text:
    HUBERT v. TRAEDER.
    1. Husband and Wife — Joint Tenancy — Survivorship.
    Neither the contract nor the will of a husband can affect the title to lands owned by himself and wife as joint tenants.
    2. Cancellation of Deed — Evidence.
    On a bill to set aside a deed appearing to have been given by an aged woman, without advice of counsel, in settlement of a groundless claim of the grantee, evidence examined, and held, that a decree granting the relief prayed was proper.
    Appeal from Wayne; Donovan J.
    Submitted January 5, 1905.
    (Docket No. 18.)
    Decided February 4, 1905.
    Bill by Louisa Hubert against Anthony Traeder and Mary Traeder to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      M. B. Breitenbach, for complainant.

      James H. Pound, for defendants.
   Hooker, J.

Louisa Hubert, a woman of advanced years, and relict of Edward Hubert, filed the bill in this cause to cancel a deed whereby she conveyed the premises in controversy to Anthony Traeder. It is undisputed that this deed was executed in the office of Traeder’s attorney, and it is claimed by the defendants that it was in settlement of then pending litigation between the parties, involving their respective claims to the premises. The complainant asserts that the deed was procured through fraud. The circuit court granted the prayer of the bill, and the defendants (husband and wife) have appealed.

Traeder’s claim to the premises had its inception in an arrangement made between him and Edward Hubert under which he moved upon the premises with his wife and children, and performed farm labor, for which he was to receive as compensation shelter and food for his family, $50 per annum for clothing, and ultimately the farm. No witness testifies to the terms of the agreement; such proof as the record contains consisting of statements of Hubert, in relation to the subsisting arrangements between himself and Traeder, made to third parties while Traeder lived upon the place. They are substantially that Traeder was to work the farm without wages, and have it after Hubert should be through with it; that he was to have house rent and $50 a year. There seems no doubt that such an arrangement was made between them. Traeder commenced work in May, 1901, and in September, 1901, Edward Hubert died, leaving a widow, the complainant. Before his death, Hubert made a will, in which he provided that his personal and real estate should go to the complainant, and at her death to Anthony Traeder. This will was admitted to probate. It was not long after his death that a controversy arose between complainant and the Traeders, in which the present solicitors were counsel for the respective parties. Apparently neighbors and friends took an interest, and the matter culminated in an attempt to settle the differences. Accordingly the parties went to the defendants’ lawyer, who prepared the deed in controversy, and it was duly executed and delivered. Some time after, the parties being again in a quarrel, thi^ bill was filed; and pending the suit the complainant married, and brought her husband to the home occupied by defendants, to live with her.

The record does not show that Mrs. Hubert took any part in the original contract with Hilbert, unless it is to be inferred from the relations of the parties. At that time the title to the farm was in Hubert and his wife jointly, and it follows that upon his death the property passed to the complainant. His contract and his will were ineffective to vest any title to the land in Traeder. Apparently none of the parties understood this, and the complainant testified that, in the talk between the parties, Traeder often said to her that she had only a dower interest, or a third interest, in the place. It is urged that this was a fraudulent means of procuring the deed from her, and that Traeder knew that it was false.

We are impressed with the unfairness of the settlement made between these parties. It is satisfactorily shown that the Traeders made the arrangement with Hubert in the belief that he owned the farm, and could make the agreement that was made; but, as we have intimated, the death of Hubert put an end to his interest in the farm, of which Mrs. Hubert became at once the sole owner in fee, discharged of all her husband’s obligation to Traeder.

If it be admitted that this was hard upon Traeder, in that the consideration for his contract and services had in part failed, it was not, upon this record, chargeable to this complainant, who is not shown to have been a party to that contract.

We are not advised by the record that Traeder had a tangible claim of any kind against Mrs. Hubert, or that there was any legitimate reason for a controversy over her right to these premises. At the time of this settlement she was 65 years old, or thereabouts. The contract that she was said to have made was of that kind which most persons recognize as unfortunate and ill-advised, and, while courts cannot refuse to recognize their validity when clearly shown, they are not called Upon to do so where they are unconscionable or when they are made under extraordinary circumstances or mistake of fact.

It is not improbable that this old lady was unaware of the true state of this title, or that her adversaries were insisting that it was less than a perfect title in fee, as she states. We cannot suppose that they were ignorant of it, for their counsel must have known it. With certain defeat staring them in the face, they succeeded in obtaining a settlement very advantageous to them. They say that this settlement wa$ sought by her, and not by them, but that is not plausible. Her counsel were not consulted, and she is made to say that she did not want them to know of it. All this may be true, and yet the influence that brought it about may have been adroit, to the verge of fraud. We feel that it was so. It was too successful to have been entirely free from guile.

The learned circuit judge who saw the witnesses and parties reached this conclusion, which, in our opinion, the testimony fairly warranted.

The decree is affirmed, with costs.

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


source: Caselaw Access Project

author: McAlYay, J.

license: Public Domain

text:
    FAIRBAIRN v. HOUGHTEN.
    Contracts — Construction.
    Defendant was elected manager of a corporation, and given a mortgage on the corporate property to secure advances to be made by him under an agreement ‘ ‘ that he will furnish money for the prosecution of the business of said company, and for paying up the outstanding accounts of said company, which are now due, less stockholders’ notes, which are to run one year, and shall not exceed $15,000.” Held, that defendant was not required to pay stockholders’ notes from the amount advanced by him.
    Appeal from Wayne; Donovan, J.
    Submitted January 5, 1905.
    (Docket No. 19.)
    Decided February 4, 1905.
    Bill by Thomas Fairbairn and others against Henry Houghten and another for an accounting. From a decree for complainants, defendants appeal.
    Reversed, and bill dismissed.

      James H. Pound, for complainants.

      Fred O. Harvey, for defendants.
   McAlYay, J.

The complainants Thomas Fairbairn, Isaac N. Payne, Judson Mayhew are directors, and Samuel A. Baugh is a stockholder, of the complainant corporation the Detroit Pressed Brick Company. This company was organized March 10, 1890, with a capital stock of $100,000, of which $40,000 was paid in, and afterwards stock sold and stock dividends increased the entire amount of stock taken to $65,155. Real estate was purchased, and buildings and machinery placed thereon, and the corporation proceeded to do business. The venture from the first was not successful. It early became necessary to borrow money, and afterwards mortgages upon the company’s real estate to secure Robert Houghten for $4,000, State Savings Bank for $4,000, and Detroit Fire & Marine Insurance Company for $6,000, aggregating $14,000, were given to these creditors. The indebtedness of the company in October, 1894, was from $28,000 to $30,000, and was made up of the real-estate mortgages $14,000, certain stockholders’ notes, and current floating indebtedness. On October 29, 1894, the directors of the company appointed a committee of three “to confer with Henry Houghten, and with full power to make arrangements with him to take charge of the affairs of the Detroit Pressed Brick Company.” The committee appointed included complainants Fairbairn and Mayhew.

Henry Houghten is the principal defendant in this suit. He made a proposition in writing to this committee as follows:

“To the Committee of the Board of Directors of the Detroit Pressed Brick Co.
“ I hereby make the following proposition to said committee :
“1st. I will take charge of the business of said Company at a compensation of $2,500.00 per year, including office rent and clerk hire.
“ 2nd. I will furnish money for the running of the business and paying up of the outstanding accounts less stockholders’ notes which are to run one year, said sum not to exceed $15,000 and the sum due J. W. Frisbie (to-wit) $5,600.
“ 3rd. I will require a mortgage upon the real and personal property of said Company to secure such sum as he [I] may advance for the purpose of said business.
“ 4th. The office furniture is to become the property of' J. W..Frisbie.
“ 5th. That this agreement is to take effect from Nov. 1st, 1894. ' H. Houghten.”

