text:
    DIETERLE v. ANN ARBOR PAINT & ENAMEL CO.
    1. Corporations — Foreign Corporations — Purchase of Franchises.
    Sections 8572, 8573, 3 Comp. Laws, authorizing corporations organized under the laws of this State to sell their property and franchises to other corporations organized for similar purposes, do not authorize the purchase by a domestic corporation of the property and franchises of a foreign corporation.
    2. Same — Stockholders—Payment for Stock — Liability for Corporate Debts.
    Where the articles of a corporation contain no suggestion that it is the successor of an existing corporation, payment of their subscriptions in the stock of a previously existing corporation is no defense to stockholders sued by a creditor of the corporation to enforce their liability for the unpaid portion of their subscriptions for stock.
    3. Same — Part Payment.
    Where the original shareholders paid their subscriptions to the stock of a corporation by transferring such interest as they had in a corporation which was insolvent, they should be held liable for the full amount of their subscriptions, if necessary to satisfy creditors.

      4. Same — Enforcement of Liability — Evidence.
    On a bill by a creditor to enforce the liability of stockholders for the unpaid portion of their stock, evidence examined, and held, to show that certain defendants were subscribers to the stock and not purchasers of it from other stockholders.
    5. Same — Fraud—Statement of Opinion.
    The mere expression by stockholders and promoters of a favorable opinion as to a corporation and its business outlook to a subscriber to the stock do not amount to such fraud as will 'release the stockholder from his subscription.
    6. Same — Fraud—Repudiation of Subsoription.
    A stockholder whose name does not appear among the original incorporators, and has never appeared among the list of stockholders, to whom no stock was ever issued, and who has never participated in any of the meetings except the one at which he repudiated all further liability upon his subscription, is not estopped as to creditors from setting up fraud as a defense to a suit to enforce his liability as a stockholder.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 11, 1905.
    (Docket No. 40.)
    Decided March 27, 1906.
    Bill ,by Ernest A. Dieterle against the Ann Arbor Paint & Enamel Company, William G. Henne, William F.. Breakey, Louis W. Schnierle, and others, to enforce a, liability for unpaid subscriptions to the capital stock of defendant corporation, and for the appointment of a receiver. From a decree dismissing the bill, complainant appeals.
    Affirmed as to defendant Breakey, and reversed as to the other defendants, and decree entered for complainant.

      J. W. Bennett and Arthur Brown, for complainant.

      A. J. Sawyer & Son, for defendants Henne, Breakey,' and others.

      George W. Sample, for defendants Schnierle and others.
   Moore, J.

This is a bill filed by a judgment creditor of the Ann Arbor Paint & Enamel Company, to have the original subscribers for stock and subsequent stockholders of said company held liable pro rata for the payment of the indebtedness to complainant, and of all other creditors of said corporation, and for the appointment of a receiver to bring about that result. No other creditor has joined in the proceeding. The bill of complaint was dismissed in the court below. The case is brought here by appeal. The defendant company was organized in March, 1902, with the following statement in its articles of association:

“Articles. The capital stock of the corporation hereby organized is the sum of twenty five thousand dollars, and the number of shares thereof is 2,500, of the par value of ten dollars each.
“ Article 4. The amount of said stock actually paid in at the date hereof is the sum of seven thousand dollars, being 28 per cent, of said capital stock.”

Its stockholders were stated therein to be as follows:

Wm. G Henne..................Ann Arbor.. 30 shares.

J. W. Haas............ “ .. 15 shares.

Louis J.'Lisemer......... “ .. 10 shares.

William J. Aprill______________ “ .. 13 shares.

Henry C. Exinger.......... “ _. 25 shares.

Charles L. Miller_________________ ._ 12 shares.

Sam C. Andress------------ “ .. 10 shares.

Alber Weimer........... “ .. 7 shares.

Otto C. Andress----------------- .. 10 shares.

Charles Wuerth.............. “ .. 12 shares.

OttoSohaible___________ “ .. 10 shares.

William Binder.............. “ .. 8 shares.

Louis W. Schnierle............. “ .. 10 shares.

John H. Gersting--------------- “ .. 5 shares.

John H. Gersting, trustee....... “ .. 95 shares.

Fred J. Sohleede............... “ .. 10 shares.

George Spathelf, Jr............. “ _. 15 shares,

L. C. Weinmann_________ “ _. 15 shares.

Thomas J. Rice_________r....... “ .. 500 shares.

A. Levy........... “ .. 5 shares.

M. L. Belser.............. “ .. 10 shares.

Thomas J. Rice, trustee......... “ ..1,673 shares.

Complainant claims the statement that there was $7,000 of the stock actually paid it was not true. He asks that •the following original incorporators be held for the several amounts mentioned:

Wm. G. Henñe....................................$300 00

"Wm. J. Aprill_________________________________ 125 00

H. O. Exinger.................................... 75 00

O. L. Miller....................................... 50 00

L. W. Schnierle__________________________________ 37 50

F. J. Schleede__________________________________80 00

Geo. Spathelf, Jr................................. 125 00

L. G. Weinmann................................. 150 00

,M. L. Belser...................................... 37 50

—upon the theory that none of this money came to the treasury of the Ann Arbor Paint & Enamel Company. He also claims that Koch Bros, should be held for $60, Mr. Lansky for $20, and Dr. Breakey for $600, upon unpaid portions of their subscriptions made for stock after it was incorporated.

The original stockholders defend upon two grounds:

First. That this company is the Magic Manufacturing Company reorganized or merged in the defendant company, that the stock the stockholders received in the new company was the equivalent of the stock they owned in the old company, and they were entitled to have credi ted thereon all the money that they had paid for stock in the old company.

Second. (We quote from brief of counsel.) “The persons who organized the Ann Arbor Paint & Enamel company were the directors and stockholders of the Magic Manufacturing Company, and were creditors of that company to the amount they had paid for their stock or paid toward their stock, and, when the reorganization was decided upon, these were claims against the new company which it could not repudiate, but which it had assumed and agreed to pay. In consideration of the agree-' ment all the property of the Magic Manufacturing Company, including the balances due upon the subscriptions for stock in that company, and the advertising matter and the pretended formulas were transferred to the new company. Therefore, the credits by the reorganized company to each stockholder in the old company for the amount he had paid on his stock in the old company as a payment pro tanto for an equal amount of stock in value in the new company, was a liquidation and satisfaction of a debt of the new company, and it is the universal rule that the satisfaction of debts from the corporation is an equivalent for the issue of stock except where the payment in cash is made necessary by the statute under which the corporation is organized. * * *

“We submit therefore, in the light of these authorities that the stockholders of the Ann Arbor Paint & Enamel Company who were subscribers for stock in the Magic Manufacturing Company and who had fully paid for their stock and received in lieu thereof the stock of the reorganized company of the same amount in value as the stock they held in the original company, and the subscribers for stock in the Magic Manufacturing Company who received credit in the new company for the amount they had paid upon their stock subscriptions in the old company, and paid the balance of the face value of their stock in full in the new company, are not indebted to the Ann Arbor Paint & Enamel Company, and the creditors of either company have no claim as against them for any unpaid balance upon their stock.”

It becomes necessary, to pass intelligently upon these several claims, to inquire about the Magic Manufacturing Company. This company was organized under the laws of West Virgina in November, 1901. It ostensibly had a capital of $250,000. It never paid any franchise fee in this State, and had as stockholders all of the original stockholders in the defendant company against whom any relief is asked here. It was promoted by one Maloney to manufacture a product according to an alleged secret formula of one Rice who lived at Ann Arbor, and to whom $50,000 in stock was to be issued for the formulas. Nearly all the money which was paid in found its way to Mr. Maloney and not to the treasury of the Magic Manufacturing Company. Its assets when the defendant’ company was organized, out&'ide of the formula of Mr. Rice, was estimated, and that was probably their full worth, at $565. Its liabilities were upwards of $1,000. Mr. Malonéy, the promoter of the old company, received the following sums: Prom—

William G. Hemte $250 00

L. C. Weinmann ... 150 00

H. O. Exinger..... 75 00

W. j: Aprill_______ 125 00

George Spathelf, Jr. 125 00

F. J. Schleede_____ 80 00

M. L. Belser....... 37 50

O. L. Miller________ 70 00

L. W. Schnierle____ 37 50

Upon the organization of the new company Mr. Rice xeceived for his formulas $5,000 of full paid stock, and this made up part of the $7,000 said to have been fully paid. To get rid of Mr. Maloney, both as to his interest in the Magic Manufacturing Company and in the Rice formulas, $400 in cash of the new corporation’s funds was later paid to him. It later turned out that the alleged formulas of Mr. Rice were worthless.

The only statute we can recall, and counsel do not call our attention to any other, authorizing a corporation to organize with power to buy the property, franchise, rights, and privileges of another corporation is found in sections 8572, 8573, 3 Comp. Laws. These provisions do not apply to the purchase of the property, franchise, rights, and privileges of a foreign corporation.

