text:
    NATIONAL CASH REGISTER CO. v. DEHN.
    1. Sales — Order—Acceptance—Delivery of Goods.
    A written order for goods, though not formally accepted, becomes a binding contract on delivery and receipt of the goods described.
    2. Same — Conditional Sale — Right to Sue Before Title Passes.
    Where cash registers were sold under a contract providing that they should remain the property of the seller until all the installments of the purchase price should be paid, and . that, if the buyer should fail to make the first payment, or execute notes for the deferred payments as agreed, the entire price should become due, the seller was entitled, on refusal of the buyer to accept the machines, to recover the entire price, and was not restricted to an action for damages for breach of contract.

    Error to Bay; Shepard, J.
    Submitted January 18,1905.
    (Docket No. 71.)
    Decided March 21, 1905.
    Assumpsit by the National Cash Register Company against August E. Dehn and Carl O. Dehn, copartners as Dehn Bros., for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.
    Reversed.
    This is an action in assumpsit to recover the entire purchase price for two cash registers sold and delivered by plaintiff to defendants on August 10, 1903. The cash registers were purchased under the following order:
    “City Bay, County Bay, State Mich.,
    “ Date 8-10, 1903.
    “National Cash Register Co.,
    “Dayton, Ohio:
    “Please ship to us at our place of business, No. 101-103 Midland street, West Bay City, as soon as possible, two of your No. 35^ total-adding registers, case to be A-B 74704. Denominations of keys to be standard stne. In consideration of the above, we agree to pay you Four hundred and fifty dollars ($450.00), in U. S. gold coin or its equivalent, being price of register f. o. b. Dayton, Ohio, viz. $-cash with order; $45.00 upon delivery; balance $30.00 per month. This register is to be used on the front and back counter grocery and meat business. Upon delivery of machine, you to send notes for signature for monthly payments as per above terms.
    “ No discount to be allowed on price of autographic or other registers the price of which is $30 or less, or on any amount allowed on registers taken in trade.
    ‘ ‘ On presentation, should there be any failure to pay such draft, or to execute notes for deferred payments, it is agreed that the full amount of the purchase price shall at once become due and payable. Should there be any default in the payment of any-note, it is agreed that all the remaining notes shall at once become due and payable, anything in the notes to the 'contrary notwithstanding. In default of any payment, you or your agent may take possession of and remove said cash register without legal process; and, in such case, all payments theretofore made by me under this order shall be deemed and considered as having been made for the use of sai.d register during the time the same remained in my possession, and shall be retained and kept by said register company as such payment. In the event of refusal to accept said cash register when tendered, it is agreed that the sum first above mentioned, less any previous actual cash payments, shall at once become due and payable as liquidated damages and not as penalty.
    “Should the register get out of order from ordinary use, any time within two years from date of shipment, you to quickly repair the same, gratis, the undersigned paying transportation charges to and from your factory or nearest agency capable of making the necessary repairs, or if repairs are desired made where the register is located, the undersigned to pay the traveling expense of repairman from and back to your factory or nearest agency capable of making the necessary repairs.
    “It is agreed that the title to the said cash register shall not pass until the purchase price or any judgment for the same is paid in full, and shall remain your property until that time. It is expressly agreed that this order shall not be countermanded.
    “This contract covers all agreements between the parties hereto. Nameplates to read Dehn Bros. A on back, B on front; private till; draw through People’s Savings Bank of West Bay City; ship by freight.
    “ Yours truly,
    [Sign here] “ Dehn Bros.
    “ By C. O. Dehn.”
    In compliance with this order, which was sent in to plaintiff’s home office at Dayton, Ohio, the machines were shipped to defendants from Dayton by freight, as provided in the order. When the rigisters arrived in Bay City, the railroad company notified defendants to that effect, and they sent down and got them, and brought them over to their store from the freight office. Defendants did not countermand or cancel the order, or assume to do so in any way, prior to the actual receipt of the registers at their store. After uncovering the registers and examining them, defendants objected to receiving them on the ground that the registers were not the kind which they had ordered, they insisting that they had selected and supposed they had ordered initial key machines, which would enable them to keep track of the particular clerk who registered particular payments, and that plaintiff’s agent undertook and agreed to describe such machines in the order, and they gave evidence tending to substantiate this claim.. On the other hand, the plaintiff gave evidence tending to show that the two registers delivered were the exact machines selected and intended to be described in the order. The defendants claim that they were induced by plaintiff’s agent to retain the machines for the purpose of trying them to see if they would not be satisfied to retain them; that they never accepted the machines, but, on the contrary, refused to accept them; and, after using them for some six or seven weeks, at the request of plaintiff’s agent, they took the registers to the Michigan Central depot, and shipped them to the National Cash Register Company at Dayton, Ohio. This suit was .begun October 12, 1903, while the cash registers were still in the posses? sion of the defendants, prior to their shipping them to Dayton. When the registers arrived in Dayton the cash register company refused to receive them, and directed its attorneys to notify the debtors or their attorneys that the machines were subject to their order, and at their risk of loss, damage, etc. The trial judge, however, refused to permit plaintiff to introduce proof of this fact.
    Plaintiff’s declaration, after setting forth the contract, alleges, among other things:
    “That said defendant refused and failed to pay the draft for $45, provided for in said order and contract, on presentation of the same, and did fail and refuse to execute notes for deferred payments, as in said contract provided, and still refuses so to do, and that by reason thereof the full amount of said contract, to wit, the sum of $450, thereby and under the terms of said contract became due and payable, and the same is now due and payable to said plaintiff.”

      Pierce & Kinnane, for appellant.

      Lee E. Joslyn, for appellees.

       As to rights and liabilities of vendor and purchaser by conditional sale on default of payment, see note to Cole v. Hines, (Md.), 32 L. R. A. 455.

   Blair, J.

(after stating the facts). The principal question in this case arises upon assignments of error challenging the correctness of the court’s instructions to the jury that the order signed by the defendants never became a binding contract, because not accepted by the plaintiff .in writing, and that plaintiff could not recover unless they should find that the defendants had accepted the registers. We do not consider it necessary to discuss the authorities cited with much learning by counsel in this case relative to the legal status' of the order prior to performance on the part of plaintiff, since the order clearly became a binding contract between the parties when the cash registers were actually delivered to and received by the defendants, provided they were the kind of machines selected and which the order properly described. National Cash Register Co. v. Blumenthal, 85 Mich. 464; Hallwood Cash Register Co. v. Millard, 127 Mich. 316. This proposition is not disputed.

Counsel for defendants says in his brief:

“Plaintiff’s third contention, that the delivery of the registers in question by plaintiff to defendant is a sufficient acceptance by plaintiff, is conceded to be the law, and there can be no doubt of that proposition as far as it goes; but we contend that this is not the question — the real question — at issue. * * * It was not disputed in the court below, it will not be disputed here, but that the plaintiff made out such a case in the lower court as might have warranted a verdict for breach of contract in refusing to accept the registers; but that is not the claim in the declaration, nor was that feature of the case in any way before the court, the action being for the entire purchase price of the registers sold, there being no count for breach of contract.”

In National Cash Register Co. v. Blumenthal, supra, this court said, speaking of a similar order:

“ It contains all the material stipulations of a contract, and when accepted and acted upon by the National Cash Register Company was binding and conclusive upon both parties.”

Whether title passed or not is of no consequence in determining plaintiff’s right to sue for the entire amount to be paid. It was provided in the contract itself that title should not pass until the machines were paid for, and the title would not have vested in the defendants if they had accepted the machines under the contract. The right of the plaintiff to sue for the entire amount does not depend upon the vesting of title in defendants, but upon the promises of defendants contained in the contract. Defendants agreed to pay, upon the delivery of the machines, $45, and the balance of the purchase price to be paid $30 a month, for which notes were to be given. They further agreed that, should they fail to so pay or execute the notes, “that the full amount of the purchase price shall at once become due and payable.” The plaintiff delivered the machines, and, if they were the ones ordered, it at once became the duty of defendants to pay and give the notes as they had agreed. They refused to pay or to give the notes, and thereupon the entire purchase price became due and demandable. The plaintiff has properly declared upon this clause of the contract providing that the full amount of the purchase price shall become due and payable upon default, and it is entitled to recover, provided it has furnished the machines which were ordered.

In 2 Mechem on Sales, appears the following:

“ Sec. 1415. By Contract Payment May be Due Before Title Passes. There is, moreover, no reason why the parties may not stipulate that payment shall be made even before the title passes. As is said in a recent case: ‘ If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sum.’ ”

As authority for this doctrine, the author cites White v. Solomon, 164 Mass. 516 (30 L. R. A. 537). In this case the opinion was written by Justice Holmes, now of the Supreme Court of the United States. The action was based upon the following contract:

Gentlemen: Please deliver according to shipping directions given below, one White’s Physiological Manikin, Medical Edition, price $35. In consideration of its delivery for me, freight prepaid, at the express office specified below, I promise to pay the sum of $35, as follows: $10 upon delivery at the express office, and the balance in monthly payments of $5.00, each payable on the first of each and every month thereafter until the whole amount is paid, for which the publishers are authorized to draw when due. It is expressly hereby agreed that in case of the failure to pay any one of the said installments after maturity thereof, all of said installments remaining unpaid shall immediately become due and payable, and the said Jas. T. White & Co. may take or cause to be taken the said manikin from the possession of the said-or their representatives, to whom he may have delivered the same, without recourse against said Jas. T. White & Co. for any money paid on account thereof. It being expressly agreed that the money paid on account shall be for the use and wear of said manikin.”