On November 7,1894, the committee reported to a meeting of the directors an agreement with Henry Houghten. This report was not in writing. It was adopted, and. the president and secretary .were instructed to execute said agreement in writing, to be in duplicate.” The agreement so authorized and executed is as follows:

“ Articles of agreement entered into this seventh day of November, 1894, between Henry Houghten of the City of Detroit, and the Detroit Pressed Brick Co. (a corporation of the same place), by its President and Secretary, they having been duly authorized by the Board of Directors to execute the same, Witnesseth:
“1. That Henry Houghten hereby agrees to take charge of the business of said Company as its General Manager at the compensation of $2,500 per year, which is to include office rent, clerk hire, and services of the Secretary and Treasurer.
“2. That he will furnish money for the prosecution of the business of said Company and for paying up the outstanding accounts of said Company which are now due, less-stockholders’ notes which are to run one year, and shall not exceed $15,000.
“3. That the said Detroit Pressed Brick Company shall execute a mortgage of $10,000 upon its real estate and $10,000 upon its personal property to run for one year to secure the said Henry Houghten for all sums that he shall advance for said Company.
“4. That the said parties agree that the office furniture of said company shall become the property of J. W. Frisbie as a consideration of his bringing about this agreement.
“5. It is mutually agreed that this agreement shall take effect from Nov. 1st, 1894. “ In witness whereof we, the parties hereto, set our hands and seal this 7th day of November, 1894.
“H. Houghten.
“Detroit Pressed Brick Co.
“ J. W. Frisbie, President.
“Isaac N. Payne, Secretary.”

The president and secretary at the same meeting were authorized to and did execute the chattel and real-estate mortgages mentioned in said agreement of $10,000 each. J. W. Frisbie, president and director, resigned, to take effect on adjournment of the meeting, which resignation was accepted. Defendant Henry Houghten was elected director to fill the vacancy caused by such resignation, and was elected president to fill the unexpired term of Mr. Frisbie. A short time after the agreement was executed and delivered to Houghten, he returned with his attorney, and asked to have an interlineation made in it. The meeting had adjourned. No one was present except Mr. Payne, who consented, and wrote in paragraph 2, in the last line, after the word “year,” the words “ or until said company may meet them.”

Houghten at once entered upon his duties as general manager under the agreement above set forth. He furnished money, as appears by annual report April 1, 1895, to the amount of $10,268.04, and by annual report April 1, 1896, $22,116.27, principal and interest.

At the annual meeting of the directors held April 10, 1895, he was re-elected president of the company. At a meeting of the directors held November 22,1895, by resolution “it is agreed by the board of directors of the Detroit Pressed Brick Co. that the mortgages heretofore given to Henry Houghten by said company shall be security for all advances made by him for said company up to the amount of the face of the mortgages.” Houghten was elected president and general manager in 1896 at the annual meeting, which was the only meeting of the directors held that year. At a board meeting January 14, 1897, the president informed the directors of a demand from the Detroit Fire & Marine Insurance Company for immediate payment of $650 interest on its mortgage, and a committee was appointed to raise the money. This committee reported at a meeting held February 14,1897, and the president was authorized to raise the amount by mortgage on the company’s Franklin street lot. At the annual meeting April 15, 1897, Houghten was again elected president and general manager at a salary of $2,000. April 27, 1897, Houghten reported at a meeting of the directors the details of his foreclosure sale of the mortgage on personal property, realizing $6,250. Directors Payne, Julfen, and Fairbairn were “ authorized to take proper steps to wind up the Detroit Pressed Brick Co. and have the corporation dissolved.” This committee never reported any action. At the annual meeting of April, 1898, Fairbairn, Mayhew, Payne, and Baugh were dropped out of the board of directors, and a new committee was appointed. Houghten was engaged “generalmanager at a salary of $50 a month until the company’s affairs are wound up.” On April 19, 1898 — the last meeting of the directors recorded — the company leased all interest remaining in the plant to Houghten for not more than one year at $50 per month.

The foregoing is a brief statement of all record of the proceedings taken by the company material to this case, including and subsequent to the time of making the contract with defendant Houghten.

It is claimed on the part of complainants that Houghten, under his contract, was obligated to pay the stockholders’ notes amounting to $6,001; that he fraudulently absorbed the assets of the company by his conduct in managing its affairs and illegally foreclosing his mortgage. The bill is filed praying for an accounting with Houghten, that he pay the indebtedness according to contract, and for a receiver to wind up the affairs of the corporation and distribute the proceeds.

A large amount of testimony was taken in this case, from which the court found — and, we think, properly— that there was no fraud on the part of Houghten relative to the foreclosure of the mortgages on the real and personal property. The court, construing the contract further, found that by its terms Houghten agreed to pay the stockholders’ notes — in fact all of the floating indebtedness of the company.

The only important question to determine is whether this construction of the contract is correct. The question arises under the second paragraph of the contract:

“That he will furnish money for the prosecution of the business of said company and for paying up the outstanding accounts of said company which are now due, less stockholders’ notes which are to run one year, and shall not exceed $15,000.”

(The interlineation in this paragraph hereinbefore referred to was unauthorized and void.) The defendant had been approached by a committee ‘ ‘ with full power to make arrangements with him to take charge of the affairs of the company.” He had submitted in writing his proposition:

1. To take charge of the business of the company at a compensation of $2,500 per year, including office rent and clerk hire.

2. To furnish money for the running of the business and paying up the outstanding accounts, less the stockholders’ notes, which are to run one year, said sum not to exceed $15,000, and the sum due J. W. Frisbie, to wit, $5,600.

3. To require a mortgage upon real and personal property to secure his advances.

The parties got together at the company’s office November 7th, and the committee verbally reported an agreement, which report was adopted, and the execution of the agreement authorized. The contract and the mortgages were then executed and delivered. The proofs show almost without dispute that the amount of the stockholders’ notes was $6,001, and also that the sum due stockholder Frisbie was not included with the stockholders’ notes, and was to be paid at once. The bookkeeper testified that this Frisbie indebtedness appeared on the books separate from the stockholders’ notes. The contract was prepared by Mr. Payne as he understood it, and was read, and agreed upon without change. It appears to us clear from the agreement itself that Houghten was to furnish money to the amount of $15,000, and all evidence supports such construction. This money was to be furnished “for the prosecution of the business of said company, and for paying up the outstanding accounts of said company which are now due, less stockholders’ notes, which are to run one year.” The fair construction of this clause of the agreement does not include the stockholders’ notes. They were deducted from the outstanding accounts then due, and were “to run a year.” Any other construction would be strained. This is the construction given to this agreement by the parties. Houghten, as general manager at a salary of $2,500 per year, entered upon his duties. He paid all the outstanding accounts of the company then due, including the Frisbie indebtedness. He advanced money for the prosecution of the business until the amount he put in under this agreement was more than $15,000, as stipulated, and the resolution of November 22, 1895, declared that the mortgages given him should “be security for all advances made by him to the company up to the amount of the face of the mortgages.” The question of the payment of the stockholders’ notes by him was not raised at any meeting of the directors, as appears from the record of their proceedings, although a majority of these complainants were at all times members of the board. The complainants claim that they understood that Houghten was to pay the stockholders’ notes. The understanding of the parties was merged in this written agreement, our construction of which is that he did not agree to pay these notes.

Much of the testimony in the record relates to the conduct of Houghten on foreclosing his mortgages. The records show without dispute that he realized from his sales of the properties all that they were reasonably worth. The finding of the trial judge in this matter has already been sustained.

In accordance with the view of this court that defendant Houghten was not, by his contract, bound to pay the stockholders’ notes, so called, and that he did perform on his part as agreed, the decree of the court below is reversed, and the bill of complaint dismissed, with costs of both courts.

