author: Stone, J.

text:
      In re ABEL’S ESTATE. ABEL v. ROOSENRAAD.
    1. Estates op Decedents — Executors and Administrators — Claims — Appeal prom Judgment op Commissioners on Claims.
    Portions of a claim allowed by the commissioners on claims, are, on appeal to the circuit court, correctly included in the verdict by direction of the court, in favor of the claimant who appeals, no objection being made to the justice of such allowance or appeal taken by the estate.
    2. Same — Trial.
    Whether claimant was entitled to an item for work done in clearing land, was properly left, under conflicting evidence, to the jury.

      3. Same — Parent and Child.
    As evidence of the value of services rendered by claimant and of the claim of claimant that they were not gratuitously rendered, notes executed by claimant’s father to him, and deposited with a third person without delivery, were competent and admissible, it also appearing that there was evidence of a promise made by the father to compensate his son for the services.
    4. Same.
    It is not essential to a recovery that claimant should establish a formal contract: if the facts and circumstances attending the performance of the work and its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted under the understanding that they were to be paid for, the parent is liable.

    5. Same — Bills and Notes — Execution.
    Whether a note of $700 was void for want of delivery was an immaterial question, where claimant made claim for the value of his labor, without relying on the note except as evidence of the intent of decedent and in support of testimony tending to prove an agreement to compensate claimant.
    6. Same — Evidence—Admissions.
    It was not reversible error to exclude from the evidence defendant’s offer to show that claimant originally prepared a claim for less than the amount he sought to recover in the case, and started to file it but erased that portion, which was not, so far as the record shows, presented to the commissioners.
    7. Same — Trial.

      Held, also, that an inadvertent statement of the trial court to the jury as to the amount of damages, being immediately corrected, did not warrant the reversal of the judgment.
    Error to Ottawa; Cogger, J., presiding.
    Submitted October 9, 1912.
    (Docket No. 9.)
    Decided November 8, 1912.
    Henry Abel presented a claim against the estate of John W. Abel which was allowed in part by the commissioners on claims. Claimant appealed to the circuit court where judgment was rendered for the full amount claimed. Defendant estate, by Cornelia Roosenraad, executor, brings error.
    Affirmed.

      Benn M. Corwin, for appellant.
    Smedley, Linsey & Lillie, for appellee.

       The authorities on the_ general question of the implication of agreement to pay for services rendered by relative or member of household, are reviewed in a note in 11 L. R. A. (N. S.) 873.

   Stone, J.

This claim was filed in the probate court of Ottawa county against the estate of John W. Abel, deceased, to recover for services performed by claimant for his father, in his lifetime, after claimant had become 21 years of age. John W. Abel died leaving a widow and ten children — two by a former wife and eight by his widow. During the father’s lifetime he had made several wills, each time disposing of his property in a different way. So far as appears by this record, in every will except the last one, the testator gave each of his boys a piece of land, and provided that each boy should pay a certain amount of money to one of his sisters. The last will was made March 17, 1910. By it the testator gave to his widow one-third of all his estate, and the remainder was to be divided equally among all of his children, share and share alike. The testator died in September, 1910, and the last will was duly admitted to probate.

After the will was probated, claimant went to the office of the executor, who was also the justice of the peace who drew the will and the notes hereinafter referred to, and made proof of claim based on the two notes as such, and some small items of expense that had arisen about the time of the father’s death, in connection with the farm that claimant had occupied. At the first meeting of the commissioners on claims some question was raised in regard to claimant’s claim, and he withdrew the first claim filed and made out a new one, as follows:

Expenses on 80 acres of land of J. W. Abel, and for moneys expended in clearing, seeding and planting same over and above amount seeded and planted and cleared when taken.
To clearing 6 acres @ $18.00......................$108 00
To dynamite..................................... 2 25
To wheat, 8 bushels @.95......................... 7 60
To clover........................................ 7 00
To timothy........................................ 1 50
To 15 loads of gravel @ 1.50....................... 22 50
To 60 rods ditching @ .75 a rod................... 45 00
$193 85
-Te^and-l-aaGB-ths-l-aber-far-Johr ~W Í be! at f20C. OC—
-per — year-pprev-ious^-glaima-E-t’s-marT^age.-$4-265-09-
m*******

This claim was verified by the claimant by an affidavit attached to the claim signed by him and sworn to, in which he swore that there was then due and unpaid on same, over and above all legal set offs, the sum of $193.85. After further consideration claimant struck out the item of $1,266 for labor, as appears by the erasures, and filed another claim for labor based on the two notes, as follows:

To services performed in labor for John W. Abel, as evidenced by two notes given by John W. Abel to Henry Abel, one of date of June 2, 1908, for $700.00, and one of date Of April 21, 1910, for $1,000.00.....$1,700 00

This was verified in like manner, the affidavit stating that there was then due and unpaid on said claims, over and above all legal set-offs, the sum of $1,700. The commissioners on claims rejected the first and last items of said first claim and allowed the remaining five items, amounting to $40.85.

On the second claim the commissioners rejected $700, and allowed $1,000, so that the commissioners allowed $1,000 for labor and $40.85 for money expended, making a total of $1,040.85, but rejected the items for clearing and ditching, and the $700 claimed to be for labor and services represented by the note of June 2, 1908. From this allowance by the commissioners the claimant appealed to the circuit court. On the trial in the circuit court the attorney for the claimant, in his opening statement to the jury, used the following language:

“Now, in presenting these claims to the commissioners, Henry was informed that the notes were no good, that they didn’t bind the estate. They were left with Mr. Roosenraad; they were not delivered. And so he putin a claim for services, for staying on the farm so many years after he was 21, amounting to |1,700. He calls it $1,700, not because it figures out exactly that, but because his father intended him to have it, having left two notes amounting to $1,700, and then he puts in a claim for things that he did after his father made his last will, and after these notes were given. He presented a claim to the commissioners on claims for this, $1,700 and the $193.85, making a total claim put in of $1,893.85. The commissioners allowed $1,040.85, which leaves $853 that we are suing for today.
The Court: Are you claiming the whole amount here?
Mr. Smedley: I went on the theory that the balance that was not allowed is all that we are litigating; that is, $853. ■
The Court: Is there any appeal here by the estate ?
Mr. Corwin: No, but I think you can’t separate this claim. He has got to prove his whole claim.
Mr. Smedley: We can prove the whole claim, then have the jury subtract, or we can subtract $1,040.85, what the commissioners have allowed.”

Upon the trial it was the claim of the claimant and appellee that when he was 21 years of age, in 1899, he was about to leave home; but his father told him that he would like to have him (claimant) stay at home and work, and he would give him more than he could earn elsewhere; and that he remained at home and worked for his father until his marriage. It is also claimed that the father promised to give claimant 80 acres of land, and the father built a house on th9 piece of land about the time of claimant’s marriage in 1905; that claimant and his wife moved onto the land soon after their marriage and have lived there ever since; that claimant had improved the house and farm, believing, or supposing, that it belonged to him.

By a will made in 1908 the father gave this same 80 acres of land to claimant. There was testimony tending to show that the father.had frequently said that he intended to compensate claimant for his services. At the time of making the will of 1908 testator made the following note:

“ 700.00 Zeeland, Mich., June 2, 1908.
“After my death I promise to pay to the order of Hendrick Abel the sum of seven hundred dollars.
his
“John W. x Abel. mark
“ Signed in presence of:
“ C. Roosenraad.
“ H. P. Karsten.”

There was evidence that the father left this note with the justice of the peace who had drawn the will and note. The justice testified that this note, with others to other children, was left with him until testator’s death; then he was to notify claimant about it.

At the time of making the will of March 17,1910, the will of 1908 was destroyed; but this $700 note was not taken up. When the last will was made it was prepared by the same justice. About a month after it was signed and executed the testator came to the justice and made an other note, as follows:

“$1,000.00 Zeeland, Mich., April 21,1910.
“ After my death I promise to pay to the order of Hendrick Abel one thousand dollars for labor and other services rendered since his 21st birthday to this date, over and above the $700.00 note previously given.
his
“John W. x Abel. mark
“ Signed in presence of:
“Nellie Roosenraad.
“Cornells Roosenraad.”

