author: Kuhn, J.

text:
    JEUP v. STATE FIRE MARSHAL.
    1. Constitutional Law — Theaters — Pike Inspection — Local Acts — -Special Legislation.
    A statute regulating the operation and construction, of theaters and moving picture shows, providing for inspection by the State fire marshal and the issuance of a license, is not local legislation in conflict with the provisions of the Constitution forbidding the enactment of local or special acts or the constitutional requirements for municipal charters and local self-government. (Act No. 257, Pub. Acts 1913.1

      2. Appeal and Eeeoe — Constitutional Questions — Pleading.
    Questions relating to the constitutionality of a legislative enactment, not presented to the trial court in the bill of complaint filed to enjoin the enforcement of the statute, will hot be considered on appeal unless the record in some manner discloses that the points were raised in the trial court.
    Appeal from Wayne; Hally, J.
    Submitted June 15, 1914.
    (Docket No. 96.)
    Decided July 25, 1914.
    Bill by Peter Jeup and others against John T. Win-ship, State fire marshal, and others, for an injunction. From an order overruling a demurrer to the bill of complaint, defendants appeal.
    Reversed.

      May & Dingeman, for complainants.

      Grant Fellows, Attorney General, and F. Carew Martindale, Assistant Attorney General, for defendants.

       As to regulations affecting moving pictures, see note in 40 L. R. A. (N. S.) 193.

   Kuhn, J.

The complainants are the owners of a lease of certain premises situate in the city of Detroit being operated as a picture and vaudeville theater. The defendant Winship is the State fire marshal, the defendant Robinson is assistant fire marshal, defendants Shaffer and Walker are State fire deputies, and the defendant Dupont is the city building inspector of the city of Detroit. The defendants insist that the premises are subject to inspection under Act No. 257 of the Public Acts of 1913. The complainants, by their bill, assail this act as conflicting with their constitutional rights, on the following grounds:

(1) Because it is in violation of article 5, section 30, of the revised Constitution, which provides that “The legislature shall pass no local or special act,” etc.; (2) because it is in violation of the right of local self-government of the city of Detroit; (3) because it is in violation of article 8, section 20, of the revised Constitution, which provides for “A general law for the incorporation of cities,” etc.; (4) because it is in violation of article 8, section 21, of the Constitution, which provides, “The electors of each city and village shall have power and authority to frame, adopt and amend its charter,” etc.

Complainants seek a permanent injunction against the threatened action of the defendants to close their theater. To this bill the defendants, by the attorney general, demurred-. The demurrer was overruled, and from this order defendants appeal. The learned circuit judge was of the opinion that matters of fire and fire protection are matters of purely local concern, relying upon the case of Davidson v. Hine, 151 Mich. 294 (115 N. W. 246, 15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267, 14 Am. & Eng. Ann. Cas. 352), as authority for this conclusion. In that case the court had under consideration the validity of a local act, with reference to the establishment of a bureau of public safety in the city of Bay City, providing that its membership should be appointed by the governor. The case turned upon the power of the State to take from the people the selection of such a board and place it in the hands of the governor. The question of whether Act No. 257, Pub. Acts 1913, which is not a local act, and which is a regulatory, licensing enactment under the police power of the State, is in conflict with the right of local self-government, was passed on by this court in the recent case of Jewell Theater Co. v. State Fire Marshal, 178 Mich. 399 (144 N. W. 835). It was decided that the act was a valid exercise of the police power of the State by the legislature.

In the brief of complainants there are raised the questions that the inspection fee is excessive, and that the act is invalid because there is lodged with the fire marshal a certain amount of discretion as to the number of inspections he may see fit to make. There is no intimation in the bill of complaint, nor can we find from the record, that these questions were raised in the court below, or relied upon until this case reached this court. Under these circumstances we will not now consider these questions.

the order overruling the demurrer is reversed. An order will be entered sustaining the demurrer, and the record will be remanded to the court below.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ„ concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    MICHIGAN RAILROAD COMMISSION v. DETROIT & MACKINAC RAILWAY CO.
    1. Mandamus — Railroads — Public Service Commission — Enforcement of Orders.
    Mandamus is the appropriate remedy to compel the Detroit & Mackinac Railway Company to comply with an order of the Michigan railroad commission fixing rates for the transportation of timber and logs over certain branches of the respondent.
    2. Same — Suit Pending — Equity Jurisdiction.
    The effect of another suit pending, involving similar questions, is usually to prevent the issuance of the writ of mandamus, unless the suit will be ineffective or the court in which it is instituted is without jurisdiction.
    3. Railroads — Mandamus—Suit Pending.
    Where a railroad company applied to the circuit court of Wayne county to restrain the enforcement of an order of the Michigan railroad commission, and relief was denied and the decree affirmed on appeal, and an appeal to the Supreme Court of the United States was refused, after which the company filed an original bill for an injunction in the United States district court and took an appeal from the decree denying relief as against the order of the commission, the respondent must he held to have elected a forum for the trial of the controversy by filing suit in the State courts and was not in a position to make application thereafter to the Federal court on the contention that it had jurisdiction of the legal questions involved.
    4. Same — Courts—Federal Jurisdiction.
    The tribunal which first obtains jurisdiction of a question which may be passed upon either in a State or in a Federal court, obtains and holds exclusive jurisdiction, until the power of the court is exhausted.
    5. Same — Legislative Question.
    The determination of the question of the validity of such order was not a legislative, but a judicial, question.
    6. Same — Mandamus.
    Where the application of relator to the Federal' court had been denied, upon the ground that the State courts properly had jurisdiction of the questions involved, at the election of the railroad corporation, mandamus would issue to enforce the order.
    Mandamus by the Michigan railroad commission and others against the Detroit & Mackinac Railway Company to compel the respondent to comply with a finding and order of the commission.
    Submitted June 16, 1914.
    (Calendar No. 26,229.)
    Writ granted July 25, 1914.

      Gillett & Clark, Grant Fellows, Attorney General, and David H. Crowley, Assistant Attorney General, for relators.

      Fred A. Baker and James McNamara, for respondent.
   Stone, J.

This, is an application on the part of relators for a writ of mandamus to compel the respondent railway company to put in force certain orders adopted by the Michigan railroad commission.

We compile a brief statement of the proceedings leading up to this application: On October 19, 1909, October 22,1909, and November 3, 1909, the Michigan railroad commission made and promulgated certain orders fixing rates to be charged by respondent for the transportation of logs over certain portions of its line. After the entry of such orders the respondent filed a bill in the circuit court for the county of Wayne, in chancery, praying that court to set aside and vacate the orders theretofore made and entered by said commission. Upon a full hearing in that court a decree was entered dismissing respondent’s bill of complaint. Upon appeal to this court the decree of the Wayne circuit court, in chancery, was affirmed on July 22, 1912. Detroit & Mackinac R. Co. v. Railroad Commission, 171 Mich. 335 (137 N. W. 329).

Thereafter application was made by respondent to this court, and also to one of the justices of the Supreme Court of the United States, for the allowance of a writ of error to the Supreme Court of the United States. Both applications were denied in August, 1912.

Thereafter respondent filed an original bill of complaint in the district court of the United States for the eastern' district of Michigan, in equity, which bill contained practically the same allegations as the bill theretofore filed in the circuit court for the county of Wayne, in chancery, asking for the same relief, and praying further that a temporary injunction be gran-ed restraining relator Michigan railroad commission from putting into effect and enforcing the orders theretofore made and entered by said commission, pending such hearing in the Federal court. This matter was heard upon motion for the temporary injunction above mentioned by two circuit judges and the district judge. The injunction was refused; one of the reasons stated in the opinion rendered for such refusal being that respondent’s right of review in court became fixed when the orders of the commission were formulated, and that respondent at that time could have resorted to any court of competent jurisdiction; that, having selected the Wayne circuit court, in chancery, as its forum, and having submitted its controversy to such court, a decree having been rendered against respondent in such court, which decree was subsequently affirmed by this court, the Federal court would, in view of these facts, have no jurisdiction to pass anew upon the subject-matter.

An appeal was subsequently taken from this order denying the temporary injunction to the Supreme Court of the United States, where the matter is now pending.

The instant proceeding is brought for the purpose . of compelling, by mandamus, compliance with the orders made by the railroad commission under dates above set forth.

The answer of respondent admits, in substance, the foregoing; and it also admits that it has not put into force and effect the said orders of the commission, and states that it does not desire to do so before the case is finally decided in the Supreme Court of the United States. And respondent denies that relators have a right to have the said orders put into force and •effect. In other words, it appears that the allegations in the petition of the relators are admitted, except the right of relators to have the orders put into force and effect.

The answer of respondent is voluminous, and raises many questions of fact which have already been settled by the decree and opinion of this court, and by the opinion of the Federal judges on the hearing for a preliminary injunction.