Justice Holmes, speaking for the court, said:

“The main question is whether the judge who tried the case ought to have ruled that ‘ the plaintiffs are not entitled to recover the price of the article in question, but must offer evidence to the court upon the question of damages for the alleged breach of said contract.’ A majority of the court are of opinion that this ruling properly was refused. We assume in favor of the d efendant, but without deciding, that the title to the manikin did not pass by delivery at the express office, but that assumption does not dispose of the case. In an ordinary contract of sale the payment and the transfer of the goods are to be concurrent acts, and if the buyer refuses to accept the goods, even wrongfully, he cannot be sued for the price, because the event on which he undertook to pay the price has not happened; and although the fact that it has not happened is due to his own wrong, still he has not promised to pay the price in the present situation, but must be sued for his breach of contract in preventing the event on which the price would be due from coming to pass. The damages for such a breach necessarily would be diminished by the fact that the vendor still had the title to the goods. But in the case at bar the buyer has said in terms that, although the title does not pass by the delivery to the express company, if it does not, delivery shall be the whole consideration for an immediate debt (partly solvendum in futuro) of the whole value of the manikin, and that the passing of the title shall come as a future advantage to him when he has paid the whole. The words ‘ in consideration of its delivery ’ are not accidental or insignificant. The contract is carefully drawn, so far as to make clear that the vendors intend to reserve unusual advantages and to impose unusual burdens. We are not to construe equities into the contract, but to carry it out as the parties were content to make it. If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sum.”

In Marvin Safe Co. v. Emanuel (New York Court of Common Pleas), reported in 21 Abb. N. C. 181, the memorandum of order was as follows:

“ 320 Broadway, N. Y., Dec. 15, 1886.
“Marvin Safe Co.: Please send as per mark given below one No. 206 safe, for which the undersigned agrees to pay the sum of $127.50-100, payable $10. cash and $10. per month till paid for, dollars.
“Terms cash, delivered on board in New York, unless otherwise stated in writing.
“ It is agreed that Marvin Safe Co. shall not relinquish its title to said safe, but shall remain the sole owners thereof until above sum is fully paid in money; and if notes are given, until all such notes are actually paid in cash.
“ In event of failure to pay any of said installments or notes when same shall become due, then all of said installments or notes remaining unpaid shall immediately become due, and Marvin Safe Co. may, at their option, remove said safe without legal process.
“ It is expressly understood that there are no conditions whatever not stated in this memorandum, and the undersigned agrees to accept and pay for safe in accordance therewith.
“ Sign here. Emanuel & Taylor.
“ Salesman. R. F.
“Approved.
“ Money must not be paid to salesmen for our account.
“ Mark on door, Emanuel & Taylor.
“Route, 320 Broadway, 3d floor.
“Not accountable for damage after shipment.”

Daly, J., speaking for the court, said:

“The defendants in their written agreement expressly agreed to pay $127.50 for the safe which they ordered to be sent to them, and, as the safe was sent, and defendants refused to receive and pay for it, I cannot see any objection to the recovery of the price. The fact that it was also stipulated in the same written agreement that the title to the safe should not pass until the whole price was paid cannot affect plaintiff’s right to recover upon the express agreement to pay, because the latter is an independent stipulation. The fact that the price was to be paid in installments, $10 down and $10 per month, does not affect the right of recovery. The same written agreement provides that all the installments shall become due upon default in paying one; and the option given thereupon to the plaintiff to remove the safe does not cancel the obligation to pay them when they so become due. It hardly seems necessary to cite authorities in support of the claim made by the plaintiff. The agreement to pay is enforceable in the same way that a promissory note, would be if the promise to pay for the safe had been contained in such an instrument instead of in .this contract. It would be no defense to the note to say that the vendors and vendees had expressly stipulated that the title to the safe should not pass until the same was paid. Parties have the right to make any agreement they please, so long as they do nothing in violation of the law. They might have agreed that the possession as well as the title of the safe should be in plaintiff until the price was paid, and, if there was an express agreement to pay the price, it would be recoverable, because that would be the contract.”

In support of his contention, defendants’ counsel cites several Michigan cases, in which the contract was entirely verbal, where the court held that an acceptance must be shown of a part of the goods to bind the defendant, delivery alone not being sufficient, on the principle that the vendor cannot, by his own act alone, take the case out of the statute. Counsel also cites McCormick Harvesting Machine Co. v. Cusack, 116 Mich. 647, contending that that case rules the case at bar. Counsel says: “ An examination of the order- in this case shows that it is much like the McCormick order in several ways.” We think the orders are strikingly dissimilar in most respects. In particular the clause, “ On presentation, should there be any failure to pay such draft or to execute notes for deferred payments, it is agreed that the full amount of the purchase price shall at once become due and payable,” is not found in the Cusack Case. In the latter case, also, the proofs showed conclusively that there never had been any delivery to the defendant prior to the countermanding of the order, and the order only required settlement by notes on delivery. Moreover, the order in the Cusack Case was never sent in to the principal, but was retained by the agent, and there were no acts of performance on the part of the principal sufficient to constitute an acceptance of the order on its part. In the case at bar there was a complete delivery by the plaintiff and a voluntary taking of possession by defendants for inspection. The defendants made a written proposal containing all of the terms of a mutually binding contract, and when this proposal was accepted by full performance on the part of plaintiff the contract became a complete written contract. Delivery in compliance with a written order constitutes an acceptance of the order, and a mutually binding contract results. Delivery under an oral order does not constitute an acceptance, because there is nothing to accept, the oral order being void, and only acceptance by the defendants can raise contract relations. The language of Mr. Justice. Moore in the Cusack Case must be limited to the facts of that case, where, in the opinion of the learned justice, “there was no acceptance of this order,” and therefore the contract was unilateral and void, as much as though it had been ah oral contract; ft was merely an unaccepted proposal. In such case undoubtedly it would be essential to show an acceptance of part of the goods by the defendant.

We think that the only question which should have been submitted to the jury was whether the machines delivered were of the same description as the ones actually ordered, and the jury should have been instructed to find a verdict for the plaintiff in case they found that the cash registers delivered were the same kind of registers as those ordered.

We also think that the court erred in refusing to permit plaintiff’s counsel to cross-examine the defendants as to their previous testimony, and in excludingthe plaintiff’s letter, Exhibit B.

Eor the errors indicated, the judgment is reversed, and a new trial granted.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    CRESSWELL v. ROBERTSON.
    Building Contracts —Construction —Injuries to Work —Replacement — Extras.
    A subcontractors’ contract provided that they should cover, protect, and secure the work from injury; that any damage thereto should be repaired at their expense, and that the inspection of any work by the architects, or the issuance of certificate thereon by them, or payments under the contract, should not release the subcontractors from any obligation to perform the work in a good and workmanlike manner, and any default or defect in the same, with all damages thereto, should be repaired and replaced or made good by the subcontractors at their own cost and expense. Held, that where water-conductor pipes were placed within four inches of the outside face of the wall, as provided by the plans and specifications, and were accepted after being tested, but they were subsequently damaged by frost because of the failure of other contractors to supply steam with which to warm them as contemplated, whereupon the architects ordered new pipes inserted in another location, the subcontractors were not required to insert such pipes under the contract, but were entitled to charge therefor as extras.
    Error to Wayne; Frazer, J.
    Submitted January 18, 1905.
    (Docket No. 63.)
    Decided March 21, 1905.
    Assumpsit by James L. Cresswell and Frank A. Hesse, copartners as the Detroit Cornice & Slate Company, against Robert Robertson for work and labor done. There was judgment for plaintiffs on a verdict, directed by the court, and defendant brings error.
    Affirmed.

      Angelí, Boynton, McMillan & Bodman, for appellant.

      Lodge, Trevor & Brown, for appellees.
   Blair, J.

This is an action brought by the appellees against the appellant to recover the final payment claimed to be due under a contract between them. The defendant was the principal contractor for the erection of the Wayne county building at Detroit. He entered into an elaborate written contract with the county, which contained various clauses bearing upon the questions involved in this case. The plaintiffs were subcontractors under the defendant for a portion of the work covered by his contract with the. county, viz., the portion covering roofing and metal work. The plaintiffs entered into a written contract with the defendant, covering this work, the clauses of which, so far as they affect the questions involved in this case, are identical in language with the clauses contained in the contract between the defendant, Robertson, and the county.