Upon this subject the executor and justice, having been called as a witness for the claimant, testified, among other things, as follows:

“At the time this will was made in March, 1910, the old will was destroyed. I tore it up at his request. He was alone. I don’t know who came to town with him. I think Henry came with him to town, because, if I remember right, he called for him before he left. This note (referring to the $1,000 note) is dated in April. About a month after he made the will he came to my office and made this note for Henry for $1,000.
“Q. What talk did you have with him at that time? What did he say when he first came in ?
“A. He told me at that time that under the circumstances, seeing that he had provided one-third for his Wife, the balance to be divided equally among the 10 children, that Henry ought to have something for his work, and he said, ‘ Now you figure up how much that would be,’ and if I remember right, at $125 a year it came to $1,000, and he said: ‘ Well, then he has got to have that for his labor.’ Then I drafted that note. I wrote it the way it reads; that he was to have that over and above what — as you find it there.
“Q. Over and above the $700 ?
“A. Yes, but the intention was—
“Q. Never mind what the intention was. What did he say ?
“A. He told me at the time that it did not include the $700. We, as Hollanders, may have a different way of expressing our ideas.
The Court: Mr. Witness, just answer the question, and tell what he said to you.
“A. He said that $700 was not included; that he was to have that $1,000 for his labor.
“ Q. He was to have the $1,000 besides the $700 ?
“A. No, sir; he didn’t say that.
“Q. Well, you wrote it that way?
“A. That is what I wanted to tell. Of course, if I can’t say it, why then I won’t say it.
The Court: You have a right to tell what he said and what you actually did, but conclusions and theories leave out; that is for the jury.
“Witness (continuing): After having our talk I wrote the note ' for labor and other services rendered for me since his 21st birthday to this date, over and above the $700 note , previously given.’ He did not tell me at that time that he had given Henry 80 acres and built him a house on it, nor at the time I drew the first will. He only told me that I was to draw the will, that Henry was to have a certain piece of land, but he didn’t say where.
“Q. In regard to the $1,000 note, when he made that, that was the time he made the last will, was it ?
“A. No, sir; the last will was made in March, and this was given in April. At the time he made that note, he did not take it with him. He left it with me, and I filed it with the other papers. It was in my hands at the time he died. It was to be left with me until he died; then I was to notify the boys about it.
The Court: Were you to give it to Henry ?
“A. I was to leave it with the other papers until the will was to be probated.
“Q. What were you to do, give it to Henry ?
“A. I was to notify the boys about it, that they had those notes in my place. I called their attention to it, too, at that time. After their father died I wrote to them, and when they came in I said their father had left these two notes for them. I told Henry that his father had left two notes there, one for $700 and one for $1,000. I showed them to him. He had them in his hands. He left them with me. When I say ‘ he ’ I mean Henry. I showed him the whole papers, the will and the notes, and he took them and read them and handed them back to me.”

The notes being offered in evidence, the following occurred :

“Mr. Smedley: I think that they ought to be admitted in evidence. I offer them also for the purpose of proving how much the old man wanted him to have. This last note recites what it is for.
“Mr. Corwin: If your honor please, they are not admissible because there never was any legal delivery, and, no matter what the old man may have some time had in his mind that he intended to give him, it didn’t make a perfect gift before his death, it cannot take effect after-wards, and there never was a delivery here, and therefore the note has no value either as evidence or for any other purpose.
The Court: Well, gentlemen, I believe that the two notes are admissible. I don’t understand that the claimant here is suing upon these notes as expressed contracts.
Mr. Smedley: No, I am not.
The Court: I think they are admissible as bearing on the claimant’s claim.
Mr. Corwin: Does your honor hold that those are admissible as evidence of debt against the estate ?
“Mr. Smedley: I didn’t offer them for that purpose, and the court says he doesn’t admit them for that purpose. * * *
The Court: I asked counsel if he depended upon these notes as expressed contracts binding on the estate. He said he did not. Now, the ruling I made was with that idea in view. I believe, in view of the particular language of the second note, that these notes are evidence, that is, competent to go to the jury as bearing on the claim of the plaintiff here — not necessarily conclusive, as a note should be. The objection will be overruled and the notes received in evidence.” An exception by contestant’s counsel.

There was a good deal of conflict in the testimony with reference to the amount of services rendered by claimant, and the value thereof, and especially as to the ditching and clearing of land, and as to when the latter labor was performed, whether before or after making the last note.

The claimant’s wife testified generally as to the services performed by the claimant and herself upon the farm, where the house had been built and where they resided, and she testified to conversations had with the testator after making the last will, in which the following occurred :

“Q. Now, afterwards, did you learn that a new will had been made and the land taken away from Henry ?
“A. Yes, sir; father told me. He came down there all broken up one day, and he said that the things had been taken away from Henry, the land; but he had fixed it so that Henry was to have $1,700 for his wages. He thought that that would make it about even.”

There was testimony tending to show that Henry worked the farm, which he occupied, on shares.

The trial at the circuit resulted in a verdict and judgment for the claimant for the full amount claimed, except for the item of ditching. There was also included in the verdict an item of $29.88, which we shall have occasion to refer to later.

The contestant, being the executor, has brought the case here upon writ of error, and there are upwards of 20 assignments of error. The case, however, has been discussed by appellant under certain heads, and we will consider the questions in the order in which they have been discussed, as they are covered by the assignments of error. We quote from the brief of contestant’s counsel as follows:

“ It is conceded on the part of the contestant that the deceased intended to pay the claimant for his labor on the farm after he was 21 years of age, and before his marriage. This appears from the testimony of contestant, in regard to the making of the $1,000 note by the father, and what the father said at the time the note was made. The only dispute is in regard to the amount which was to be paid for the labor. Contestant claims it was plainly fixed at $1,000 by the father, and that the note for $700 was intended as a gift over and above the labor. Contestant also claims that there was no contract or agreement to pay for clearing or ditching, and that the monthly settlements between father and son rebut any such agreement.”

No time need be spent upon the item for ditching, as it is conceded by the attorneys for both parties that this claim was rejected by the jury, as it had been by the commissioners. •

The next subject discussed by contestant and appellant is an item of $29.83, which was submitted to the jury. The appellant claims that this was improperly submitted to the jury by the trial judge, and that the record is barren of any suggestion of it until it appears in the charge of the court. Upon that subject the circuit judge in his charge said:

“ It appears in this case that on the 19th day of September, the father died, leaving an estate and some heirs. One of them is the claimant or plaintiff in this suit. It further appears in evidence, gentlemen of the jury, that in due course of time the plaintiff filed with the commissioners on claims, appointed by the probate court in that estate, two claims, one amounting to $1,893.85, and the other amounting to $29.83. It is admitted here — it is a proven fact upon this record — that the claim of $1,893.85 was allowed at $1,040.85; that the claim of $29.83 was allowed by the commissioners. From that allowance there has been no appeal taken by the estate. Consequently, in any event, gentlemen, it will be your duty, under statements of counsel in open court, and under the undisputed evidence, to render a verdict in this case for the claimant for the sum of $1,040.85 plus $29.83, or $1,070.68. There is no dispute about that.”

An examination of the original record, in the hands of the clerk of this court, shows that in the certified copy of the record in the probate court, of the allowances and dis-allowances of claims, by the commissioners, the following appears:

It further appears that, on the attention of the attorney for appellant having been called to the omission to print that part of the record, the following stipulation was signed and filed in this case: (After entitling the case).

“In the above entitled cause the record was printed and there was omitted from the same the return of the probate court filed with the clerk of the circuit court for the county of Ottawa, and it is hereby stipulated by and between the parties to this suit, through their respective attorneys, that counsel on either side may have the right to refer to said return of the probate court, the same as if said return was printed in the record, and without the necessity of amending the printed record by adding, the same thereto.”

It is very evident that in charging the jury the circuit judge had before him, or at least had in mind, the report of the commissioners, which shows the allowance of the claim of $29.83 unappealed from. He further states that the jury are to include that in their verdict under the statements of counsel in open court, and under the undisputed evidence. Nowhere is it claimed that this is an unjust claim against the estate of the deceased. It was a part of the record of the proceedings before the court. The allowance was unappealed from. We see no injustice or impropriety in allowing it to stand as a part of the verdict and judgment in the case. It carried no interest according to the direction of the circuit judge. Under the circumstances, we think there was no error with reference to this item.

The next item discussed is that of clearing the land. This, it will be remembered, was the first item in the claim which had been disallowed by the commissioners. The evidence upon the subject of what this labor was worth, when it was performed, and whether before or after the making of the $1,000 note, was quite conflicting, and there was evidence pro and con upon the subject. The ruling of the court limited this recovery to clearing done after the date of the last note. Of the merits of that claim the jury were the judges, and, as counsel for appellant has simply discussed the merits of the question, we must say that it was a question properly submitted to the jury-

The next item in dispute was with reference to the so-called $700 note, and the interest thereon. This subject presents a question of fact, nothing more nor less. The question was fairly submitted by the court to the jury, and we think properly so, and we find no error in the admission of evidence upon the subject. The notes were introduced in evidence in connection with the claim of the claimant, that the father intended to compensate him for the labor performed, and upon the theory that the notes were some evidence of what the father considered the services of the claimant worth. There being evidence of a promise to compensate on the part of the father, we think this subject has been covered by this court in the following cases: In re Williams’ Estate, 106 Mich. 490 (64 N. W. 490); Sammon v. Wood, 107 Mich. 506, 511 (65 N. W. 529).

In the first ab'ove-cited case this court held that where a promise is made to compensate for services by will, and the promisor dies without so providing, the value of the services may be recovered as a claim against the estate, and a verbal contract to convey land may be resorted to in an action to recover for such services, for the purpose of negativing the presumption that they were gratuitously rendered.

In the last cited case it was held that an agreement to pay for services at death is valid and enforceable against the estate of the promisor. It is not essential to a recovery by a child for services rendered to a parent that a formal contract be established in relation thereto; but if the facts and circumstances attending the performance of the work and in its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted under the understanding that they were to be paid for, the parent is liable.

Counsel for appellant next discuss the question as to whether the #700 note was a valid gift, claiming that it was void for want of delivery and for want of a sufficient consideration. No time need be spent upon this question, because it appears that it whs the claimant’s position that his claim was not based upon the two notes, but was one for personal work and labor performed during the eleven years that he worked for the father after he became of age, being for six years before his marriage, and about five years after he married, while living upon the farm; the only object of introducing the notes being to show the language used by the deceased, and to support the testimony in addition to the notes themselves, that the father intended his son to have at least #1,700, the amount of the two notes which he had left with the justice of the peace. It is sufficient to say that there was some evidence in support of this claim, and thp question was properly submitted to the jury.