Relators claim that many of the matters raised by respondent are irrelevant and immaterial in this proceeding, and that the petition filed by relators does not legally raise any such issues, and does not justify the filing of an answer of this nature. Subsequent to the time of respondent’s appeal to the Supreme Court of the United States from the order of the United States district court refusing a temporary injunction, a motion was made in this court by relator Michigan railroad commission to amend the decree theretofore made and entered in the case of Detroit & Mackinac R. Co. v. Railroad Commission, supra. The relief sought by such proposed amendment was to the effect that the orders of the commission heretofore mentioned be decreed to be immediately put into effect. This motion was denied by this court on December 20, 1913 (178 Mich. 250, 144 N. W. 689), the reason for such denial being that, inasmuch as no affirmative relief was asked for or granted defendant in the lower court, and no appeal having been taken by the commission, the- practice would not permit an amendment affording affirmative relief. In rendering this opinion this court very fully discussed the various questions raised, reaffirmed the position theretofore taken with respect to respondent’s contentions, and pointed out that the remedy should be under section 47 of Act No. 300 of the Public Acts of 1909, which provides as follows:

“In addition to all the other remedies provided by this act for the prevention and punishment of any and all violations of the provisions hereof and of all orders of the commission, * * * and likewise any persons, firm or corporation interested, may compel compliance with the provisions of this act and with the orders of the commission by proceedings in mandamus, injunction or by other appropriate civil remedies.”

On the hearing of the last above-mentioned matter the point was made, among others, by respondent, that an application for mandamus should not be entertained by this court while the appeal is pending in the Supreme Court of the United States, and this question was left open by us, which question we think now is fairly presented to this court.

From the above-quoted section of the statute it appears that the legislature intended mandamus as an appropriate remedy to enforce the orders of the commission, and it has been decided in the courts of last resort of other States that mandamus is the appropriate remedy to compel compliance by railroad companies with proper commission orders. State, ex rel. Skeen, v. Transit Co., 38 Utah, 242 (112 Pac. 120); State, ex rel. Railroad Com’rs, v. Railroad Co., 60 Fla. 465 (54 South. 394).

It may properly be asked what effect should be given to the original bill filed in the United States district court for the eastern district of Michigan, in equity, by respondent, and the appeal from its judgment now pending, upon the question of the issuance of a mandamus by this court.

“As a general rule, the pendency of another suit involving the same question will prevent the issue of a mandamus unless it will be ineffective, or the other court is without jurisdiction.” 26 Cyc. p. 184, and cases there cited.

Applying this rule to the instant case, the pendency of the appeal in the Federal court involving practically the same matter as that adjudicated in this court, unless ineffective, or unless the Federal court is without jurisdiction, would operate so as to prevent the issuance of the writ of mandamus. But if this case is one of the exceptions to the general rule, in that the Federal court is without jurisdiction, then the rule should not apply.

Manifestly the respondent, at the time of the making and entering of the orders in question by the commission, had the unquestioned right to submit its controversy either to the State or Federal court. But, having selected the circuit court for the county of Wayne, in chancery, as its forum, and judgment in that court having been rendered against it, and the said judgment having been affirmed on appeal by this court, respondent cannot now claim jurisdiction in a court which might have determined the controversy at the time the same arose, when it sought the State court and attempted to invoke the assistance of it. Detroit & Mackinac R. Co. v. Railroad Commission (D. C.), 203 Fed. 864.

Chief Justice Fuller, in Moran v. Sturges, 154 U. S. 256-269 (14 Sup. Ct. 1019, 1022), said:

“It is a doctrine of láw too long established to require a citation of authorities that, where a court has jurisdiction,- it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every other court; and that, where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but on necessity. For if one may enjoin, the other may retort by injunction.”

Justice Shiras, in Harkrader v. Wadley, 172 U. S. 148, at page 164 (19 Sup. Ct. 119), lays down the rule in this language:

“When a State court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the.other, until its duty is fully performed and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases.”

It' is contended by respondent that the court first acquiring jurisdiction should proceed to a determination without interference. This may be conceded. Applying that rule, it seems to us that there has been a complete and final adjudication as between the parties to the controversy involving the subject-matter, in a court of competent jurisdiction, to wit, the State court’.

We cannot accede to the claim of respondent that the proceedings had in the State court were not judicial in nature. It has already been decided by this court, as well as by the United States district court for the eastern district of Michigan, in equity, that the action of this court in affirming the decree of the Wayne circuit court, in chancery, as well as the action of that court, was not legislative, but was judicial in character.

We do not think the question of comity is here involved, because the Federal court has taken the same view which this court has entertained of the subject-matter. That court not having assumed jurisdiction, and having passed upon this very question of jurisdiction, we see no reason why the writ of mandamus should not issue.

We see no occasion for the forming of an issue upon the questions here presented, and are of opinion that the writ of mandamus should issue as prayed in relator’s petition.

It. is so ordered.

McAlvay, C. J., and Brooke, Ostrander, Moore, and Steere, JJ., concurred. Kuhn and Bird, JJ., did not sit.


author: Steere, J.

text:
    PEOPLE v. AYERS.
    1. Rape — Statutory Offense — Minors.
    The essential facts necessary to convict a respondent of statutory rape are that he had sexual intercourse with the female mentioned in the information and that she was then under the age of 16 years.

      2. Same — Evidence—Criminal Haw — Subsequent Offense.
    It was prejudicial error to permit the prosecution to show that the accused committed an offense of the same nature which the information charged, at a subsequent date; having identified a particular transaction shown by the testimony, the prosecution was not entitled to offer proof of a similar act occurring at a later time.
    3. Same — Appeal and Error — Curing Error.
    The court did not cure such error by instructing the jury that respondent could not be convicted of the later offense shown by such incompetent testimony, although if, as requested by respondent’s counsel, he had charged that the acts, if any, could not be considered for any purpose; the error might have been cured.
    4. Same — Venue.
    In criminal trials the venue must be proved by competent evidence, beyond a reasonable doubt, and judgment cannot be sustained in a cause in which the record contains no proof of the township or county wherein the alleged crime occurred.
    5. Same — Evidence—Judicial Notice.
    Although the court may take judicial notice of the extent and boundaries of political subdivisions such as counties, townships, cities and villages, the rule cannot be extended to include a farm or other locality designated by the name of its present or former owner.
    Error to Cass; Des Voignes, J.
    Submitted June 12, 1914.
    (Docket No. 103.)
    Decided July 25, 1914.
    Oliver Ayers was convicted of rape committed upon a female under 16 years of age.
    Reversed.

      Grant Fellows, Attorney General, and Asa K. Hayden, Prosecuting Attorney, for the people.

      U. S. Eby, G. M. Lyle, and W. J. Barnard, for respondent.
   Steere, J.

Respondent was convicted of the crime of statutory rape in the circuit court of Cass county, under an information containing a single count charging him with having on the 27th day of April, 1911, in Penn township, Cass county, Mich., feloniously assaulted and carnally known one Mabel Bowerman, a female child under the age of 16 years. After denial of a motion for a new trial, respondent brings the proceedings to this court by a writ of error containing 40 assignments, which, condensed, may be stated as relating to alleged errors in the admission and rejection of testimony, in prejudicial remarks of the court, improper arguments of counsel, in the charge of the court to the jury, in refusal to grant certain of respondent’s requests, and in denying his motion for a new trial.

The two essential facts necessary for the prosecution to prove in order to convict were that respondent had sexual intercourse with the girl at or about the time alleged, and that she was then under the age of 16 years. To establish the first, the prosecution relied upon her testimony for conviction. It is claimed, and seems to be conceded by both sides, that she was not of strong mentality and was easily influenced, having made conflicting statements and affidavits upon the subject, at times charging respondent with the offense and at others as positively denying the same. This unfortunately gave rise to considerable acrimony at the trial; each side imputing to the other improper activity in influencing her to make and retract charges against respondent.

On the trial it was shown that said Mabel Bower-man gave birth to an illegitimate child on January 22, 1912. She testified that respondent was the father of this child as the result of sexual intercourse with her which occurred “on the Underwood farm, in the house,” where she was a member of his family. She was unable to give any dates. She testified that respondent had intercourse with her more than once previous to that time. The following question was asked by the prosecution:

“Did he have intercourse with you after you knew you were in the family way?”

An objection to this was overruled, and she answered “Yes.” This ruling was error. People v. Davis, 175 Mich. 594 (141 N. W. 667), and cases there cited. This subject has been so thoroughly canvassed in the cases there referred to that it is unnecessary to here review the principles involved and reason for the rule. The only reason urged in extenuation of this ruling is that in cases of this nature, where the offense is charged as having been committed on or about a certain date, the prosecution is not confined to the exact date alleged but may prove the act as having been committed at any time within the statute of limitations; that owing to inability of the witness, upon whom the prosecution was compelled to rely to give dates, only reasonable latitude was allowed to ascertain and identify the specific act selected and sought ' to be proven. It is a well-settled rule that the prosecution is entitled to some latitude in the particular mentioned, and should not be compelled in the first instance, before the transaction is clearly identified, to select a particular act or date, but, having once identified and selected a particular transaction, the prosecution must then stand or fall by the election, and proof of subsequent acts of like nature are inadmissible. 22 Cyc. p. 404. If, in the preliminary inquiry, proof of subsequent offenses of like nature is inadvertently or unavoidably made, it should be stricken out and the jury instructed to disregard it.

It is said in this case that the error was cured by the charge of the court in the following language, being a portion of a request preferred by respondent:

“You are further instructed that, if you should believe from the evidence in this case that the respondent had sexual intercourse with Mabel Bowerman after the time she claimed the respondent had intercourse with her in the bedroom at the Underwood farm, you cannot convict respondent of the same.”

Had the court given the remainder of this request, it perhaps would have been sufficient. Said request concluded as follows:

“And such acts of intercourse, if any has been proved, cannot be considered for any purpose.”