The plans called for the placing of iron water-conductor pipes in the outer walls, and four inches from the outside face thereof, of that portion of the building which surrounds the interior courts. The Detroit Cornice & Slate Company (plaintiffs) was the subcontractor in whose department this work fell. The plans required that the work of installing the pipes should go on as the outer brick walls went up, and this course was pursued, with the result that when the wall was finished the pipes were completely incased in brickwork. The work of installing the pipes, including making of connections near the roof, was completed about the month of October, 1899, when the work was subjected to a rigid test by allowing water to pass down into the pipes from the roof, and no defect was found, and none existed. The work was completely finished in accordance with the specifications. The plans and specifications contemplated that an opening should be left in the conductor pipe near the ceiling of the basement, into which a steam pipe should be introduced so as to allow steam to be discharged into the pipe for the purpose of warming the conductors in freezing weather. The proper opening was left for this purpose in each conductor pipe. As these conductor pipes were placed, according to the plans, within about four inches of the outside face of the wall, the heating of them as proposed was an essential-safeguard in cold weather. For some reason, not disclosed by the record, for which none of the parties to the suit was responsible, the apparatus to supply steam to the building was not in working order or put into operation until late in March or early in April, 1900. In the meantime, and probably during a period of heavy snows in January and February of 1900, the conductor pipes became filled with ice, and many of them were bursted and broken. After the bursting of the pipes, and some time in the spring of 1900, the architects directed defendant, Robertson, to cut from the inside of the building through some 20 inches of brickwork to reach each pipe in its then location, and to cut another slot on the inside of the wall, and to put new pipe in this new location, whefe some 20 inches of brickwork would be between the pipe and the outside air. Some of these pipes were, however, removed to the elevator shafts of the building, instead of being set in the brickwork, as last stated. After Robertson had been instructed to replace the pipes, he, in his turn, ordered the plaintiffs to replace them, which order plaintiffs refused to obey unless they were paid for so doing, whereupon Robertson caused the work to be done by others at his own expense. The plaintiffs did, however, make the roof connections to the pipes in the new location, putting in what are called in the record “goose necks;” and for this work they made a charge against Robertson, as for an extra, of $150.50. It appeared that to replace the pipes in their original location would have cost $1,408.56, and that the change in the plans made an additional expense of about $800.

The facts were undisputed, and at the close of the testimony the circuit judge directed a verdict in favor of the plaintiffs for the full amount of their claim. Defendant assigns as error the directing of the verdict, and the refusal of the court to give defendant’s single request to charge — that, under the testimony in the case, the defendant was entitled to a set-off, as against the claim of the plaintiffs, in the amount of $1,408.56, with interest from the time of the completion of the building. Defendant’s counsel contend that, as between the county and Mr. Robertson, the county had the legal right to insist that any damage happening to the work after its completion, and before the final acceptance of the work, should be replaced at his expense, no matter what the cause of the damage was, and that, although the cause might be bad plans made by the architect, this did not alter his responsibility. They also contend that the subcontractors under these samé clauses were similarly liable to Mr. Robertson for the expense to which he was put in making good the damages to the county.

In the course of his instructions to the jury, directing a verdict for the plaintiff, the trial judge said:

“ Now, when application was made to the plaintiff by the defendant to alter this pipe — to put it in a different place, as directed by the architect — he refused to do it; claiming that he had completed his contract according to the terms of the contract, and according to the plans and specifications. It is my opinion that, having complied with his contract, there was no law that could require him to make this alteration, without he was paid for it. If it had been any neglect on his part — any failure to comply with the original plans and specifications — it would have been different; but it is conceded that there is nothing of that kind, but that the architect came along and ordered this changed; and it is claimed he had a right to make it, under the original contract between the county and the defendant in this suit, the general contractor. I do not so interpret that contract at all. I do not think that the architect had a right, under that contract, to arbitrarily change the plans, and expect to make the workmen — the persons who had taken these contracts — pay for it out of their own pockets. If they saw fit to change the plans — and having found there was a defect in them — and to put this pipe further away from the outside wall, to prevent freezing, it was to be done at the expense of the owners of the building, and not at the expense of the contractors. The work having been performed, this general contractor was under no liability, and there was no authority to make Mr. Robertson make it in this way; but they went on and made it, and it has been paid for.”

We fully agree with the trial judge in his interpretation of the contract. All of these contractors had executed their contracts in exact .compliance with the plans and specifications; their work had been finished, tested, and found satisfactory; and they were in no wise responsible for the neglect of others in not installing the steam heating apparatus, nor for the placing of the pipes four inches from the outside, where they were likely to freeze.

The construction of the contract by the appellant, whereby the contractors could be required by the arbitrary-action of the architect to do their work over again without compensation, is so harsh and unjust that it should only be adopted in case the provisions of the contract are so clear and certain in their meaning as to admit of no other rational conclusion. The clauses of the contract upon which counsel for appellant rely in their brief are the following:

“3rd. Should any alterations be required in the work shown or described by the drawings or specifications, the quantities for such alterations either as additions to or deductions from the work, shall be made by the architects, and the prices for same shall be in accordance with the prices named in the proposal submitted by these contractors. Said proposal is attached to this contract.
“4th. The contractors shall, within twenty-four (24) hours after receiving written notice from the architects to that effect, proceed to remove from the grounds all materials condemned by them, whether worked or unworked, or take down all portions of the work which the architects shall condemn as unsound or improper, or as in any way failing to conform to the drawings and specifications, and to the conditions of this contract. The contractors shall permit the owners and architects to visit and inspect the said work or any part thereof, at all times and places during the progress of the same, and shall provide sufficient, safe and proper facilities for such inspection. * * *
“6th. Should the contractors be obstructed or delayed in the prosecution of the work by the neglect, delay, or default of any other contractors, or by an alteration that may be required in the said work, or by any damage which may happen thereto by fire, or by the unusual action of the elements, or by the abandonment of the work by the employés through no fault of the contractors, then there shall be an allowance of additional time beyond date set for the completion of said work; but no such allowance shall be made unless the claim is presented in writing at the time of such obstruction or delay. The architects shall award and certify the amount of additional time to be allowed, in which case the contractors shall be released from the payment of the stipulated damages for the additional time so certified and no more. *
“ 8th. The contractors shall make no claim for additional work, unless the same shall be done in pursuance of an order from the parties of the second part, and notice of all claims shall be made to the parties of the second part, in writing, within ten (10) days of the beginning of such work. * * *
“ 10th. The contractors shall cover, protect, and secure the work from injury, any damage happening thereto shall be repaired, replaced, or made good by said contractors. The contractors shall be responsible for any harm or injury which may happen to any person or persons on or about the building by reason of any act or default of said contractors, their subcontractors, employés, or agents. The contractors shall pay to the parties of the second part all costs which the said parties of the second part may incur by reason of said harm or injury. * * *
14th. It is mutually further agreed by the parties hereto, that the inspection of any work by the architects or the issuance of certificate thereon by them, or payments made by the parties of the second part, under this contract, shall not release the contractors from any obligation to perform the work in a good and workmanlike manner, and in case of any default or defects being found at any time, either in workmanship or materials, the same, with all damages due thereto, shall be repaired, replaced, or made good by the contractors at their own cost and expense.”

The tenth clause seems to be the one upon which appellant principally relies as supporting his construction of the contract, and is the only clause, in our opinion, which affords a plausible basis for such construction. It is his view that that clause required the- contractors to protect the work against injury, and to repair, replace, or make good any damage from any cause occurring before the acceptance of the work by the county. We do not think this view should prevail as to the plaintiff’s contract, whatever may be the construction of the clause in defendant’s contract with the county. So far as plaintiff’s contract is concerned, we think this clause meant that he should cover, protect, and secure the work from injury, and should repair, replace, and make good any damage happening during the progress of the work, and before its final completion in accordance with his contract, while he was still in charge of and responsible for the particular work. To hold that the subcontractor should be held responsible for the negligence of others causing damage months after he had completed his work, which had been tested and accepted by the principal contractor as satisfactory, and which, as a matter of fact, complied in every detail and circumstance with the plans and specifications, would, in our opinion, be unreasonable and unwarranted by the clause in question.

The fourteenth clause manifestly has no application, since the plaintiff performed his work in a good and workmanlike manner, and there were no defaults or defects found at any time either in workmanship or materials.

We think that the trial court adopted the correct view of the contract between the parties, and the judgment is affirmed, with costs.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


author: McAlvay, J.

text:
    WILSON v. ROYAL NEIGHBORS OF AMERICA.
    1. Trial — Direction of Verdict — Undisputed Evidence.
    A verdict may be directed for a party having the burden of proof only when the testimony to establish his claim is undisputed ; and in this respect testimony cannot be considered as undisputed because no witness directly denies it, since cross-examination may cast doubt upon it, or other testimony may dispute it by indirection.
    2. Appeal and Error — Questions Considered — Exception and ' Assignment.
    Consideration will not be given a .complaint regarding a colloquy between court and counsel to which no exception was saved and on which no error is assigned.
    3. Same — Instructions—Review.
    The charge will be reviewed as a whole without reference to the punctuation of the stenographer or attorneys.
    4. Life Insurance — Actions—False Warranty — Instructions.
    In an action on a life-insurance .policy in which the defense was false warranty, in that insured stated in her application that she had not consulted a physician within seven years, and had never had heart disease, instructions examined and held, that, taken as a whole, the charge was not subject to the objection of telling the jury that they could consider insured’s statement in the application as evidence of its own truthfulness.
    Error to Muskegon; Russell, J.
    Submitted January 19, 1905.
    (Docket No. 74.)
    Decided March 21, 1905.
    Assumpsit by John W. Wilson against the Royal Neighbors of America on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      James A. Lombard (George Lovelace, of counsel), for appellant.

      ■Nims, Hoyt, Envin, Sessions & Vanderwerp, for appellee.
   McAlvay, J.

Plaintiff brings suit against defendant upon a certain benefit insurance certificate issued April 3, 1901, to Harriet B. Wilson, plaintiff’s wife, for $2,000. Defendant is an Illinois fraternal insurance corporation, authorized to do business in the State of Michigan. Plaintiff is the beneficiary named in said insurance certificate. Mrs. Wilson made application for membership, in writing, March 4, 1901. She was duly examined by the local medical examiner of the society. The application was accepted, the examination approved, and the insurance certificate issued.