Under the head of “ Admissions,” counselfor appellant next discusses the eleventh assignment of error, based upon the refusal of the court to allow claimant’s erased claim to be read to the jury. The files in the case showing the claims being in evidence, the following occurred:

“Mr. Corwin: For the purpose of the jury, then, I will read the part which was put in here, and which was afterwards stricken out, as testified to by this witness.
Mr. Smedley: I object to him reading to the jury a claim that is not filed.
Mr. Corwin: It shows the claim which he started to file, and which he changed.
The Court: Are you simply reading what is on that paper ?
Mr. Corwin: What was put in and stricken out. We have a right to consider it as bearing on the bona fide claim of this man as to what his claims were and what he understood, and whether he understood it one way one minute and another way another minute; one thing one day and another thing the next day. The jury have a right to consider whether or not he is acting squarely in filing this claim.
“ The Court: It already appears that he did change his claim.
“Mr. Corwin: Here is a claim where he goes to work and files a claim for a certain number of years’ work, at a certain price per year, and then he strikes it out and makes up his mind he wants something else.
“ The Court: Just a minute, gentlemen. It is perfectly competent, Mr. Corwin, to show that this plaintiff had filed a claim different from the claim that is here now. That would be perfectly competent, or if he made statements at any other time differing from his claim here; but since because there is something in there erased, that is not the claim. It is erased as much as it could be. It is supposed to have been wiped out entirely. It is simply a method of erasure, that is all. I don’t believe that is a paper to exhibit to the jury. They have no right to consider it at all.
“Mr. Corwin: It shows, if your honor please, the value he placed, himself, on his own wages.
The Court: It is simply a blank. You wouldn’t have any right to consider it, any more than you would turn over here and consider it on that blank sheet there.
“Mr. Corwin: Note an exception.”

Appellant’s counsel claims that the question is governed by Ludlow v. Pearl’s Estate, 55 Mich. 312, 317 (21 N. W. 315), where it was held that it was proper for the defense to show that the claim was originally smaller; that, while such showing would not have been conclusive, the original claim would be in the nature of an admission as to value. We have examined the printed record in the above case, and find that there the change and erasure were made during the examination of witnesses before the commissioners, “near when the evidence was all in.” In the instant case, in the language of appellant’s counsel: “ It shows the claim which he started to file, and which he changed.” We think the cases are not similar. It also appears that the claim was never verified except for the amount of $193.85, and it is fair to infer that the claim for $1,266 was never presented to, or filed with the commissioners. It may be doubted therefore whether it was a proper paper to be presented to the jury. In view of the offer of the court to permit counsel to show any statements made by claimant at other times, we are of opinion that the ruling was not reversible error.

The only remaining subject discussed by appellant’s counsel is that of a suggested verdict. The question arose in this way: In the course of its charge the court said:

“Was there a contract under the rules which I have already given you ? If there wasn’t a contract, return a verdict of $1,070.68. If there was such a contract, then what were the services worth ? Were they worth more than the claims allowed ? If they were, add that amount to the $1,070.68 and figure interest on the $1,700 and add it up and announce your verdict.
“Mr. Smedley: Your honor, you said, ‘Find out how much it was worth, and then add interest on $1,700.’
Mr. Corwin: I noticed that myself.
“Mr. Smedley: You should have said: ‘Figure interest on that amount.’
The Court: Did I say $1,700 ?
Mr. Smedley: Yes.
Mr. Corwin: In other words, suggesting a verdict to the jury.
The Court (to the jury): In the first place determine what amount this plaintiff is entitled to, and then add interest on that at 5 per cent., leaving out the small item of $29.83, and whatever you find, if anything, in regard to the ditch and the clearing of land. I will read a request handed up on that subject: * If you find that the labor was to be paid for after the death of the father, and you find that the labor is $1,700, due at the death of the father, then he is entitled to interest at 5 per cent, on the $1,700, or such other sum as you find is right, from the death of the father, namely, one year and one month. No interest can be allowed on the other small items, the $29.83, the $40.85, and the other item, if you find them in favor of the claimant.”

Counsel for appellant strenuously urges that here was an intimation of what the court believed the evidence established, and that it was reversible error, and he cites many cases on the subject. In other parts of the charge the court had fully left to the jury the amount to be found for labor and services, if anything. We are of opinion that the court here made an inadvertent remark, which it promptly corrected, when its attention was called to it, and that no error, sufficient to reverse the case, was thereby committed. This court has held that, in determining whether remarks made by the court in the course of a trial were improper and prejudicial, the context, and the circumstances under which they were uttered, must be considered. Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887). It would be unfortunate to litigants, if an inadvertent remark of the trial judge, corrected at once, like the one we are considering, should be held to be reversible error.

We think that the case was fairly tried, and, finding no reversible error in the record, the judgment of the circuit court is affirmed, with costs against the estate.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    CRAWFORD v. WAYNE CIRCUIT JUDGE.
    1. Bankruptcy — Trustees—Judgment Creditor.
    Trustees in bankruptcy under 30 U. S. Stat. 551, as amended by Act June 25, 1910, chap. 412, § 8; 36 U. S. Stat. 840, have the same rights, remedies, and powers as judgment creditors holding execution duly returned unsatisfied.
    2. Creditor’s Suit — Discovery—Answer to Interrogatories.
    Upon a motion to compel a discovery by a trustee in bankruptcy as complainant in a judgment creditor’s bill, Chancery Rule 30 (b), vests in the trial court a judicial discretion to compel a further or more specific answer, and its action denying such motion will only be'reversed on mandamus if there is an abuse of discretion.
    3. Motions — Special Motion.
    A special motion is one whioh is not a matter of course to grant, but which the court in the exercise of its discretion may, on the showing made, either grant or refuse.
    Mandamus by Milo H. Crawford, trustee in bankruptcy of the estate of Fred C. Ross, to compel Henry A. Man-dell, one of the Wayne circuit judges, to vacate an order denying relator’s application for a more specific answer and discovery in a judgment creditor’s suit.
    Submitted June 22, 1911.
    After the death of Hooker, J., the case was re-submitted on November 22, 1912.
    (Calendar No. 24,659.)
    Writ denied November 27, 1912.

      Harry M. Lau and Abram W. Sempliner (Keena, Lightner & Oxtoby, of counsel), for relator.

      E. T. Berger, for respondent.
   Steere, J.

In this proceeding relator seeks by mandamus to compel the circuit court of Wayne county, in chancery, to set aside an order made by it on the 17th day of May, 1911, in which it denied relator’s motion for an order to compel certain defendants in a chancery suit there pending, to more specifically answer, under oath, certain interrogatories touching allegations of fraud, contained in a creditor’s bill of complaint filed against them for discovery, and to make a more full disclosure of facts in relation thereto. The principal question involved is whether, under the provisions of sections 436 and 437, 1 Comp. Laws (4 How. Stat. [2d Ed.] §§ 11953, 11954), in connection with subdivision “b” of Chancery Rule 30, it is obligatory or discretionary with the trial court to grant complainant’s motion for an order requiring further disclosure and more specific ahswer setting forth the particular facts called for in a creditor’s bill.

On the 1st day of August, 1910, relator was duly appointed trustee in bankruptcy of the estate of one Fred. C. Ross, who was adjudicated a bankrupt by the United States district court for the eastern district of Michigan. The schedule of assets and liabilities filed in bankruptcy proceedings by said Ross represented that he was not possessed of any assets and was owing debts amounting to over $10,000. Relator, in his capacity as trustee, succeeding in collecting into said estate, for the benefit of its creditors, in money and property between $2,100 and $2,200, on February 6, 1911, filed a bill of complaint in the Wayne county circuit court in chancery against said bankrupt, his brother George W. Ross, Daniel A. Ross, his father, and the Michigan Lumber Yard, for the purpose of collecting for said estate certain equitable assets alleged to belong to said bankrupt and to be held by the other defendants for the purpose of defrauding the creditors of said estate.

The bill was filed under authority of the bankruptcy law of 1898, § 47, as amended on June 25,1910, the material portion of which reads as follows:

“ Trustees as to all property in the custody, or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies and powers of a judgment creditor holding an execution duly returned unsatisfied.”

It was alleged that the property sought to be reached by said bill was not within the custody of the bankruptcy court, but unlawfully withheld, and that therefore the trustee stood in the same position as a judgment creditor, and had the same rights under said sections 436 and 437 to file a creditor’s bill for the purpose of reaching equitable assets of said estate wrongfully withheld under the provisions of said section 436. The bill of complaint demanded a sworn answer by all of said defendants, and sought discovery from them in relation to matters alleged to be entirely and peculiarly within their knowledge by reason of their relationship with the bankrupt.

Complainant claimed that the defendants in their answer ignored and refused to answer certain interrogatories propounded in said bill, simply filing a general unsworn answer denying that complainant was entitled to 'the relief prayed for. Complainant therefore filed a motion in the circuit court on the 26th of April, 1911, asking for an order that defendants file a sworn answer and specifically make reply under oath to certain interrogatories in said bill. This motion was at first denied, but, on its being subsequently renewed, the order denying the same was set aside, and defendant Daniel A, Ross was required to make answer under oath within two weeks; the remainder of the relief asked for being again denied. That relator, as-trustee in bankruptcy, stood in the position of, and with the same statutory rights as, a judgment creditor, with an execution returned unsatisfied, seems clear.