Moore, C J., and Grant, Blair, and Hooker, JJ., ■concurred.


author: Grant, J.

text:
    MURPHY v. DALTON.
    1. Assumpsit — Advances Under Contract — Abandonment—Recovery Under Common Counts.
    Where plaintiff made advances to defendant on a contract which was abandoned, it was proper for plaintiff to sue on the oommon counts in assumpsit for the recovery of the advances.
    :2. Same — Declaration—Money Lent — Variance.
    Where plaintiff sued on the common counts in assumpsit, furnishing a bill of particulars for “money lent,” and the evidence showed that the money had been advanced to defendants to enable them to manufacture lumber on an understanding that it was to be sold by plaintiff on commission that plaintiff might get back his advances, there was no variance.
    3. Same — Violation op Contract by Plaintiff.
    Where plaintiff, after making advances to defendant under a contract, violated the same, but the contract was not abandoned, plaintiff could not recover the advances on the com mon counts in assumpsit.
    Error to Wexford; Chittenden, J.
    Submitted January 6, 1905.
    (Docket No. 25.)

    Decided February 4, 1905.
    Assumpsit by Joseph Murphy and Fred A. Diggins, ■copartners as Murphy & Diggins, against John Dalton for money had and received. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Reversed.
    Plaintiffs’ declaration is upon the common counts in assumpsit. A bill of particulars was furnished, which specified four items “of money lent defendant by plaintiffs,” giving dates. With the plea of the general issue defendant gave notice that the items mentioned in the bill of particulars were paid to defendant upon a certain contract dated February 2, 1900, by which defendant agreed to manufacture and sell to plaintiffs a certain amount of lumber at stipulated prices; that said plaintiffs refused to perform the contract; that defendant performed his part of the contract, and claimed to recoup damages for the nonperformance of the contract by the plaintiffs. Upon this contract the first item of $350 was paid by plaintiffs to defendant. The theory of the plaintiffs is that, on account of the inability of the defendant to perform that contract and deliver the lumber within the time specified, it was mutually abandoned; that it was understood that the money so advanced should be repaid to the plaintiffs; and that another parol agreement was made between them by which plaintiffs agreed to furnish defendant money required to manufacture the lumber, and that the plaintiffs should handle the lumber on commission — at least enough of it to get back the advances which had been made. They gave testimony in support of this theory. The defense claimed that the first contract was never abandoned, and that all the sums advanced were advanced upon that contract, which the plaintiffs had failed to keep. The court directed a verdict for the defendant, for the reason that the money so advanced was not a loan, and that there was a fatal variance between the pleadings and the proofs.

      E. Eugene Haskins, for appellants.

      Charles A. Withey (J. E. Richardson, of counsel), for appellee.
   Grant, J.

(after stating the facts). Under the plaintiffs’ proofs the first contract was mutually abandoned. Even if nothing were said about the repayment of the $350 advanced upon it the law implies a promise to repay under such circumstances, and a declaration upon the common counts in assumpsit is sufficient.

The further theory of the plaintiffs is that the defendant, after receiving the money under the parol contract as advances, deliberately violated it, and sold the lumber to other parties.

In Hunt v. Sackett, 31 Mich. 18, the parties exchanged horses, one paying boot money. Plaintiff sought to recover on the common counts, without tendering back the boot money.

In Gorman v. Newaygo Circuit Judge, 27 Mich. 138, the declaration was upon the common counts. The 'defense set up a contract that plaintiff had refused to carry out. Plaintiff then filed an amended declaration setting up a breach of the contract. The court said that the contract remained open, and still in force, and that the amended declaration was the introduction of a new cause of action.

In Butterfield v. Seligman, 17 Mich. 95, there was no breach of contract. The defendant sold certain lands to plaintiff, with a special written agreement that, if a good title could not be made, he was to return to plaintiff $625. A good title could not be made. It was held that the declaration should have been based upon the special contract.

These and similar cases do not apply. If the defendant received the money of plaintiffs upon the contracts, and one was mutually abandoned, and the other repudiated by the defendant, he had money which in equity and good conscience belonged to the plaintiffs, and the law implies a promise to pay it back.- The objection is technical. It is true that plaintiffs did not lend or loan the défendant money within the strict definition of the term “loan.” More appropriate language might have been used in describing the transaction. But the parties thoroughly understood what was meant, and the defendant, by his plea and notice, is shown to have fully understood the declaration and the items in the bill of particulars. He was not, therefore, taken by surprise. Under plaintiffs’ theory and proofs the defendant has money in his hands, advanced to him, part upon a contract mutually abandoned and part upon a contract repudiated by him. If the jury believed the evidence on the part of the plaintiffs, they were entitled to recover under the principle of the following cases: Johnson v. Insurance Co., 39 Mich. 33; Phippen v. Morehouse, 50 Mich. 537; Nugent v. Teachout, 67 Mich. 571; Murphy v. McGraw, 74 Mich. 318; Ripley v. Case, 78 Mich. 126; Fitzpatrick v. Hoffman, 104 Mich. 228.

If the first contract was still in existence, and had been violated by the plaintiffs, and all the advances were made under it, then the defendant was entitled to recover. The issue was one for the jury.

Judgment reversed, and new trial ordered.

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


author: McAlvat, J.

text:
    CENTRAL SAVINGS BANK v. O’CONNOR.
    1. Appeal and Error — Retrial—Amendments—Discretion.
    Permission to amend in the trial court after reversal and remand for new trial is discretionary with the trial court.
    2. Same — Denial of Amendment — Harmless Error.
    The denial of an application to amend a plea was not prejudicial where defendants were permitted to make a full statement on the trial of all the defenses claimed, and a verdict was directed because the defenses were not available on the merits.

      3. Evidence — Parol—Varying Written Contract.
    Promissory notes in common form cannot be defeated by parol evidence of a contemporaneous agreement not to enforce them in a certain contingency. Central Savings Bank v. O’Connor, 132 Mich. 578, followed.
    Error to Wayne; Frazer, J.
    Submitted January 4. 1905.
    (Docket No. 9.)
    Decided February 4, 1905.
    Assumpsit by the Central Savings Bank against George M. O’Connor and William J. Hammond on promissory notes. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Charles W. Casgrain and F. A. Fink, for appellant.

      Bowen, Douglas, Whiting & Mur fin, for appellee.
   McAlvat, J.

The Central Savings Bank, plaintiff, sued defendants, George M. O’Connor and William J. Hammond, in assumpsit, upon two promissory notes aggregating, with interest, $1,736.39.

Under a plea of the genéral issue defendants gave notice that as a special defense they would show that these notes were given for the amount of a certain chattel mortgage' upon the property of the J. R. Pearson Company, a Michigan corporation, and certain accounts, assigned to defendants by plaintiff; that O’Connor was the maker and Hammond the indorser of said notes; that the notes were delivered to plaintiff on a parol understanding that in case the J. R. Pearson Company should be forced into bankruptcy by any of its creditors, and adjudicated a bankrupt, the notes would be null and void; and that the J. R. Pearson Company was afterwards adjudicated a bankrupt by the United States district court for the Eastern district of Michigan, in bankruptcy.

Defendant Hammond, a judgment creditor of the J. R. Pearson Company, upon a justice’s court judgment for $400, had levied upon the stock of goods covered by the mortgage above mentioned, and subject to it. He purchased the mortgage and the note which it secured, and also certain accounts which it held, and which had been assigned to it by the J. R. Pearson Company, giving the notes in suit in payment therefor.

This case was before this court in the January term, 1903, and is reported in 132 Mich. 578, and was reversed and remanded for a new trial, because the trial court committed an error in practice in entering a judgment for plaintiff non obstante veredicto when there was no verdict to support it.