Respondent was also entitled to have this portion of his request given.

Identifying the alleged offense as that committed in the house on the Underwood farm when she became pregnant, and determining the approximate date by the birth of the child as being fin or about April 27, 1911, it is claimed by the prosecution that Mabel Bowerman was shown to have then been under 16 years of age. She testified that she was 17 years old on the 24th of July, 1913. Her mother, Mrs. Jane Thorp, also testified that such was her daughter’s age. On cross-examination the mother said that she had borne 10 children, but could not state the exact dates of the births of the others or the dates of her marriage to her first or second husband or of her first husband’s death, nor how long she had been married to her second husband. Pursuing this subject she was asked how many years intervened between the births of two of her children, naming them, which inquiry was objected to and the objection sustained. The following question was then asked:

“How do you know that Mabel is 17 years old the 24th of July?”

This question was objected to, and the objection sustained. This was a proper question, directly relating to a most important and material issue in the case. The prosecution contends, in support of this objection and ruling, that the subject had already been gone over, and control of cross-examination is largely in the discretion of the court. If the cross-examination of this witness was unduly protracted, upon collateral matter or by repetition, the record does not disclose it. No repetition of the question ruled out is anywhere manifest. The preceding cross-examination occupies upon the printed record but little over half a page, and the answers appear to naturally lead up to and make competent in cross-examination the inquiry disallowed.

It is also urged as a ground of reversal that no venue was proven. The rule is elementary that in criminal trials the venue must be proved by competent evidence beyond a reasonable doubt, and where the record fails to locate the place of the crime within the jurisdiction of the court, whether through inad.vertence or otherwise, the judgment must be reversed. While in this State, under section 11919, 3 Comp. Laws, an information is not to be held defective for want of proper venue, and time and place need not be proven exactly as alleged, a venue must nevertheless be proven in all cases to show that the court has jurisdiction of the offense charged. Tiffany’s Criminal Law, p. 535; 22 Enc. of Pl. & Prac. p. 827; 2 Bishop’s New Crim. Procedure (2d Ed.), p. 1171; 13 Enc. of Ev. p. 929; Kolman v. State, 124 Ga. 63 (52 S. E. 82); State v. Hartnett, 75 Mo. 251; Boykin v. State, 148 Ala. 608 (42 South. 999). The venue is laid in this information as at the township of Penn, county of Cass, and State of Michigan. We have searched in vain all testimony given upon the trial of this cause, as disclosed by the printed record, for any mention of the township, county, or State, as alleged in the information. The only identification of the time and place, when and where the alleged offense was committed, is found in the prosecutrix’s testimony, wherein she states that the intercourse which she had with respondent causing pregnancy, resulting in birth of the child she bore (which is the act relied on for conviction), took place on the Underwood farm, in the bedroom, in the house.

While courts may take judicial notice of the extent and boundaries of political subdivisions, such as counties, townships, cities, and villages, the rule has never been, and cannot be,.extended to cover a farm or other locality only designated and identified by the name of its present or former owner.

Contending that it is possible to draw from the record, taken as a whole, and particularly from the testimony of nearby neighbors as to their residence, an inference that the Underwood farm is in Penn township, the case of People v. Waller, 70 Mich. 237 (38 N. W. 261), is cited to sustain this conviction. If any such inference is to be drawn, it locates the Underwood farm in the neighboring county of Calhoun, the only county mentioned by any witness in the record. Although the locality named may have been so well known and familiar to all engaged in the trial that to prove it was in Penn township seemed superfluous, so far as the evidence taken on the trial localizes the Underwood farm in any political subdivision, it might be situated anywhere in the United States, or even in a foreign country. The Waller Case deals with political subdivisions, and the court went no further than to hold that judicial cognizance can be taken of the division of a county into townships. In that case the original information charged a larceny to have been committed in the township of Sparta, in Kent county, and the prosecution discovered that the proofs located the offense in the township of Tyrone, in Kent county. A motion was thereupon made for leave to amend the information, which was granted. On the trial the venue was proven to be in Tyrone township, Kent county, Mich. This court said that even an amendment of the information was not necessary, because both townships were in the same county, and jurisdiction of the circuit court was coextensive with the body of the county. We see nothing in such ruling to sustain an entire omission of any proof as to the township, county, or State in which the act charged was committed.

While many of the remaining assignments of error are deemed unimportant, others would require serious consideration, if they were such as to probably arise upon a retrial of the case, but we assume that they will not and think it would be unprofitable to discuss them here.

For the errors pointed out, the conviction and sentence must be set aside, and a new trial granted.

The judgment is reversed, and a new trial ordered.

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


text:
    EHLE v. LOOKER.
    1. Mortgages — Deed Given as Security — Husband and Wife.
    A deed given by a married woman to enable ber husband to borrow money, conveying the homestead occupied by both, was valid and enforceable, as a mortgage between the parties to the- instrument, although the acknowledgment of the wife was irregularly taken by a justice of the peace, who testified that he signed the acknowledgment on the strength of a note, received from the wife, requesting him to acknowledge it as her free act and deed.

      2. Same — Consideration—Estoppel.
    As to a grantee who has loaned money to the husband, relying upon the deed, the wife was estopped to deny the validity of the execution and delivery of the conveyance, which she testified that she signed without knowing what the paper was, and, also, that it had been her habit to sign papers which her husband presented to her to sign.
    S. Same — Equity—Agency.
    Where one of two innocent parties must suffer by reason of the acts of a third, the loss must be borne by the one Who enables the third person to cause the loss or damage.
    4. Husband and Wife — Estate by Entireties — Consideration.
    A wife’s conveyance of real property owned by herself and husband by the entirety, to secure or to pay an indebtedness of the husband, is supported by a sufficient consideration and is valid.
    5. Same — Deeds.
    And the instrument was a mortgage as to both defendants, not a deed as to one of them, and mortgage as to the other.
    Appeal from Clare; Dodds, J.
    Submitted June 22, 1914.
    (Docket No. 54.)
    Decided July 25, 1914.
    Bill by Alfred Ehle against William R. Looker and Lousina Looker to foreclose a deed as a mortgage. From a decree for complainant, defendant Lousina Looker appeals.
    Affirmed.

      John Quinn, for complainant.

      G. C. Leibrand, for defendant Lousina Looker.

       As to the validity of incumbrance by husband and wife of property held by the entireties to secure the individual debt of the husband, see note in 66 L. R. A. 632.

   Stone, J.

In this case the bill of complaint was filed to have a certain deed declared to be a mortgage, and to foreclose the same. The defendants are husband and wife, and owned the land in question, 80 acres, as tenants by the entireties. The dealings between the parties leading up to this suit are substantially as follows: In April, 1910, defendant William R. Looker came to complainant and stated that he desired to borrow $1,800, and to secure such loan would mortgage 120 acres of land, including the land here involved, and said defendant requested complainant to assist him in obtaining such loan. Complainant agreed to assist said defendant in getting the loan from parties at' Gladwin, at which place they were to meet. It developed when they met at Glad-win that said defendant wanted $2,200 instead of $1,800, and that he had but 80 acres of land with which to secure the loan, upon which land there was already a mortgage of $950, and the loan could not be obtained on the security offered. Said defendant then importuned complainant to loan him the money, which complainant declined to do, as he had no money to loan; but later complainant offered to take a deed of the said 80 acres of land from both of said defendants and pay said defendant $2,800, less the mortgage of $950, and give back to said defendant a land contract to sell the latter the land in one year at the same price, which was agreed to, and complainant then placed a mortgage on his home farm and obtained the money, and paid said defendant $1,850, taking a deed from both of said defendants, which deed contained a clause requiring complainant to assume and pay the old $950 mortgage. At the same time a land contract was entered into between complainant and said defendant William R. Looker, whereby the former agreed to sell said land to said Looker in one year at $2,800, with interest at 7 per cent, per annum, which contract, as well as the deed, said defendant had prepared and brought with him when the deal was closed.

When the year had expired defendant Looker, not being able to pay complainant anything, the contract was surrendered, and complainant gave to said defendant a written option to purchase the land within one year for $3,040; that being the amount due complainant under the contract, including interest, insurance, taxes, and interest on the old mortgage paid by complainant. Defendant William R. Looker did not pay anything when the year was up under the option, and complainant desired his money or possession of the land; defendants having remained in possession of the same all of the time. About this time defendant William R. Looker filed a bill of complaint in the circuit court, in chancery, and obtained an injunction against this complainant, restraining him from interfering with said Looker’s possession, and claiming that the deed was a mortgage and praying that it be so declared. Ehle answered, claiming that the deed was an absolute conveyance, but stated that he was willing to accept the amount he had put into the land and deed the same back, but that he desired his money or possession of the land. That case went to a hearing, and the court found that the said deed was a mortgage, and directed payment to Ehle by said Looker of the amounts due the former on or before December 18, 1912, otherwise that the premises should be sold under the usual proceedings, and a decree was entered accordingly. No payment was made by William R. Looker, and the land was sold under the decree to this complainant. After the redemption period had expired the defendant Lousina Looker refused to give up possession of the land; and, inasmuch as she was not a party to said injunction suit, this complainant, recognizing the fact that she had not. had “her day in court,” filed the bill in the instant case, treating the deed as a mortgage and praying for its foreclosure. The bill was taken as confessed by the defendant William R. Looker. The defendant Lousina Looker filed her answer, denying that she ever signed or executed the said deed or mortgage, or authorized such signing, and stating that she never appeared before the acknowledging officer, or acknowledged the execution of said instrument, as it purported, in the presence of the witnesses whose names appear thereon as such. At the hearing of the instant case defendant Lousina Looker testified relating to the signing and execution of the instrument, that she could not say as' she knew anything about the matter; that she never signed that paper or anything else before Joseph D. Bitler, nor did she sign it in the presence of James W. and Emma Looker; that the signature looked like hers, but she could not give the court any idea how it came to be on that paper; but that she had been in the habit of signing papers which her husband brought home without making inquiry. On cross-examination she testified as follows:

“Q. You have seen this Exhibit A [the deed] ? You don’t deny that being your signature?
“A. It looks like my signature, but I would not say it was.
“Q. Do you say it isn’t? I want you to be sure about it. I want you to say whether it is or not. You know your signature. Tell the court whether it is yours or not.
“A. All I can say, it looks like mine.
“Q. You can say whether it is your signature or whether it is not?
“A. I could not say.
“Q. You could not say?
“A. I signed papers like that.
“Q. Don’t you know your own signature when you see it?
“Defendant’s Counsel: She says it looks like hers, and she doesn’t deny it.
“Court to Defendent’s Counsel: You don’t deny it?
“Defendant’s Counsel: No, she has not denied it.”