The application and certificate provided that the bylaws in force or thereafter enacted, the written examination, and the benefit certificate should each form a part of and constitute the contract of insurance. The truth of all the statements in the application and medical examination were made strict warranties, to form the only basis of liability on the part of the society. Mrs. Wilson died April 16, 1903, being then in good and regular standing as a member of the order. The necessary proofs of death were duly made and filed with the defendant, but payment of the claim was refused.

Upon trial in the circuit court a prima facie case in favor of the plaintiff was admitted. The defense relied upon a breach of warranty, and claimed that Mrs. Wilson, in stating in her application that she had not within seven years consulted a physician concerning any personal ailment, and that she never had heart disease, did not state the truth. Plaintiff recovered judgment for the amount claimed.

In this court two errors are relied upon: First, that the court erred in not directing a verdict for defendant; second, the court erred in instructing the jury that they might consider the statement of the applicant in her application for insurance as evidence of its truthfulness, when the truthfulness of such statement was in issue.

The first error is based upon the claim of defendant that, from the testimony of the doctor, it appeared that the applicant, Mrs. Wilson, had consulted him in regard to a personal ailment within seven years prior to making the application ; that he diagnosed such ailment as valvular disease of the heart; that such testimony was undisputed, and established the falsity of her representations in her application to defendant company, and avoided liability under the benefit certificate upon which suit was brought.

To determine whether this contention is true, the court must weigh and examine all of the testimony of this witness, and decide, as a matter of law, that the testimony was undisputed, and that the' trial court should have directed a verdict for defendant. We do not find that it was so clear and certain that we can say the court was in error in submitting the case to the jury. The record discloses that the doctor relied upon his memory, unaided by any record; that there was uncertainty as to dates; and that his recollection as to the age of the child was at fault. This had a bearing upon the time Mrs. Wilson was married, and consequently upon the question whether the consultations occurred within thé seven years prior to the application for insurance. That she had consulted him at some time was undisputed. From the testimony, we cannot say the time when the consultations were had was not disputed. There was also other testimony in the case, bearing upon this fact, to be taken into consideration.

Testimony cannot^be considered as undisputed because no witness directly denies it. ., Cross-examination may cast doubt upon it, or other testimony may dispute it by indirection. In the case of Ferris v. Assurance Co., 118 Mich. 485, cited by defendant, the application for insurance stated that applicant had never made application for insurance upon a policy which did not issue, nor had he been given an unfavorable opinion by a physician with reference thereto. It was proved that he had made application to another company, and that the medical examiner had given applicant an unfavorable opinion concerning his health, and there was no other evidence in the case touching the question. This court said:

“ There is no testimony in the ease which tends to discredit the testimony on the part of the defendant that Mr. Ferris did apply to the Ancient Order of United Workmen for insurance, and that their medical examiner advised him he was not a proper subject for insurance. The judge should have directed a verdict in favor of defendant.”

To the same effect in Lange v. Perley, 47 Mich. 355, it was said:

“When there is no contest concerning a point of fact, and it stands virtually conceded, it is a clear impropriety to ask or lead the jury to view it otherwise.”

These cases are not in point, for the reason that in the case at bar, as we have already indicated, the testimony of the doctor was not undisputed.

The other error assigned refers to the claimed instruction to the jury that they might consider the statement of the applicant in her application for insurance as evidence of its truthfulness, when the truthfulness of such statement was in issue. The portion of the charge in which the instruction occurs reads as follows:

“ The "defendant attacks the claim made here on the part of the plaintiff and says that at the time this application was made by Mrs. Wilson, certain statements were made in that application which were in conflict with the truth, and that by reason of that being so, this policy is void. It is conceded on both sides that if the claim of the defendant is true, that those statements were in conflict with the truth, that the plaintiff cannot recover in this case. One of those questions in substance is that Mrs. Wilson had not for seven years prior to the 4th day of March, 1901, consulted a physician upon any question with reference to an ailment to herself. Now, it is necessary, gentlemen, in viewing this controversy, to examine this contract, and these questions form part of the contract, fairly and honestly, and interpret them reasonably, and in this particular case it is conceded on the part of the defendant that when they say that she had not consulted — when she says that she had not consulted a physician, that it does not apply and was not intended to apply to slight temporary ailments but it was something that was of importance, and in this particular case the claim is that it applies to the question of heart difficulty. They claim that she stated, and she did state in that contract that she had not during the seven years prior to the 4th day of March, 1901, consulted a physician with reference to a heart difficulty that they claim she had for that time and longer. You have heard the testimony of Dr. Marvin on that point. You have heard the testimony of Mr. Wilson. You have heard the testimony of the other physician. You know all of the attendant circumstances, and it is for you gentlemen to say what the real facts were with reference to that matter. You have heard her statement as given in the application. If you find that she had consulted a physician within the seven years with reference to this ailment, the difficulty of the heart, that will dispose of this case, and it won’t be necessary to investigate the matter farther.”

The words complained of are, “You have heard her statement as given in the application.” There is no fault found with the charge as given immediately following:

“ If you find that she had consulted a physician within the seven years with reference to this ailment, the difficulty of the heart, that will dispose of this case. ”

In both reply briefs, considerable stress is laid upon the punctuation. On the part of the appellant it is claimed that the part of the charge complained of and the last above quotation were given in two distinct sentences, and that the fair construction of this part of the charge is that the court submitted the application to be considered by the jury as evidence of its truthfulness. The other side claims that the punctuation should be simply a comma, and that the first part of the sentence simply called the atten-' tion of the jury to the fact that the truthfulness of her statement was attacked.

Appellant further claims that the statement of the judge when the motion was made to instruct the jury to find for the defendant indicates that the court held this application could be considered as evidence of its truthfulness. After this motion was argued at length, the following colloquy took place:

The Court: I don’t believe that will hardly do. I will have to overrule the application, with the evidence of Dr. Marvin as it appears, taking into consideration Mr. Wilson’s testimony, and the affidavit made by this party at the time of application. I don’t hardly believe it will do.
Mr. Lombard: I don’t know as I understand the affidavit you refer to.
The Court: Well, the application of the party, I mean.”

The exception taken at this time would indicate that it was to the refusal to grant the motion. There is a dispute between counsel as to whether this occurred in the presence of the jury. This is not so important as the fact that no exception was taken to what was said, and no error is assigned upon it. This court has always held that consideration will not be given to matters not included within the assignments of error. The error assigned was predicated solely upon the language of the general charge. The charge must be taken as a whole, without reference to the punctuation of the stenographer or the attorneys. The ■ clause in dispute must be taken in connection with what preceded it and what immediately follows. From the whole charge, we do not find that the instruction complained of will bear the construction claimed for it by defendant. The court had fairly submitted the case to the jury, carefully calling attention to the evidence upon matters in dispute, and then referred to the application, not as evidence, but as the thing attacked. We find no error in this charge.

The judgment is affirmed, with costs.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    MANEY v. LAMPHERE.
    Landlord and Tenant — Trespass by Landlord — Action—Recovery by Tenant.
    A landlord is liable in trespass to his tenant, where, during the tenant’s absence from the premises, he enters without the tenant’s consent, moves the house, and erects another in its place.
    Error to Wayne; Donovan, J.
    Submitted January 19, 1905.
    (Docket No. 87.)
    Decided March 21, 1905.
    Trespass quare clausum fregit by Lillie Maney against Leman B. Lamphere and Helen Lamphere. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      F. C. Moriarty and Lehman & Biggs, for appellant.
    Bowen, Douglas, Whiting & Murfin, for appellee.
   McAlvay, J.

The record in this case does not give this court a very clear idea of the bearing of all that transpired in the circuit court upon the issue before that court. From the testimony, which is all' returned, the following facts appear: Plaintiff, on the 12th day of July, 1902, at the township of Redford, in Wayne county, was, with her family, consisting of her father and her two children, in the lawful and peaceable possession and occupancy of a little house, used by her as a dwelling house. This house was situated on the Waterford road, in said township, on certain land over which defendant Leman B. Lamphere exercised control either as owner or agent for the owner, and who had rented the premises to plaintiff for $5 per month, agreeing to make necessary repairs, raising the monthly rent from $2.50, the price formerly paid him. The agreement to rent also included land around the house for a garden. It did not appear who owned the premises, but the proofs indicated that they belonged to the estate of defendant Helen Lamphere’s father, and that she claimed some interest in them. There is no dispute in the case, but that the relation of landlord and tenant existed between plaintiff and defendant Leman B. Lamphere.