There is not a suggestion máde in the articles of the new association that it is the successor to the Magic Manufacturing Company. If oné proposing to extend credit to defendant company had consulted its articles of association, he would have found no suggestion that the $7,000 said to be paid in was made up of a worthless formula and the surrender of stock in an insolvent corporation. We think the defendant corporation cannot be said in a legal sense to be the successor of the Magic Manufacturing Company. In any event that defense cannot be interposed as to creditors.

The next question requiring attention is: Did the original shareholders pay in $7,000 as stated in the articles of association. So far as concerns the original shareholders against whom liability is asked, to the extent thereof, the payments consisted in such interest as they had in a corporation which was utterly insolvent, and the assets of which were exceeded by its liabilities. There was no-statement in its articles of association as already appears, as to how the $7,000 alleged to have been paid in was paid. It that respect the case differs from the case cited by-counsel. Young v. Erie Iron Co., 65 Mich. 111. In that case it was said in so many words:

“It must be considered as well settled that corporators cannot agree among themselves that property worth only $80,000 shall be treated as worth $422,000, and count, at that sum, as so much capital stock paid in, and then proceed to make their shares as fully paid up and nonassessable upon such false basis, as such action would be clearly a fraud upon the creditors.”

Though it was held in that particular case that no fraud was perpetrated. In the case at bar, however, there was nothing to indicate to creditors of the defendant company that no cash was paid in, and that the assests consisted wholly of an interest in an insolvent company, and in a secret formula which none of the shareholders except Rice had ever seen, and which he knew to be a fraud. However much the original shareholders may have acted in good faith as to the creditors, what was done was as to them a fraud. The case is within Moore v. Elevator Co., 122 Mich. 48; McBryan v. Elevator Co., 130 Mich. 111. The solvent original incorporators should be required to pay their subscriptions in full if necessary to satisfy the complainant creditor.

We now come to the status of the three defendants who subsequently subscribed for stock and did not pay for it in full. The claim of counsel, that they bought from other-stockholders shares of stock instead of subscribing for stock of the defendant corporation, is not established. It is inconsistent with their testimony and what they did. March 19, 1902, Koch Bros, subscribed in writing for 25 shares of stock; on April 8th Dr. Breakey subscribed for 100 shares; and on April 18th Mr. Lansky subscribed for 5 shares. Each of them paid in part for the stock subscribed. Mr. Lansky has not appeared in the case. It does not appear what occurred when he subscribed and he should be held to his subscription. On the part of Koch Bros, it is insisted their subscription was obtained by means of fraud. Giving the testimony of Mr. Koch the most favorable construction possible, the most that can he said of it is that Mr. Lisemer expressed a favorable opinion as to the corporation and its business outlook, but his testimony falls far short of showing such fraud as would release Koch Bros, from their subscriptions.

Dr. Breakey claims he should be relieved because while his subscription reads 100 shares, it was agreed he should not be obliged to take more than 40 shares, and that he has paid for them in full; and second, because the subscription was obtained by means of false and fraudulent statements, and because thereof he repudiated the balance of his subscription as soon as he learned of the fraud. We do not deem it necessary to inquire whether the written subscription can be contradicted by oral testimony, for reasons which will appear later. The statements made to Dr. Breakey were not confined to expressions of opinion as to the value of the formula or the outlook of business for the corporation. Untruthful statements were made as to existing conditions which we do not deem it necessary to recite, but which we think establish beyond any question that the subscription was obtained by means of fraud. The case is unlike Duffield v. Wire & Iron Works, 64 Mich. 293, where it was held by an equally divided court that as the plaintiff, to whom stock had been issued, had attended the stockholders’ meetings, had voted to increase the capital stock, and had voted and received dividends, that under the facts disclosed by the record he was estopped from rescinding his contract of subscription on the ground of fraud. Nor is it the case of Bissell v. Heath, 98 Mich. 472, where stock was purchased by Heath, and a certificate issued to him upon which he received dividends for several years. As already appears, Dr. Breakey’s name did not appear among the original incorporators. His name never appeared among the list of stockholders. No stock was ever issued to him. He did not participate in any of the meetings except the one in which he repudiated all further liability upon his subscription. We think he has done nothing to mislead the creditors or to estop him from questioning any further liability upon his subscription.

The decree will be affirmed as to Dr. Breakey, with costs; it is reversed as to the other defendants, whose contentions have been discussed in this opinion, with costs of both courts; and a decree may be entered in accordance with this opinion.

■ McAlvay, Grant, Blair, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MOORE v. HARTFORD LIFE-INSURANCE CO.
    Appeal and Error — Exceptions—Necessity—New Trial.
    Where no requests are made that the judge file reasons for denying a motion for new trial, and no exceptions are taken to his written opinion on overruling such motion, the order will not be reviewed.
    Error to Gratiot; Stone, J.
    Submitted November 9, 1905.
    (Docket No. 246.)
    Decided March 27, 1906.
    Assumpsit by Harry W. Moore against the Hartford Life-Insurance Company on a policy of insurance. There, ,was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Julius B. Kirby, for appellant.

      John T. Mathews, for appellee.
   Moore, J.

In July, 1904, David Moore insured in the ^defendant company, paying the first premium therefor, and a policy was issued to him, naming Sarah E. Osborn, his sister, as beneficiary. On the 2d of November, 1904, the insured died as the result of typhoid fever. On the 15th of November, 1904, proofs of loss were furnished the company. Afterwards the beneficiary assigned her interest in the policy to the plaintiff in this action. Suit was commenced. The declaration declared upon the policy and also upon the common counts in assumpsit. The defendant pleaded the general issue and gave notice thereunder that it would rely as a matter of defense .upon the fact that the insured obtained the policy by fraud, in that lie answered material questions in the application falsely. It also gave notice that all claims to the beneficiary named in said policy had been fully paid, satisfied, and compromised.

It is the claim of plaintiff that false answers were not made to material questions in the application, and that defendant, by means of fraud and false statements, obtained from the beneficiary named in said policy a release from any liability thereunder, and a delivery of the policy, and that by reason of said fraud the release was not binding and defendant was still liable under the policy. The jury before whom the case was tried returned a verdict in favor of plaintiff. After the verdict was rendered in the case, an application was made for a new trial, which application was overruled. No requests were made that the judge file reasons for denying the motion for a new trial, and no exceptions were taken to the written opinion which he wrote iñ overruling the motion for a new trial. We .have repeatedly held that under such circumstances we will not review the action of the circuit judge in overruling a motion for a new, trial.

From the statement already made it will be seen that upon the trial two important questions were presented:

First. Did the insured, by means of false statements in his application, perpetrate a fraud upon the company in. obtaining the policy of insurance ?

Second. Did the defendant, by means of false statements, obtain a release from any liability because of the policy, from the beneficiary named therein ?

There was testimony introduced bearing upon each of these questions tending to support the conflicting claims of the parties to the litigation, and we think those questions were rightly submitted to the jury.

It is the claim of counsel for the defendant that, under the undisputed testimony in the case with reference to the condition of the insured and his answers to the questions contained in the policy of the insured, the trial court should have directed a verdict in favor of the defendant. This claim is based almost entirely upon the testimony of one Dr. McClinton. It will be sufficient to say, with reference to this contention of counsel, that the testimony was not undisputed.

Objection was made on the part of the plaintiff to the testimony of this doctor upon the ground that it was privileged. The trial court overruled the objection and permitted him to testify fully in the case. In view of the result, we deem it unnecessary to pass upon the question as to whether any of this testimony was privileged. It all went before the jury. Parts of it were disputed by the testimony of other witnesses. Portions of it were utterly inconsistent with a sworn written statement made by the doctor accompanying the proofs of loss. The circuit judge submitted the question fully and fairly to the jury, and they evidently refused to believe the testimony of this witness and there was abundant evidence to justify their verdict in that respect.

The case was carefully tried by the trial judge, and we find no error in it that ought to result in its reversal.

Judgment is affirmed.

McAlvay, Montgomery, Ostrander, and Hooker* JJ., concurred.


author: Montgomery, J.

text:
    WALKER v. CITY OF DETROIT.
    1. Municipal Corporations — Detroit Charter — Sidewalks — Repair or Reconstruction.
    Section 57, chap. 7, of the charter of Detroit, as amended by Act No. 472, Local Acts 1901, empowering the common council to require landowners to build sidewalks in front of their property when necessary, is broad enough to include reconstruction, when necessary.
    2. Same — Meaning of Repair.
    The provision in said section that “ repairing ” of sidewalks shall he at the expense of the city does not withdraw the power . apparently given with respect to reconstruction, since repairing does not include reconstruction.
    Appeal from Wayne; Frazer, Brooke, Mandell, Rohnert, and Hosmer, Jj.
    Submitted January 9, 1906.
    (Docket No. 43.)
    Decided March 27, 1906.
    Bill by Bryant Walker and Jessie W. Radcliffe against the city of Detroit and William H. Maybury, commissioner of public works, to enjoin an assessment against real estate. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      H. E. Spalding, for complainants.

      John W. McGrath, for defendants.
   Montgomery, J.