Before the second trial defendants sought to amend their plea by a notice that they would show a partial failure of consideration for said notes. The motion to amend the plea was denied. The trial court allowed the attorney for .the defendants, in opening his case to the jury, to make a full and complete statement of all defenses claimed. The plaintiff then asked the court to direct a verdict in its behalf. Thereupon the court clearly and concisely stated the case to the satisfaction of the counsel on both sides, and decided that the defense was not admissible, and directed a verdict for the plaintiff for the amount claimed.

Error is assigned by defendants for the refusal to allow an amendment to the plea, and also for excluding the defense offered and directing a verdict for the plaintiff.

The application to amend the plea came very late, and appeared to the trial court to be an attempt to change the issue after the case had been heard in this court and remanded for a new trial. To deny the amendment was a matter of discretion, and did not in any manner prejudice defendants, for the reason that their broadest claims were allowed to be stated, and, all being considered, the learned trial judge determined that the defense was not available.

The principal error relied upon is as to the instruction of the court to the jury to return a verdict for the plaintiff. The defendants, by the proposed amendment to their plea, and in their opening statement to the jury, offered to show that defendant O’Connor had bid in the property of the J. R. Pearson Company at an execution sale under the Hammond judgment subject to the chattel mortgage, and for the purpose of discharging the lien of said mortgage these notes were given to the plaintiff; that they were given in reliance upon the representation by plaintiff that said mortgage would remain a valid lien upon said property; that plaintiff agreed to defend against bankruptcy proceedings against the J. R. Pearson Company, and aid in preventing an adjudication; that plaintiff failed to do this, and the J. R. Pearson Company was adjudged .a bankrupt. This offer was made to show a partial or total failure of consideration. Upon an examination of the whole record we do not find that any situation is presented different from that when this case was here before. This was an attempt to show by parol a contemporaneous •agreement to defeat the undertaking in writing. The questions here presented were thoroughly discussed in the opinion of this court by Justice Montgomery in Central Savings Bank v. O’Connor, 132 Mich. 578, to which reference is had.

The judgment is affirmed, with costs.

Moore, C. J., and Grant, Blair, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
      In re TOEPEL.
    1. Coroners — Fraudulent Claims — Presentation to Court— Punishment.
    The presentation and allowance of a coroner’s claim for an inquest on the body of an alleged deceased stranger, under section 11828, 8 Comp. Laws, not being subject to review by the auditor general, such claim, when filed, is a proceeding depending in the circuit court, within section 10891, 8 Comp. Laws, authorizing punishment of coroners for misbehavior in office, willful negligence, or violation of duty therein, as to any cause or matter depending in a court of record.
    2. Same — Allowance of Claim — Judicial Act.
    The determination and allowance of such claim involves the exercise of judicial discretion and judgment by the court, and is therefore a judicial act.
    3. Same — Contempt—Prima Facie Case.
    Affidavits charging the presentation by a coroner of fraudulent, claims against the State to the circuit court for fees and expenses in holding an inquest on the body of an alleged stranger, under section 11828,3 Comp. Laws, examined, andheMto establish a prima facie case of misconduct on the part of the coroner, warranting the issuance of an order to answer why he should not be punished for contempt.
    4. Same — Presentation to Court — Sufficiency.
    It appearing from the affidavits that the claim found its way into the hands of the judge, and was supported by the coroner’s certificate, which could only have been made for presentation to the court, and that the amount of the bill was receipted for by defendant, the affidavits were not objectionable for failure to affirmatively allege that the claim was ever presented to the court.
    5. Same — Auditing Claim — Record.
    Where a coroner presented a fraudulent claim against the State1 to the circuit judge for allowance, the contempt of court was. complete on presentation of such claim; and it was not, therefore, material that the order allowing it was not entered of record.
    6. Same — Contempt—Disqualification of Judge.
    The judge who allowed a fraudulent coroner’s claim is not disqualified from acting in proceedings to punish the coroner for contempt in presenting the fraudulent claim.
    Habeas corpus proceedings by Otto T. Toepel to obtain his release from the county jail of Wayne county.
    Submitted January 3,1905.
    (Calendar No. 20,859.)
    Prisoner remanded February 8, 1905.

      Alex. J. Groesbeck and Edwin Henderson, for petitioner.

      Allan H Frazer, for respondent.
   Montgomery, J.

The petitioner sued out a writ of habeas corpus to review a sentence of Judge Donovan, imposed upon the petitioner for an alleged contempt of court. The questions involved relate to the jurisdiction to punish the petitioner for the act recited.

The petitioner is coroner of the county of Wayne, and entitled, as such, to hold inquests upon dead bodies. 3 Comp. Laws, § 11832. By the provisions -of section 11828, 3 Comp. Laws, the expense of an inquest upon the dead body of a stranger shall be paid by the State if the justice or coroner shall certify that, to the best of his knowledge and belief, the person found dead was a stranger not belonging to this State; the account of such expenses and fees being first allowed by the circuit court for the county.

On the 18th of November last, certain affidavits were presented to Judge Donovan, tending to show that in August last there was presented to Judge Donovan by petitioner an itemized bill for fees and expenses in holding an inquest upon the body of one Thomas E. Cummiskey; that this bill was made out against the,State, and included charges for holding a post mortem, and was accompanied by a certificate of the coroner that the deceased person was a stranger not belonging to this State. The affidavits also showed, at least prima facie, that the deceased, Thomas E. Cummiskey, was not in fact a stranger, but that he lived in Detroit; that he was removed from his home, on Smith avenue, to St. Mary’s Hospital, on the 28th of June, 1904, and died in the hospital August 18th of diabetes; that in fact no post mortem was held.

Upon filing these affidavits an order was entered that an attachment issue to bring the present petitioner before the court to answer for the alleged misconduct of practicing fraud and dishonesty upon the court, and deception, misbehavior, willful neglect and violation of duty, and in, by such misrepresentations, corrupt practices, and collu'sive behavior in and about his duties as coroner, securing allowances of claims against the State of Michigan by the .court in certain cases presented to the court for its action and approval under section 11828, 3 Comp. Laws; being matters depending in the court and triable therein.

The respondent was brought before Judge Donovan, and an order was entered directing that interrogatories be prepared, and that answers be made to them. The respondent moved to quash the proceedings. This motion was overruled. Thereupon the respondent refused to answer the interrogatories on the ground that the court had no jurisdiction to enter the order requiring him to make answer. Testimony was taken to further substantiate the charges, a sentence of imprisonment was imposed, and the respondent taken into custody, He thereupon sued out the present writ.

Numerous questions are raised and discussed in the brief Of petitioner’s counsel. In so far as they are deemed worthy of separate discussion, we follow the order of the brief. ------

It is first contended that a' contempt of the nature described is not punishable under chapter 301, 3 Comp. Laws, under which it is said the proceedings were taken. Section 1 of this chapter confers upon the courts of record power to punish by fine and imprisonment, or either,—

“Any neglect or violation of duty or any misconduct by which the rights or remedies of a party in a cause or matter depending in such court or triable therein may be defeated, impaired, impeded, or prejudiced, in the following cases:
“ (1) All * * * coroners * * * for any misbehavior in such office or trust, or for any willful neglect or violation of duty therein.”

It is clear that, when a claim is presented to the circuit court for allowance, it is depending in that court. It is also clear that the presentation of a false claim for allowance may prejudice the rights of the State. This is made manifest when it is considered that the allowance by the circuit court is not open to review by the auditor general. Lachance v. Auditor General, 77 Mich. 563.