This deed bore date April 12, 1910, and purported to be signed by both defendants in the presence of James W. Looker and Emma Looker, and to have been acknowledged on April 13, 1910, by both defendants before Joseph D. Bitler, a justice of the peace of Clare county.

Joseph D. Bitler, the justice of the peace, testified that he signed the certificate of acknowledgment, but that Lousina Looker did not personally appear before him, but sent a written request signed by her as follows :

“Mr. Bitler, please acknowledge this deed signed as my free act and deed.”

He testified that the signatures on the letter and deed were the same. James W. Looker testified that he and his wife signed the deeds as witnesses at the request of his brother, William R. Looker, who brought the deed to them. Witness could not testify whether the grantors’ names were signed to the deed or not at the time. It perhaps should be stated that the defendant Lousina Looker further testified that the land in question was the home of herself and husband, and had been for 28 years; that she knew very little about her husband’s business; that she never received any consideration for the sale or mortgaging of the property; that her husband’s transactions were so numerous and varied that she did not undertake to keep track of them; and that when her husband brought in papers for her to sign, she always signed them.

The circuit judge, who heard the evidence and saw the witnesses, found for the complainant. In an opinion filed in the case he said:

“The sole question raised in the case was whether the instrument was signed by defendant Lousina Looker. There can be no doubt but that the complainant is right in his contention, and that the instrument was duly signed by both defendants as the testimony shows. * * * While the acknowledgment of this deed by the defendant Lousina Looker was not regular, the original deed was introduced in evidence, and the controversies being between parties to that deed, and no question arising under the recording laws, acknowledgment by her was not so important as to make any difference with the rights of complainant. The question raised as to the rights of the wife where land is held by entireties was fully answered by the authorities relied upon by complainant’s solicitor, especially People’s Building & Loan Ass’n v. Billing, 104 Mich. 186 (62 N. W. 373)

A decree in accordance with the prayer of the bill was entered, and the defendant Lousina Looker has appealed.

It is contended by appellant’s counsel, in his brief, that the circuit judge erred in his conclusions, and that the real questions are whether:

(1) Mrs. Looker actually executed the deed intelligently, without accident, mistake, or fraud, and without such negligence on her part as might under some circumstances estop her from denying it; (2) whether there was a delivery on her part; (3) whether there was consideration running to her; (4) whether in an estate by the entireties one spouse can convey a fee simple and the other spouse create an incumbrance.

Upon the first and second questions urged by appellant’s counsel, we think it should be held that where, as in this case, a wife signs an instrument at the request of her husband, and she testifies that she did so habitually and always, and the husband is thereby enabled to borrow money upon such instrument, the lender relying upon the paper being what it purports to be upon its face, the wife should be held to be estopped from denying the validity of such execution and delivery. Van Slyke v. Rooks, 181 Mich. 88 (147 N. W. 579). The maxim that when one of two innocent persons must suffer by the acts of a third, the loss must be borne by the person who enables such third person to occasion it should apply with full force here, even if the facts were as testified to by Mrs. Looker, of which we have grave doubts. The cases cited by appellant’s counsel are readily distinguished from the instant case.

Upon the third question, being that of consideration, it is only necessary to say that a wife’s conveyance of her property in payment of or security for her husband’s debt is supported by a sufficient consideration. Le May v. Wickert, 98 Mich. 628 (57 N. W. 827); Kieldsen v. Blodgett, 113 Mich. 655 (72 N. W. 9); Marx v. Bellel, 114 Mich. 631 (72 N. W. 620); Just v. Savings Bank, 132 Mich. 600 (94 N. W. 200); Hackley Nat. Bank v. Jeannot, 143 Mich. 454 (106 N. W. 1121).

As to the fourth question, in the case cited by the learned circuit judge (People’s Building & Loan Ass’n v. Billing, supra), it was held that a mortgage executed by husband and wife upon land owned by them as tenants in the entirety, to secure a loan made to the husband alone, was valid.

It having been held that the effect of the deed was that of a mortgage, it-necessarily was a mortgage as to both defendants, and we see no force in the claim of counsel that it was a deed as to one defendant and a mortgage as to the other.

We find no error in the record, and the decree of the court below is affirmed, with costs to complainant.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Bird, J.

text:
    WEAVER v. COLLINS.
    Limitation oe Actions — Statutes—Demand—Actions—Time oe Accrual — -Redemption—Tender.
    Under a contract of purchase of certain shares of stock to be redeemed at par on 30 days’ notice, the right of action for failure to so redeem accrued when a demand in writing was made on the seller to redeem the shares, and was barred by the statute of limitations within six years of the date when the demand was made, not from the date when plaintiff afterwards formally tendered the stock to the defendant.
    Error to Ingham; Wiest, J.
    Submitted June 16, 1918.
    (Docket No. 118.)
    Decided October 2, 1914.
    Assumpsit by Emily C. Weaver against George A. Collins for breach of a contract in writing. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      McArthur & DunnebacJce, for appellant.

      C. F. & E. T. Hammond, for appellee.
   Bird, J.

On December 7, 1904, plaintiff purchased from defendant 100 shares of the stock of the Lansing Veneered Door Company, paying therefor $1,000. These shares were evidenced by two certificates of 50 shares each. With this purchase she received the following agreement from the defendant:

“Ann Arbor, Mich.. 12/7, 1904.
“I herewith agree to redeem on thirty days’ notice from Emily C. Weaver, of Ann Arbor, Michigan, the preferred stock owned and held by her in the Lansing Veneered Door Company, of Lansing, Michigan, said stock being certificates number two hundred thirty-two and two hundred thirty-three; said stock to be redeemed at par.
“G. A. Collins.”

On March 16, 1905, she addressed the following letter to the defendant:

“Ann Arbor, March 16, 1905.
“Mr. G. A. Collins.
“Dear Sir:
“When I purchased the stock' of your company, you gave me a contract by which it was agreed to redeem the certificates on thirty days’ notice from me. I accordingly write this to say that I wish the stock redeemed as per agreement at par. Expecting a draft for the amount, $1,000, by April 16th, one month from today, I remain,
“Yours truly,
“Emily C. Weaver.”

Later, and on April 5, 1905, she addressed a second letter to him, reading as follows:

“Ann Arbor, April 3, 1905.
“Mr. G. A. Collins.
“Dear Sir:
“In accordance with your contract dated December 7, 1904, I hereby notify you to redeem the preferred stock owned and held by me in the Lansing Veneered Door Company, of Lansing, Michigan, by certificates numbered 232 and 233, at the expiration of thirty days from the date hereof.
“Yours truly,
■ “Emily C. Weaver.”

Defendant received both letters, but made no reply to either. No further action was taken by the plaintiff until December 5, 1910, when her counsel, armed with a power of attorney from her, tendered the two certificates, properly indorsed, to defendant and demanded the return of the $1,000. The defendant refused to make good his promise, and this suit followed on May 9, 1911, to recover a judgment for the amount paid for the shares. Defendant pleaded the general issue and gave notice of the defense of the statute of limitations. At the close of the proofs, both parties requested a directed verdict. The trial court was of the opinion that the statute of limitations was a good defense, and therefore directed a verdict for the defendant. The action of the trial court in so doing is assigned as error by the plaintiff in this court.