This is a suit to enjoin the assessment against real estate of complainants of the expense of laying a new sidewalk, which the city proposes to have laid adjoining their pro'perty. The complainants submit three propositions:

I. That, whether the old sidewalk is to be repaired or a new one built, the charter amendment of 1901 puts the expense thereof upon the city.

2. If the existing sidewalk is now beyond repair, but could have been repaired at the time of the charter amendment of 1901, the city must lay,the new walk, as the additional expense results from its default.

3. The sidewalk is now repairable and the expense of repair cannot be assessed against the property.

The facts are as follows: Complainants’ property has a frontage of 368 feet on the south side of Mack avenue, between Meldrum and Beaufait avenues. The suit was tried in the circuit court in September, 1904. It appeared that the existing sidewalk, which was of plank, had been built 10 or 12 years before, that certain small repairs had been made thereon,' the last apparently in 1896; that since the passage of the charter amendment, which took effect June 6, 1901, complainants received no complaint of the condition of the sidewalk and no notice to repair it, although the street both east and west of complainants’ property, as well as upon the opposite side, is all built up.

In the spring of 1904 Mr. Walker, one of the complainants, received a call from a contractor who wanted to lay a cement sidewalk opposite the property. Mr. Walker then examined it and found the sidewalk in bad condition —the plank in two places had been destroyed by its being driven across, the stringers had become rotten, and some of the plank — but he judged from the appearance of the surface that about three-fifths of the planking could be relaid. . Immediately afterwards, on April 28, 1904, he wrote the commissioner of public works that the sidewalk needed immediate? repair, and shortly afterwards received a notice to lay a cement sidewalk, or that the commissioner of public works would do, so at the expense of the property.

Two witnesses, Mr. Pocock, a builder, and Mr. Hertz-man, his foreman, both familiar with the construction of sidewalks, testified for complainants on the condition of the walk. Both said that the stringers were so rotton as to be useless. Hertzman said of the planking that there was about 75 feet which could be relaid, and 42 feet that was sound on top and apparently good, but rotten at the bottom. Pocock said that there was 70 or 80 feet that was sound on both sides and could be relaid, and about an equal amount that was sound on top, but rotten on the under side. Pocock said also that, from the condition in which he found the walk, he should say that it could have been repaired in 1901 so that it would not be necessary to build a new walk today. On this point Hertzman’s testimony is to the same effect.

The defendants swore three witnesses on the condition of the walk, none of whom had seen it prior to April, 1904. They all agreed that the stringers were rotten. John Adas said that he did not believe there were 50 feet of plank fit for relaying; Adolph Nederpoon, that there were between 40 and 50 feet of good plank. This, he said, was a rough estimate made without counting. None of the city’s witnesses testified or expressed any opinion as to the condition of the walk in 1901, or as to whether it was then in a repairable condition. Except as to the quantity of plank fit for relaying, there was no variance in the testimony. The bill was dismissed.

The circuit judges having found as a fact that the sidewalk was so worn out as to require the construction of a new walk, and the record fully justifying this finding, the meritorious question presented is whether the charter provisions quoted impose the burden of reconstruction of sidewalks upon the city at large. Section 57 of chapter 7 of the charter, as amended (Act No. 472, Local Acts 1901), being section 193 of the charter, compilation of 1904, empowers the common council to require the owners or occupants of any lands in said city to build, when necessary, all sidewalks in said city in front of the property of such owner. This language is broad enough to include reconstruction when necessary. Is this power so qualified by the latter part of the section, which provides that “repairing ” of sidewalks shall be at the expense of the city, as to withdraw from the council the power apparently given by the earlier part of the section ? We think the word “ repair,” as used in this section was not intended to include an entire reconstruction when found necessary, but relates to those ordinary repairs, which, without changing the character of the walk or amounting to substitution of one for another, are needed to keep the existing walk in a serviceable and safe condition. In 24 Am. & Eng. Enc. Law (2d Ed.), p. 470, it is said:

“To repair, as is ordinarily understood, means to amónd; not to make a new thing, but to refit, to make good or restore an existing thing. Thus the term does not include construction, reconstruction, or rebuilding.”

See, also, Vincent v. Frelich, 50 La. Ann. 382; Levi v. Coyne, 22 Ky. Law Rep. 493; Farraher v. City of Keokuk, 111 Iowa, 310; Naye v. Noezel, 50 N. J. Law, 525.

The decree is affirmed.

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


text:
    WATSON v. DETROIT JOURNAL CO.
    1. Libel — Declaration—Inducement—Innuendo—Necessity.
    A declaration, for libel by a trading stamp concern against a newspaper publisher alleged the publication as follows “Two suits [meaning the suits brought by this plaintiff and other stamp company in this court] brought by trading stamp concerns [meaning as one of these this plaintiff, etc.] callattention to the fact that these get-rich quick schemes are outlawed in this city.” Held, that an averment, by way of inducement, that plaintiff was one of the parties bringing suit, to which the innuendo could be referred to determine its truth, was necessary.

      .2. Same — Publication — Construction of Language — Reference to a Class.
    A class of persons being engaged in the conduct of trading stamp concerns in a city, a publication which does not refer to all of the persons, but referred generally to the trading stamp concerns of the city, as “ the get-rich-quick industry,” “the trading stamp fake,” etc., is not libelous.
    Error to Wayne; Donovan, J.
    Submitted February 1, 1906.
    (Docket No. 83.)
    Decided March 27, 1906.
    Case by Harry W. Watson and others against the Detroit Journal Company for libel. There was judgment for defendant on demurrer, and plaintiffs bring error.
    Affirmed.

      Corliss, Leete& Joslyn (Bay B. Morgan, of counsel), :for appellants.

      Geer, Williams <& Martin, for appellee.
   Moore, J.

This action was commenced by declaration, to which a demurrer was interposed. The demurrer was sustained, and the case is brought here for review. The declaration contains several counts. If a cause of action is stated therein, it is in the following:

“County of Wayne — ss.:
“ And now come Harry W. Watson, William C. Orrell, William Wildanger, Frank D. Buckingham, and George A. Cothraine, of Flint, Michigan, copartners, doing business as the Michigan Trading Stamp Company, plaintiffs, and complain of the Detroit Journal Company, a Michigan corporation, the defendant herein, in a plea of -trespass on the case, filing this as their amended declaration:
“ For that whereas, heretofore, to wit, on the 20th day of September, 1904, and for a long time prior thereto, to wit, for a period of one year, and until the present time, the said plaintiffs, under the firm name as aforesaid, have been engaged at Detroit, Michigan, and at other cities in the State of Michigan, in the business of selling trading stamps, or coupons, to the merchants of the city of Detroit and of other cities and towns in the State of Michigan, and in redeeming such of said stamps as are presented for that purpose at the stores of these plaintiffs, which redemption is made by exchanging for such trading stamps articles of merchandise, a large stock of which is and has been kept at the stores of the said plaintiffs; that by the carrying on of said business the said plaintiffs had built up and established a large and profitable business and had invested in said business large sums of money, to wit, the sum of fifty thousand dollars, and that prior to the acts herein complained of the said plaintiffs had derived large profits from said business, to wit, at the rate of ten thousand dollars per year; that the said plaintiffs always were and are good and honest citizens of this State, and before and at the time of committing by the said defendant the grievances hereinafter mentioned were persons of good name, credit, and reputation, and the said business carried on by them under the firm name as aforesaid was and is a fair, honest, and lawful business that, at the time and places aforesaid, the said defendant was engaged in printing and publishing, and was the proprietor and owner of a daily newspaper known as the ‘Detroit Journal,’ which said paper at the times herein mentioned had a large circulation in the city of Detroit and throughout the State of Michigan. Yet the said defendant, well knowing the premises, but contriving and maliciously intending to injure said plaintiffs in their said business, and to bring them, the said plaintiffs, into public scandal and disgrace, and to bring the business carried on by these plaintiffs as the Michigan Trading Stamp Company into disrepute, and to injure and destroy the said business of these plaintiffs, did, to wit, on the 20th day of September, 1904, at the city of Detroit, Michigan, and in other cities and towns in the State of Michigan, wrongfully injuriously and maliciously publish a certain false, injurious and malicious libel of and concerning the said plaintiffs in their said business, to wit, an editorial in the said Detroit Journal as follows:
‘“The Outlawed Trading Stamp.
“ ‘ Two suits [meaning the suits brought against the city of Detroit et al. by these plaintiffs and International Amusement Stamp Company of Detroit, Michigan, Limited, in this court], brought by trading stamp concerns [meaning as one of these, these plaintiffs doing business as the Michigan. Trading Stamp Company, who had brought one of said “two suits”], call attention in emphatic manner to the fact that this particular form of the get-rich-quick industry is now outlawed in this city. The people of the entire community through their legislative representatives have voted almost unanimously to place them on the same basis as lotteries and resorts of a socially disreputable character.
“ ‘ The passage by the people of the municipal ordinance including the trading stamp in the classification of other tabooed things makes them doubly an outlaw. There is a State law under which such devices must be affirmed to be illegal. This is the same State law which, as will be remembered, was invoked by a no less personage than the attorney general of the State for the suppression of the illegal tontine diamond graft here some four or five years ago.
“‘The similarity between the trading stamp graft and the so-called tontine plan for acquiring ownership of diamonds is too close to escape attention [meaning that the buisiness of plaintiffs is disreputable, dishonest, and illegal]. Both have as their chief element of attractiveness to uninformed persons a pretended offer to give something for nothing — that is, to give a greater value than that for which one may have paid. Both, too, are dependent for the enormous profits yielded to their promoters on the great percentage of “lapses” — that is, failures to carry out their original intention on the part of those who may be seduced by the promise of something for nothing to invest in the scheme.
“ * The result of the crusade against the tontine diamond fake is still fresh in the public mind. The chief promoter of the graft fled the city and the swindling enterprise was speedily broken up.
“ ‘The trading.stamp concerns [meaning as one of these, these plaintiffs doing business as the Michigan Trading Stamp Company] may struggle against the inevitable and resort to every technical obstruction which the civil courts may .place at their command, but the result is already. discernible. They [meaning, among others, these plaintiffs doing business as the Michigan Trading Stamp Company] are outlaws and must yield ultimate obedience to the authority which has denounced them as such.’
“ That at the time of the committing by the said defendant of the said grievances there were only, four, or thereabouts, trading stamp companies engaged in the trading stamp business in the city of Detroit, of which the Michigan Trading Stamp Company, plaintiff herein, was one, so that when said false, malicious, and injurious article was published, as herein set forth, the attention of all the readers thereof was directed to this plaintiff as one of said four companies, and these plaintiffs, doing business as aforesaid as the Michigan Trading Stamp Company, were identified in the minds of the readers of said paper and of the customers of these plaintiffs, doing business as aforesaid, as being one of the companies referred to in such false publication,” etc.