It is insisted, however, that the allowance of a claim against the State by the court acting in these cases is not a judicial act; citing the Lachance Case. Whatever .may be the character of the act of the court, it is a court matter — made so by the statute — and as the court may render a decision which will formally dispose of the matter, it is a matter there depending, but we think it is also a matter to be judicially determined. It has never been ■considered that the circuit court was authorized to act without proof in some form in these cases. The determination of the allowance involves the exercise of judicial •discretion and judgment. We think the act was, in this sense, judicial. Wall v. Trumbull, 16 Mich. 228; Locke v. Wayne Circuit Judge, 62 Mich. 408. In any view, the matter was committed to a court, .#and properly so committed, within the holding in Locke v. Wayne Circuit Judge, supra. It was competent, therefore, for the legislature to authorize a proceeding to punish a contempt of the court, committed while the court was considering that matter. The case is quite unlike that of State, ex rel. Haughey, v. Ryan, 182 Mo. 349, which was determined, first, on the invalidity of the act creating a board ■of mediation and arbitration, and conferring judicial power therein; and, second, on the ground that the circuit court has no power to punish for contempt, except for the maintenance of its own authority.

It is urged that the affidavit upon which the order in this case issued did not make out a prima facie case. The statements in the affidavits have been briefly recited above. We think they did make out a prima facie case.

It is contended, in particular, that the affidavits did not show affirmatively that the claim of respondent was ever presented to the court. The affidavit does, however, show that the claim found its way into the hands of the judge, and no other inference is open than that it was filed with the purpose of having action taken by the court. It further appears that the claim was supported by the certificate of respondent, which could only have been made for presentation to the court, and that the amount of the bill was receipted for by respondent. The inference is clear that the account was presented on his behalf, and no other inference is open. The affidavits show that Cummiskey was not a stranger, and, as Toepel certified that he was, this prima facie showed that he had made a false statement in that regard.

It is next urged that the circuit court for Wayne county never audited the bill. This is based upon the showing that the order was not entered of record. We do not find it necessary to determine whether the order can be held to be a court order, and the omission to record it a mere irregularity, open to correction, for, in our view, the contempt was complete on the presentation of this false and fictitious claim.

It is contended that Judge Donovan was disqualified from acting in the matter of the contempt proceedings. Without entering at length into the reasons for our conclusion, we state that the matter has had our consideration, and we do not find that he was disqualified, as a matter of law.

The prisoner will be remanded.

Moore, C. J., and McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    VINCENT v. BENZIE CIRCUIT JUDGE.
    1. Mandamus — Setting Aside Irregular Orders — Practice— Vacation of Decrees — Notice.
    A purchaser of land, the title to which was quieted prior to his purchase, is entitled to a mandamus directing the judge to set aside an order, granted without notice to the purchaser and without his knowledge, vacating the decree quieting title.

      2. Decree — Irregularity—Setting Aside — Notice.
    The fact that a decree quieting title was irregular does not entitle the party against whom it -was rendered to have the same set aside without serving proper notice on parties interested in sustaining the same.
    Mandamus by William Vincent to compel Clyde C. Chittenden, circuit judge of Benzie county, to vacate an order setting aside a decree.
    Submitted January 3, 1905.
    (Calendar No. 20,838.)
    Writ granted February 11, 1905.

      Louisell & Nevius, for relator.

      J. J. Tweddle (D. Q. F. Warner, of counsel), for respondent.
   Per Curiam.

One Emily A. Macauley commenced suit in the circuit court for the county of Benzie, in chancery, against Saunders D. Bruce and Cora E. Hale, for the purpose of quieting title to certain real estate. Said Cora E. Hale filed an answer and cross-bill, and in August, 1903, obtained a decree quieting her title and setting aside complainant’s title. Subsequently the proceedings were regularly enrolled, and the land purchased by relator.

In June, 1904, complainant Macauley petitioned for an order setting aside said decree and permitting her to amend her bill of complaint. This petition, which did not conform to the rules of practice, was heard and granted without notice to or knowledge of relator. In our judgment, relator is entitled to a mandamus compelling respondent to set aside said order. See York v. Ingham Circuit Judge, 57 Mich. 421.

In reaching this conclusion, we have not overlooked respondent’s contention that the decree set aside was irregularly obtained. It is by no means clear that complainant Macauley could take advantage of these irregularities. And if she could, they did not justify her in departing from proper practice, and in failing to serve notice upon relator. See Jewett v. Morris, 41 Mich. 689.

The mandamus should issue.


text:
    IDEAL MANUFACTURING CO. v. WAYNE CIRCUIT JUDGE.
    Labor Unions — Strikes — Picketing — Injunction — Temporary Relief — Order to Show Cause.
    Where, on an application for injunction to restrain a labor union from interfering with relator’s workmen, the bill and affidavits established a case showing an interference with relator’s rights by picketing its premises, and by making threats against its employés, and actual violence towards them, it was improper to deny temporary relief until defendant had been brought into court on an order to show cause.
    Mandamus by the Ideal Manufacturing Company to compel Joseph W. Donovan, circuit judge of Wayne county, to issue a temporary injunction
    Submitted February 14, 1905.
    (Calendar No. 20,959.)
    Writ granted February 14, 1905.

      George F. Monaghan, for relator.

      Samuel E. Jones, for respondent.
   Per Curiam.

The relator asks for a writ of mandamus, requiring the respondent to issue an injunction restraining certain members of the Metal Polishers’ Union (defendants in a suit instituted by relator) from interfering with free access to relator’s works of the workmen employed by relator, and free departure therefrom to their homes, by any unlawful conduct of defendants, by actual violence or threats. The bill of complaint, and affidavits accompanying the same, which were presented to respondent, made out a case showing an interference with the rights of relator by picketing relator’s premises, and by making threats against relator’s employés, and by actual violence towards them. Upon presentation of this bill, and on an application for a preliminary injunction, the respondent declined to issue an injunction, but suggested that an order to show cause issue.

If we were able to say that the discretion of the circuit judge was used in this way for a purpose recognized by proper practice, we would not interfere with the exercise of such discretion except in the clearest case. It is manifest, however, that the purpose of the respondent was not to issue an order to show cause for the purpose of ascertaining the truth or falsity of the allegations in the bill and affidavits, but rather for the purpose of bringing in the defendants, in order that respondent might instruct them as to their duties, and thus pour oil on the troubled waters. While this course may be commendable in a case where the parties are before the court, it is clear that protection to persons and property ought not to be withheld on the assumption that those engaged in unlawful action may be brought to submit voluntarily to an influence which, however potent, has no recognized place in the regular and orderly proceedings of courts. Being satisfied from the return that it was this mistaken practice which induced the respondent to withhold the remedy sought, we think it should be said that he failed to exercise the discretion which the law required of him in the circumstances.

The writ will issue, requiring respondent to issue a temporary injunction, or if, in his judgment, an order to show cause should issue, that he accompany the same by an injunction or restraining order to be continued in force until the hearing of the order to show cause, and decision of such matter.


text:
    ROGERS v. BABCOCK.
    1. Landlord and Tenant — Agency — Ratification — Holding Over.
    Before expiration of an annual lease the lessee seated to the lessor’s supposed agent, who called, under the lessor’s direction, to inspect the heating plant, that he would remain if provision was made for heating, and on assurances supposed by him to be made with authority, he continued to occupy the premises beyond the term. Held, that the lessor, by subsequently reiterating the assurances, ratified the agreement of the agent, and, having failed to supply the furnace agreed on as a condition to the continuance of the lease, he relieved the lessee from the payment of further rent on vacating the premises.
    2. Same — Surrender of Premises.
    Where a tenant, before leaving the premises, told a relative of the landlord, who had been authorized to make certain repairs, that he intended to vacate, and requested him to take care of the house, which he promised to do, there was a surrender, so far as giving up the premises were concerned, since the tenant was justified in intrusting them to the care of such person as agent.
    Error to Wayne; Donovan, J.
    Submitted October 4, 1904.
    (Docket No. 66.)
    Decided February 27, 1905.
    Assumpsit by Lincoln S. Rogers against Adelbert H. Babcock for rent. There was judgment for defendant, and plaintiff brings error.
    Affirmed.
    Graves, Hatch, Millis & Goodenough, for appellant.

