAin tAe jurisdiction of tAe court. TAe effect of sucA decree is also to deprive tAe wife of Aer remedy Ay criminal proceedings under a charge of abandonment..

      2. Same — Equity—Absolute Separation.
    It was erroneous for the court to grant a divorce to complainant who filed a bill to obtain support and maintenance pursuant to Act No. 243, Pub. Acts 1889, 3 Comp. Laws, §§ 8686, 8687, and who did not desire an absolute divorce; where the defendant husband filed a cross-bill and the court in reviewing the evidence held that his charges had not been sustained by the evidence, finding, also, that the complainant’s bill was sustained by the proofs, which showed, among other things, that the husband had frequently desired her to secure a divorce, and she had declined.
    3. Same — Statutes—Alimony.
    Where the wife expressed her willingness to renew marriage relations and was ready to do so for the sake of their infant, it was not in the interest of the public that an absolute divorce should be granted against her consent.
    . Appeal from Muskegon; Sullivan, J.
    Submitted October 14, 1915.
    (Docket No. 90.)
    Decided December 21, 1915.
    Bill by Myrtle A. Lacey against Roy E. Lacey for separate maintenance. From a decree of absolute divorce, complainant appeals.
    Modified.

      Cross, Vanderwerp, Foote & Ross, for complainant.

      Simpson & Anderson, for defendant.
   Steere, J.

Petitioner was decreed an absolute divorce from defendant by the Muskegon county circuit court in chancery on the ground that the material facts charged in her “petition are true, and that the defendant has been guilty of the several acts of extreme cruelty therein charged,” and for the further reason it appeared to the court “that it is for the best interest of said parties that an absolute decree of divorce be granted to said petitioner from said defendant.” This she neither asked nor desired, and has appealed from said decree, claiming it was in that particular neither within the power of the court nor proper under the proofs, nor for the best interests of said parties, that the same be granted. Her application to the court for relief was in the form of a petition filed in compliance with and under the provisions of Act No. 243, Pub. Acts 1889 (3 Comp. Laws, §§ 8686, 8687 [4 How. Stat. (2d Ed.) §§ 11534, 11535]), entitled:

“An act to provide wives with property and maintenance from their husband’s estates when neglected or deserted by them, or when the husband has become an habitual drunkard or has practiced extreme cruelty towards his wife or committed any offense sufficient to entitle the wife to a decree of divorce or separation.”

In this petition she neither prayed for a divorce or separation. Her prayer was for financial aid and maintenance. Under the provisions of said act it was necessary for her to set out in her petition extreme cruelty or such other offense as would entitle her to a decree of divorce or separation, had she asked it, and she alleged extreme cruelty, neglect, abandonment, and nonsupport. Defendant filed an answer and cross-bill praying that he be decreed a divorce from petitioner on the ground of extreme cruelty, to which she filed replication and answer in denial. Proofs were taken in open court, and at conclusion of the testimony the court announced an opinion that the charges made by petitioner were fully sustained, while those made by defendant in his cross-bill were wholly unsupported in all material features, severely censuring and condemning defendant’s treatment of his wife, stating that neither the court nor the law had “much use for him,” and expressed the view that, as “no woman can live with him long because he is too selfish to live with a woman,” a divorce should be granted in the interest of all parties, “not for his sake, but for public policy’s sake, so that he won’t pretend that he can go with young girls and not have any right to do it.” A decree of absolute divorce was thereafter filed and entered in favor of petitioner, awarding her as alimony $600 payable in installments of 16 and a fraction dollars per month, and for the support of their infant son 19 months old, of whom she was granted custody, $12.50 per month until he arrived at the age of 14 years.

The parties were married at Muskegon, in April, 1911, where defendant was employed, but shortly after their marriage they moved to Albion, Mich., where he engaged in the moving picture business for a time and later was employed by a concern in the moving picture business located at Gary, where petitioner joined him, and they resided together for some months, when, as the time of her confinement approached, he took her to her mother’s home in Gas City, Ind., and left her, since which time he has neglected and deserted petitioner, refusing to accept her as his wife or live with her. Defendant is an expert machinist, and eventually returned to his former employment in Muskegon, where he was employed at a salary of $130 per month, when petitioner finally sought to join him, in March, 1913, and until the hearing of this case. He did not go to Gas City at the time or after the child was born nor send for his wife, and when she went with their infant to him at Muskegon he refused to receive them, telling her to take her baby and go back to her mother, declining to live with her or properly provide for her and her child, or do anything for her unless she would get a divorce. This she declined to do and endeavored unsuccessfully to prevail on him to receive her. He left Muskegon for Detroit, but returned to his former employment soon after. She remained in Muskegon, obtaining such employment as she could, but experiencing great difficulty in doing so, owing to the fact that she had her baby to care for. She finally reached a point of destitution where she was obliged to. accept assistance from certain charitably inclined women who discovered her distress. Further details of their domestic difficulties, which culminated in this proceeding, may be passed with the reflection that we find no occasion to disagree with the trial court’s conclusions as to defendant’s conduct and delinquencies.