There were six reasons stated in the demurrer. It is conceded that upon the record presented here some of them are not well taken. The two reasons which we will consider are stated as follows:

“ 4. The articles published in defendant’s newspaper of which plaintiffs complain do not refer particularly to the plaintiffs, but generally to all persons engaged in the trading stamp business. In other words, said articles have no personal application to the plaintiffs, and therefore are not libelous. * * *
“6. The said declaration does not state facts sufficient to constitute a cause of action.”

It will be observed that the only suggestion made in the declaration that plaintiff had brought suit against the city of Detroit is in the innuendo. In Taylor v. Kneeland, 1 Doug. (Mich.) 67, it is said:

“Hasthe plaintiff alleged anything in the inducement to warrant this innuendo ? Here the actionable quality of the words arises from extrinsic circumstances, and, Starkie says, those circumstances must appear, and that the method of putting them upon record is: 1. By an introductory part, or inducement, and stating them by averment. 2. By a colloquium connecting them with the libel or slander, as by saying that the words were spoken ‘ of and concerning ’ the extrinsic facts so averred in the inducement. 3. By an innuendo applying the different parts of the charge to the different facts before averred and set forth in the inducement. Starkie on Slander, p. 290.
“The innuendo, therefore, can do nothing more than refer back to some facts stated in the inducement; for the truth of an innuendo must always appear from precedent averments, and the inducement and colloquium must warrant the innuendo.”

See, also, Lewis v. Soule, 3 Mich. 514, and cases cited in the note; Bourreseau v. Journal Co., 63 Mich. 425; Vickers v. Stoneman, 73 Mich. 421, 422. We have, then, a declaration without any proper averment that plaintiff had commenced a suit against the city of Detroit.

The important question is whether upon this record the fourth reason stated in the demurrer, reading as follows: “The articles published in defendant’s newspaper of which plaintiffs complain do not refer particularly to the plaintiffs, but generally to all persons engaged in the trading stamp business; in other words, said articles had no personal application to the plaintiffs, and therefore are not libelous” — is well taken.

Counsel are not so far apart about what the law is as they are as to whether the averments of the declaration “bring the case within the rule. Counsel for plaintiff say:

“ Unless this court shall be able to say that the libelous articles complained of cannot by any reasonable construction be found to refer to plaintiffs, then the question whether or not the readers of the articles believed or understood they referred to the plaintiffs is one of fact, to be submitted to a jury. * * *
“The rule which determines whether or not an action will lie where a class of people is libeled is: ‘ Do the defamatory words refer to some ascertained or ascertainable person ? ’ ”— claiming this case comes within such rule, citing Fenstermaker v. Publishing Co., 12 Utah, 439 (35 L. R. A. 611); Wofford v. Meeks, 129 Ala. 357 (55 L. R A. 214); Jones v. State, 70 Am. St. Rep. 756 (38 Tex. Crim. Rep. 364), and other authorities.

Counsel for defendants insist that—

“Where libelous matter is published against a class of persons, an individual of that class cannot maintain an action for the publication unless the words refer specially to him. If they do refer specially to him, then, notwithstanding the fact that they also apply to others, he may maintain an action. The true rule is that where the words apply to a class of persons, and not specially to a particular group of such class, an individual of that class cannot maintain an action; but, if they apply specially to a particular group of such class, any member of such group may maintain an action” — citing 18 Am. & Eng. Enc. Law. (2d Ed.), p. 1053; Eastwood v. Holmes, 1 Foster & Fin. 347; Ellis v. Kimball, 16 Pick. (Mass.) 132; Stewart v. Wilson, 23 Minn. 449; Lewis v. Soule, 3 Mich. 514; McGraw v. Free Press, 85 Mich. 203, and other cases.

The case of Ryckman v. Delavan, 25 Wend. (N. Y.) 186, is quoted by counsel for both sides in support of their respective contentions, and is recognized by them as a leading case. The case was as follows:

“Ryckman sued'Delavan for a libel and set forth in his declaration a publication of the defendant, in which it was stated that certain malting establishments on the Hill in Albany [owned by particular individuals, but not naming the plaintiff as one of those individuals] were supplied with water for malting from stagnant pools, gutters, and ditches, often in such a [putrid] state as to be green on the surface; and that there were several malthouses on the Hill, all of whidSk relied on water taken occasionally from such places as before described. The plaintiff alleged that before and at the time of the publication he was maltster and brewer in the city of Albany, and was in the use and occupation of a malthouse and malting establishment at a place in the city of Albany called the ‘ Hill,’ where he carried on the business of malting grains for brewing, and that to injure him in his good name and to destroy his business the defendant published, etc., the alleged libel.”

Ten of the judges voted for a reversal and nine for an affirmance. The minority opinion was written by Chancellor Walworth. He first states the rule in an action of slander, and then says:

“It is otherwise, however, in the case of libels, where the whole is in writing or print, and all the external facts, to show the application of the libelous matter, must be spread upon the declaration, to enable the court to see that it must have been applied to the plaintiff as an individual, and not to a class of persons merely, when he sues for a personal libel on himself. Here the charge in the publication that there were several malthouses on the Hill, all of which, as the defendant’s informant believed, relied occa-' sionally on water taken from such places as had been described, did not. necessarily, neither could it by common intendment be construed to charge every individual who was interested in any malting establishment at that place, either as a copartner or otherwise, with having been personally concerned in the use of the impure water occasionally, or that every individual thus interested had a personal knowledge <?f the fact. The averment, therefore, that there were only 6 malthouses on the Hill, in which 12 persons were interested, either as copartners or sole owners, and that the plaintiff was interested in one of them as a copartner with two other individuals, does not necessarily show that the writer of the article intended to apply this particular clause of it personally to the plaintiff. Neither do I believe that a reader of the article who was fully acquainted with all the facts stated in this declaration would, in reading this article,, be likely to give it a personal application to each of these 12 individuals.”

Later in the opinion he uses the following language:

“ I am not at present aware of any case, either in this State or in England, where a private action for a libel reflecting upon a body or class of persons has been sustained. The only case, indeed, that I know of in any other country is one suit in Scotland brought by a lieuten-. ant colonel in behalf of his whole regiment for defamation, in calling them a regiment of cowards and blackguards. In that case the defendant did not appear upon the trial, as he was out of the country; and the lord commissioners, before whom the issue was tried, expressly told the jury that the damages given by them were not for an individual injury to the person, but for an injury done to the regiment. Shearlock v. Beardsworth, 1 Murray’s Rep. of Jury Cases, 196.’
“ I have no doubt, therefore, that the decision of the supreme court in this case was in conformity with the law as now settled, both here and in England, and that the judgment of that court should be affirmed.”

Senator Yerplanck, who wrote the opinion holding the article libelous, laid great stress upon the fact that the article stated “there were several malthouses on the Hill, all of which relied on water taken occasionally from such places,” as before described, and was of the opinion that this was equivalent to saying that every malthouse on the Hill, etc. In his opinion he uses this language:

“It is very evident that the charge is general, and includes all those who own and carry on business in the several malthouses described. Of these persons the plaintiff is one. The accusation includes all of them; and this, therefore, does not resemble those ancient cases in libel or slander where it was held with more strictness than courts now entertain that when a charge was made upon some one person indefinitely out of many, without any indication of the individual meant, the action was not maintainable on account of the uncertainty of the charge.”