For consideration of the question involved, it need only be said of complainant’s lengthy and carefully prepared creditor’s bill that it contains such averments, allegations, and interrogatories as to render Chancery Rule 30 and said sections of the statute relative to creditor’s bills applicable, and complainant’s motion proper in practice. If the court, when required to act upon such special motion for further answer and disclosure, had no discretionary-power, the proceedings were in such form as entitled complainant to the order asked for. If the court was vested with authority to exercise judicial discretion, we cannot hold that there was an abuse of the same. The return of respondent to the order issued herein to show cause why a writ of mandamus should not issue shows, amongst other things, that a sworn answer of Daniel A. Ross was filed as ordered and is now of record with a verified answer of the other defendants; that the answer of said defendants specifically denies each and every allegation of fraud contained in said bill; that said answer consists of 38 paragraphs, each one of which categorically answers the corresponding paragraph in the bill of complaint, and “respondent believes that the petitioner’s bill of complaint has been fully and specifically answered by the answer filed by the defendants for the purposes of this case, by reason whereof more specific answers to the separately enumerated paragraphs in the prayer for relief are unnecessary and improper and not contemplated by the requirements of our practice; ” that, as is shown by the bill of complaint—

“There has been full, complete, and exhaustive examination of the affairs of the bankrupt in the bankruptcy court before the referee thereof, at which examination George W. Ross, Fred O. Ross, and the officers of the Michigan Lumber Yard were examined and at which time all the facts alleged in said bill of complaint were disclosed and the complainant given an opportunity to fully examine and cross-examine said witnesses; that by reason of said examination this respondent believes that all the matters to which discovery is sought in this action are as well within the knowledge of the petitioner as within that of the defendants to this cause. * * * The petitioner’s bill of complaint, while alleging acts of fraud, all of which the answer of the defendants under oath specifically denies, makes no showing of any necessity for such specific answer and discovery. It seems proper to this respondent that, until there has been a trial and adjudication in open court of the issues joined by the defendants’ answer, no drastic orders or requirements should be imposed upon the defendants, and until such trial and hearing, at which time the complainant has full, complete, and adequate opportunity to examine the defendants in open court, to summon witnesses, and to produce testimony, it cannot be said that the complainant and petitioner is in any manner injured or justice retarded.”

The sections of the statute relied upon by complainant are as follows:

“ (436) Sec. 24. Whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or things in action belonging to the defendant, and of any property, money or things in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or things in action, or the payment or delivery thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant.
“(437) Sec. 25. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the amount remaining due on such judgment, out of any property, money, or other things in action belonging to the defendant, or held in trust for_ him, with the exception above stated, which shall be discovered by proceedings in chancery, whether the same were originally liable to be taken in execution at law or not: Provided, this act shall not apply to property exempt from execution.”

Subdivision “ b ” of Chancery Rule 30 provides that:

“ (6) When the complainant in such creditor’s bill shall have a right by statute to a discovery and disclosure of facts from the defendant, the defendant shall in his answer fully and explicitly set forth the particular facts called for. If he fail so to do, the complainant may have his right to a further answer and disclosure determined by the court on special motion, and the court may enforce its order thereon by the attachment of the defendant, and may strike such insufficient answer from the files.”

This rule prescribes the practice to be followed in moving the court to exercise the authority conferred under said section 437 to compel discovery.

If relator’s contention is correct, it follows that, when a special motion is made under Chancery Rule 30 for further answer and discovery, complainant is entitled, as a matter of right, to the order asked, which then is an order of course, in effect a common order, made and entered in the discretion of the solicitor, and not of the court, on a formal showing in compliance with the course of procedure defined by rule and statute. While the exact question has not heretofore been squarely presented, we do not think the construction contended for has been recognized in previous cases before this court where those provisions of the statute and rule relative to creditor’s bills were under consideration; but rather, so far as any intimation is found, to the contrary. The general subject is remotely touched upon in the following cases: Turnbull v. Lumber Co., 55 Mich. 387 (21 N. W. 375); McCreery v. Bay Circuit Judge, 93 Mich. 463 (53 N. W. 613); Remick v. Bradley, 119 Mich. 399 (78 N. W. 326); Avery v. Cemetery Co., 127 Mich. 125 (86 N. W. 538); Saginaw County Sav. Bank v. Duffield, 157 Mich. 522 (122 N. W. 186, 133 Am. St. Rep. 354). The case coming closest to the question before us is McCreery v. Bay Circuit Judge, supra, which recognizes that the remedy by discovery is generally obsolete by reason of the statute making parties to a suit competent witnesses, but holds that these statutory provisions in regard to judgment creditor’s bills, authorizing discovery in such cases, are still in force. It was there said:

" Furthermore, discretion to compel such discovery is lodged in the court, and his return shows that he exercised that discretion, although not to the full extent that he would have done had he not regarded the practice obsolete. As already stated, complainants can compel discovery by causing to be produced the books and papers relating to the transactions, and by the testimony of witnesses before the court, * * * and when it is remembered that the allegations of fraud in the bill are mainly upon information and belief, and are expressly denied, _ this court ought not to interfere by the discretionary writ of mandamus.”

In the early case of Hubbard v. McNaughton, 43 Mich. 220 (5 N. W. 293, 38 Am. Rep. 176), it was said by Justice Campbell :

“No universal rule can be laid down where most of the facts must necessarily be within the knowledge of defendants. Under the old practice, before parties became competent as witnesses it was often necessary to draw out such matter by discovery, and it is still competent, although not common, to do so.”

To hold that the trial court has no discretionary powers under Chancery Rule 30 would be to lay down a universal rule of law relative to discovery.

Respondent returns that upon hearing the motion, in the exercise of his best judicial judgment and discernment, acting as seemed to him just and proper under the circumstances, he did not deem it expedient nor demanded by justice or equity to then order discovery and further answer, and therefore denied the motion. The statute does not say the court must, but that it “ shall have power to,” compel such discovery; the decisions say in such cases “no universal rule can be laid down,” and “ discretion to compel such discovery is lodged in the courtthe rule says the complainant may have his right to further answer, etc., “determined by the court on special motion.”

Chancery Rule 30 was promulgated by this court, and we can assume that the technical legal terms there found were used, and intended to be understood, according to their long-recognized and well-settled meaning as words of practice. It is to be noted that the application to the court is required to be made by “special motion.” A special motion is—

“One which it is not a matter of course to grant, but which the court, in the exercise of its discretion, may, on the facts established in support of the application, either grant or refuse.” 2 Daniell’s Chancery Pleading and Practice (4th Ed.), p. 1592.
“A motion addressed to the discretion of the court, and which must be heard and determined, as distinguished from one which may be granted of course.” Black’s Law Dictionary; Merchants’ Bank v. Crysler, 14 C. C. A. 444, 67 Fed. 388.

To grant or refuse said special motion was discretionary with the court, and, as already stated, we cannot hold that the order complained of was an abuse of discretion.

Relator’s application for a writ of mandamus is therefore denied.

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


author: Bird, J.

text:
    HOLDEN v. BUTLER.
    1. Liens — Accounting—Homesteads—Conveyance.
    Under a written contract made in consideration of complainant’s releasing her dower and homestead rights in a farm to her son, whereby the son agreed to transfer to complainant one-third of all products of the farm during her lifetime and to permit her to procure fire wood therefrom and to occupy a part of the home, equity has jurisdiction to require an accounting, as to a subsequent grantee of the premises chargeable with notice, and to declare a lien on the premises, though no lien was, in terms, provided for by the instrument.
    2. Same — Vendor and Purchaser — Liens.
    Complainant’s possession and occupancy of a part of the homestead was notice to the son’s wife of any claim that the' mother may have had under the contract, so that after becoming divorced from the son and obtaining title to.the premises, under the decree, the son’s wife oould not claim the rights of a bona fide purchaser; furthermore, the conveyance by virtue of such decree, being without consideration, defendant took subject to outstanding olaims and equities.
    8. Same — Estoppel.
    Defendant did not acquire a superior right by paying off an outstanding incumbrance on the property.
    Appeal from Eaton; Smith, J.
    Submitted June 15, 1911.
    (Docket No. 63.)
    Decided December 17, 1912.
    Bill by Mary E. Holden against Eva B. Butler for an accounting, injunction, and general relief. From a decree for defendant, complainant appeals.
    Reversed.

      George Huggett, for complainant.

      Frank A. Dean, for defendant.
   Bird, J.

In the year 1873, complainant’s husband died intestate, leaving three sons,. Daniel, James, and George, him surviving. The homestead, consisting of 40 acres of land in Eaton county, and a small amount of personal property, constituted his estate. Complainant and the boys continued to live on the homestead and manage the farm until some time in 1882, when Daniel, the oldest boy, married the defendant, and thereafter he undertook to manage the farm alone. About this time the dwelling was divided into two apartments; complainant and her sons James and George living in one, and Daniel and his wife in the other. In the year 1885, Daniel made an agreement with his brother James to buy his interest in the estate for the sum of #250. In order to do this, he had to mortgage the premises. The prospective mortgagee would not accept the mortgage subject to complainant’s right of dower. Daniel therefore made an arrangement with complainant, his mother, whereby she quitclaimed to him her interest in the estate, and in consideration thereof received from him the following written agreement, which was neither witnessed nor recorded until the year 1908:

“This agreement made this 7th day of December, A. D. 1885, by and between Daniel O. Holden, of Bellevue, Michigan, of the first part, and Mary E. Holden, of the same place, of the second part, witnesseth: That the party of the first part for and in consideration that the said party of the second part has sold and conveyed to said party of the first part by quitclaim deed all her dower and homestead interest in and to the lands of which her late husband, James Holden, died seised, hereby agrees to let the said party of the second part have and occupy that portion of the house which she now occupies, upon said homestead land, for and during her natural life, and also that he will during each year during the lifetime of the said party of the second part, give and deliver to the said party of the second part one-third part of all crops and produce raised by him on said homestead land of forty acres so conveyed to said party of the first part as aforesaid ; and also to let the said party of the second part get her firewood sufficient for her use from said homestead land as long as there is any timber remaining thereon.
“In witness whereof the party of the first part has hereunto set his hand the day and year above written.
“Daniel O. Holden.”