On July 12,1902, defendant Leman B. Lamphere, without authority of law or consent of plaintiff, as far as this record discloses, and while plaintiff was away from home, by his men and team entered upon these premises, put the dwelling house upon rollers, and with rope and capstan moved the same off for a distance of about 10 rods, and afterwards dug a cellar and built a house for himself and the Other defendant, his wife, on the place where the old house stood. While the house was being moved, plaintiff returned home to her family, and occupied the house from that time to October, 1902. Plaintiff brought this action of trespass against defendants for damages claimed to have been sustained by her by reason of moving her house, trampling down and destroying her garden, tearing down her henhouse, and for damage to her household furniture and wearing apparel, caused by rain coming in through openings made in moving the building, and other injuries complained of. An issue was joined upon proper pleadings. Upon the trial before a jury sufficient proof was offered by plaintiff and admitted in evidence to entitle her to have the same submitted to the jury for its consideration and determination. This was accordingly done under the charge of the court. The jury retired in custody of an officer at about 10:30 o’clock a. m. to deliberate upon their virdict. The bill of exceptions shows that afterwards, and while the jury were out, the following occurred:

“ At about 1 o’clock p. m. the court instructed Charles Benoit, deputy clerk of said court, that, if the jury did not agree by 3 o’clock p. m., to direct a verdict for defendant, and discharge the jury. This was done at 3 p. m., as directed, to which plaintiff duly excepted.”

From a judgment entered upon this verdict in favor of defendants against plaintiff, the plaintiff appeals to this court.

Several errors are assigned upon exceptions taken during the course of the trial and to the charge of the court to the jury. As this judgment must be reversed upon other grounds, and as in all probability upon a new trial the record will more clearly disclose the questions raised, we do not deem it necessary to consider them.

Error is alleged, founded upon the action of the trial judge in instructing the deputy clerk that, if the jury did not agree by 3 o’clock, to direct a verdict for defendants, and discharge the jury. Without discussing at this time the propriety of delegating to the clerk the authority to direct a verdict of a jury if it did not agree by a certain time, we hold that in this case it would have been error had the judge himself directed such a verdict. Upon this record the plaintiff was entitled to a verdict, and the only question for the jury to determine was the amount of damages.

The judgment is reversed, with costs to plaintiff, and a new trial ordered.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    WOLVERINE LUMBER CO. v. PALATINE INSURANCE CO.
    Fire Insurance — Property Covered — Construction of Policy.
    An insurance policy covered lumber “piled in mill building, on cars, under mill sheds and in sheds adjoining to said mill building.” There were sheds called “mill sheds ” where lumber was piled situated some distance from the mill. The roof of the mill itself extended out 10 or 12 feet over the tracks on either side of the mill to protect the lumber and men loading or unloading cars. It was undisputed that these projections or sheds were erected simply to cover the tracks, were open at the ends and sides, and were not intended to be used as lumber sheds. Held, that the words “mill sheds” in the policy should be construed as indicating the sheds located some distance from the mill, and not those projecting from the building, and the quoted clause of the policy should be construed as though it read, “On lumber in mill building; on lumber on cars; on lumber under mill sheds and on lumber in sheds adjoining to said mill building.”
    Error to Bay; Shepard, J.
    Submitted January 19, 1905.
    (Docket No. 84.)
    Decided March 21, 1905.
    Assumpsit by the Wolverine Lumber Company, Limited, against the Palatine Insurance Company, of London, England, on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. ’
    Affirmed.

      T. A. E. & J. C. Weadock, for appellant.

      Lewis P. Cowmans (Pierce & Kinnane, of counsel), for appellee.
   Blair, J.

The plaintiff brought suit against defendant upon a policy of insurance of $1,000 issued by it, and recovered for the full amount by direction of the court. The fire occurred on May 30, 1903, and destroyed two sheds of lumber and two cars of lumber on plaintiff’s premises in Bay City. The total loss was $11,936.29, and the total insurance, including the policy of $1,000 in suit, was $5,-214.08. The defendant claimed that the lumber burned was not covered by the policy, and requested the court to direct a verdict in its favor for that reason. This raised the principal question, and, so far as the record discloses, the only question, called to the attention of the trial judge, and is therefore the only question proper for our consideration.

The clause in the policy upon which plaintiff claimed the right to recover is as follows:

“Cn rough a'nd dressed lumber (lath and shingles, if any) owned Ijy them or held in trust or on commission or sold, but not delivered, piled in mill building, on cars, under mill sheds and in sheds, adjoining to said mill building situate on their premises '4th Ward, West Bay City, Michigan.”

The court construed this clause as though it read:

“On lumber, in mill building; on lumber on cars; on lumber under mill sheds and on lumber in sheds adjoining to said mill building.”

The defendant insisted that the clause in question should be read, as follows: “On lumber in mill building; on cars under mill sheds; and in sheds adjoining to said mill building ” — insisting that the projecting roofs or awning of the mill constituted the mill sheds referred to in the policy. The roof of the mill extended out 10 or 12 feet over the tracks on either side of the mill to protect the lumber and the men when loading or unloading the cars in stormy weather. There were five sheds where lumber was piled, numbered 1, 2, 3, 4, and 5. The mill building was about 150 feet long north and south by 50 feet wide east and west. On the east and west sides were spur tracks, which were covered by the projecting mill roof. Shed No. 1 was about 200 feet west of the mill; shed No. 2 about 20 feet south of No. 1; shed No. 3 was very close to the mill on the west side, the mill roof overlapping the roof of No. 3; No. 4 was on the west side of the west spur track, about 80 feet south of the mill; No. 5 was on the east side of the west spur track, about 75 feet south of the mill. The lumber burned was in sheds 4 and 5 and in two cars standing on the east spur track opposite No. 5. The only witnesses who testified in the case were Frank D. Glover, plaintiff’s secretary, and Joseph Catherwood, the treasurer and general superintendent. Mr. Glover was asked:

Q. What are those sheds, Nos. 1, 2, 3, 4, and 5? State what they are known as, and in what way, by the people in connection with the plant.
“A. Why, the sheds are known as mill sheds. They were built in 1885. I have been familiar with the sheds and their location since I started to work there in 1888. At that time and since they have been known as mill sheds. There are no sheds of any kind attached to or connected with the mill. The side tracks that are on the premises of the Wolverine Lumber Company do not run under any sheds. The roof of the mill extends over a little to cover the cars or the men while they are loading or unloading in stormy weather.
Q. Is that intended or used as a lumber shed or mill shed to store anything in ?
“A. No, sir. The-width of the roof of these sheds is about ten or eleven feet. The sides are composed of posts holding it up. It is all open, ends and sides. The railroad tracks enter at the end, and the sides and ends are both open. It is just simply to cover the tracks. The roof covering the track is a continuation of the roof of the mill, simply the rafters run out over to cover it. In unloading lumber from the cars that stand under there, it is put in at the side of the mill.”

Mr. Catherwood testified:

“The two sheds that burned and shed No. 3, the other two sheds, 1 and 2, are known as our mill sheds, and have been known as that ever since they were built, about 18 years. ”

This evidence was wholly undisputed, and, in the absence of any evidence to qualify it, we must presume that the words “mill sheds” in the policy referred to these sheds 1, 2, 3, 4, and 5.

We think that, in view of the testimony of Mr. Glover and Mr. Catherwood, the court placed the proper construction upon this policy, and rightly directed a verdict in favor of the plaintiff, and the judgment is affirmed.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    WOLVERINE LUMBER CO. v. LIVERPOOL & LONDON & GLOBE INSURANCE CO.
    Eire Insurance — Property Covered — Construction of Policy.
    This case, involving the construction of a fire-insurance policy as to the property covered, is ruled by the case of Wolverine Lumber Co. v. Palatine Insurance Co., ante, 432.
    Error to Bay; Shepard, J.
    Submitted January 19, 1905.
    (Docket No. 83.)
    Decided March 21, 1905.
    Assumpsit by the Wolverine Lumber Company, Limited, against the Liverpool & London & Globe Insurance Company, of Liverpool, England, on a policy of insurance. There was judgment for plaintiff on verdict directed by the court, and defendant brings error.
    Affirmed.

      T. A. E. & J. G. Weadock, for appellant.

      Lewis P. Cowmans (Pierce & Kinnane, of counsel), for appellee.
   Blair, J.

The facts in this case are identical with those in the case of Wolverine Lumber Co. v. Insurance Co., ante, 432, and the case is ruled by the decision in that case. The judgment is accordingly affirmed.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    PERE MARQUETTE RAILROAD CO. v. KALKASKA CIRCUIT JUDGE.
    Injunction — Decree—Validity—Merits—Vacation of Part of Decree — Mandamus.
    A railroad filed a bill to restrain defendant from obstructing a. side track; the answer set up title to the land in defendant, and prayed for affirmative relief, and the court announced that the bill would be dismissed, but, without notice to complainant, made a decree restraining complainant from using-the track. Held, that the decree not being void, nor embracing matter- not within the issues, the Supreme Court would not by mandamus vacate the portion of the decree restraining complainant.
    Mandamus by the Pere Marquette Railroad Company to compel Clyde C. Chittenden, circuit judge of Kalkaska county, to vacate a restraining order in a decree.
    Submitted February 14, 1905.
    (Calendar No. 20,938.)
    Writ denied March 21, 1905.

      Pratt & Davis, for relator.

      Wayne Simmons, for respondent.
   Ostrander, J.

The relator, in June, 1904, filed its bill of complaint in the circuit court for the county of Kalkaska, in chancery, claiming to be owner and in possession of a certain right of way, upon which it had built and was then operating a side track connecting with a spur of a branch line of its road, and complaining that a person named as defendant in the bill interfered with the operation of the road on the said right of way by piling logs on the track and felling trees across it, and by threats of personal violence to employes of relator. The bill prayed for both a temporary and a permanent injunction. The bill was answered, and in the answer the defendant claimed that he had title to the land in question, and that com-piquant had none, and was upon the land without right, and asked for affirmative relief. The answer does not specifically pray for any order restraining the complainant from operating its road, but does contain a prayer for general relief. The court issued a temporary injunction, but, after hearing, made a decree dismissing the bill, dissolving the injunction, and restraining the complainant (relator) from going upon or operating trains across the said land. This decree is dated on the 7th of October. It was preceded by an opinion in which the court indicated a purpose to grant to defendant the following relief, and no other:

“ At this time the court will dismiss this hill of complaint, dissolving the injunction, with full costs to the defendant, and an attorney fee of $25.”