The assignments of error give rise to but one question: When did plaintiff’s cause of action accrue? Defendant contends that 30 days after the letters of March and April, 1905, were written by plaintiff her cause of action accrued, while the plaintiff insists that it did not accrue till the demand was made and the certificates were tendered, on December 5, 1910, for the reason that not only a demand, but a tender of the certificates, was necessary to create the cause of action. It is obvious that if defendant’s contention is sound, plaintiff’s claim was barred by the statute. 3 Comp. Laws, § 9728 (5 How. Stat. [2d Ed.] § 14135). The dealings of the parties were such that a cause of action might accrue or might never accrue to the plaintiff. If she were content with her purchase, no. cause of action would ever have arisen. The needful thing to create a cause of action in her behalf wa's, not only an election upon her part to have her money returned to her, but notice to defendant of such election. This she did in the most positive terms in her letters of March and April, 1905. After she gave such notice as her contract called for, it raised some obligation on the part of the defendant, and what was it if not an obligation to pay her the $1,000, and receive his certificates?. But, it is argued that a tender of the shares must accompany the demand in order to make it effective. The contract does not so provide. It calls for notice and is silent as to tender, and therefore we are led to the conclusion that the essential act which gave the right of action sprang from this notice, and that the question of tender was simply one that was incidental to her remedy. Suppose defendant had tendered plaintiff $1,000 in response to her March and April letters, and she had refused to accept it and deliver the shares, is there any serious doubt that defendant could have recovered them in replevin or their value in trover? And upon the trial of either could she have successfully defended on the ground that she had made no tender of the shares? And could he have recovered in either action if her “cause of action” had never accrued? The answers to these inquiries are helpful in reaching the conclusion that defendant’s contention is the proper one.

We are persuaded that the case falls within that rule which states that:

“Where, although the cause of action itself has accrued, some preliminary step is required before a resort can be had to the remedy, the condition referring merely to the remedy and not to the right, the cause will be barred if not brought within the statutory period; therefore- the preliminary step must be taken within that period.” 25 Cyc. p. 1199.

See, also, First Nat. Bank v. Greene, 64 Iowa, 445 (17 N. W. 86, 20 N. W. 754); Stillwater, etc., R. Co. v. City of Stillwater, 66 Minn. 176 (68 N. W. 836); Baker v. Johnson County, 33 Iowa, 151; Schriber v. Town of Richmond, 73 Wis. 5 (40 N. W. 644).

Appellant seeks to distinguish these cases from the one under consideration, but we think they are in point. The last case cited is a good illustration of the application of the rule. The question involved in that case was whether the statute had run against a certain town order issued in March, 1880. The statute required the order to be presented to the town board for audit before payment. This was not done, but was presented to the treasurer for payment in November, 1886. On the question as to whether the statute commenced to run from the date of issue or demand it was said: to run until the claim is so presented. This court negatived that proposition, and held that the cause of action accrues when a debt exists which the State owes and ought to pay, without regard to the time when the claim was so presented. Mr. Justice Paine, delivering the opinion of the court, said _ that this provision of the statute did not constitute ‘any element of the cause of action within the scope and object of the statute of limitation. It was a mere condition to the bringing of a suit imposed by law for the protection of the State from unnecessary costs. If a debt existed, it existed entirely independent of such presentation of the claim. It existed as soon as a claim accrued which the State owed and ought to pay. And then it was that the cause of action accrued. True, the party had to present his claim before bringing his suit, but such presentation partook of the nature of the remedy. It was a preliminary proceeding, required of him in order to avail himself of the remedy.’ ”

“The question here is, Did the cause of action accrue on the orders in suit when they were issued in 1880 and 1881, or not until payment thereof was actually demanded, November 13, 1886? We think this question is answered by the judgments of this court in Baxter v. State, 17 Wis. 588, and Curran v. Witter, 68 Wis. 16 (31 N. W. 705 [60 Am. Rep. 827]). In the first of these cases it was argued that, because the statute required a party to present his claim to the legislature before bringing a suit thereon against the State, the cause of action does not accrue, and hence the statute of limitations does not commence

The judgment of the trial court is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    SLOTE v. CONSTANTINE HYDRAULIC CO.
    1. Waters and Watercourses — Dams — Flow age — Damages — Evidence — Pleading.
    Damages to trees of complainant’s wood lot were properly awarded by the court, under the averments of an amended bill for an injunction which charged that setting back of water by Reason of increasing the height of defendant’s dam would cause water to percolate and saturate the land of complainant and would damage him as the dam had not theretofore done, where it was disclosed by the evidence that the trees were actually damaged and killed because of the increased height of the dam.

      2. Same — Damages—Injunction Biel — Dams.
    The fact that in another suit in chancery defendant had been required to lower its dam and that damages in the case instituted subsequently to the commencement of said chancery cause had been awarded on the basis of a permanent increase in the head of defendant’s power dam, was a matter to be presented to the court in supplementary proceedings: the equities of the parties could not be adjusted on appeal of the second suit.
    Appeal from St. Joseph; Yaple, J.
    Submitted June 11, 1913.
    (Docket No. 76.)
    Decided October 2, 1914.
    Bill by William W. Slote against the Constantine Hydraulic Company for an injunction. From a decree awarding damages, defendant appeals.
    Affirmed.

      H. P. Stewart, for complainant. .

      H. O. Bliss and B. J. Wade, for defendant.
   Bird, J.

The complainant is the owner of a farm of 173 acres, situate on the west bank of St. Joseph river, about three miles from the village of Constantine. The defendant is the owner of a water power near that village. The defendant had the perpetual right to flood complainant’s land to the extent that was necessary to produce an eight-foot head at the dam. In the years 1904 and 1905, defendant raised its dam 30 inches, and complainant claims such raise flooded and rendered useless nearly 13 acres more than were flooded by the eight-foot head. This bill was filed to prevent the completion of the addition to the dam. A temporary injunction was issued, but later was dissolved by reason of a bond being filed by defendant to pay any damages that might be awarded complainant in this suit. After this was done, the addition to the dam was completed. It therefore became a question of fact, under the pleadings, what damages the complainant had sustained by reason of the raising of the dam. Nearly all of the testimony gathered around the questions: How many acres were flooded in consequence of the addition to the dam, and how much damage was it to complainant’s farm? u

Both sides produced a large number of witnesses who were familiar with the premises. The complainant’s witnesses estimated that the additional flooding cohered from 10 to 13 acres, and placed the value thereof at $100 per acre. The defendant’s witnesses estimated that the number of acres were from 4 to 7, and placed the value at from $75 to $90 per acre.

Another element of damage was shown in addition to the flooding of the land. It was claimed that, by reason of the raising of the water to a higher level, it had, by percolation through the soil, killed and injured a large number of growing trees on land slightly higher than the land which was flooded. The complainant gave it as his judgment that the destruction of the entire eight acres of timber would lessen the value of the farm $1,000. After hearing the proofs offered, the chancellor awarded complainant damages in the sum of $1,300. The testimony as a whole impresses us of the candor and honesty of the witnesses. They simply disagreed in their estimates and judgments, as is not uncommon where such questions of fact are involved. A study of the record, however, has convinced us that, if any one has a right to complain of the amount of the damages arrived at by the chancellor, it is not the defendant.

Damages to the amount of $1,300 are justifiable, under the proofs, in our judgment, independent of the injury caused to the wood lot, but, complainant not having appealed, no revision of damages in his behalf is permissible.

But it is argued by defendant that no testimony should have been admitted on account of the damages to the wood lot, because the bill of complaint did not by allegation open the way for its admission. The bill of complaint, as originally^ filed, was an injunction bill, but later, by reason of the filing of the bond and order of the court, it was transformed into one for damages for the injury-caused to the land by the raising of the water. The amended bill charges that, by reason of the addition to the dam, “the water will saturate and percolate through your orator’s land as it has never done heretofore, and will damage your orator by reason of raising of said dam to the extent of more than $1,500.” This was sufficient notice to the defendant that the complainant would claim injury to the land through percolation and saturation.

There is' another point raised by defendant which demands attention. This case was heard by the same trial judge who heard and decided the case of Sheffield Car Company against this defendant; that was a case involving the right of defendant to raise its dam. The testimony in that case was, by stipulation of counsel, received in evidence in this case. Subsequently that case was brought to this court and decided, but not before this case was decided in the trial court. It was held by this court in the Sheffield Case that the defendant must lower its dam to the eight-foot head. 171 Mich. 423 (137 N. W. 305, Ann. Cas. 1914B, 984). It is now claimed by defendant in this case that, inasmuch as complainant’s damages were awarded on the theory that the dam was to remain at the increased height, it ought not to be compelled to pay such damages.

In his reply brief, complainant answers this by asserting that, since the decree in the Sheffield Case was made in this court lowering the dam to the original eight-foot head, the defendant has agreed with the Sheffield Company for a consideration to continue the dam at its present height, and therefore the defendant ought to pay the damages awarded to him. While this statement is dehors the record, it serves the purpose of reminding us how unwise it would be to allow the decision of this case to be affected byequitiés which have subsequently arisen. If changes have occurred since the. decree was made in this case, which have unbalanced or destroyed the equities upon which it was based, it is a matter which can be called to the attention of the trial court in a proper proceeding.