When this agreement was given, Daniel agreed with his mother that he would buy the interest of George as soon as he became of age. In 1893, instead of purchasing the interest of George, George purchased his interest, and Daniel and his family left the place for something like two years, after which they returned and Daniel repurchased the entire premises from George. Matters went along in this way, complainant living in her apartment and defendant and her husband, Daniel, living in the other, until some time in 1896, when complainant went to remain for a time with her brother on account of sickness in his family. Subsequently the brother died and she remained with her nephew and niece until 1908, during which time her household goods had remained in her apartment and she had kept the possession thereof but had not demanded one-third of the crops reserved to her in the agreement.

During the years that complainant was away, trouble had come to Daniel and the defendant and had separated them. Before leaving defendant, Daniel conveyed the premises to her by quitclaim deed. Subsequently, for the purpose of promoting a reconciliation between them, defendant caused the premises to be conveyed to herself and Daniel as an entirety. The peace pact was soon broken by dissension, and Daniel again left defendant. She then sought a decree of divorce, which was granted, and with it the title to the entire premises. A few days after the divorce was granted, she changed her name by marriage to Butler. After the divorce was granted, defendant, aided by her son, paid the balance due upon the mortgage, amounting to $585, the major portion of which came from the avails of the farm. In August, 1908, complainant had reached the age of 72 years, and, feeling that she could no longer work as she had done, she demanded of the defendant that from then on she must have the income which was reserved to her by the agreement. The defendant professed not to have any knowledge that any such agreement was ever made, and refused to comply with complainant’s demand, whereupon this bill was filed to enforce her rights under the agreement. After a hearing in the cause was had, the trial court denied her the relief prayed, and held that:

“Upon a consideration of the entire case as it appears to me from the proof, I am of the opinion that complainant has no legal rights in the land in question and that it would be inequitable and unjust to burden the land with such a lien as complainant claims. The contract under which she asserts her claims is a personal one as against her son Daniel O., and cannot be enforced against the land, or against the defendant. There is no proof showing knowledge on the part of the defendant of the existence of the contract under which complainant claims and I am satisfied she had no knowledge of it. It is very probable that, had she known it, she would not have paid the Allen mortgage and had it discharged. It seems-to me it would be inequitable, after the long silence of the complainant as to her claims and rights, permitting the payment and discharge of the mortgage, in ignorance of her claim, to further burden the land with the claimed accumulated yearly lien upon the land for all these years, and with the further burden of an annual incumbrance on the same equal to one-third of all crops and proceeds raised on the same. I not only feel that this would be inequitable and unjust, but further than that, I do not think she has a legal claim under her contract with her son as against this land, or the defendant.”

While the agreement which Daniel, gave to his mother was a personal one and did not in terms provide for a lien, it was one in which a court of equity might have very properly ordered an accounting and made the amount found due thereon a lien on the premises while they were owned by Daniel or any subsequent purchaser who had notice of the agreement. Baker v. Baker, 157 Mich. 76 (121 N. W. 287).

Complainant does not ask for an accounting for the time that she was away, but only from the time of her demand in August, 1908. We think she is entitled to this relief. Complainant surrendered her interest in the estate to enable Daniel to raise money to purchase the interest of his brother George, and we think the mortgage and agreement were executed under such circumstances that defendant could not have been ignorant of the agreement. Such readjustments of property rights in families are usually preceded by much discussion, and the testimony of James would indicate that this case was no exception. He testified that the agreement was discussed by members of the family in defendant’s presence. Defendant claims that she thought the $50 paid to complainant for her share in the personal property was in payment of her interest in the estate. If she was sincere in this claim, she must have been very curious afterward to know by what right complainant continued to occupy and keep possession of her apartment in the dwelling. Complainant never surrendered the possession of her apartment in the dwelling. This was notice to defendant that complainant had some rights there, and it was then her duty to learn what they were.

But aside from this question, defendant was not a bona fide purchaser. The conveyance was a voluntary one. And as she paid nothing for it, she would take the premises subject to the outstanding equities against it. Peters v. Cartier, 80 Mich. 124 (45 N. W. 73, 20 Am. St. Rep. 508); Otis v. Kennedy, 107 Mich. 312 (65 N. W. 219); Hoffman v. Simpson, 121 Mich. 501 (80 N. W. 1133); Zeigler v. Coal Co., 150 Mich. 82 (113 N. W. 775, 13 Am. & Eng. Ann. Cas. 90).

We conclude that defendant has no equities which ought to be preferred to those of complainant. Complainant is entitled to have her rights under the agreement enforced. If the parties are unable to agree as to the value of one-third the crops raised since complainant’s demand in 1908, an accounting thereof will be taken under the direction of the trial court, and, when determined by the court or by an agreement, the amount will be made a lien on the premises until paid.

The decree of the lower court will be reversed, with costs to complainant of both courts.

McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


author: McAlvay, J.

text:
    HOUSER v. CARMODY.
    1. Damages — Pleading—Breach of Promise of Marriage.
    General allegations of damage are sufficient to warrant a recovery for physical and mental suffering resulting from breach of promise of marriage.

      2. Appeal and Error — Exceptions—Saving Questions for Review.
    An exception to the ruling of the trial court in passing on the admissibility of evidence is necessary on error.
    3. Evidence — Witnesses—Impeachment—Deposition.
    Testimony tending to show unusual or suspicious conduct of a witness whose testimony was taken by deposition was properly received in evidence, in an action for breach of promise, as affecting the credibility of the witness; since he was not present in court and his conduct could not be observed by the jury.
    4. Same.
    Where the witness claimed to have been unduly intimate with plaintiff, and on his cross-examination a foundation was laid for impeachment by asking witness if he had bought a ring for plaintiff of a jeweler to whom he made disrespectful remarks concerning plaintiff, the jeweler was correctly permitted to give testimonyin contradiction of the witness’ denial, and plaintiff to show that she had been notified about the remarks made by the witness and had asked for an explanation and ceased to associate with him afterwards.
    5. Breaoh of Marriage Promise — Instructions to Jury — Seduction.
    In an action for breach of promise of marriage and seduotion, wherein it was claimed by defendant that plaintiff had been unchaste after the marriage contract was alleged to have been made, defendant denying making such a promise, the court properly refused to charge, as requested, that such conduct constituted a defense to the action, if proved, and rightly instructed the jury that it could only be considered in mitigation of damages.
    6. Same.
    Error was not committed by the trial court in further charging, as requested by defendant, that the claimed misconduct of plaintiff would be an excuse for breach of the contract only if defendant learned of the misconduct of plaintiff and because of it refused to marry her, but where, on being advised by defendant’s counsel that he did not make any such contention, the court corrected the inadvertence and left the evidence to be considered in mitigation of damages only.
    7. Same.
    The court was also correct in charging the jury and was supported in the same by her testimony, that if the jury found after an admitted lapse from virtue she had retrieved her character and led a correct life until defendant seduced her under promise of marriage, she could recover.

    8. Same — Charge.
    An erroneous assumption of the court made in charging the jury, corrected at the instance of defendant’s counsel and again made, but passed unnoticed, held, not to have misled the jury.
    9. Same — New Trial.
    A new trial is only authorized on the ground of newly discovered evidence if the moving party exercised due diligence in attempting to secure it.
    10. Same — Trial—Conduct of Counsel.
    Alleged objectionable and impassioned argument is not ground for reversal, unless it clearly appears that the argument was unwarranted by the evidence and probably contributed to the result: plaintiff’s attorneys were entitled to comment on defendant’s income, and amount of property and on plain- ' tiff’s loss of social position, luxuries, etc.
    Error to Berrien; Des Yoignes, J.
    Submitted April 5, 1911.
    (Docket No. 18.)
    Decided December 17, 1912.
    Assumpsit by Mary Houser against Thomas Carmody for breach of promise of marriage. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      Cady & Andrews {Chas. JEJ. Sweet, of counsel), for appellee.

      As to evidence of character for chastity in action for breach of promise, see note in 14 L. R. A. (N. S.) 748.
      On the question of aggravation of damages in breach of promise case by seduction, see notes in 4 L. R. A. (N. S.) 616; 36 L. R. A. (N. S.) 388.
      For necessity of averring seduction in order to recover therefor, see note in 33 L. R. A. (N. S.) 703.

   McAlvay, J.

This was an action for damages for

breach of promise to marry and seduction, in which plaintiff recovered a substantial judgment. The case is before us for review upon writ of error.

The proofs show without dispute that plaintiff was an unmarried woman about 27 years old, employed as a telephone operator at Watervliet, Berrien county, and lived with her brother-in-law’s family; that defendant was an unmarried man of considerable property, 45 years old, who owned and conducted a drug store separated from the place where the plaintiff lived by an alley; that defendant lived in apartments over this drug store with his mother and sister; that, after they became acquainted, defendant paid considerable attention to her, going to social entertainments with her, and taking her riding in a buggy quite frequently evenings; that they became sexually intimate; and that this resulted in the pregnancy of plaintiff.