      Alex. J. Groesheck and Thomas J. Navin, for appellee.
   Montgomery, J.

This is an action to recover a balance claimed to be due for the rental of a house and lot in the city of Detroit, and also for damages resulting to the premises during the term through the negligence of the tenant. In May, 1900, the premises were let by a written lease for the term ending May 1, 1901, with the privilege granted to the tenant of renewing the lease for the further period of one year. The premises were in fact occupied by the defendant up to January 27, 1902, when the defendant proceeded to pack and store his household goods, and went South with his family. Because of the house being unoccupied, the water pipes froze, and caused very considerable damage. The rent had been paid up to February 1st. It is to cover the rent for the remainder of the term to May 1st and the damages occasioned by the freezing of the water pipes that this action is brought. On the trial a verdict was rendered in favor of the defendant, and from the judgment entered upon this verdict plaintiff brings error.

Numerous questions are presented in the brief of appellant’s counsel, but we think that all may be considered under two or three heads.

It is clear that, in the absence of any agreement modifying the terms of the written lease, the holding over by defendant would have constituted him a tenant for one year from May 1, 1901, and the first question presented, therefore, is whether there was a modification of this agreement. The plaintiff'is a resident of New York City. In February, 1901, defendant wrote plaintiff, referring to the fact that the natural gas pressure had become very low, and of the possibility of its being cut off entirely, stating he had been compelled to put in coal grates, and, in addition, to keeping the furnace going to its fullest capacity, had difficulty in keeping warm; that a grate had been put in the dining room at a cost of $20, for which a bill was sent; and the letter concluded:

“If the gas is exhausted next winter, as it bids fair to be, I am told it will be necessary to have a new furnace for coal, as the life has been entirely taken out of the present one by the use of gas.”

There was no answer to this letter, but in April one John O. Teagan, the plaintiff’s brother-in-law, a resident of Detroit, called upon tjhe defendant, and then the subject of putting in a new furnace was discussed, and, according to the testimony of defendant, it was stated by him that he would remain through the winter, provided provision was made for heating the house satisfactorily. Mr. Teagan admits that there was talk about putting in a furnace, .but states that he had at that time no authority in the furnace matter. Even though Teagan may not in fact have had authority to make the arrangement which the defendant testified to at this time, it is certainly open to grave question whether he had not the apparent authority. He came to deal with defendant in response to his letter relating to the subject of heating the house, at least so far as the grates were concerned, and with no statement from the plaintiff limiting his authority. It would seem that the defendant therefore would have the right to assume that he was acting with authority in whatever he did on the occasion in question. But whether this be so or not, we think it very clear that the plaintiff fully ratified the agreement with Teagan. On the 7th of May defendant wrote plaintiff as follows:

“ As I told your cousin when he called, I would remain through next winter, if I can know that the house will be satisfactorily heated; but do not want until cold weather to learn what you will do, and wish you would write me now, and, if you will provide another furnace, kindly give me your assurance to that effect.
“Very truly yours,
“A. H. Babcock. R.”

And to this plaintiff replied:

I note what you say regarding the furnace, and will give you my assurance that if it is found necessary, a new furnace shall be put in before next winter. I desire, however, that the present furnace be thoroughly examined by the makers, and have written to Mr. Teagan, requesting that he have a man sent up there. I am of the opinion that either the chimney or the pipe is stopped up, which prevents draught. Again I say that if this furnace cannot be made to give sufficient heat, I will have a new one put in.”

(It is evident that the cousin referred to in the letter of May 7th is plaintiff’s brother-in-law, Teagan.)

It would be difficult to find a much clearer case of ratification than that shown by these letters. It must have been evident to plaintiff that assurances had been given by Teagan to defendant, and that it was because of those assurances that the defendant had continued to occupy the premises after May 1st.

It is sought by plaintiff’s counsel to maintain that this agreement contained in the letter of May 14th was nudum pactum, because at that time defendant had entered upon a new term, and plaintiff was not bound to make repairs under the terms of the lease. But this condition loses sight of the doctrine of ratification. Defendant had in fact had assurances that plaintiff would make the furnace right, and it was in pursuance of assurances supposed by him to be made with authority that he had continued to occupy the premises. Plaintiff reiterated the assurances, and affirmed what his supposed agent had already done. Ratification relates to the time of the performance of the acts ratified, and the present case is as though the original contract or agreement between Teagan and defendant had been made with full authority on the part of Teagan. 1 Am. & Eng. Enc. Law (2d Ed.), p. 1213. We think, then, the case should be determined upon the assumption that there was the agreement substantially as reiterated in the letter of plaintiff under date of May 14th. Following upon this agreement, under date of September 4th, defendant wrote plaintiff as follows:

“ I would say that the supply of natural gas was permanently discontinued last month and public notice given, and I would ask that you give the matter of a furnace your attention at once, as I want to put in a supply of coal before there is a raise in price, but at the same time, I do not want to do anything until the matter of furnace is attended that I may act accordingly.”

And in reply to this, plaintiff wrote to defendant:

“I am writing Mr. J. O. Teagan today to make arrangements for perfecting the heating apparatus of the house. You can rest assured the furnace will be properly and promptly attended to and can go ahead and order your coal. I wish you would call Mr. Teagan up on your ’phone at his home or office and give him the name of the furnace and any such other information he may want.”

On November 5th defendant wrote to plaintiff:

“ Regarding the furnace would say that we are having a cool spell just now and I am unable to satisfactorily, heat the house with the furnace alone, having to call on the grates %>r warmth. I will wait for some pretty cold day when I will have your brother-in-law, Mr. Teagan, come up and try his hand at running the furnace and give it a good test.”

To this plaintiff replied :

“ As to the furnace if it does not work properly, we will see that it is made to do the work as it is intended to do. You indicate the correct course. Call up Mr. Teagan and have him take a hand at it.”

Again, under date of December 2d, defendant wrote to plaintiff:

“ As the furnace will burn the coal about as fastas one can put it in, but although a good fire can be obtained it seems impossible to get the proper amount of heat from it and even in the present weather we fall back on the grates. It has been explained to me that furnaces that have used natural gas are afterwards useless with coal, as the gas seems to take life out of the iron and I know that in my own house where I formerly used natural gas, my tenant has just told me of his inability to make it work with coal, and very likely the same trouble exists there as with my furnace. Kindly let me hear from you in regard to the matter.”

The testimony on behalf of defendant tended to show that, notwithstanding the efforts to put this heating apparatus in condition, the means provided were wholly insufficient to heat the house, and finally, on the 27th of January, he decided it was impossible longer to occupy the house, and that he called up Mr. Teagan, told him in substance it was impossible for him longer to occupy it, and that he was going to leave with his family for the South, and asked him to see that the water was drawn from the pipes; that he had employed Leonard Bros, to pack the furniture, and that he would leave the key with them after they had moved out of the house, and that Mr. Teagan promised to do this. Mr. Teagan’s testimony is not materially different.