He recognizes the rule stated by the chancellor in the following language:

“ The distinction between a libel aimed at an individual, and the censure or satire of a whole class of the community to which that individual happens to belong is unquestionable, being alike founded in the reason of the thing and supported by authority. No better definition of a. libel can be given than that of Chief Justice Parsons:
‘“A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule.’ Commonwealth v. Clap, 4 Mass. 168.
“To the same effect is the definition given by Hamilton, in the celebrated Croswell Case, 3 Johns. Cas. (N. Y.) 337, and since repeatedly adopted in our own courts, as in Steele v. Southwick, 9 Johns. (N. Y.) 215. In a private suit it is the injury inflicted upon the individual for which pecuniary compensation is sought.
“ It is the malicious intention of the libeler towards the-injured individual that authorizes the latter to seek redress. The proof, or else the necessary presumption of individual malice, and the inflicting individual injury, are the sole grounds of the' civil action and of the remedy it affords. General censure or reproof, satire or invective, directed against large classes of society, whether on moral, theological, or political grounds, cannot ordinarily be-prompted by individual malice or intended, to produce personal injury. The politician who assails the opposite party, the polemical divine who attacks the doctrine or the-discipline of another church or sect, or the moral satirist who lashes the vices or the foibles of his age and nation, ought not to be held responsible in private suits for the bold avowal of opinions, true or false. The principle upon which the civil remedy is allowed does not apply here; and the great interests of society require that it should not be made to apply. It is far better for the public welfare that some occasional consequential injury to an individual arising from general censure of his profession, his party, or his sect should go without remedy than that free discussion on the great questions of politics, or morals, or faith should be checked by the dread of embittered and boundless litigation. When such publications so far transcend the limits of fair discussion or legitimate moral rebuke, as to threaten public injury, they are most effectually, as well as most properly, prevented or punished by public prosecution.
. “But both in civil and in criminal prosecutions, whether it be punishment that is sought or compensation for an injury inflicted by libel upon an individual, the rule laid down long ago in Rex v. Alme, 3 Salk. 224, must apply:
“‘Where a writing inveighs against mankind in general, or against a particular class of men, as for instance, men of the gown, this is no libel.1 ”

And concludes his opinion as follows:

“I have accordingly no doubt that the present decision of the supreme court ought to be reversed. I hold that a declaration on libel cannot be adjudged insufficient by reason of the accusation being directed against a class of society, unless it is manifest and unquestionable that the charge is clearly made against a class of society or an order or body of men as such, and cannot possibly import any personal application tending to private injury. If to the common understanding of men the description evidently points to several individuals, or if, on the face of the declaration, it appears that the words are capable of being so meant and understood, then the fact of a person being defamed under a description of office or of profession, common to himself and other individuals included in the same libel, cannot take away the right of private action.”

The record shows there were several malthouses on the Hill. The publication stated, among other things, that all of them relied on water taken occasionally, etc. This was equivalent, as the opinion states, to saying that every one of them used the putrid water. Suppose, instead of criticising the methods of each and all of the maltsters on the Hill in conducting their business, the calling, or occupation, the class generally known as maltsters, had been criticised, and it had been asserted that beer drinking was harmful, and that a community would be better off if it contained no maltsters, is it not likely that the 10 who voted for a reversal would have joined the nine in affirming the case ? Suppose a local paper published in a community having but four saloons should say that the saloon business was harmful to the young, was a producer of drunkenness, that its results were -altogether bad, could it be said that such criticism would entitle each saloon keeper to maintain an action for libel ? Or suppose in a community where there was but one football team a paper was to publish an article asserting that the game of football was a cruel and brutal sport, which was worthy of the severest condemnation, could it be said that this was a charge that each member of the team was cruel and brutal, for which he could successfully maintain a libel suit against the publisher ? We think each of these questions must be answered in the negative. Trading stamp concerns are spoken of in the first article set out in the declaration of the plaintiff as- “the get-rich-quick industry.” This refers to trading stamp concerns generally, and not to any particular trading stamp concern. In another article the business is spoken of as “ the trading stamp fake. ” This refers to the business generally, and not to any particular individual. In another article it is said: “Mr Hunt appreciates the damage done to business by the trading stamp bloodsuckers. ” This refers in general terms to the men engaged in the business, and not to any particular person engaged” therein. We then have in this case a class of persons in Detroit engaged in the conduct of trading stamp concerns. A publication is made which does not refer to all of the persons engaged in that business in Detroit, but does refer generally to the trading stamp concerns of that city. We think the case stated will not sustain an action of libel.

The action of the circuit judge in sustaining the demurrer is affirmed.

Grant, Ostrander, and Hooker, JJ., concurred. McAlvay, J., concurred in the result.


text:
    CALVERT v. SCHULTZ.
    1. Statute'op Frauds — Sale op Goods — Delivery.
    An order by the seller of a car of coal on track to the carrier to turn it over to the buyer is not a delivery and acceptance that will take the contract of sale out of the statute of frauds, there being no claim that the carrier was authorized to accept for the buyer.
    3. Custom-tEvidenoe — Effect.
    Evidence of acceptance of coal by parol purchasers, on delivery by the carrier pursuant to the order of the seller, proves nothing more than that the great majority of purchasers do not insist on the defense of the statute of frauds.
    3. Evidence — Conclusion.
    In so far as witnesses undertake to testify that an order by the seller of coal in car lots on track to the carrier to deliver the same to the buyer is a delivery to the buyer, they assume to testify to a legal conclusion.
    4. Custom — Effect—Overriding Statute.
    Proof of a custom among coal dealers to accept coal on a parol purchase on delivery by the carrier pursuant to an order of the seller to the carrier for such delivery cannot override the express words of the statute of frauds.
    Error to Wayne; Frazer, J.
    Submitted February 13, 1906.
    (Docket No. 143.)
    Decided March 27, 1906.
    Assumpsit by George T. Calvert and Elmer C. Calvert, copartners as J. Calvert’s Sons, against Frank E. Schultz for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.
    Lodge, Trevor & Brown, for appellants.

      Henry G. L. Forler and Thomas W. Ward, for ap-; pellee.'
   Montgomery, J.

March 7, 1903, defendant gave plaintiffs a verbal order for a car- of Jackson Hill coal worth $179.03, then in the Michigan Central Railroad yards at Detroit, Mich. Immediately upon receipt of this order, plaintiffs telephoned to the railroad company to turn the car over to defendant, and, on the same day, sent to the railroad company a written order to the same effect. This is the method by which delivery of coal in car load lots is usually made. The same day, an invoice of the coal was sent to-the defendant. The car was put on the-Twentieth street siding by the railroad company on March 17th. The day before this, March 16th (nine days after the railroad company had been ordered by plaintiffs to turn the car over to defendant), defendant countermanded his order.

At the trial, defendant claimed the- verbal order was within the statute of frauds, and therefore void. Plain» tiffs claimed that no written contract was necessary, because of a custom existing among coal dealers, by which the direction to the railroad company to turn the coal over to the purchaser constituted delivery and acceptance. Frequently before this, delivery of other car load lots had been made to defendant himself in accordance with this-custom. At the conclusion of plaintiff’s testimony, the trial court directed a verdict for defendant because the custom had not been proven.

The conclusion reached was right. There was no offer to show an authority conferred by the defendant upon the railroad company to accept this coal for him. In the absence of such authority, delivery to the company was not delivery to the defendant. There was, indeed, no delivery to the carrier; the coal was already in its possession. There was nothing but a direction to the carrier, who held, possession for plaintiff, to make delivery to defendant. Defendant was no party to this, except as he became such by virtue of his parol contract wholly void by the statute-of frauds. That this was not delivery to or acceptance by-defendant is clear. 1 Mechem on Sales, §§ 356, 358, 365 ; Smith v. Brennan, 62 Mich. 349; Grimes v. Van Vechten, 20 Mich. 410; Gatiss v. Cyr, 134 Mich. 233.

The claimed custom does not change this rule because it is apparent that the evidence of acceptance of coal by purchasers under similar circumstances proves no more than that the great majority of purchasers would not insist on the defense of the statute of frauds. In so far as the witnesses undertook to testify that an order to the carrier was a delivery or acceptance by custom, they assumed to testify to legal conclusions. But, however well such custom might have been proved, it could not be permitted to override the express words of the statute. Van Hoesen v. Cameron, 54 Mich. 609; 29 Am. & Eng. Enc. Law (2d Ed.), pp. 378, 381.

The judgment is affirmed.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


text:
    QUICK v. WYANDOTTE & DETROIT RIVER RAILWAY.
    Carriers — Passengers —Personal Injuries — Sudden Jerks— Evidence.
    In an action by a passenger for injuries claimed to be the result of plaintiff’s being thrown from defendant’s car by a sudden jerk, evidence examined, and held, insufficient to show that there was any jerking of the car which was not incident to the ordinary running of electric cars over suburban, lines.
    Error to Wayne; Hosmer, J.
    Submitted February 14, 1906.
    (Docket No. 173.)
    Decided March 27, 1906.

      Case by Joseph Quick against the Wyandotte & Detroit River Railway and the Detroit United Railway for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.