The claim of plaintiff was, and proof was offered tending to show: That some time after they became acquainted they began to keep company together in March, 1907. This continued until February, 1909, when, riding with her one evening, he first made a proposition of marriage, and asked her to think the matter over, and agreed to see her some evening during the week. He came to see her several times soon afterwards, each time talking with her relative to marriage, which finally resulted early in the month of April, 1909, in a mutual. agreement to marry. That soon after their engagement defendant told her of his life, especially his relations with women, and how he regretted the fact, and said that it would be better for both to know each other’s faults. That she then told him she had a secret she would tell him later. This she did within a few days, confessing that she had once gone astray, and had given birth to a child (the details of which confession are not material). That he had said this did not change his feelings towards her, but that he thought all the more of her for telling him. She testifies: That they discussed the matter of an engagement ring; that later she finally yielded to his persistent solicitation for sexual intercourse, in which he assured her that it was no sin because an engagement was as binding as marriage; that such relations continued for a time, and as a result in June she became pregnant. She informed him of this fact and requested an immediate marriage. He made excuses that it was impossible because of the busy season, and finally took her to a doctor, who operated on her. She says that after her sickness the matter of the marriage was talked over, and it was determined that, when married, they would occupy the apartments over the drug store, which his mother and sister would vacate. She relates in detail what preparations she made relative to her wardrobe for the marriage, and also that he gave her some money to help buy it. The wedding was frequently postponed at the request of defendant. While buying some of her wedding things, she had told of her expected marriage, and had spoken of it to a few persons. Defendant came to her July 30, 1909, and accused her of making the matter of their marriage public, and then said for that reason he would not marry her. She pleaded with him to no effect, begging him to keep his promise. She claims that as a result she became sick and under the care of a physician for several days. She wrote him a letter September 11, 1909, which he failed to produce upon the trial, although requested, in which she apologized for telling anything concerning the marriage; that she told it because she was so happy over it. He did not answer this letter. She met him for the last time on the Saturday following, and during the interview he said: “ What do you want to settle this affair ? What do you want me to do?” Her testimony is: “Tom, there is only one thing for you to do, and that is to keep your promise.” He replied: “I will never marry you.” And they parted.

Defendant denied that he ever promised to marry plaintiff, or that thereafter, under such promise, he succeeded in having carnal relations with her, but that such relations were mutual and freely entered into and encouraged by plaintiff. By his notice under his plea and by his testimony he admits these relations, and admits that conversations of a general character relating to marriage were had between them; that the parties never reached any agreement as to the time or place of marriage, and that there never was any definite contract of marriage between them; that, after she related to him her lapse from virtue, he discontinued visiting her. He also admitted that he gave her money from time to time amounting to $30, but denied that it was for the purpose of purchasing a wedding outfit. He admitted that she notified him of her condition of pregnancy, and that afterwards he went to a doctor in the village of Hartford, and made an appointment for her; that the next night, June 29th, he took her to the doctor’s office, driving her across from Watervliet with a horse and buggy. He paid the doctor $25. His testimony indicates clearly the purpose of the visit. He claims, however, that it was done at her request. A short time after this trip he met her in the alley back of his drug store, when she told him she was “all right except certain pains,” and for these he gave her some medicine. He says that he saw her on August 15th in the alley, and went with her upstairs, where he accused her of telling that they were engaged to be married. This was his last conversation with her except a few words later about a letter. The result of this trial was a verdict and judgment against defendant. A motion for a new trial was made by him, and denied. He has brought the case to this court upon a writ of error for review, and asks a reversal. The errors relied upon and urged before this court will be considered.

Several of these assignments of error relate to rulings by the court upon the admission and rejection of testimony.

Defendant objected to questions asked plaintiff on her direct examination as to her condition immediately after defendant left her on the night he told her he would not marry her, on the ground that it was not in his presence, and, if to show damages for injury to her feelings, not admissible because not covered by the declaration. The court permitted the witness to answer the question. The damages alleged in the declaration were in the general form. The plaintiff was testifying at the time as to her condition immediately after the defendant had broken the marriage agreement, and the testimony tended to show her physical prostration, she being scarcely able to rise from her bed and admit her sister, and it was necessary for her to be helped into bed again; that she was unable to rise the next morning, and a doctor was called who attended her for three days, she being confined to her bed. The objection was without merit. This court has held that, under a declaration similar to this, plaintiff can recover as compensatory damages, among other things, for mental suffering and injury to health occasioned by the breach of the contract in a proper case. Goddard v. Westcott, 82 Mich. 180, 188 (46 N. W. 242).

The next assignment of error is upon the ruling of the court in refusing on redirect examination to allow defendant to answer the question, “ How did she come to build the house ? ” Plaintiff had testified that they were to be married late in the year, and would live in the apartments over the defendant’s drug store, where his mother and sister then lived with him; and on cross-examination defendant had testified that his mother was building a house into which she moved in December. Defendant immediately was permitted to testify:

My mother is about 75 years old. Her health is not very good. She is very feeble. She got from the ground to her rooms over my store by walking up a long flight of stairs.”

The testimony was not excluded.

The next assignment of error is not supported by an exception to the ruling of the court, and requires no discussion.

Defendant introduced in evidence the deposition of a witness named Mast, taken before a justice of the peace at South Bend, Ind. This witness was a barber, who three years before lived in Watervliet, and was acquainted with plaintiff. His direct examination was very brief, and consisted simply of a few preliminary questions, and the statement that he had been carnally intimate with plaintiff. On cross-examination he could not give the time, place, or circumstances of the claimed occurrence, or whether it was repeated, and remembered nothing at all except the claimed fact of intercourse. At the time of taking this deposition attorneys for both sides were present,, and the attorney who represented plaintiff was called as a witness upon this trial, and was permitted, over the objection of defendant’s counsel, to state the circumstances which occurred at this time, particularly the conduct of witness Mast and defendant, showing that he went out and had an interview with defendant for 15 or 20 minutes, and later, after he was sworn, defendant seated himself near the witness, which was objected to by counsel for plaintiff as improper, when defendant was told by his own counsel to change his seat; that Mast then whispered to defendant, who announced that before he testified Mast desired to speak with defendant’s attorney, and before he testified they withdrew to the rear of the hallway where they remained for a considerable time before he returned to testify.

The record shows that upon the trial, immediately after this deposition was read in evidence, defendant was recalled as a witness in his own behalf, and upon his cross-examination he testified at length relative to the Mast deposition ; that he went to Elkhart and brought Mast back with him to South Bend, according to a previous understanding, where he talked with the witness in the main room and where the testimony was to be taken and in the hall and with his attorney, during which conversations, which caused considerable delay, Mast asked defendant and his attorney if he could be prosecuted criminally if he testified against this woman; that defendant told him he thought not, but his attorney said that he might be prosecuted, and that is what he hesitated about — he did not wish to be punished for it afterwards. This witness Mast was not before the court, and the testimony objected to as to what occurred when the deposition was taken was permissible as bearing upon the credibility of the witness. New Jersey Express Co. v. Nichols, 33 N. J. Law, 434 (97 Am. Dec. 722).

This deposition of witness Mast upon cross-examination shows that foundation was laid for impeachment. It related to a ring which it was claimed on the part of plaintiff he procured from a jeweler at Coloma, where Mast resided, stating that he would take it to plaintiff, and made disrespectful remarks in connection with it concerning her; that the jeweler sent word of what Mast had said to plaintiff, who, when MaBt came, called his attention to it, and demanded an explanation. Mast denied getting the ring or making the remarks claimed, but admitted that plaintiff said something relative to an explanation of his disrespectful remarks. The jeweler was permitted, over objection, to testify that Mast got the ring and made the statements claimed, and that the former sent word to the plaintiff as to what he said. Plaintiff testified that she received such word from the jeweler, and, when she saw Mast, demanded an explanation from him of his disrespectful remarks, and never went with him again. An exception was taken to the ruling of the court in receiving the testimony of the jeweler, but none was taken to the testimony of plaintiff. The court was not in error in admitting this testimony for the purpose of impeaching Mast.

Exceptions were taken to the refusal of the court to give defendant’s requests to charge 6, 7, and 8 in the manner and form as requested. The record shows that the trial judge marked these requests as “covered,’’meaning given in substance in his charge to the jury. This is not disputed by defendant’s counsel. An examination of the charge of the court as given shows that these requests were given in substance in this charge, and the refusal to give them in the exact words of counsel, as is contended should have been done, was not erroneous.

Error is assigned upon the refusal of the court to give the following request to charge proposed by defendant:

“If the plaintiff had carnal intercourse with George Mast, as sworn to by him, plaintiff cannot recover.”

This was given by the court, modified as follows:

“ If you find defendant refused to carry out the promise for that reason.”

This request, or its substance, was repeated by defendant’s counsel when the court was giving the main charge to the jury as follows:

'intercourse with another man, he had a right, as matter of law, to break the contract, and as a matter of law such conduct on the part of plaintiff ipso facto breaks the contract.”

This request is based upon the deposition of the man Mast hereinbefore discussed, and was requested, as above given, in its modified form by defendant’s counsel while the court was charging the jury, to which the court said, “ The court does not take that view of it,” to which defendant excepted. The court proceeded:

“ In following that I will give this: Where it is found that plaintiff had sexual intercourse with another person than defendant before the alleged breach, and which was unknown to the defendant, the jury should consider that fact in mitigation of damages only, and that is based on Sheahan v. Barry, 27 Mich. 217, in asimilar case.”