Upon this branch of the case it is again urged by appellant that Teagan was without authority. It is said that he had not been given authority to accept a surrender of these premises. We think this contention may be accepted as correct; but the circuit judge was of the opinion that, as Teagan had charge of the matter of putting this furnace in condition, it was proper for defendant to intrust to him the duty of seeing that the water pipes were properly protected. The plaintiff’s failure to recover upon this branch of the case did not result from the fact that there was a surrender in law and an acceptance, but from the fact that the defendant intrusted to the plaintiff’s agent, Teagan, the duty of seeing that the water pipes were protected. It is not the theory of the defendant that his tenancy was terminated by a technical surrender, but that, the plaintiff having failed to make the furnace do the work contemplated and agreed upon as a condition to the continuance of the lease, this relieved him from the payment of further rent, authorized him to leave the premises, and that in leaving the premises he was justified in intrusting their care to the one who had been commissioned by the plaintiff to see that the furnace was put in condition. We think this view of the case was justified by the facts and relations of the parties, and that, therefore, it was not error to charge that, if defendant called upon Mr. Teagan, and if defendant, before leaving the premises, told him that he intended to do so, and that Leonard Bros, were to do the packing, and asked Teagan if he would take care of the house, and see that the water was drawn from the pipes, and that Mr. Teagan, understanding this, said he would do so, this was a surrender, so far as giving up the premises was concerned. See Henkel v. Welsh, 41 Mich. 664. We gather that the jury must have found that the furnace did not answer to the terms of the agreement, and that for this reason the defendant was justified in leaving the premises, and, this being so, the rent would, of course, cease.

The other questions presented in the case seem to us not to merit special discussion. We are convinced that substantial justice was done, and the judgment.will be affirmed.

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


author: Moore, C. J.

text:
    HOPPER v. LIVINGSTON CIRCUIT JUDGE.
    Appeal and Error — Time to Appeal — Probate Courts.
    Where no effort to appeal from an order of the probate court is made until nearly 11 months after it was entered, and 85 days after the Supreme Court has decided that appeal is the proper remedy, and no cause is shown for the delay, it is improper for the circuit court to grant an appeal out of time under section 674, 1 Comp. Laws.
    Mandamus by Hiram Hopper to compel Stearns F. Smith, circuit judge of Livingston county, to vacate an order allowing an appeal from the probate court.
    Submitted January 3, 1905.
    (Calendar No. 20,815.)
    Writ granted February 27, 1905.

      William P. Van Winkle and Louis E. Howleit, for relator.

      Shields $ Shields, for respondent.
   Moore, C. J.

An understanding of this case will be aided very materially by referring to the case of Hopper v. Livingston Probate Judge, 137 Mich. 124. The opinion in that case was filed July 7, 1904. It is held therein that the order of the probate judge was an appealable one, and not reviewable upon mandamus. No action was taken by Mr. Hopper after that opinion was filed until the 1st day of October, 1904, when he filed a petition in the circuit court for permission to appeal from the order of the judge of probate, claiming the right to do so under section 674, 1 Comp. Laws. On October 24, 1904, the circuit judge made an order allowing George Hopper to take an appeal from the order of the judge of probate made November 7, 1903.

Section 669, 1 Comp. Laws, requires appeals from the order of the probate court to be made within 60 days after the date of the order. It will be observed here that nearly 11 months had elapsed before an effort was made to appeal the case. It is claimed that section 674, 1 Comp. Laws, which reads,

“ If any person aggrieved by any act of the judge of probate, shall, from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably,”

—Authorizes the making of such an order as was made by the circuit judge. It is said that inasmuch as George Hopper was advised by his attorneys that mandamus was the proper remedy to review the order of the probate judge, and as he pursued that remedy, his failure to appeal the case was no fault of his. Whatever force there may be in this argument is lost when we take into consideration that this court held on July 7, 1904, that mandamus was not the proper remedy, and appeal was, and yet no effort was made to appeal the case until 85 days thereafter had elapsed. No attempt is made to explain this delay. Section 674, 1 Comp. Laws, was not intended to excuse such delays as this record discloses. See Watson v. Kent Circuit Judge, 125 Mich. 182.

The order of the circuit judge granting the appeal should, be vacated, and the appeal dismissed.

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


text:
      In re TUBBS.
    Bail — Murder Case — Refusal—Habeas Corpus.
    Where the circuit judge, in refusing bail to one accused of ínurder, apparently finds that the proof is evident and the presumption great that accused is guilty as charged, and the evidence taken before the examining magistrate supports such finding, this court will not interfere by habeas corpus proceedings.
    Habeas corpus proceedings by George Tubbs, Levi Tubbs, and Charles Tubbs to obtain their release upon bail' from the county jail of Eaton county.
    Submitted January 3,1905.
    (Calendar No. 20,887.)
    Prisoners remanded February 27, 1905.

      Frank A. Dean and Carry C. Fox, for petitioners.

      Elmer N. Peters, Prosecuting Attorney (Lewis J.. Dann, of counsel), for respondent.
   Per Curiam.

The petitioners were charged in a proper complaint with the commission of the crime of murder in the first degree. An examination was had, and a large amount of testimony was taken. The justice of the peace found that there was probable cause to believe that the crime was committed and that the petitioners were guilty thereof, and bound them over to the circuit court for trial without bail. The petitioners then petitioned the circuit judge to be admitted to bail. Arguments were had before said judge, the testimony examined by him, and bail refused. The circuit judge must have based his refusal of bail upon a finding that the proof was evident and the presumption great that the petitioners were guilty of the crime of murder. Not satisfied with the ruling of the circuit judge, the petitioners now bring their case before this court by the writ of habeas corpus, thus virtually asking a review and a reversal of the conclusion reached by the circuit judge.

The courts of several States hold that the appellate court will not interfere with the decision of the circuit court, except where the discretion to admit to bail has been exercised in an arbitrary, unjust, or oppressive manner, or where the refusal is manifestly "erroneous. 5 Cyc. 90, note 72. See, also, Hull v. Wayne Circuit Judge, 87 Mich. 497. In refusing bail, the circuit judge said' that he did not deem it advisable to state at length the reasons for his denial; that the case might soon be tried, and any reason given might be misunderstood or misconstrued and result in harm. He thereupon entered an order denying the application. We think there was sufficient evidence in the testimony taken before the examining magistrate and submitted to the circuit judge to justify his finding. We do not think it a case where this court should interfere.

The prisoners will be remanded, and the application for bail denied.


text:
    KAUFMAN v. LEONARD.
    1. Statutes — Construction—Following Parent State.
    The construction placed upon a statute by the courts of the State from which it is copied will be followed by this court.
    2. Warehousemen — Lien—Revival After Removal of Goods.
    Where a warehouseman allows goods to be taken away without payment of storage and repair charges, and they are subsequently returned to him for storage, he can retain them until he is paid in full. Section 5031, 2 Gomp. Laws.
    Error to Wayne, Mandell, J.
    Submitted January 4, 1905.
    (Docket No. 10.)
    Decided February 27, 1905.
    Replevin by Adelaide Kaufman against Henry J. Leonard and Thomas Y. Leonard, copartners as Leonard Brothers. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    The household goods of the plaintiff and her husband were damaged by fire. They were subsequently taken to the warehouse of the defendants, who conducted a general storage and warehouse business, repaired, and subsequently restored to the plaintiff and her husband without paying the storage and repair charges, amounting to $67.15. Subsequently plaintiff and her husband separated, divorce proceedings were instituted, and an injunction obtained restraining her husband from interfering with the goods. By consent of the solicitors, the goods were again stored in the warehouse of the defendants. Plaintiff demanded possession. She paid the charges for the last storage. Defendants claimed lien upon the goods for the first storage. She refused to pay this, and brought replevin for the goods. The court directed a verdict for the defendants, and subsequently entered judgment for the amount of the lien, as provided by the statute.

      Oscar M. Springer, for appellant.

      Harlow P. Davock and Ransom G. George, for appellees.
   Grant, J.

{after stating the facts). Did the defendants, as -warehousemen, have a lien upon the goods for the first storage ? is the only question presented. Plaintiff’s counsel contends that, by surrendering the goods without payment, the lien was waived. The defendants’ counsel contend that under the statute (2 Comp. Laws, § 5031) they had a general lien for all charges against the goods. The statute reads as follows:

“ Every warehouseman shall have a lien on all goods, wares, merchandise, and other personal property deposited and stored with him, for his storage charges, and for all moneys advanced by him for cartage, labor, insurance, weighing, coopering, and other necessary expenses to or on such property; and such lien shall extend to and include all legal demands for storage and expenses paid as above, which he may have against the owner of said propperty; and it shall be lawful for him to detain said property until such money is paid.”