The decree will be affirmed, with costs of both courts to the complainant.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: McAlvay, C. J.

text:
    SHOWEN v. J. L. OWENS CO.
    1. Evidence — Hearsay — Saees — Machinery — Breach ox Warranty — Contracts.
    In. an action for breach of warranty of a number of threshing machines furnished by the manufacturer to its sales agent, it was not erroneous to receive in evidence the testimony of employees and officers of the agent who had examined several of the machines returned as defective at the shops of the sales agent, and who testified that the condition of the machines indicated defects and breakages as claimed and shown by certain of the purchasers that had used the threshing machines; the testimony tending to show similar conditions in other machines manufactured by defendant and returned as defective to the vendee.
    2. Same — Presumptions—Cause.
    Proof that machines manufactured by the defendant and returned to the sales agent on the ground that they were defective, had similar breakages and defects as machines which the purchasers testified, from use and observation, were so defective, raised a rebuttable inference or presumption that the common results were produced by a common cause.
    S. Appeal and Error — Record—Exhibits—Index.
    Failure to properly index a number of exhibits relied upon by defendant in its assignments of error as erroneously admitted in evidence, the index not stating in brief form the substance of each exhibit, as required by Supreme Court Rule 36, justifies the court in declining to pass on the questions raised by the assignments in a lengthy case involving 126 assignments of error and in which the exhibits were not printed in the record, but produced as part of the bill of exceptions at the argument.
    4. Evidence — Customs—Books—Trade Usage.
    Evidence offered by the defendant from the books of the agency for the purpose of showing that it was customary in that business to take back machinery and charge it to a certain account, was rightly excluded as immaterial.
    5. Same — Loss—Defective Condition.
    The testimony relating to the condition of machines returned to the selling agency was competent to show plaintiff’s damages and was correctly received in evidence.
    6. Same — Expense of Repairs.
    Evidence based on the books of the defendant showing an itemized statement of expenditures for repairing breakages and rebuilding defective machines, corroborated by testimony of officers, employees, and shop men, showing items of expense for repairs and rebuilding of machines was also sufficiently definite and relevant to sustain plaintiff’s claim.
    7. Appeal and Error — Excessive Verdict — New Trial.
    The proper practice to review an excessive or insufficient verdict is to move to set aside the verdict; the amount of damages will not be considered on appeal unless the point is presented on a motion for a new trial.
    Error to Kent; Perkins, J.
    Submitted April 23, 1913.
    (Docket No. 35.)
    Decided October 2, 1914.
    Assumpsit by John L. Showen as assignee of the Arbuckle-Ryan Company against J. L., Owens Company for breach of warranty. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Eastman & Eastman, for appellant.

      Clapperton, Owen '& Hatten, for appellee.
   McAlvay, C. J.

Plaintiff recovered a judgment in an action brought by him in assumpsit, commenced by attachment against defendant to recover damages arising from a breach of guaranty contained in written contracts between his assignor and defendant for the purchase of certain bean threshing machines. Defendant has removed the case to this court for review upon a writ of error.

Certain jurisdictional questions in the case which were raised upon certiorari to this court from an order of the circuit court overruling a plea in abatement and denying a petition to dissolve the attachment were passed upon by this court in Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640, 133 Am. St. Rep. 376). In that opinion, to which reference is had, the several counts in the declaration are set up at length, wherein plaintiff’s cause of action is clearly stated.

The material facts in the case are that plaintiff’s assignor, the Arbuckle-Ryan Company, an Ohio corporation, and defendant, a Minnesota corporation, entered into two certain contracts, by the terms of which plaintiff’s assignor agreed to purchase from defendant a certain number of bean and pea threshing machines. These contracts were quite similar in terms, and in each defendant guaranteed the machines sold to be free from inherent and mechanical defects. These contracts were in the nature of written orders by plaintiff’s assignor for a certain number of these machines at certain prices on certain terms, which orders were agreed to by defendant company in writing. The first was dated May 13, 1904; the second, December 26; 1904.

The following is a copy of the second contract:

“Toledo, Ohio, Dec. 26, 1904.
“J. L. Owens Company,
“Minneapolis, Minn.
“Gentlemen:
“You will please enter our order for thirty Owens bean and pea threshing machines, sizes to be 36x54 inches and smaller. Each machine to be complete with belts, Owen stacker, arranged for straight and side delivery, including tally box.
“The above máchine to be sold at a price of 40 per cent, discount from list price of 1904, except re-cleaner with elevator and bagger, which is to be listed at $150 instead of $200, and net price of re-cleaners to be $100 to us.
“All machines to be delivered f. o. b. Minneapolis. The J. L. Owens Company to guarantee the machines to be free from inherent and mechanical defects.
“The Arbuckle-Ryan Co.- agree to pay for these machines January 1, 1906, giving the J. L. Owens Company acceptances as machines are shipped with the privilege of the one renewal of such acceptance, or a portion, if desired, interest on such renewals.
“In consideration of the above order, the J. L. Owens Co. agree to give the Arbuckle-Ryan Co. the exclusive sale of the Owens bean and pea threshing machines in the entire State of Michigan. The Owens Co. to furnish necessary printed matter, blank orders, etc.
“Settlement for the above machines to be made August 1st, and if any subsequent orders, settlement to be made on shipment of machinery.
“Any inquiries received by the J. L. Owens Co. from the best territory to be sent us immediately.
“The J. L, Owens Co. agree to keep a stock of repairs when ordered to be consigned to us, and to be subject to a discount of 50 per cent, from the list price.
“Respectfully yours,
“The Arbuckle-Ryan Co.,
“E. J. Wehrly, Gen. Mgr.
“We hereby agree to the above order.
“J. L. Owens Co.,
“By J. J. Owens, Pres.”

The Arbuckle-Ryan Company, plaintiff’s assignor, during 1904, under the first contract, which as to the matters in dispute in this case is similar to the second contract, bought from defendant and sold its customers 34 machines. Under the second contract plaintiff’s assignor bought 30 machines, of which 20 were sold. Defendant company and its predecessor for several years prior to 1903 had been manufacturing a few bean threshers, and in that year manufactured five machines of a new type, two of which were sent into Michigan. These, were experimental machines. In January, 1904, it proceeded to manufacture a shop order of 100 machines, in which the main shaft of the rocker arm system, so called, was changed from the straight eccentric shaft of 1903 to a crank shaft made of cast iron. The machines purchased by plaintiff’s assignor in 1904 were out of this shop order. The rocker arm system operating in connection with the crank shaft in this machine was new in a bean threshing machine. These machines were materially wider and longer than the standard makes on the market and were, in several respects as to the construction of the frame and the operation of the separating apparatus, distinctly different from other bean threshing machines. Several pages of appellant’s brief are taken up with a detailed description of these machines. As the controversy in this case, under the guaranty of defendant that the machines would be “free from inherent and mechanical defects,” is confined to a few features of these machines, it will not be necessary to describe them or to refer to their general construction.

These machines, which were purchased by plaintiff’s assignor in the years 1904 and 1905 under these contracts with defendant company, were at once resold to various customers. It is the claim of plaintiff that the first machines delivered under the first contract were inherently and mechanically defective; that they were improperly constructed' and imperfect in materials used and in workmanship; that complaints were made to them by the purchasers on account of breaking of shafts, shaft boxes, and certain other parts. Considerable correspondence was had between the defendant and plaintiff’s assignor in relation to these complaints by which defendant was informed of the situation. Defendant’s letters show such knowledge, and expressions of regret, together with a promise to send an expert to help rectify the difficulties and fix matters so that there would be no further trouble. The principal complaints made by purchasers which developed in the use of the machines in 1904 were as to the general breaking of crank shafts and shaft boxes, also as to the weakness of the frames of the machines and the poor quality of material from which they were built. There were also complaints that the elevators would not work properly, and that the machines were not strong enough to do the work of threshing beans. These troubles were general and applied to all of the machines sold under both contracts. Plaintiff’s assignor was obliged to take back 27 machines sold in 1904 and one-half of those sold, in 1905. Twenty-four of those sold in 1904 were shipped to Toledo and almost entirely rebuilt or scrapped by the Arbuckle-Ryan Company.

After this correspondence between the parties, at the close of the season of 1904 and before entering into the second contract, the president of defendant company went to Toledo for the purpose, among other things, of inducing plaintiff’s assignor to continue the purchase and sale of machines in 1905. It is claimed by plaintiff that this representative of the company, in furtherance of that purpose, agreed on its behalf to send necessary materials and a competent mechanic to repair and make good every machine already sold; He also represented that the new machine for 1905 would be built to avoid the weaknesses discovered, and would be a first-class machine; that a different shaft and heavier boxes would be used; also that defendant company would make good every machine sold to plaintiff’s assignor in 1904; and that, relying upon such agreements and promises, plaintiff’s assignor entered into the second contract. From this representative’s testimony it appears that he reported what he had learned of the machines in Michigan in 1904, and it also appears that a representative expert of defendant had been sent into Michigan for the purpose of fixing these matters up, and that defendant had sent repairs and new crank shafts to replace the broken ones in the machines which had been sold to plaintiff’s assignor.

Plaintiff claims that the agreement to make good the warranty on these machines in the manner above stated was not carried out. Plaintiff also claims that the machines so purchased by his assignor were paid for, and that by reason of the aforesaid defects in the machines his assignor was obliged to and did expend a large amount of money in rebuilding and repairing such machines as could be repaired, and that he suffered entire loss on other machines, together with loss of profits on sales of machines they were obliged to take back, rebuild, and resell. It is claimed by defendant that there were no inherent or mechanical defects in these machines sold under these contracts; that they were well built of the best material in a good and substantial manner; that the difficulties which arose were caused, not by the defects in the machines, but through the carelessness in operating them by those who -purchased-the same. Defendant further claims that a settlement was had between the parties at the time of entering into the contract of December 26, 1904, where an allowance was made to plaintiffs assignor for extras furnished up to that’ date and an agreement was entered into to furnish additional extras for other machines, which it claims was done and the settlement fully executed, and the claim was made that there was a large balance due it on account of the purchase of such machines unpaid. These claims of defendant are denied by plaintiff.