Counsel for defendant was urging at that time, as is also contended for in his brief, that in this case, if the jury found as testified by Mast that plaintiff had had illicit intercourse with him, a verdict should be returned against plaintiff. The case cited and relied upon by the court in allowing the jury to consider in this case the testimony of Mast only as bearing upon the question of mitigation of damages supports the conclusion of the court, and, although some authorities state that they are not in accord with this Michigan case, it is apparent that they do not apprehend thedistinction made in the case cited. In Sheahan v. Barry, supra, defendant requested the court to charge as the trial court charged in this case, that the matter of such incontinence on the part of plaintiff should be considered in mitigation of damages (which the court granted), and “ that the plaintiff should recover not more than merely nominal damages ” (which the court denied), and upon the argument claimed that there could be no recovery at all. The court in that case, speaking through Mr. Justice Campbell, said:

“But we think the ruling was correct. There was evidence introduced attempting to prove plaintiff’s incontinence with another about the time of the alleged seduction, and after the promise of marriage. There was also evidence from which it was claimed the jury might infer previous incontinence. It was not claimed that the engagement had been broken off on account of a discovery or suspicion of such misconduct. * * * If a person who has promised marriage discovers that his proposed wife has been guilty previously of unchaste conduct, which has been concealed from him, he may unquestionably, if his own conduct has been fair, break off the engagement, and be legally justified. But where he breaks it off on some other insufficient ground, or for no reason at all, and where he has himself been guilty of seducing her under and by means of the marriage promise, we can see no reason why she should not have an action against him. No authority cited covers such a case and we.think it would not be proper to take it from the jury.”

This rule established in Sheahan v. Barry, supra, has never been questioned by this court.

The distinction which this court made in that case was that the rule contended for did not apply where the defendant had been guilty of seducing the plaintiff under and by means of the marriage promise. In the instant case the reasoning given in Sheahan v. Barry, against the general rule contended for, applies with much greater force, for the reason that the defendant denied that any contract to marry was ever entered upon between the parties, and that the relations of the parties as to intercourse was voluntary and without reference to or reliance upon any promise to marry. The cases relied upon on the part of the defendant in support of his contention are cases where the existence of the contract to marry was not disputed, and the unchastity, either before or after the marriage contract, was held to be a complete defense to an action for breach of promise, unless such unchastity has been waived by the defendant. We think that the weight of authority sustains such a proposition of law; but the instant case is clearly distinguishable from those cases, as already pointed out, in that an agreement to marry is denied. The jury were allowed in the instant case to consider the later claimed unchastity with Mast in mitigation of damages only, and, as to that which plaintiff confessed, must have found that defendant had waived it. The court was not in error in limiting the consideration of the Mast testimony by the jury to the question of mitigation of damages, and the modification of the request complained of as first given, in view of what the court said relative to this matter later, could not have prejudiced defendant.

Errors are also assigned because the court gave two requests to charge presented by plaintiff, relative to her claimed illicit relations with Mast, as follows:

“Before you can consider the testimony of the witness George Mast as a reason for the breach of the marriage contract, if you find there was such a breach, you must also find that defendant learned of this fact and refused to carry out the promise by reason of it.”

This request was given' following defendant’s twelfth request, which we have already considered, and, after giving it, counsel for defendant had stated to the court that in fact such relations with Mast were not known to defendant until after the commencement of suit. What next occurred has already been stated, including the oral request by defendant’s counsel, which repeated and enlarged upon the twelfth request. The court, however, accepted the correction that the evidence showed the facts disclosed by Mast’s deposition were learned by defendant after suit was commenced, and proceeded at once to give the portion of the charge already discussed, which instructed the jury to consider such testimony in mitigation of damages only, thereby correcting whatever error had by inadvertence been made, leaving this branch of the case properly submitted to the jury, as we have already determined in discussing the error assigned by defendant upon the refusal to give his request upon the same matter.

Another request of the plaintiff was given to the jury by the court to the effect that notwithstanding plaintiff’s lapse from virtue, if the jury found that she had retrieved her character and led a correct life thereafter until defendant, under his promises and by his solicitations, induced her to have intercourse with him, such acts would amount to seduction. Defendant does not question that this request correctly stated the law, but contends that there was no evidence in the case tending to show that she had returned to the path of virtue. Upon this proposition counsel for defendant is mistaken. A fair inference from a reading of the entire testimony of plaintiff is that for about three years after the birth of her child she led a correct life up to the time of her intimacy with defendant. No error was committed in giving this request.

Errors are also assigned upon certain portions of the charge of the court, wherein it is claimed that the court assumed that the confession of plaintiff to defendant relative to her illegitimate child was made before the contract to marry was entered into. It appears that the court made such a statement, but,' as already stated, he was at once corrected by counsel for defendant, which correction was assented to by plaintiff’s counsel and must have been so understood by the jury. The same mistake occurred somewhat later in the charge, but no notice was paid to it by either counsel, and the attention of the court was not called to the matter. The incident of the correction was fresh in the minds of everybody. If the defendant expected to rely upon this as error, the court should have been given an opportunity to make the correction. The jury could not have been misled.

Error is assigned upon the denial by the court of the motion for a new trial, based upon very many reasons. It is only necessary to consider the ground of newly discovered evidence. The court, in the reasons given for refusing to grant a new trial, said, upon this matter:

“The newly discovered evidence offered now was known to defendant before the trial of the case, except the two witnesses, Julia Walsh and Mary Hutchins, both of whom reside in the same town as does defendant; one being his cousin. There is no showing of diligence on defendant’s part, and his affidavit in support of the motion fails to show that he is entitled to a new trial by reason of this.”

Under the decisions of this court in Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444), and Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524), an examination of the affidavits in support of this motion satisfies us that defendant failed to make a sufficient showing to entitle him to a new trial, and that the court was not in error in denying the motion.

There remains for consideration the further assignment of error upon the claimed prejudicial argument of counsel for plaintiff in his closing argument to the jury. We have examined the excerpts from such argument, to which exceptions were taken, and, although we find that counsel in the heat of argument used very vigorous language, when the character of the case is considered, all the testimony bearing upon the conduct of the defendant and admissions of his relations with plaintiff, his criminal conduct in securing and paying for a criminal abortion upon her, we can understand the pressure under which counsel in the case were laboring.

Many portions of the argument excepted to were strictly legitimate. The defendant in the case testified that he was worth about $25,000, was doing a fine business, which brought him in besides his salary a net income of $2,500 a year, and it was proper for the jury to consider the matter in arriving at the damages plaintiff was entitled to in case of a recovery. Her loss of social position and the luxuries, comforts, and other things which are incident to the life of a woman who marries a man of means are properly taken into consideration in a case of breach of promise to marry. The jury also, if the testimony of plaintiff relative to her seduction by defendant was found to be true, was entitled to give her damages on that account. The major portion of these objections referred to are of this character.

• There is another objection relative to what was said by counsel as to how much the deposition of Mast cost. Upon objection by defendant he said :

“I do not say it cost money. It may have. Such things do sometimes.”

While we do not approve of this language, suspicion naturally attaches to this witness by reason of the circumstances disclosed at the taking of his deposition, his fear of a prosecution and the character of his testimony, which we have discussed, and also the circumstances that it was taken near the State line in Indiana, where the attorneys were required to attend, only 40 or 50 miles from the place of this trial, where it is apparent his attendance could have been procured.

The question is whether the language complained of in the argument to the jury was so extreme as to justify a reversal — whether the defendant has been prejudiced thereby. This court has said that it is not disposed to reverse cases because of impassioned arguments, unless it clearly appears that such arguments are unwarranted by the evidence, and probably contributed to the result. In view of the moderate amount of the verdict rendered by the jury and the abundant support in the testimony for such verdict, we are satisfied that the impassioned arguments of plaintiff’s attorney did not work prejudice to defendant.

We do not find that any prejudicial error was committed by the court in this case, and the judgment of the circuit court is affirmed.

Moore, C. J., and Brooke, Ostrander, and Bird, JJ., concurred.


text:
    TEBBEL v. SPENCER ELECTRIC LIGHT & POWER CO.
    1. Waters and Watercourses — Power Rights — Rivers — Measurements.
    In a suit between the owner of a dam and a corporation maintaining a dam lower in the stream, for injury to complainant’s power by backing water into his race and for maintaining a head of more than eight feet in violation of an agreement determining their respective rights, it will be assumed, in the absence of rebutting testimony, that in measuring the head of water, the datum was obtained by finding the vertical distance from the water in the flume or place from which it was drawn to the tailwater.
    2. Same.
    Upon testimony showing that the tailwater, at the time defendant secured its rights, was on a level with the floor of an old wheelhouse that remained standing at the same place and height as it always had stood, the court was justified in taking the floor as a basis of measurement.
    3. Same — Estoppel.
    Mere neglect on defendant’s part to use its entire head of water during twenty years did not estop it from claiming such right.
    4. Same.
    Estoppel requires some evidence of dealing in reliance on apparent existing conditions.
    5. Same — Decree—Head oe Water.
    Defendant’s grant to “erect, enjoy and maintain said dam to a height as to have at no time a head of water at said dam of more than eight feet,” authorized and limited its rights to a standing head of eight feet; so that if the water should flow over the crest at a depth of two, four, or six inches, a head in excess of the authorized height would be maintained, and the decree is interpreted to so regulate defendant’s rights.
    Appeal from Ionia; Mayne, J., presiding.
    Submitted April 10, 1911.
    (Docket No. 66.)
    Decided December 17, 1912.

      Bill by William R. Tebbel against the Spencer Electric Light & Power Company and another to determine conflicting power rights claimed by the parties. At the death of complainant, Mary Tebbel, executrix of his estate, was substituted as complainant. From a decree for defendants, complainant appeals.
    Affirmed.

      George JS. Nichols and Loche & Sheldon, for complainant.