Relator knew the terms of the opinion, but seems to have had no notice of the settlement of decree. A copy bf it was served upon solicitors for complainant (relator) about November 24th. Relator ceased, after the opinion was filed, to operate its road, until after the 13th of October, when it claims to have made arrangement with the owner of the legal title (not the defendant in the chancery suit, nor the one from whom, in the bill of complaint, it claimed to have acquired its rights) which resulted in obtaining from such owner, on November 5, 1904, by deed, a right of way, and it at once began operating its trains over the road. On the 3d of January the defendant in the chancery suit tore up the railroad track, so that trains -could not be operated upon the said right of way. On the 17th of January the relator filed its petition in said court and cause, in which it set out that it had no notice of the settlement of the decree; that it did have notice of the decision which the court announced; that, upon receiving a copy of the decree, certain conditions in it not mentioned in the opinion of the court were overlooked — among others, the restraining order; and that relator and its solicitors were not aware that a restraining order had been entered in the cause until after January 1, 1905. The petition further sets out that the alleged title of the defendant is founded on void tax deeds; sets up its own title, acquired after determination of the cause, the tearing up of the track, and the interruption of business; and prays for the following relief:

‘ ‘ (a) That the decree entered in said cause be so changed and modified as to strike all that part of said decree that restrains your petitioner from operating its trains over said Mahan Branch, and the land in controversy in said case.
‘ ‘ (b) To expunge from said decree so much thereof as requires your petitioner to restore the land in dispute to its former condition.
“ (c) That said decree be so corrected and modified as to exclude from its terms everything not covered by the decision of the court as rendered on October 7th.
“(d) That said decree be so modified as to place said defendant and your petitioner in the same position they were left by the finding and decision of the court on October 7, 1904.
“ (e) That said decree be so modified as to permit your petitioner to protect its rights under the facts as they now exist.
“(/)That said decree be so modified as to leave your petitioner the right to pursue such remedy as, in law, your petitioner is entitled to, without prejudice from said former suit.”

Upon filing the petition to modify the decree, the respondent made an order expunging the principal matters complained about, unless defendant should show cause on January 30th why the order should not be made. The defendant answered the petition. A hearing was had, and, while it does not appear that an order was formally entered, the court announced on January 31, 1905, in. a letter to the solicitors for the relator, (1) that execution, would be withdrawn; (3) time fixed to settle a case for appeal; (3) that the petition to amend or modify the decree is denied. What showing, if any, was made on the hearing of the petition, does not appear; but the answer of the respondent, which we must assume states the facts,, contains the following:

“ The respondent, further answering, says that if the relator has acquired legal title to the land in question, and by virtue of the same is entitled to the use of said right of way, that, upon proper and legal proof of the same, this respondent would be glad to modify his decree and dissolve the restraining order heretofore made; but that the respondent would not feel warranted in changing a decree simply on ex parte affidavits and petitions, in view of the fact that the court felt that hé had been misled as to the real facts by the petition for a restraining order, as set forth in complainant’s bill of complaint, and upon which the respondent restrained defendant.”

It appears that relator proposes to appeal from the decree, and has taken proceedings to that end. It is claimed that the decree was entered without any jurisdiction to do so, because no notice of the settlement of the decree was given, as required by the practice, and that, whether this is so or not, there is no prayer in defendant’s cross-bill asking for an injunction, and therefore none should have been granted against relator, lihe complainant. We are asked to vacate, by mandamus, so much of the decree as restrains relator from the use of the land in question for its right of way. We must assume that the decree complained of is the decree which the court désired to enter, and the one which, if no irregularities had occurred, would have been entered. The decree is not .void, nor does it embrace matters not fairly in issue upon the bill and answer. We must assume that if relator has, since the entry of the decree, acquired title to its right of way, it did not have such title when it filed its bill. We must assume, too, that, upon a proper presentation to the circuit court of convincing evidence that relator now has the title to the land upon which its side track is laid, the court will deal properly with the matter.

We* cannot, by mandamus, vacate a part or the whole of a decree upon the merits.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    GARR v. ALDEN.
    Vendor and Purchaser — Sale op Standing Timber — Fraud— Rescission.
    Where, in purchasing standing timber, the purchaser used artifice to prevent an investigation by the vendors, and by positive assurances of fair dealing induced them to accept his statements both as to quantity and value, and to sell him the timber at about one-third its actual value, such statements were not mere expressions of opinion, but constituted such fraud as entitled the vendors to rescission.
    Appeal from Berrien; Coolidge, J.
    Submitted February 15, 1905.
    (Decided March 21, 1905.)
    Bill by Martha A. Garr and Harriet Garr against Horace G. Alden and «Frank B. Smith to cancel a contract for the sale of certain timber. From a decree for complainants, defendants appeal.
    Affirmed.

      James O’Sara, for complainants.

      Oolgrove & Potter and Dudley M. Shively, for defendants.
   Montgomery, J.

Complainants filed the bill in this case to cancel and set aside a contract by which they had agreed to sell the timber on 80 acres of land in Berrien county. Complainants are mother and daughter; the former being 83 years old and infirm, the latter being 45. The bill charged that complainants were the owners of the timber on the land in question, but that they were neither of them acquainted with the quality or value of the same; that the defendants came to their farm, made an estimate of the timber, and then offered $1,650 for the same; that complainants told defendants that they did not know how much timber there was, or its value, and suggested having an estimate made by some one in their interest; that defendants assured them, in effect, that this was not necessary; that they were honest men, and had made a fair estimate; that they would not take advantage of complainants, and would deal fairly with them.

• The answer admits that complainant Martha Garr at one time said she would like to have an estimate made of the timber. They allege the truth to be, however, that after this happened, after they had been through the timber and made their estimate of the same, and that in reply to her expression of desire to have some one estimate the timber for her, they said they would treat her fairly; that they showed her several contracts which they had made with other parties in that vicinity.

The testimony fairly supports the allegations of the bill. The bill also alleges that the timber included in the contract was in fact worth $6,000. Upon the question of value there was a sharp conflict in the testimony. The circuit judge found for complainants, and decreed a rescission of the contract. Defendants appeal.

It is contended that the statements made by defendants were mere expressions of opinions," and that fraud cannot be predicated upon them, inasmuch as the complainants had the means in their own hands of ascertaining the facts. This contention states a general rule. But we are satisfied that in this case defendants used artifice to prevent an investigation by complainants, and by the most positive assurances of fair dealing induced them to accept their statements, both as to quantity and value, expecting to induce, and in fact inducing, complainants to rely upon their statements, and act upon them, assuming their substantial accuracy and truth.

We think the case falls within the principle that where one is overreached by means of artifice employed to prevent an investigation as to value, and by this means is compelled to pay for or part with property upon a valuation fixed by the one employing such artifice, that fraud may be predicated thereon. 14 Am. & Eng. Enc. Law (2d Ed.), p. 38; Maxted v. Fowler, 94 Mich. 106, and cases cited.

Upon the question of the value and quantity of the timber, we are satisfied that the circuit judge reached a very fair estimate, based upon the best evidence in the case, when he fixed the value at $4,000. The statements made by the defendants were therefore essentially and grossly false. The complainants were deceived by them.

The decree is affirmed, with costs.

Carpenter, Blair, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    PEOPLE v. SANDERS.
    1. Embezzlement — Deputy Treasurer — Authority to Appoint.
    Where a township treasurer’s deputy is prosecuted for embezzlement of township funds, under section 11612, 3 Comp. Laws, it is immaterial whether the treasurer could lawfully appoint a deputy or permit respondent to act as his representative.
    2. Same — Trial—Instruotions.
    In a prosecution of a deputy township treasurer for embezzlement, an instruction that defendant cannot be convicted if he paid out for township orders or deposited in the bank all money received by him for taxes, ignores the claim that he drew from the bank and embezzled the money, and was therefore properly refused.
    3. Criminal Trials — Power oe Jury.
    The jury is not the judge of the law in criminal cases.
    4. Same — Evidence—Other Oeeenses.
    In a prosecution of a deputy township treasurer for embezzlement it was proper to show that defendant, by reason of his default as village treasurer, found it necessary to replenish that account, which he did with funds drawn from the township treasury.

      5. Same — Argument of Prosecutor.
    In the prosecution of a deputy township treasurer for embezzlement, the prosecuting attorney in his argument stated that the treasurer committed a gross indiscretion when he put his trust in defendant, because defendant did not deserve that trust; that defendant was a thief, and the treasurer did not know it, and put his trust “in this young thief, who stole the money from the township,” etc. Held, that the argument was a legitimate one.
    Exceptions before judgment from Wayne; Hosmer, J.
    Submitted February 16, 1905.
    (Docket No. 266.)
    Decided March 21, 1905.
    Walter F. Sanders was convicted of embezzlement.
    Affirmed.