He is shown to be without property, real or personal, and execution proof. He desired a divorce from petitioner, whether because of new found preferences, as intimated, or for other reasons, is immaterial. He had ' urged her to get a divorce, which she declined to do, and he tried unsuccessfully to secure one by cross-bill in this proceeding. By decreeing a divorce to her the court severed the marriage relations as to both and furnished defendant in that particular just what he wanted.

By the decree he is given immunity from pressure by criminal proceedings for deserting and abandoning his wife and child. People v. Dunston, 173 Mich. 368 (138 N. W. 1047, 42 L. R. A. [N. S.] 1065). Punitory proceedings for contempt of the chancery court in disobeying its order requiring him to pay petitioner alimony are contingent upon his being found within 'the jurisdiction of the court. It is stated in the brief of counsel for petitioner that'he has not complied with the court’s order and has left this State. No counsel appeared for him in this court and no brief was filed in his behalf.

The power conferred upon the court by the act under which this petition is filed is as follows:

“The circuit court in chancery of any county in this State in which said husband or wife shall reside, shall, on the application of the wife by petition, allot, assign, set apart and decree to her as alimony the use of such part of her husband’s real and personal estate, or such proportion of his earnings, income or revenue as the court may determine, in its discretion, and during the pendency of the proceeding may require the husband to pay such sums to carry on the proceeding, or for her support, as it shall deem necessary, in like manner as * * * in case of suit for divorce.”

This petition is confined strictly to the provisions of said act, the first and second paragraphs of the prayer for relief are in the exact language of the act, and the fourth paragraph makes reference in general terms to the statute. The only suggestion in the pleadings that a divorce or separation was desired appeared in defendant’s cross-bill, which the court dismissed with emphasis.

While, in suits for divorce either limited or absolute, the court to which application may be made is held vested with discretionary authority to grant an absolute divorce against the desires of the complaining spouse found to be in the right (although only a limited divorce with separate maintenance has been requested) we do not find that under this statute, where no separation of any kind is asked or desired by petitioner, a decree forcing an absolute divorce upon an innocent wife has been sustained.

The recognized reason moving courts to decree absolute divorce against the desires of the innocent party, in cases where the testimony is such as in the opinion of the court shows reconciliation impossible or improbable, is said to be “on the ground of public policy to prevent the mischiefs arising from turning out into the world in enforced celibacy persons who are neither married nor unmarried.” By that test, if recognizable in any case under the statute, it is questionable whether public policy demands that this delinquent defendant be turned out into the world, according to his desires, against petitioner’s protest, freed from the restraints of his marital relations with her and at legal liberty to repeat the conduct which the court now condemns, with some other woman.

The evidence shows that petitioner refused defendant’s request to institute divorce proceedings against him to nullify their marriage. She testified that she was ready, willing, and desired to live with him again; was, after all which had occurred, attached to him and objected to a divorce, not only on her account, but particularly that of her infant son, saying of defendant:

“I would be glad to make a home for him for the sake, of the baby, because I think the baby boy should have his father’s companionship.”

We think public policy does not demand that this woman should be deprived against her protest of her wifely rights, but should be left to seek such redress as the courts of law, civil or criminal, may in the future afford. As is well said in Coon v. Coon, 163 Mich. 644 (129 N. W. 12):

“Certainly it is not for the interest of the State that the guilty husband, who has violated his. marriage covenant, should obtain by indirection a divorce from his innocent wife, who is willing to condone his offense and renew marital relations.”

The decree must be modified and limited to come within the scope of the petition in this case and the statute under which it is filed, omitting absolute divorce and limiting its provisions to maintenance of the neglected and deserted wife and child, with her monthly allowance continuing until the further order of the trial court, with costs to petitioner.

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