Our statute was copied substantially from that of New York. Under the well-established rule, the construction placed upon the statute by the courts of that State will be followed by the courts of this State. The New York courts have decided that the lien is general, and attaches to any goods in the possession of the warehouseman to secure payment for all his charges. Stallman v. Kimberly, 53 Hun (N. Y.), 531, approved by the New York court of appeals in 121 N. Y. 393.

Judgment affirmed.

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


author: McAlvay, J.

text:
    MANNEL v. DETROIT, MT. CLEMENS & MARINE CITY RAILWAY.
    1. Eminent Domain — Highways — Additional Servitude — Street Railways.
    The use of the streets of a city for a street railroad is not an additional servitude.
    2. Street Railroads — Establishment—Regulation—Change in Road — Manner oe Granting Authority.
    An ordinance regularly passed and accepted is necessary, under section 6446, 2 Comp. Laws, to grant the right to build and operate a street railway in the streets of a city, but after a city has thus granted the right to operate a car line, subject to a provision that the location of poles, side tracks, spurs, and switches shall be under the control of the council, it may, by a mere motion adopted by the council, authorize the company to change the location of a curve in the track connecting a street with a cross street, since the duty of the council in this respect is ministerial and might be delegated to a committee or a city officer.
    Appeal from St.Clair; Law, J.
    Submitted January 5, 1905.
    (Docket No. 14.)
    Decided February 27, 1905.
    Bill by William Mannel against the Detroit, Mt. Clemens & Marine City Railway to restrain the changing of a curve in defendant’s track. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Thomas Wellman, for complainant.

      Byron B. Erskine, for defendant.
   McAlvay, J.

Complainant in this case is the owner of certain lots at the intersection of Broadway and Water streets, in Marine City, St. Clair county, which he occupies for residence and business purposes. The corner building is, and has been for several years, used and occupied for a grocery store. Complainant’s son resides back of the store building. The complainant’s home is next south of the store. The defendant company operates an electric street railway along Broadway and Water streets, under and by virtue of an ordinance of the city of Marine City. Shortly before the filing of the bill of complaint and issuing of the injunction in this case, defendant company applied to the common council of said city for permission to change the alignment of the curve of its track at the corner of said Broadway and Water streets, and, claiming such permission had been legally granted, changed or lengthened the curve around said corner of complainant’s lot, thus bringing the track much nearer complainant’s property, and making it necessary, in order to get space enough for the passage of vehicles between the rail and the curb, to cut 3.3 feet from the corner of the walk, leaving a space at that point of but 7.6 feet from the rail to the curb.

Defendant company claims that this change was made with the express permission of the common council, and under the supervision of the proper officers of the municipality ; that the change was necessary, and that the city council acted within its authority in allowing the change to be made.

Complainant in his bill claims that the proceedings of the council were irregular; that the change is an invasion of his rights in damaging his property and business by bringing the track so near his premises that his teams and dray teams cannot get to his' place to receive or deliver goods without danger and inconvenience; that the corner is so unsafe that farmers cannot bring teams there, and all persons are in danger of injury by being caught in the narrow place at the corner by a passing car; also that the close proximity of the track to the corner is a serious menace to all persons coming there. He asked for and was granted a temporary injunction, and prayed that such injunction might be made perpetual, to restrain defendant from bringing the rail of the track nearer than eight feet from the curb line of the street. This curb line at the corner was an angle before it was cut back 3.3 feet and rounded off. The temporary injunction was afterwards modified by consent, without prejudice, to allow filling in around the track to make it safe for public travel.

Defendant further claims that complainant practically acquiesced in this change; that the original curve was dangerous, being too short, and was only temporary; that the change was good railroading, and made the corner more convenient to the public; and that complainant has abundant room on both streets for business purposes.

Complainant appeals from a decree of the circuit court denying the relief sought, and dismissing the bill without prejudice as to any remedy for damages at law.

This court has held repeatedly that the use of the streets of a city for street railway purposes was not an additional servitude, and that the grant of a right to construct and ■operate a street railway, with all necessary poles, wires, side tracks, etc., along the public streets, was within the powers of the municipality granted by the legislature, and that the location and construction of the road and changes relative thereto within the limits of a city were subject to the control and approval of the municipal authority, provided that the railroad so constructed and operated would not be a public nuisance, or for any special reason require the interference* of a court. Detroit City Ry. v. Mills, 85 Mich. 634; People v. Railway Co., 92 Mich. 522 (16 L. R. A. 752).

The dispute in this case does not arise upon any question as to the legality of the original grant, to the defendant, but it is claimed that the action (of the common council in granting the request to change the curve was irregular and void; that the resolution submitted was never acted upon; that the action was taken upon aUnotion that the request of the Rapid Railway Company be granted. It appears from the record that the request of the defendant company was the matter before the council at the time, although the name Rapid Railway Company was used in the motion; and the record also shows that this curve of defendant company’s road was the curve acted upon and permission granted to change, and the defendant company’s road is a part of what is known as the “Rapid Railway System.” The contention is that this permission to change the curve could only be given by an ordinance regularly enacted and accepted in writing by the defendant, for the reason that the statute under which defendant is authorized to act, being section 6446, 2 Comp. Laws, provides this method for street railway companies to obtain the right to construct and maintain car lines in cities and villages. This is true as to the original or subsequent grant of a right to construct or maintain a street railway, or any material portion of it, through and upon the streets of a city.

There are, however, certain things to be done in the operation and maintenance of such a road, which are incidental. The ordinance granting defendant certain rights in the streets of Marine City provided that “the location of all poles, and the location and construction of all side tracks, spurs, switches, * * * , shall be under the control and subject to the approval of the common council.” This ordinance made no provision for curves. It would be unreasonable to suppose the legislature intended that a railroad must turn from one- street into another at right angles. It is reasonable, therefore, to hold that this was one of the incidentals to the construction of this railway, which was to be under the control of the common council. The common council, under the authority of the statute referred to, had entered .into a contract with defendant company to construct and maintain its railway upon and along the streets of Marine City. By the terms of this contract certain matters incidental to this construction and maintenance were left under the direction and control of the council.

This court holds that the construction of curves to connect one street with another was one of those matters entirely under the control of the council, such control to be exercised in a reasonable and consistent manner, and by proper action, of the council through its proper officers. The care and control of the streets, under the charter of Marine City, was placed by the legislature in the council. The council, by ordinance, having granted to defendant the right under the statute to construct and maintain its railway upon certain streets in a certain manner, no further grant was necessary, but it was contemplated in the ordinance that those things usual and necessary to be done were to be left under the control of the council. It was not necessary to enact an ordinance. The council, by resolution or motion, could grant permission to change this curve. The duty of the council in respect to the location and construction of this curve was ministerial, and could be delegated to the committee on streets, or to a proper official. Detroit Citizens’ Street Ry. Co. v. Board of Public Works, 126 Mich. 554.

The proofs show that it was necessary to lengthen this curve; that the old curve was too short, and was not safe. The council carefully investigated the subject, and gave its permission to lay this curve under the supervision and control of the committee on streets. The proofs also show the condition on both streets at this corner, as far as the surface of the streets is concerned, is smoother and better for travel than before the curve was moved, and that there is ample room in front and at the side of complainant’s store to deliver or take away his goods, if reasonable care is exercised.

Whether the complainant has been damaged in his business and property by reason of the close proximity of the rail to the curb at his corner, is not necessary to determine in this suit.

The decree is affirmed, with costs.

Moore, C. J., and Grant, Blair, and Hooker, JJ., concurred.