The record in the case is voluminous, from which it appears that both parties offered testimony tending to support their respective claims in this suit; that the case was submitted to a jury and a substantial verdict returned in favor of plaintiff.

Of the numerous errors assigned by appellant none have been presented and discussed except such as relate to the admission and rejection of evidence and the refusal of the court to give certain requests. These have been as far as possible classified, and are presented and discussed in its brief in 28 groups. The plaintiff and appellee in his brief has- considered the errors relied upon by defendant in the same order in which they are presented in appellant’s brief.

Before proceeding to consider the errors assigned and relied upon by defendant, it will be helpful in giving a clear understanding of the case to state briefly the theories of the parties upon which they presented it to the court.

The contention of plaintiff was that all these machines purchased by his assignor from defendant were inherently and mechanically defective; that they were purchased and paid for upon the representations and guaranty of defendant with respect to their quality and construction; that the machines so purchased were sold to its customers relying upon such representations that they would be good for the purpose for which they were bought and sold; that from the time the first machine was used for threshing beans there were continual breakages and difficulties caused by inherent and mechanical defects in them; that every effort was made to repair breakages and other troubles, and great loss and expense accrued; that defendant was notified of the nature of the breakages and the complaints of the purchasers of the machines; and that it participated in the attempts to repair machines, and promised to make every machine good, which promise was not fulfilled, all to plaintiff’s great damage. ' Defendant’s contention was that these machines were in all respects as guaranteed, and not inherently and mechanically defective; that the breaking of the different parts and the trouble arising in operating the machines were not caused by the weaknesses and imperfections of such machines, but by the carelessness and incompetency of the operators; that plaintiff had failed to show any “inherent or mechanical” defects; that the case had been settled; and that no damages had been shown.

The three most important questions raised upon the errors assigned and relied upon by appellant are:

First, those relating to the competency and sufficiency of testimony admitted by the court in the case, over the objections and exceptions of defendant, upon the question of the inherent and mechanical defects in these machines; second, those relating to the competency and sufficiency of the evidence, admitted under the same circumstances, as to the question of loss and damage to plaintiff; third, those relating to the refusal of the court to give certain requests presented by defendant.

1. Before discussing these questions it' will be proper to state that the machines purchased under the first contract were of the same model, and alike in construction and design. They were machines out of the first shop order of 100 machines defendant ever manufactured of this style of bean threshing machines. Theretofore it had manufactured only a few experimental machines. In making proof of the claimed inherent and mechanical defects in these machines plaintiff introduced' in evidence the testimony of seven individual customers, purchasers of these machines, who each testified fully and at length from his personal knowledge in regard to the actual operation of his machine, as to the weaknesses and defects, both in material and construction, which became apparent as soon as the machine was operated, as to the parts which broke in undertaking to thresh beans, and as to the failure of the machine to perform the work for which it was intended. An examination of the testimony of these individuals shows that the defects were substantially the Same in each machine of this class. The most vital and fatal defect which all this testimony of the owners and operators tended to show was the failure of the rocker arm system, which was operated by a main crank shaft connected by four pitmans to the bolter and grain pan, oscillating them in opposite directions for the purpose of separating beans from pods, straw, and dirt. These crank shafts were made of cast iron, and it appears that all of them broke under the strain of the work, as did also the boxes which held the ends of these shafts. This testimony also tended to show structural weakness and poor material in the framework and other parts of these machines.

The machines purchased under the second contract were identical with those under the first, except steel shafts, which were substituted for the cast iron ones, running in different shaft boxes. However, these were exposed to sand and dirt which cut and wore them out rapidly and unevenly, causing the machine to pound and break, by reason of being out of balance.

Plaintiff’s bill of particulars claimed damages on the ground of defective construction, poor material, and inherent and mechanical defects in 37 machines. Testimony was also offered by plaintiff and admitted of several of the officers and employees of plaintiff’s assignor for the purpose of showing the condition of the other machines as to inherent and mechanical defects when the machines were returned to them .and were in their shops at Toledo, Ohio. The owners and purchasers of these machines who had refused to keep them and had returned them to plaintiff’s assignor were not produced as witnesses. Some of the witnesses had seen some of these machines in operation in the field, but much of this testimony relative to these other machines was given by those who had only seen and examined the machines after their return to the shops, where they were examined and later repaired and rebuilt by plaintiff’s assignor. This testimony of all these witnesses agrees as to the condition of the machines and tends to show such condition as to breakages and defects to be the same as in the seven machines concerning which the purchasers testified.

The objection of defendant to the testimony of these witnesses who had not seen these machines in operation to see by what means the broken condition was caused was that it was hearsay and incompetent. It was admitted by defendant that the testimony of the seven original purchasers “was competent and sufficient to warrant the jury in rendering a verdict for damages as far as their respective machines were concerned.” It is not denied but that all these machines were identical in construction, with the exception of the shafts and boxes in the machines bought under the second contract. The testimony of the seven owners tended to show the existence of common, inherent, and mechanical defects in the class of machines in question which produced common results. The testimony of the other witnesses, tending to show like conditions, which was objected to, was in our opinion competent. All of the testimony upon this subject related to a class of machines of the same type and construction. After being used, all of the machines rejected and returned by the purchasers to plaintiff’s assignor showed the same conditions as to breakages and defects. It follows that this testimony objected to raised a presumption or inference that such common results were produced by a common cause. Such presumption or inference, however, would be rebuttable. 1 Wigmore on Evidence, §§ 437, 438, and notes. The court was not in error in admitting such testimony.

Two other matters, one relative to the admission of evidence offered on the part of plaintiff, and the other relative to the exclusion of evidence offered by defendant, should also be considered under this subdivision. Thirty-nine assignments of error are included in the objections of defendant to the admission of that number of letters offered and received in evidence. These letters are not printed in the record. They are part of a voluminous correspondence between these parties during their business relations under these contracts relative to the bean threshing machines, and extend over a' long period of time, which were introduced by both parties. By a stipulation between the parties defendant was relieved from printing these letters, and they were stipulated to be made a part of the bill of exceptions to be produced on the hearing, etc. From these assignments of error there is no indication where the exceptions upon which they are based may be found in the record. There is a reference in each assignment of error covered by this paragraph of defendant’s brief to the number of the exhibit referred to. Reference to the index of exhibits according to such numbers gives merely the pages where the exhibit is supposed to appear, and a statement that it is a letter from plaintiff to defendant, or vice versa, not giving “in brief form the substance of such exhibit” ás provided by Rule No. 36. When the statement is made that the record contains 540 pages, with a large portion of the 126 assignments of error relied upon, and that there are 154 exhibits, 40 of which are included in this group, it will indicate in some measure the amount of work required of the court in order to intelligently understand what these exhibits contain and to pass upon the objections made to their introduction. We, therefore, refuse to consider these assignments of error on account of noncompliance with the requirements of the rules of this court.

During the trial, on cross-examination of Mr. Ryan, one of plaintiff’s witnesses, defendant offered the books of plaintiff’s assignor, which were then in court, in evidence for the purpose of showing that “It is a customary thing in its business to take back machinery and charge it back to bills -receivable.” From defendant’s brief it appears that it “contended that it is customary among jobbers and manufacturers of agricultural implements to repair and rebuild a large number of machines sold.” The court properly excluded the evidence as immaterial to the issue.

2. Errors are assigned by defendant upon the admission of testimony in relation to the loss and damage to plaintiff because of its incompetency and insufficiency.

Our conclusion as to the admission of the testimony relative.to the condition of the machines which had been returned to plaintiff’s assignor for which plaintiff claimed damages by reason of the failure of defendant’s guaranty bears directly upon the question of the amount of such damages, and is against the contention of defendant. It agrees with the conclusion of the learned trial judge, who, in submitting the case to the jury, properly instructed them upon the matter of the consideration of such testimony in arriving at the amount of plaintiff’s damages. It follows that as to that portion of his damages plaintiff would be entitled to recover such as he could establish by competent proof.

Defendant has also assigned errors upon the admission of certain testimony, other than that above referred to, on the part of plaintiff, which was offered to show the loss and damage suffered in repairing and rebuilding the machines which were refused and returned, and other items caused by defendant’s breach of guaranty, on the ground that it was uncertain, indefinite, and incompetent. The record shows that soon after plaintiff’s assignor purchased these machines under the first contract and began to sell them, complaints as to breakage, etc., already referred to, began to come in and payment for machines was refused and purchasers began to reject and return them; that plaintiff’s assignor undertook to repair such machines without success. The record also shows from testimony and the voluminous correspondence between the parties defendant’s early knowledge of the breakages in and return of machines, and it also attempted to remedy the difficulties by furnishing supplies to replace broken parts and sending an expert for the purpose of putting the machines in good working condition, but without success. This condition relative to the breaking and return of machines continued during a long period of time. It appears, also, that plaintiff’s assignor did not know that the machines were of an experimental character and not as represented; that it had paid for all, or nearly all of them, under the contract, and had sold them relying upon the guaranty, and was under obligation to the purchasers to repair or make good the machines sold, and was not in a position to rescind the contracts and return the goods. The territory in which these sales were made extended over the entire State of Michigan. Many of the machines returned were repaired and rebuilt and disposed of for what they would bring. Others were scrapped because they were useless. An itemized account of all of the cost and expense in taking up, repairing, and rebuilding all of these machines was not kept. The testimony is voluminous as to the manner in which the machines were handled after they were'returned to the shops at Toledo and the attempts made to repair and reconstruct them and the disposition of all of them. Twenty-three machines were rebuilt. Others were disposed of in various ways, and, as already stated, several were scrapped. The witnesses on the part of plaintiff who testified relative to the amount of damages he had suffered were officers and employees of plaintiff’s assignor, including the superintendent of the shops, the men who assisted in taking up the machines, and those in charge and control of the books of the corporation. This testimony was given from actual knowledge of the witnesses as to what had been done and expended, and also from the books which were produced. The objection is made that the testimony relative to these damages was too uncertain and indefinite, and should not have been admitted in the case. It is apparent from the record, and was so stated by the court while this question was being considered, that the situation was complicated, yet there was evidence presented and admitted which tended to show from the books kept at the time that an accurate itemized account was kept by plaintiff’s assignor, showing the exact amount expended in repairing and rebuilding three of these machines and further testimony given by witnesses who claimed to have personal knowledge of the rebuilding of these machines that the expense to rebuild each machine was practically the same. There was also evidence both .from the books and from oral testimony introduced tending to show other items which had been expended by plaintiff’s assignor on account of the claimed inherent and mechanical defects in these machines. From an examination of the record it appears that the court excluded testimony that appeared to be speculative or uncertain, and the testimony admitted was confined to amounts which were shown to be actual and substantially accurate. The testimony which was admitted upon the question of damages was not speculative, uncertain, or indefinite, but was both competent and material.