      I, L. Hubbell and B. A. Hawley, for defendants.
   Bird, J.

This contest is between two dam owners. The dams are about one-half mile apart. The complainant, who is the upper proprietor, claims that the first-named defendant, who is the downstream proprietor, is maintaining a head of water in excess of what it is entitled to, with the result that it backs the water into his tailrace and diminishes his power. The defendant takes the position that it can and has established its right to maintain an eight-foot head, and that, if the water standing at that level diminishes complainant’s power, he, and not defendant, must bear the loss. After a very full and extended hearing, in which both sides were ably represented, the trial court denied complainant the relief which he sought and dismissed his bill, and, under defendant’s prayer for affirmative relief, fixed the height the water could be raised at defendant’s dam and directed the point to be ascertained and marked by a suitable monument.

The complainant’s mill and dam are located on Seeley creek, near the village of Smyrna, in the county of Ionia. Seeley creek discharges its waters into Flat river. A short distance downstream from the junction of the two, the defendant’s mill and dam are located. Complainant’s mill and dam were built in the early 50’s, and the defendant’s about 10 years later. The natural fall between the two dams is about six feet. From the time defendant’s dam was built until the year 1874, approximately a six-foot head was maintained. During these years complainant claims that his grantors had a head of nearly 20 feet. In the year 1873 the respective owners of these dams fell into a disagreement over the attempt of defendant’s predecessor to reconstruct a portion of his dam, which had been washed out by a flood, higher than it had been theretofore maintained. The controversy found its way into court, but was adjusted by the parties themselves in March, 1874, before it came to a hearing. The terms of the compromise were a conveyance to defendant by complainant of the right to flow the lands above his dam to the extent that an eight-foot head would necessitate, and complainant received therefor, as a consideration, the sum of $1,150. This change in their respective rights lessened complainant’s head two feet and increased defendant’s to eight feet. Matters went along without much friction until 1904, when complainant complained to defendant that it was maintaining a head in excess of eight feet. More or less controversy between them thereafter ensued until this suit was begun in 1906.

Complainant purchased the Seeley creek property in 1880, and he claims that at that time he measured the head and found it to be 17£ feet. He charges that this 17£-foot head has gradually lessened until now he has only a 16-foot head, and he further charges that defendant is responsible for this diminution of his power by increasing from time to time the height of its dam and thereby increasing its head. Complainant also charges that the defendant the Belding Land & Improvement Company owns and maintains a dam on Dickson creek, which empties into Flat river some distance upstream, and that it impounds the water for a considerable period and then releases it in such large quantities that the water is driven up into his tailrace, thereby preventing his tailwater from getting away as quickly as it otherwise would. This he claims is done for the benefit and with an understanding with the defendant electric company.

The defendant electric company relies on its grant from complainant’s predecessor in title by which it acquired the right to maintain an eight-foot head, and insists that it has not in the past nor is it now maintaining a head of water in excess of eight feet. It is admitted by the defendant electric company that, since it purchased the property in 1893, it has steadily held the water somewhat higher than it was previously held, and that it was justified in so doing because the old dam was incapable of carrying an eight-foot head; that since its purchase the dam has been repaired and a portion of it rebuilt; that it was at the time of the purchase a leaky dam, but since it has been improved it is tight and will hold the water much higher than before; that since it was improved the water has been carried higher by means of flashboards, but not to the extent that would exceed an eight-foot head.

On the hearing of the case in the trial court, much testimony was offered by complainant tending to show that his dam originally had a 20-foot head, and that defendant had added materially to the height of its dam. The defendant denied both of these propositions and offered proofs tending to disprove them. ' We shall make no attempt to determine how much head the respective dams carried prior to March, 1874. The settlement which the owners made at that time renders it in a measure unnecessary. By their own agreement the heads of both dams were materially changed, and we think it is by this agreement that the rights of the parties must now be determined. The material portion of the grant from complainant’s predecessor in title to defendant’s predecessor in title is as follows:

"To so erect, enjoy and maintain said dam to a height as to have at no time a head of water at said dam of more than eight feet, with the right and privilege in perpetuity of flowing the land and premises of the said Spencer bordering upon said river and hereinbefore described.”

By this grant defendant was given the right to flow complainant’s lands to the extent that an eight-foot head would necessitate. We are of the opinion that the defendant still has that right, and this conclusion at once brings us to the question as to how it should be determined. It is conceded by counsel that it should be determined as nearly as possible in accordance with the conditions as they existed at the time the grant was made. It appears that after the settlement, surveyors were employed by the owners to take levels and fix the mark of the eight-foot head at both plants, but these marks seem to have long since disappeared. We think it is safe to assume that the usual method was adopted of ascertaining the head by measuring the vertical distance from the water in the flume or place from which it is drawn, to the tailwater. Shearer v. Middleton, 88 Mich. 621 (50 N. W. 737). The trial court found as a fact, and we think he was justified in so finding, that the water in the tailrace, at the time the grant was made, was on a level with the floor in the old wheelhouse at defendant’s plant, in which was installed a 74-inch La Fell wheel in 1875. The testimony tended to show that this floor was yet intact and unmoved from its position in 1875. Taking this floor as a basis of measurement, the trial court held that the defendant electric company was entitled to raise the water eight feet above it.

Complainant takes issue with the trial court on this method of determining defendant’s head, and says that it should not be made at defendant’s dam without regard to the extent of fiowage that an eight-foot head would necessitate. The defendant was not given the right to set back the water a certain distance nor up to a certain point, nor was the right granted one to flow a certain number of acres, but was a right to flow such lands as an eight-foot head would necessitate. When complainant’s grantor conferred this right upon his grantee, we must presume that he did so intending to accept all the consequences that an eight-foot head would produce. 2 Farnham on Waters and Water Rights, p. 1790; Sanford v. Nyman, 23 Mich. 326.

It is also contended by complainant that the testimony shows that from 1874 to 1894 there was no change in the height of the head maintained at defendant’s dam, and that, if defendant did not raise the water during that time to the full height to which he was entitled, he is now estopped from raising it higher than it stood during that period. There is testimony in the record which shows that the water several times a year, from 1874 to 1894, was raised as high as defendant has ever raised it since 1894; but, were we to concede that counsel is right on the fact, we think he is wrong on the law. If it be conceded that defendant’s grantors used only seven feet of head from 1874 to 1894 when they were entitled to eight feet, the nonuse of the one foot for that time would not deprive defendant of the right to claim and use it now. 3 Farnham on Waters and Water Rights, p. 2294; Day v. Walden, 46 Mich. 575 (10 N. W. 26). In the last case cited, Mr. Justice Cooley, in considering a similar claim, said:

“ The right to the easement was not lost by the mere neglect to assert, use, and enjoy it for the period of 20 years. There is no doubt of this upon the authorities. The easement was created by grant as an appurtenance to the mill, and there were no conditions or limitations attached which rendered its use necessary to its continuance. The grant was perpetual, and without conditions; and therefore the privilege granted would continue indefinitely whether the grantee did or did not avail himself of it. An accepted grant cannot be waived or abandoned; and the neglect of the grantee to enjoy the easement would be no more significant in its bearing upon his rights than the neglect to enjoy the freehold to which the easement was appurtenant” — citing Arnold v. Stevens, 24 Pick. (Mass.) 106 (35 Am. Dec. 305); Bannon v. Angier, 2 Allen (Mass.), 128; Hayford v. Spokesfield, 100 Mass. 491; Owen v. Field, 102 Mass. 114; Barnes v. Lloyd, 112 Mass. 224; Taylor v. Hampton, 4 McCord (S. C.), 96 (17 Am. Dec. 710); Elliott v. Rhett, 5 Rich. (S. C.), 405 (57 Am. Dec. 750); Corning v. Gould, 16 Wend. (N. Y.) 531; Wiggins v. McCleary, 49 N. Y. 346; Hall v. McCaughey, 51 Pa. 43; Ward v. Ward, 7 Exch. 838; Car v. Foster, 3 Q. B. 581; Crossley v. Lightowler, L. R. 3 Eq. Cas. 279; s. c. on appeal 2 Ch. App. 479; Cook v. Mayor, L. R. 6 Eq. Cas. 177.

We are not impressed that complainant and his grantors dealt with their property to any considerable extent in reliance upon the head as maintained at defendant’s dam from 1874 to 1894, and therefore there is little or no foundation upon which to base a claim of estoppel.

There seems to be some misunderstanding between counsel as to whether the decree provides for an eight-foot standing head or an eight-foot running head. Complainant insists that the decree provides for an eight-foot running head, and he argues that this is wrong; that, while the terms of the grant are silent as to which was intended, the construction subsequently placed upon it by the parties shows that an eight-foot standing head was contemplated. Our understanding of the decree is that it gives an eight-foot standing head, and counsel for defendant concedes that such is the fact. If there is any question concerning it, we think it should be construed to be a standing head. This, of course, would not necessarily mean that an eight-foot permanent dam could be erected without a violation of the terms of the grant. The language of the grant, that defendant might “erect, enjoy, and maintain said dam to a height as to have at no time a head of water at said dam of more than eight feet,” etc., precludes the right to maintain more than an eight-foot head. Should a dam eight feet high be erected and the water flow over the crest at a depth of two, four, or six inches, a head in excess of an eight-foot standing head would thereby be maintained. Provision must be made to regulate the head so that it will not exceed eight feet.

We are of the opinion that the trial court reached the right conclusion, and its decree will be affirmed. Defendants will recover their costs in this court.

Moore, C. J., and Brooke, Stone, and Ostrander, JJ., concurred.