      John E. Moloney, for appellant.

      Ormond E. Hunt, Prosecuting'Attorney, and Louis C. Wurzer, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

Frank A. Parent was elected treasurer of the township of Monguagon, Wayne county, at the spring election in the year 1902, and qualified, giving the required bond. About April 1st he appointed Sanders, the defendant, his deputy, without, however, obtaining the consent of his bondsmen, as required by 1 Comp. Laws, § 3934. ~ Sanders took the oath of office, and acted in an official capacity, under the authority and instruction of Parent, until his arrest for embezzlement on May 23, 1903. He collected all of the money due the township, deposited a portion of it in the bank in the name of Parent, treasurer, and kept a portion in his possession, paid township orders partly by money not deposited and.partly by checks on the bank, signed by him in the manner authorized by Parent. It is said that after his arrest he admitted that he had used township funds for his own purposes to the amount of more than $3,000. The prosecutor claims that the proof shows the amount to be over $5,300. The defendant was convicted, and has appealed.

Counsel for the respondent contend that the treasurer was not authorized to appoint a deputy, or to permit him to draw from the bank funds credited to him in his official capacity; and that, even if he had such authority, he has not exercised it in a lawful way, and such appointment is therefore void, and affords no protection to the officer and none to the bank. The theory of the prosecution is that the respondent was given authority to collect and disburse this fund for the treasurer and in his name, and the testimony shows that the treasurer informed the bank that he had given the respondent such authority. Accordingly the respondent’s checks were honored and payed to the payees, who in some instances was the respondent. The prosecution is made under 3 Comp. Laws, § 11612, which reads as follows: .

“ (11612). Section 1. The People of the State of Michigan enact, That if any person holding any public office in this State, or if the agent or servant of such person knowingly and unlawfully appropriates to his own use, or to the use of any other person, the money or property received by him in his official capacity or employment, of the value of fifty dollars or upwards,' the person so offending shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the State prison, at hard labor, not to exceed ten .years, or by fine not exceeding five thousand dollars, or both said fine and imprisonment. ”

Whether the treasurer might or did lawfully appoint a deputy, and whether he had a lawful right to permit respondent to act as his representative, it is undeniable that he authorized his acts, and respondent acted for him in his name. That, as between them, he acted as the treasurer’s agent, cannot be denied, and as between them the relation of principal and agent existed. He has consented to act as such agent, has so acted, and in fact was such agent; and he has fraudulently converted the money to his own use, even if it could be said that the law did not provide for a deputy or agent, and contemplated neither. His liability under this statute is not affected by the treasurer’s responsibility to the township, nor by the bank’s want of justification for cashing his checks. The money belonged to the municipality when deposited. It was paid out by the bank as such money, and was such when it was converted by the respondent, and he is in no position to question either proposition upon the facts stated. The claim that one who consents to be agent, and thus acts to obtain money, which he embezzles, can avoid responsibility upon the ground that the principal could not lawfully appoint, or he accept an appointment as such, and that, therefore, he is at liberty to fraudulently appropriate the funds without liability as a criminal, was considered in the case of People v. Hawkins, 106 Mich. 484, where it was held that a de facto agent or servant was liable under the statute applicable to that case, whether the relation involved a lawful contract or not. This case is within the principle there stated.

The court properly refused to charge that the defendant could not be found guilty if he paid out for township orders, or had deposited in the bank, all of the moneys received by him in cash for the collection of taxes. It excludes the prosecutor’s claim that he drew from the bank and embezzled the money. He did not err in refusing to say to the jury that “they alone were the sole judges of the law.” Such is not the law.

Question is made over the suggestion by the prosecutor that he would show the defendant’s dealing with village money. It was proper to claim and show that by reason of his default as village treasurer the respondent found it necessary to replenish that account, which he did by funds drawn from the township account.

An exception was taken to the following argument by the prosecutor:

“We admit, gentlemen of the jury, that Mr. Parent perhaps committed a gross indiscretion — perhaps the greatest indiscretion in his life — when he put one single bit of trust in Mr. Sanders, because Mr. Sanders did not deserve that trust. He was a thief, and Mr. Parent did not know it. That has been the statement Mr. Parent has made in this case. Mr. Parent thought Mr. Sanders was honest. He knew Mr. Sanders’ father for a long time before, and he knew Mr. Sanders’ father was an honest man, and he had known Mr. Sanders from boyhood up, as he said on the stand. He knew he had been interested in many enterprises, and had traveled over all parts of this country; that he had an experience in business that Mr. Parent had not; and, honest, simple old man that he was, he put his trüst in this young man here — in this young thief, who stole the money from the township of Monguagon, and betrayed the trust that Mr. Parent reposed in him; made him his associate in business.”

The argument was a legitimate one. It was unnecessary to speak of respondent as a “young thief,” but he was on trial for an offense equivalent to larceny. The prosecutor was insisting that he was an embezzler, and the language implied nothing more than such contention.

The allusion to the forgery of Parent’s name could not be misunderstood, and we think should be classed with the other statement, as unnecessary, but harmless to the respondent, though probably not to the prosecution. The average juror ordinarily resents vituperation of a defendant, and it generally reacts upon him who indulges in it.

There are several assignments which we do not discuss because they involve no important question. As to some of them, there is no reference either in the record or brief to the page where they appear in the record. This is a hazardous omission, for the court cannot be expected to supply the omission through a search of the record.

We find no error, and the judgment is affirmed.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    MERCER v. LEIHY.

      1. Auctioneers — Liability—Disclosure oe Principal.
    Where an auctioneer discloses the fact of agency and his principal, the law presumes that he does not contract upon his own behalf, but for the principal. . '
    2. Same — Sale oe Stolen Property^Identity oe Principal.
    Where, in an action to recover money paid to an auctioneer for stolen horses sold by him, the evidence indisputably showed that the auctioneer’s principal was present at the sale, and identified himself in plaintifE’s presence by stepping out from the crowd on being called on to do so by the auctioneer, the sufficiency of such identification to relieve the auctioneer from personal liability was a question of fact, though he failed to disclose the principal’s name.
    Case made from Wayne; Brooke, J.
    Submitted February 17, 1905.
    (Docket No. 178.)
    Decided March 21, 1905.
    Assumpsit by George Mercer against George W. Leihy and another for an alleged breach of warranty on the sale of certain horses. There was judgment for defendants, and plaintiff appeals.
    Affirmed.

      Louis E. Howlett, for appellant.

      Seward L. Merriam, for appellees.
   Hooker, J.

Coombs stole some horses, and brought them to defendants’auction rooms, where they were sold' at auction to the plaintiff, who afterward sued the auctioneers to recover the money paid, and a judgment of no cause of action was rendered by the circuit judge before whom,the case was tried without a jury. Plaintiff appealed, and alleges error upon the finding of fact that the auctioneers sufficiently disclosed their principal to relieve themselves from liability. The testimony upon this subject is as follows:

George Leihy said:

“ I believed that the property brought there by Coombs belonged to him. I had no knowledge that the title to them was in any manner defective. I made no representation whatever as to the title of these horses. When I was selling them Mercer and Lane were bidding on them, and the bidding got dull. I didn’t know but the audience might think that Mercer and Lane were bidding on their own horses. I called the attention of the people in the audience that they were not Mercer and Lane’s horses, and I told the public: ‘ These are not Mr. Mercer and Lane’s horses. They belong to another party,’ and I looked around and I didn’t see the man in the audience, and I said, ‘ Where is the man who owns these horses ? ’ The man stepped out. He was talking with Mr. Lane, and said, ‘Here lam.’ Lane was the plaintiff’s partner. I saw Mr. Lane talking with Coombs both before and during the sale. I did not hold myself out in any way as a principal, and I did not sign my name to any receipt for money or any bill of sale. I received the money — $111.50— from Mr. Mercer, and held it until 3 o’clock of the next day after banking hours. Then I gave Mr. Coombs my check for the amount, less my commission of 5 per cent. ”

On cross-examination he said:

“ ‘ Here are a pair of horses which came in from Ann Arbor this morning; consigned horses.’ Nothing more was said until the bidding became slow, when I said that: ‘ These are not Mercer’s horses. They belong to another man.’ I had every reason to think they belonged to Coombs. Mercer made several bids. I did not point Coombs out. When I called for the owner, Coombs said, ‘ I am the man,’ or ‘ I am the one.’ ”

Redirect examination:

‘ ‘ Before the horses were sold, I stated that the buggy came with them.”

George W. Leihy, Jr., said:

“I did not know Coombs, but had seen him once or twice before. Didn’t know anything about him at all. I knew that Mercer and Lane were in partnership. Father said: ‘ Here is a pair of horses from Ann Arbor. Came in this morning between 6 and 7 o’clock. They are to be sold at auction for the high bid.’ Mercer and Lane were there, as well as Coombs. Mercer made a bid. The horses were sold separately. Father spoke up, and said: ‘ Gentlemen, I don’t want you to think these horses are Mercer’s and Lane’s horses, because they are bidding on therm They are not. Where is the man that owns these horses ? ’ Mr. Coombs stood right at the end of the auction stand. He stepped out, and said, ‘Here I am.’ There was from 50 to 100 people present in the arena of the building. I saw Mercer and Lane talking with Coombs before any of this property was sold. I saw Lane. I wouldn’t be positive about Mercer. I didn’t hear the talk between them. Mercer made two or three bids after-wards. When the next horse was brought in, father said, ‘ Here is one of the pair — mate to the horse just sold — one of the Ann Arbor team.’ Láter, he said, ‘Here is the buggy that goes with the horses.’ They were sold one after the other. Mercer bid them all in. I had no reason to know or to believe that anything was wrong about the title to these horses. I didn’t know it until three or four days afterwards, when Mercer called our attention to it. This was after Coombs got the money.”