3. Assignments of error Nos. 117, 118, 119, and 120 are based upon the refusal of the court to give certain requests to charge presented by defendant. With one exception these are the only errors of the great number assigned to the charge of the court and the refusal to give requests to charge, which are not waived by the defendant. These four assignments of error were combined and argued together with assignments based upon exceptions to the admission of the testimony of witness Ryan, touching the condition of the machines when they arrived at Toledo and the manner of rebuilding and repairing them and the general method adopted by plaintiff in arriving at his measure of damages as to the entire 37 machines. We have already discussed the testimony of this witness and other testimony of like character, and determined that the court was not in error in admitting such testimony. While such- determination to a large extent disposes of the errors assigned as to the refusal to give these requests to charge, yet it is necessary for the court to state that they included other propositions. The record shows that the portions of such requests which were proper and material were given, substantially as requested, in the main charge of the court.

There are many other assignments of error relating, for the most part, to the admission of testimony which are relied upon by defendant in its brief. These have been carefully examined. One of them shows upon the face of the record that it was without doubt a typographic or stenographic error. Others are without merit and of no importance in the consideration of the case. None of them in our opinion was prejudicial to defendant.

Defendant in its brief argues that the verdict was excessive. No motion to set aside the verdict was made in the case, which is the proper practice to raise that question in this court. The case is an important one, and, from a statement which appears in the record, it occupied the attention of the court and jury for about six weeks. A large amount of testimony was admitted and submitted to the jury. The facts were more than usually complicated. The record shows that the case was tried skillfully, and that the questions of fact involved were submitted to the jury in a charge which carefully instructed them as to the law in the case. In this court we find that counsel for defendant have only questioned this charge in two particulars. The jury has passed upon the facts and rendered a verdict in favor of the plaintiff, which in our opinion was supported by the evidence which was submitted to them. Upon the questions of law presented to this court we have agreed with the learned trial judge. We find no prejudicial error in the case.

The judgment of the circuit court is affirmed, with costs to plaintiff.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    PATTERSON v. KASPER.
    1. Infants — Rescission of Contract — Fraud.
    Before reaching majority, for fraud in the inception of the contract, a minor may rescind the purchase of a horse which proved to he vicious:
    2. Same — Fraud—Assumpsit.
    Notwithstanding that defendant was likewise an infant and his tort may have arisen out of a contract that he has fraudulently induced the plaintiff to enter into, an action might he maintained in assumpsit to recover back the price paid for a horse, plaintiff having elected to rescind and return the animal-to the vendor.

    3. Sanes — Actions—Fraud—Contract.
    Assumpsit does not, however, lie against a defendant who participated in fraudulent misrepresentations upon the sale of a horse, but who received none of the proceeds of the sale that were paid to the codefendant and by him retained.
    Error to Clinton; Searl, J.
    Submitted October 16, 1913.
    (Docket No. 53.)
    Decided October 2, 1914.
    Assumpsit by Erford Patterson, by next friend, against Joseph Kasper and another. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      William M. Smith, for appellant.

      Lyon & Moinet, for appellees.

       On the question of the liability of an infant for tort in inducing a contract, see note in 57 L. R. A. 675.

   Bird, J.

The plaintiff, a minor, claims that he purchased from Joseph Kasper, a minor, and Tyler Georgia, an adult, a horse for $158, upon the representations of both of them that the horse was sound and all right. The horse turned out to be a vicious kicker, and when the plaintiff discovered this, he returned the horse to the defendants and demanded the return of his money. The demand being refused, this suit was commenced to recover it. The declaration is in assumpsit, and contains a special count, and also the common counts. At the «conclusion of plaintiff’s case a verdict was directed for the defendants on the ground that, the plaintiff being a minor, he could not rescind his contract during his minority. Upon a motion for a new trial the court further held that plaintiff’s testimony did not make a case against defendant Georgia, and further, that no recovery could be had against the defendant Kasper by reason of his infancy. Therefore three questions are presented in this court:

(1) Can an infant rescind his contract for the purchase of personal property on the ground of fraud during his minority?

(2) Is the infant defendant liable in such action?

(3) Did the testimony make a case against defendant Georgia which should have been submitted to the jury?

1. The question as to whether an infant can rescind his contract during his minority on the ground of fraud was recently determined by this court adversely to the contention of the defendants in the case of Stoll v. Hawks, 179 Mich. 571 (146 N. W. 229).

2. The rule is general that infants are liable for their torts in the same manner as adults. 22 Cyc. p. 618. But it is argued by defendants that this is a “matter arising ex contractu, and, even though it be infected with fraud, it cannot be changed into a tort in order to charge the infant by a change of remedy.” In a case like the present one it is said a safe test to apply is: “Can the infant be held liable without directly or indirectly enforcing his promise?” Rice v. Boyer, 108 Ind. 472 (9 N. E. 420, 58 Am. Rep. 53). The plaintiff is not suing on the contract, nor is he relying thereon as he would have done had he affirmed the contract and brought an action for damages based upon the fraud of the defendants. He has, on the other hand, rescinded the contract, and he is now engaged in an effort to reclaim his money which found its way into defendant Kasper’s hands through the false and fraudulent representations of both defendants. Measured by the foregoing test, there would .seem to be no sufficient reason why a recovery should be denied on this ground.

Some observations made by the court in the case of Shaw v. Coffin, 58 Me. 254 (4 Am. Rep. 290), will be interesting here, in view of the contentions of the defendants. In that case the action was assumpsit based on certain promissory notes which had been given by an infant to cover moneys which he had wrongfully taken. The court said in part:

“Is an infant liable on assumpsit for money stolen, or for the proceeds of stolen property when converted into money? The thief of full age is so liable. The owner of property stolen, and converted into money by the thief, may maintain assumpsit against him for money had and received. Howe v. Clancey, 53 Me. 130; Boston, etc., Railroad Corporation v. Dana, 1 Gray [Mass.], 83. The reasons upon which these decisions rest apply equally to the minor as to the adult. _ If the minor is liable for his torts, it is immaterial to him in what form of action recompense is sought. If for the purposes of justice the tort may be waived in the case of the adult, and assumpsit maintained, it can, to accomplish the same great purpose, be equally well waived as to the minor. It would be a reproach to the law, if a minor, when arrived to years of manhood, were to be allowed to escape from the payment of what is due, by the plea that he had stolen the money demanded of him when under age. In Walker v. Davis, 1 Gray [Mass.], 506, Thomas, J., says:
“ ‘The defendant obtained the possession of her (the cow) by-fraud, a fraud to which infancy would constitute no defense. Supposing no contract to have been made, the plaintiff then had the election to bring his action for the tort, or, as the cow had been sold before the note became due, to waive the tort and bring assumpsit.’
“In Towne v. Wiley, 23 Vt. 359 [56 Am. Dec. 85], referring to the liability of infants for torts, Redfield, J., in delivering the opinion of the court, says:
“ ‘In all the cases, then, upon this subject, it will be found that the courts profess to hold infants liable for positive, substantial torts, but not for violations of contracts merely, although by construction the party claiming redress may be allowed, 'by the general rules of pleading, to declare in tort or contract at his election.’
“The precise question here presented arose in Elwell v. Martin, 32 Vt. 217_, and the court there held that the defendant was liable in assumpsit for money tortiously taken by him during his infancy.”

3. We think the trial court was right in holding that no case was made by the plaintiff against the defendant Georgia. The record shows, as plaintiff contends, that Georgia made representations respecting the horse which it is claimed were false, but it does not show that Georgia was the owner of the horse, nor that he received any of the purchase price. If this were an action of fraud, the question as to whether he was the owner of the horse or had received any of the purchase price would be of no importance if he made false and fraudulent statements which induced plaintiff to part with his money, but this is an action of assumpsit wherein plaintiff is seeking to recover his own money which it is agreed was paid to defendant Kasper.

For the errors pointed out, the judgment of the trial court will be reversed, and a new trial ordered.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.