      Brennan, Donnelly & Van De Mark, for appellees.
   Moore, J.

This is a personal injury case, brought by the plaintiff against the defendants. The circuit judge directed a verdict in favor of defendants. The case is brought here by writ of error.

The sole question involved is, Should the case have been submitted to the jury ? In January, 1903, the plaintiff lived near Sibley stone quarry. In the evening he went to Trenton, and after spending some time there, he got on a suburban car going north to go home. He remained upon the rear platform, he says, because he was smoking. There were but two passengers inside the car. He paid the conductor by giving him a ticket which would allow him to ride to Mud street which is the first regular stop north of Sibley switch, and is about 1,300 feet north of the north end thereof. Sibley switch is also a stopping place for the cars.

Plaintiff’s version of the affair, on the direct examination, is substantially as follows:

“When I first got upon the car I told the conductor where I wanted to get off, saying I wanted to get off at Swanson’s stop, a regular stop of the road. There is also a stop called the Sibley Quarry stop, about 80 rods from Swanson’s, I should judge. As the car got pretty near tc Swanson’s I saw that the conductor was not going to stop, and I pressed the button. I could not tell whether the electric bell rang. He passed the crossing to the next one, and I pressed it again. I saw he was talking to a young lady in there, and I thought perhaps he did not hear the bell, so I signaled a second time. The car also passed Sibley’s Quarry stop. The second time I pressed the button the conductor kind of turned around as though tie was going to pull the bell, and I walked around the other gentlemen that were standing there so as to get: ready to get from off the car. I slipped by the car jerking.. The next I knew I was at my house pretty badly bunged! up.”

On the cross-examination he testified:

4 4 Q. So you stood on the back platform ? ■
UA. Yes, sir. There were three .others with me — Fred Dickman and Salliotte and another , man, I didn’t know. I rode on a local ticket — three for 10 cents. I use those cars a great deal, and know about the prices. I have lived in that district all the while. Have lived right there in Monguagon, and within six miles of Trenton. Was there before the electric road was built. Worked at Sibley’s and used to go down to Trenton quite often. Most of my business is done in Trenton, so that I used to make quite a number of trips over that line. I used to come up to Detroit now and then, and did at that time. The car didn’t stop at Swanson’s switch, but went on. In fact it went by my house. I can’t tell just exactly how many feet north of my house I fell off. The car was going pretty fast; going about as fast as I ever rode on. I don’t know that they go any faster at night than in the daytime. I don’t know how far beyond my house I was carried by the car. It was pretty near up to Mud street, somewhere, I think.
Q. Now, you came to Swanson’s switch, you say, and then went on over the loop, or at least around the switch there, and on beyond Sibley’s and when you found you were going by your house you pressed the button, did you?
“A. I pressed the button just as they crossed the Swanson’s stop. That is where I wanted to get off.
44 Q., And then you pressed it again when you saw you were going by your house, didn’t you ?
“A. Yes, sir.
44 Q. And still the car didn’t stop ?
44 A. No, sir.
44 Q. And then did you press it again ?
“A. No, sir.
44 Q. You saw him ring the bell ?
“A. I saw him turn around. I supposed he was going to pull the bell. * * *
44 Q. And if he had pulled the bell you knew the car would not stop until Mud street, because that was the next stopping place ?
A. That was the next stopping place. * * * From Swanson’s switch to Mud street is about half a mile in my judgment. I knew the motorman would not stop until he got to Mud street, because that was the next stopping place after he had passed my place. I was still standing on the back platform, and I walked around this other fellow. I says, ‘ I will be ready to get off at Mud street.’ They will stop, and I would walk back because I did not want to delay the car.
Q. And you made over toward the step ?
A. I walked around this other gentleman.
Q. Then how was it you got off before the car stopped ?
A. Well, that is what I don’t know.”
He also testified he thought there must be a curve in the road that caused the jerk or jar.
Mr. Salliotte, a witness for the plaintiff, lived with him, and on the direct examination gave the following version:
“When we started home we were together, and Mr. Quick, myself, and Mr. Dickman were on the rear platform. I was not inside the car at all. The electric road runs first along the east side of Washington avenue, just outside and north of Trenton, and then crosses to the west side. When plaintiff .got on the car he told the conductor to let him off at Swanson’s. We went along as usual until we got to near Swanson’s, and, there being no appearance of stopping, plaintiff pressed the electric button to signal a stop. I could not say that I heard the ring of the bell. At the time the conductor was in the car talking to a young lady. But there was no slacking off of the speed of the car. Then he pushed it twice. Our destination was the same, plaintiff’s and mine. Also Mr. Dickman. The plaintiff was standing right ahead of me, and he fell, head first, and I went in the car and told the, conductor that one of his passengers was hurt, and they' backed up the car, and me and the motorman and the conductor picked him up, and I took him home.
Q. What was it that happened just about the time that he fell out, that you noticed, if anything ?
“A. He fell head first.
1 “ Q. What caused him to fall ?
“A. I could not say how he fell. I don’t know. I seen Rim fall.”

On the cross-examination, among other things, he said:

“After you pass Sibley’s switch, you go north about 16 rods, and you come opposite the house that the plaintiff and I lived in. I didn’t do anything to stop the car; didn’t press the button when I saw we were going by the house. I was to get off the same place the plaintiff was. I was simply following him. After the car went by Swanson’s and Sibley’s switch, I knew that the car would not stop again until it got to Mud street. So I waited for the car to stop at Mud street. I was going to press the button before we got to Mud street. I was standing on the back of the platform facing the front until after plaintiff had fallen. I saw plaintiff walk over toward the step after he had pressed the button. He went right by me. He fell head first into the street; that is all I saw. * * *
“Juror: Right along there where he fell off did the track run straight or was there a curve ?
“A. Straight; that is, I think it did. I am not sure.”

Redirect examination:

Mr. Pound: You say this man dove off ?
“A. The car gave a kind of a — ■ (Objected to.) He said he could not say what made him fall.
Q. The car gave him a kind of what ?
“A. Gave kind of a-jerk before he fell.”

Later the plaintiff was recalled when the following occurred;

“Mr. Pound: One thing I omitted to ask you. At this place you got pitched off at, is the road level or hollow, or what is it around there ?
“A. It is hollow; there is a big dug-out there, a big hole there.
‘ ‘ Q. There is a big gully there ?
“A. Yes, sir.
“Q. What can you say as to whether or not at that gully the road is perfectly straight or has got a turn in it or a crook in it ?
“A. There was at that time a little short turn. The car would go right down just like that (illustrating).
“Q. Is it the same now ?
1 “A. I don’t know. I.have not been over it in a long time.”

Cross-examination:

“Q. To get back to this gully. You say at that time there was a gully there that the car went up and down over ?
“A. Yes, sir.
“Q. But you don’t pretend to say that there was any curve in that track ?
“A. There was at one time; yes, sir. I noticed it particularly.
“Q. Didn’t you tell me this morning that you didn’t know that there was any ?
“A. Right there; yes, sir.
“Q. What do you mean by a curve in the track when you speak of a curve ? You mean going up and down a hill, is that it ?
“A. That is a curve; yes, sir.
“Q. And you don’t mean that it curved to right or left?
“A. There was, yes, sir, about — within about a rod from where this started down the hill there, there was a little short turn there; yes, sir.
“Q. And this gully you spoke of is near Mud street, isn’t it ?
“A. Yes, sir; right to the foot of Mud street.
“Q. Right there at the foot of Mud street ?
“A. Yes, sir.”

The plaintiff said he had not been drinking that evening.

Mr. Mexico and Fred Dickman were sworn as witnesses for plaintiff, but this testimony was not more favorable for plaintiff than what we have quoted. The conductor and the passenger in the car gave a very different version of what occurred. It is not important to set out their testimony. Blue prints of the line from Mud street to Sibley’s switch, between which points, according to all the witnesses, the accident occurred, were offered in evidence. These show a perfectly straight track 'with a depression just south of Mud street of 4 feet in -200. • There are no switches between Sibley’s switch and Mud street. No one can read the record without reaching the conclusion that there was no jerking of the car which was not incident to the ordinary running of electric cars over suburban lines. We do not think plaintiff made a case which should have been submitted to the jury. See Etson v. Railway Co., 110 Mich. 494; Bradley v. Railway Co., 94 Mich. 35; Conroy v. Railway, 139 Mich. 173.

Judgment is affirmed.

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


text:
    JENKS v. HART CEDAR & LUMBER CO.
    Limitation op Actions — Mortgaged Property — Waste.
    The removal of timber from mortgaged land, by which the security of a second mortgagee is impaired, constitutes a present injury to the second mortgagee sufficient to start limitations against his right of action therefor, though his mortgage has not matured.
    Error to Kent; Wolcott, J.
    Submitted February 14, 1906.
    (Docket No. 159.)
    Decided March 27, 1906.
    Case by Samuel B. Jenks against the Hart Cedar & Lumber Company for the diminution of security under a real estate mortgage. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      W. D. Fuller, for appellant.

      Wallace Foote, for appellee.
   Montgomery, J.