It was then conceded by counsel for both parties that a man by the name of Cole, who was absent, would, if present,' testify substantially in accordance with the above.

The plaintiff testified:

“There had been a number of bids made, and I made a bid. Mr. Leihy tried to get the bid raised. He seemed to think that the crowd thought the horse might be mine, and that I was booming my own horse, and he said: ‘ Gentlemen, this is not Mercer’s horse. He isn’t bidding on his own horse.’ He still asked for bids, and no one bid. He looked over the crowd as if looking for somebody, and said, ‘ Where is the man that brought in this horse, or brought in this team ?’ Nobody spoke, and thein somebody said, ‘ Here he is.’ Then Leihy says: ‘There is the man that brought in these horses. He is the man that owns that team.’ I didn’t hear the man that was pointed out say anything.”

Cross-examination:

“ I' understood that the man who was represented or claimed to be the owner of the horses was in the crowd.
“Q. You had a chance to go over and talk with him if you wanted to, didn’t you ?
“A. Certainly I had a chance to talk with him. Lane was my partner in the purchase and in the bidding. I bought the horses and Lane bought the buggy. I had some horses there before and at that sale, and knew of the custom of holding the money until 12 o’clock the next day. I did not go over and talk with Coombs. I would not be positive whether Mr. Leihy said, ‘ Where is the man that owns the team ? ’ ox*, ‘ Where is the man who brought in this team ?? I am not sure which expression he used. There were several bids made on each horse. The talk in reference to ‘ Where is the man who owns or brought in the horses ? ’ was before the first horse was sold, and the buggy was sold after the horses.”

Lane testified:

“Mr. Leihy said: ‘ These horses were fetched in this morning, through the rain. This man came from Ypsilanti with these horses. He had been in three or four different days to have him send up to his farm in Ypsilanti to have this team sent in.’ This man stood there in the crowd. I was talking with him, and I said, ‘ Do you know Mr. Yost, of Ypsilanti?’ He says, ‘I do.’ Later there was a lull in the bidding, and Leihy said: ‘ These are not Mr. Mercer’s horses. Where is the man that owns these horses?’ His son was driving, and pointed over in the crowd, and says, ‘Here is the man.’ The man pointed out didn’t say a word. Leihy, Jr., pointed him out with his whip.”

Cross-examination:

‘ ‘ I was Mercer’s partner, and with him in this deal. I talked with the man supposed to be Coombs. I asked him if he knew Yost, of Ypsilanti. He said he did. Yost is a horseman there. After he was pointed out as the owner of the horses, I talked with him the same as I would with anybody in the crowd that would be talking.
“Q. Was it after that that you talked with Mr. Coombs ?
“A. Certainly, I was talking right along with him. I couldn’t tell you what other talk I had with him. I couldn’t tell how long I talked. I couldn’t tell whether it was five, ten, or fifteen minutes. I think it was before the horse was struck off to Mercer. The horses were sold before the buggy. I didn’t have to walk over where he was. I was standing right by him. * * * . I did not ask him (Coombs) how old the horses were, or how long he had owned them, where he got them, nor whether they were trained to go single or double, nor any other question, that I now recall.
Q. You knew your partner, Mercer, was bidding on these horses ?
“A. I did not.
“ Q. Didn’t you know he was bidding on them ?
44 A. I did not.
44 Q. Didn’t you notice his bid ?
“A. No, sir; not until Mr. Leihy said what he did.
Q. Didn’t you hear Leihy say so ?
“A. No, sir; not until Mr. Mercer made the bid that bought the first horse, $52.50.
Q. Didn’t you ask a question of Coombs ?
“A. No, sir.
44 Q. You had the chance, didn’t you ?
“A. That might all have been.
Q. Didn’t you have the chance to find out all about those horses, so far as you knew ?
“A. Certainly I did not.
44 Q. But you knew who the man was that was pointed out?
“A. I did not, only what they said. I took their word.
“ Q. You knew the identity of- the individual so that you went over and talked with him?
“A. I certainly stood right by this man.
44 Q. You knaew him when Leihy pointed him out ?
44 A. Surke I did. I thought my partner was capable of bidding a fifty-dollar concern without my having to look after it. That is the reason I didn’t ask this gentleman. I am quite positive that I had the talk with Coombs right away after Leihy told the crowd that Mercer was bidding on the horses. I think so because I did not know the man before.
Q. Do you want the court to understand that you didn’t know, while you were talking with Coombs, and asking him if he knew a man from Ypsilanti, that your partner, Mercer, was bidding on this horse ?
A. Not until after Leihy said it.
Q. This was after Leihy said it ?
“A. "Well, that was about the time I was talking with him. ”,

Wynne testified:

“ All I heard Mr. Leihy say is, £ Where is the man that brought those horses in ? Where is the man that owns these horses ? ’ I think that is what he said. Then either the man or somebody else said, £ Here he is.’ I do not know who said £ Here he is.’ It was somebody in the crowd. I couldn’t say whether it was Mr. Leihy’s son or .not. The man who said 1 Here he is ’ was on the opposite side of the team to me. I couldn’t see him from where I stood. I stood right to the front on the High street side of the auctioneer’s block. Mercer stood right by me. The horses were faced toward High street.”

Cross-examination:

£ £ Whoever the man was that said £ Here he is ’ was standing on the opposite side of the wagon to me. I don’t know whether the man said £ Here I am,’ or £ Here he is.’ The point I want to make is that somebody made that man known by saying £ Here I am,’ or £ Here he is.’ ”

There was testimony that Lane, plaintiff’s copartner, talked with Coombs, before the sale. This is the substance of the proof upon that subject. Plaintiff claims that it did not warrant a judgment for defendant.

The rule is well established that an auctioneer who does not disclose his principal is presumed to contract upon his own behalf, except where he expressly contracts upon the understanding that he will not do so. On the other hand, if he discloses the fact of agency and his principal, the ■ law presumes that he does not contract upon his own behalf, but for the principal. The question here seems to be whether anything less than a disclosure of the name of the principal is sufficient, and a number of authorities are cited which use language to the effect that a disclosure of the name of the principal is essential. Many of these are cases where there is nothing to indicate that there was an agency; others that the principal was not present, and no clue to his identity could be found in the facts stated; while there are others which show that there was an absent principal, yet the language used makes such indefinite reference to him as not to afford an opportunity to immediately ascertain who he is'. Such is the case of Neely v. State, 60 Ark. 66 (27 L. R. A. 503), where a minor bought intoxicating liquor, which he said was for two teachers at a neighboring college, without naming or otherwise identifying them. Raymond v. Proprietors of Crown & Eagle Mills, 2 Metc. (Mass.) 319, is another case where the court held that it'was not error to submit the question of the sufficiency of the disclosure to the jury, where an agent stated that goods which he was buying were for the C. & E. Mills, the language being ambiguous. So in Cobb v. Knapp, 71 N. Y. 350, the statement that the property was for the Blissville Distillery was held not conclusive. In each of these cases except the first there is an implication that the facts shown might be found sufficient, otherwise they should not have gone to the jury. They were not so strong in favor of the agent as the case before us, because the opportunity to ascertain was not immediately present; and in the case last mentioned there was testimony not only that the plaintiff did not know who were the proprietors of the distillery, but that the defendant directed the property to be charged to him.-

In Hanson v. Roberdeau, Peake, N. P. 120, it is indicated, ás it is in many later authorities, that, where the auctioneer fully discloses the fact of his agency and his principal, the presumption arises that he is not contracting upon his own behalf, and that the law recognizes the transaction as one on behalf of the principal.

In 2 Kent, Com. 630, 631, it is said:

“ If a person would excuse himself from responsibility on the ground of agency, he must show that he disclosed his principal (not the name of his principal) at the time of making the contract, and that he acted on his behalf.”

Other authorities quoted from text-writers and other sources are found in Neely v. State, 60 Ark. 66 (27 L. R. A. 503). See, also, Reinhard on Agency, § 303.

We are of the opinion that the statement, frequently found, that the agent, to avoid personal liability, must disclose the name of his principal, is due to the fact that such is, in the nature of things, the natural and ordinary, and many times the only convenient and practicable, way of identifying him. The/important information to b© given to the purchaser is that the auctioneer is an agent, acting for a principal whom he discloses, and it would seem that the accurate giving-of his principal’s name is not indispensable where other means of clearly pointing out and identifying him are adopted.

The testimony in this case indisputably shows that the principal was present, and in the presence of the plaintiff identified himself to a degree sufficient to carry that question to a jury, or to the court, where, as in this case, a jury has been waived. It is equally certain that the auctioneer disclosed the fact of agency, and it is inferable that he designed to and did inform those present that he was not selling the property as his own, but for and on behalf of a man who came from Ypsilanti, was present, and upon whom he called to appear and make himself known. We are of the opinion that the court did not err in treating the question as one of fact, subject to decision by him. Of course, we cannot review his finding upon the merits.

The judgment is affirmed.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.