For the purpose of presenting the legal questions in this case, the facts may be briefly stated. In 1897 John V. Cahill was the owner of 160 acres of land in Oceana county subject to two mortgages. The first mortgage was owned by Mary Groff and Margaret Zoller of Ft. Plain, N. Y. The second mortgage was owned by one Skeels and the present plaintiff. Cahill sold to defendant the hardwood timber on 15 acres of land, and defendant, during the fall and winter of 1897-98, cut and removed the timber. The mortgages were of record, and defendant was given notice after the first payment of $25 on the timber, and before the balance was paid, that the second mortgagee would not assent to the impairment of the security. Defendant replied that the owner of the fee claimed the right to sell the timber, and requested the second mortgagee to take prompt action if any was contemplated. No proceedings were then instituted. Plaintiff and Mrs. Skeels in 1902 filed a bill to foreclose the second mortgage. A decree was obtained and sale had on September 28, 1903, of the land, subject to the mortgage of Groff and Zoller, at $1,200. A deficiency of $647 was reported. Mrs. Skeels assigned to plaintiff her interest in the deficiency and also all right of action against defendant to recover for the timber taken. June 15, 1904, this suit was instituted to recover for the impairment of the security of the second mortgage. Judgment passed for the defendant on a special finding of above facts, and plaintiff brings error.

The circuit judge was of the opinion that the prior right of action for impairing the security rested in the first mortgagee, and that, in the absence of a discharge of that right on assignment thereof to plaintiff or a waiver of the right, the second mortgagee could not maintain the action, and also that, if a right of action ever did exist in plaintiff, it was barred by the statute of limitations.

Plaintiff maintains that a second mortgagee has such an interest in the land mortgaged as entitles him to maintain an action, and cites in support of this contention the case of Gooding v. Shea, 103 Mass., 360, which sustains the contention. It was there held that a second mortgagee had the right to maintain the action, and that the fact that the first mortgagee had a prior right would not, in the absence of a showing by the defendant of a satisfaction of the demand of such prior mortgage, defeat the action. See, also, 1 Jones on Mortgages (6th Ed.), § 684. Whether the case of Gooding v. Shea states the correct rule, or whether the right of the second mortgagee should be subordinated to the right of the first mortgagee, and not enforceable without the assent of the first mortgagee or a waiver of his prior right, we find it unnecessary to decide. As sustaining the view that the assent of the first mortgagee is essential to the right of the second mortgagee to maintain the action, see Sanders v. Reed, 12 N. H. 558.

In the present case, however, it appears that, if the Tight of action existed independently of the assent of the first mortgagee or waiver of his prior right, the action accrued more than six years before the suit was instituted. If, on the other hand, the assent of the first mortgagee or the waiver of his prior right was essential, the record shows no such assent. In the one view the action is too late, and in the other no right of action has as yet accrued.

It is sought to avoid the force of the statute of limitations in this case by the claim that the act of the defendant was not legally injurious until the mortgage matured, and that the removal of the timber was not in and of itself wrongful in a sense to entitle the mortgagee to immediately bring an actiofi. We are not able to see why one who has his security interest in property impaired by the wrongful act of another has not suffered a present injury.

The circuit judge reached the correct conclusion, and judgment is affirmed.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


text:
    BENSON v. ROSS.
    Weapons — Injuries—Negligence—Joint Tort Feasors.
    A plaintiff injured by a stray bullet, negligently shot from a rifle in violation of a city ordinance, by one of three defendants, who were shooting at a mark, using the rifle by turns, is not bound to prove which of the defendants fired the shot, since if there was concert of action all are liable as joint tort feasors.
    Error to "Wayne; Mandell, J.
    Submitted February 15, 1906.
    (Docket No. 174.)
    Decided March 27, 1906.
    Case by Libbie Benson against William J. Ross, Edward Ross, and Charles E. Haight, for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Charles B. Bohertson, for appellant.

      James H. Pound, for appellees.
   Montgomery, J.

This action was brought against the three defendants. Defendant Haight was not served, and the case proceeded against the defendants Ross. At the conclusion of the testimony the circuit judge directed a verdict for defendants, and plaintiff brings error.

The sole question presented is whether there was any testimony tending to show defendants’ responsibility for the injury. It is undisputed that on the Fourth of July, 1902, the defendant Haight came to the premises of the defendant William J. Ross, bringing with him a Flobert rifle, and that a bullet was fired from this rifle which, by misadventure, struck and inflicted serious injury upon the plaintiff. There was testimony on the plaintiff’s behalf tending to show that at the time this injury to plaintiff occurred the three defendants were engaged in shooting at a mark, using the rifle by turns. The plaintiff’s testimony failed to show who held the gun when the shot which caused the injury was fired. Defendants’ testimony tended to show that, some time before the accident, the two defendants Boss had ceased to participate in the firing, and that William J. Boss had requested Haight to shoot no more. The circuit judge seems to have deemed it essential to plaintiff’s case to show that the shot was fired by one of the two contesting defendants, or by his affirmative direction. We think this view of the defendants’ responsibility too restricted.

There was testimony tending to show that the three defendants were acting in concert in an act, not only violating a city ordinance, but palpably and grossly negligent. If the jury found such concert of action, all would be liable as joint tort feasors. Jenne v. Sutton, 43 N. J. Law, 257; Mahnke v. Freer, 126 Mich. 576; Conradt v. Clauve, 93 Ind. 476. Whether the defendants’ testimony was sufficient to overcome the evidence offered on plaintiff’s behalf was a question for the jury.

Judgment reversed, and a new trial ordered.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.


text:
    HACKLEY NATIONAL BANK v. JEANNOT.
    Husband and Wire — Partnership—Separate Estate — Chatted Mortgage.
    A married woman who has engaged in trade as her husband’s partner may bind her interest in the property of the two by joining with her husband in a chattel mortgage on firm property to secure'the firm debt.
    Error to Muskegon; Russell, J.
    Submitted February 16, 1906.
    (Docket No. 185.)
    Decided March 27, 1906.
    Replevin by the Hackley National Bank against Joseph O. Jeannot and Florence B. Jeannot, copartners as J. O. Jeannot & Co. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Stephen H. Clink, for appellants.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.
   Montgomery, J.

The defendants are husband and wife, and, for many years prior to the commencement of this suit, they were engaged in mercantile business in the city of Muskegon as equal copartners, under the firm name and style of J.. O. Jeannot & Co.” They being indebted as such copartners to the plaintiff bank and a number of other creditors, under an arrangement by which they, as. such copartners, gave the bank a mortgage on their stock of goods, etc., the bank furnished them sufficient money to pay up the other creditors, whose claims, together with what was owing the bank at that time, amounted to about $9,500. The defendants having made default, the plaintiff demanded possession under its mortgage, and, on defendants’ refusal to deliver possession, instituted this suit in replevin. The sole question which the record presents is this: Can a married woman, who has engaged in trade as her husband’s partner, bind her interest in the property of the two by joining with the husband in a chattel mortgage on the firm property to secure the firm debt ? It is the rule in this State that the husband and wife cannot become, by contract between themselves, copartners in trade, in such sense that the wife can be made responsible for the firm debts. Artman v. Ferguson, 73 Mich. 146 (2 L. R. A. 343).

In the present case, however, the plaintiff does not seek to hold the wife on her promise to pay. What is asserted on behalf of the plaintiff is that, although the debt be the debt of the husband alone, it was entirely competent for the wife to pledge her separate property for the payment of the debt. This has been frequently held. Marx v. Bellel, 114 Mich. 631; Just v. Savings Bank, 132 Mich. 600; Kieldsen v. Blodgett, 113 Mich. 655; Le May v. Wickert, 98 Mich. 628.

It is urged that this property was not the separate property of the wife, and the case of Speier v. Opfer, 73 Mich. 35 (2 L. R. A. 345), in which the question was whether the interest of a wife in an estate by the entirety was separate property within the meaning of the statute, is cited. It was held that that peculiar interest in property was not separate property. This holding was based upon the peculiar qualities of the estate in the entirety, an estate which neither the'husband nor wife can convey a separate interest in. In the present case there is no estate by the entirety. Either the husband or the wife could convey his or her several interest without the assent or concurrence of the co-owner. The interest which the wife had was in this sense her separate property and subject to her dominion and control. The recovery by plaintiff was right. '

Judgment affirmed.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.


author: Moore,. J.

text:
    GAFFKA v. DETROIT UNITED RAILWAY.
    Street Railroads — Crossing Accident — Contributory Negligence-Question eor Jury.
    In an action against a street railroad for injuries received by plaintiff, in a collision between plaintiff’s vehicle and a car, in attempting to cross the defendant’s track, evidence that, before crossing the track, plaintiff looked up the track for more than 300 feet and saw no car, is sufficient to take the case to the jury on the question of plaintiff’s contributory negligence.
    Error to Wayne; Donovan, J.
    Submitted February 28, 1906.
    (Docket No. 204.)
    Decided March 27, 1906.
    Case by Minnie Gaffka against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Raymond E. Van Syckle (J. Emmet Sullivan, of counsel), for appellant.

      Corliss, Leete & Joslyn, for appellee.
   Moore,. J.

On the afternoon of October 24, 1901, the plaintiff was riding with her husband in a wagon going north upon St. Aubin avenue in the city of Detroit. A railway car belonging to the defendant, going east upon Forest avenue, struck the rear portion of the rear wheels of the wagon. As the result of it the plaintiff was injured. This suit is brought to recover damages for. those injuries. The circuit judge was of the opinion the plaintiff was not entitled to recover on account of her contributory negligence, and for that reason directed a verdict in favor of the defendant.

The important question is whether the case should have been allowed to go to the jury. It would profit no one to set out in detail the testimony offered on the part of the plaintiff. It does appear, however, that, before crossing the track, she looked up the track, for more than 300 feet, and saw no car. But we are all of the opinion that, under the rulings in the following cases, the case should have been submitted to the jury. Geist v. Railway, 91 Mich. 446; Ryan v. Railway Co., 123 Mich. 597; Chauvin v. Railway, 135 Mich. 85.

The judgment is reversed, and a new trial ordered.

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


author:
McAlvay, J.
      Grant, J.
      Ostrander, J.

text:
    BRIGGS v. GULICH.
    Taxation — Tax Deed — Recovery of Possession — Action by Owner.
    Sections 140 and 143 of the general tax law (§§ 3959, 3963, 1 Comp. Laws), relative to the six months’ notice of redemption, and limiting the right of the owner to question the validity of the tax sale to six months after-service of such notice, apply only to tax titles obtained through courts of chancery, under the provisions of the present law, and do not apply to an action in ejectment to recover lands sold under the previous law in 1887 for the taxes of 1885, though the deed from the State was given after the enactment of the present law.
    Error to Gratiot; Stone, J.
    Submitted October 11, 1905.
    (Docket No. 42.)
    Decided March 27, 1906.
    Ejectment by Rena R. Briggs against Benjamin F. Gulich and others. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Albert McOlatchey, for appellant.

      J. Lee Potts, for appellees.
   McAlvay, J.

This is an action in ejectment to recover possession of certain lands in Gratiot county to which, plaintiff claims title by virtue of a certain State tax deed. The defendants claim under the original title.

In October, 1887, this land was sold for taxes assessed for the year 1885, and, not being redeemed, was placed on the State tax land list October 1, 1888, where it remained until April 14, 1903, when it was sold to a purchaser, and a State tax deed was issued on May 2, 1903. Plaintiff in this suit derived title from this purchaser by quitclaim deed August 22, 1903. This land had never-been offered for sale for this tax, except, as above stated,, in the year 1887. The deed to the purchaser from the State contained the proviso that it was made “subject to-the relevant conditions imposed by Act No. 229 of the Public Acts of 1897.” More than six months prior to beginning this suit, notices were served upon all parties, entitled to notice claimed to conform to the provisions of' section 140 of the present tax law (1 Comp. Laws, § 3959).. The case was tried before the court, without a jury. On the part of defendants proof attacking the validity of plaintiff’s tax deed was- offered and .received, subject to-objection and exception by plaintiff. Defendants also-offered proof tending to show adverse possession of this, land by them and their grantors, since April, 1887, which, subject to like objection and exception, was received.

The following facts were found by the court relative to-the invalidity of the tax of 1885:

“1. At the October session of the board of supervisors for the county of Gratiot, for the year 1885, as appears, from the record of the proceedings of said board, the committee on taxation made a report, consisting of a tabulated statement, which statement, after giving the name of each township in the county, had extended in separate-columns headed, respectively, ‘State Tax,’ ‘County Tax,* ‘Township Tax,’ ‘School Tax,’and various other taxes, and containing certain sums in each of said columns opposite the several townships. Underneath this tabulated statement is written the names of three supervisors, and opposite thereto ‘Committee on Taxation,’ and under the word ‘ Committee ’ is written the word ‘ Adopted.’ Nothing further appears in said record as to any report of said committee, nor any consideration of said report by the board, nor any action or order of determination of the said board in that regard, nor of any direction to the several supervisors as to the several taxes to be assessed on their respective rolls for that year. I therefore find that no such order of determination was made or direction given to the supervisor of the township of Lafayette to spread the tax in question upon the assessment roll for the year 1885.
“ 2. The clerk of the board dated and signed the regular printed certificate to the supervisor of the township of Lafayette, certifying that the several taxes mentioned in the said tabulated statement of the said committee on taxation, opposite the said township of Lafayette, were ordered by said board of supervisors to be spread on the assessment roll of his township for the year 1885.
“3. The supervisor of said township of Lafayette proceeded and assessed the said several taxes against the lands and personal property, as mentioned in said certificate, and among the lands so assessed was the south half of the northwest quarter of section 34, against which was assessed a total tax of $15.12.”

Other facts were found by the court, which need not be quoted, being undisputed or unnecessary to consider in deciding the case. The conclusions of law were that the tax was illegal; that the provisions of the tax law of 1897, providing a limitation of six months in which the owner of the land may question the tax or deed, did not apply in this case; and that plaintiff had not the title or right of possession of the lands in question, and defendants were entitled to judgment.

It is not claimed by plaintiff that any proceedings were had looking towards a sale of this State tax land under the proyisions of sections 78-82 of the present tax law (1 Comp. Laws, §§ 3901-3905), but it is claimed that, the deed from the auditor general having been given to plaintiff’s grantor after August 29, 1897, the notices specified by section 140 were required to be given, before suit to obtain possession of the land could be commenced; that such notices having been properly served, and no suit or proceeding having been begun within six months by the owners of the land, their grantees or representatives, as provided by section 143 (section 3962) of the general tax law, said parties are barred in this suit from questioning the validity of the tax title or tax deed. The title upon which the plaintiff relies is derived from a tax sale of this land made in October, 1887, for the taxes of 1885. The year for redemption expired October 1, 1888, at which time it was placed on the State tax list, where it remained until the purchase by plaintiff’s grantor in 1903. The State acquired whatever rights it had under the tax law in force before the adoption 'of the present system providing for the foreclosure of tax liens in our chancery courts. The provisions of sections 140 and 143 of the present tax law, relative to notice and limitation of the right of action, were intended to apply to tax titles obtained through courts of chancery, and not to titles obtained under proceedings had under the earlier laws. The court was correct in holding that the above-mentioned provisions of the law of 1897 did not apply to this case

We therefore hold that the circuit judge was not in error in allowing the testimony tending-to show the tax in question illegal, nor in finding that the record of proceedings of the board of supervisors did not show any apportionment of the taxes for 1885 to the different townships, or direction that the same be spread upon the several assessment rolls, as provided by the then existing law. Post v. Harris, 95 Mich. 323.

It is not necessary to discuss other questions raised.

The judgment of the circuit court is affirmed.

Grant and Blair, JJ., concurred.

Grant, J.

(concurring). I concur in affirming the judgment in this case, for the reason that Act No. 229 of the Public Acts of 1897, as amended by Act No. 128, Pub. Acts 1901, and by Act No. 236, Pub. Acts 1903, does not apply to the tax deed under which plaintiff claims title. The above-named statutes, providing for a six months’ notice and six months’ limitation of the right of action, were intended in terms to apply to tax titles obtained. through courts of chancery and not deeds obtained under tax proceedings before the law provided for foreclosing tax liens in our chancery courts. The writ of assistance spoken of in the statute belongs only to courts of equity, and is usually the only process for enforcing decrees for the possession of land. Jennison’s Chancery Practice, pp. 160, 206. The act of 1897 was by its terms expressly limited to titles which had been, or should thereafter be, obtained in pursuance of any tax sale made after the 29th day of August, 1897.” Prior to Act No. 195, Pub. Acts 1889, which completely changed proceedings to enforce the collection of taxes by sale, the only method by which such title could be tested was by an action of ejectment brought by the tax title owner where the owner is in possession, or by the original owner if the tax title owner had obtained possession, or by the proper suit in equity to quiet title. As to tax titles obtained under these proceedings, those remedies still remain, and are the exclusive remedies. Under those tax titles the owner of the tax title can obtain no writ of assistance, except at the determination of a suit in equity, and no writ of ejectment, except upon judgment in an action at law sustaining the validity of his tax title. The statute of limitations provided by Act No. 128, Pub. Acts 1901, is not a general statute of limitation as to tax title, but applies only to titles obtained under chancery proceedings. This statute of limitations, in the original act of 1897, was held void as not within the purview of the title. Citizens’ Savings Bank of Detroit v. Auditor General, 123 Mich. 511; Act No. 128, Pub. Acts 1901, remedied this defect in the law, and is valid.

Ostrander, J.

(concurring). I do not feel at all certain that the entire record of the board of supervisors, taken in connection with the certificate of the clerk of the board, may not show a sufficient compliance with the statute, and I think this case and Post v. Harris, 95 Mich. 323, are to be distinguished. However, the finding recites certain things which do appear, with a conclusion of fact, and appellant has not excepted thereto nor asked to have the finding corrected. I concur, therefore, in affirming the judgment.

Moore, J., concurred with Ostrander, J.