text:
    FRANCK v. McGILVRAY.
    1. Contracts — Formation — Offer and Acceptance — Correspondence.
    In assumpsit on a contract to clear the title to certain land for an interest therein, evidence consisting of letters between the parties examined, and held, to show that the minds of the parties never met on any of the several offers and counter offers.
    2. Same — Acceptance of Offer — Implication.
    Acceptance of the offer contained in a letter cannot be implied from the recipient’s acts in furthering the business referred to therein where he expressly declined the offer and made a counter proposition by letter.
    3. Work and Labor — Quantum Meruit — Acceptance of Services Rendered.
    There can be no recovery on quantum meruit for services per- • formed where no contractual relation existed between the parties.
    Error to Manistee; Rose, J.
    Submitted April 19, 1906.
    (Docket No. 100.)
    Decided May 24, 1906.
    Assumpsit by Lauritz S. Eranck against Jennie Mc-Gilvray and Blanche Baker for work and labor. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Frank L. Fowler, for appellant.

      Dovel & Dovel, for appellees.
   Carpenter, C. J.

September 28, 1903, plaintiff wrote defendants as follows:

“ In looking over some records the other day I came across a parcel of land which ought to belong to you and' your sister. This land is in the name of your mother and has been for a great many years. * * * It was sold for taxes and bought in by one John Baxter. I find that in January, 1899, he had sold it to a Polander. * * * According to our law this would have to be taken up within five years from the date of sale, which would be January next, so would have to be attended to at once or before that time. The land is not of very great value and have no idea how much this would cost, as to getting the title straightened out. If you will quitclaim your interest over to me, I will see what can be done. * * * Upon receipt of answer from you, if agreeable, I will ascertain what the cost will be and let you know. Should the cost be too great, it would hardly be worth while, otherwise should be attended to at" once.”

The first named defendant answered this letter on the 26th of October, 1903,‘saying:

“Now, we did not know this land was within our reach until you wrote, but if there is anything in it for us we want it, of course; but, if it costs more than the land is worth, we don’t want to bother with it. Now, you have kindly offered to look it up for us. We will be glad to accept your offer, and if anything can be done it would be a good time just now while Manistee is booming. * * * We will be glad to have you to attend to this for us, and, if there is anything in it, you will get your share as well as my sister and I.”

November 28, 1903, plaintiff wrote defendants:

“ I have had an abstract made of the land. My attorney has been away, * * * and is expected home some time this or next week, when I will have him go over the abstract and get his opinion on the matter, and will then advise you.”

And again, on December l?, 1903, he wrote that his attorney advised him—

“That he could reclaim it [the land] without much doubt. * * * He told me that if it could be settled without suit, that for his services he would charge $35 in addition to the actual expenses which amount he could not state at this time, but if the thing had to go to suit, why the cost would be considerably more. * * * I assumed the authority to have him go ahead and start the thing, by having him notify the man who holds the land what we propose to do and see if he would be willing to relinquish for a small sum, which of course would be cheaper than commencing suit. * * * I will be willing to carry this thing through for you to pay all the actual costs, nothing allowed for my time, and, when the land is sold, to divide the proceeds equally between us, one-half to go to you girls and one-half to me * * * but will want a reply to this as to whether this will be agreeable or not.”

December 26th, defendant Jennie McGilvray wrote:

“Now, if you remember, I told you we-would be willing to give you one-third; that would be allowing you the same as ourselves. Now, I think this is only fair.”

On the 28th of December, before receiving defendant’s letter of December 26th, plaintiff wrote:

“ My attorney notified the man who has the land at the present time. Told him * * * that I would probably give him $50. * * * The limitation of time on this, in which to bring suit for recovery, expires January 4,1904. * * * Suit will have to be brought on next Saturday, January 2d, and I have so instructed the attorney, which will be brought in my name and thus save any extra expense of you coming here. I inclose you herewith a quitclaim deed from you and your sister to me of the land. * * * Do not cause any delay in executing this matter, as it must be back here by Saturday next.”

December 30, 1903, plaintiff wrote:

“ I note wbat you say in regard to my proposition to divide the proceeds of the land. * * * You state that you made a proposition in your former letter * * * to give me one-third of the net proceeds. In this you are mistaken. I still think my proposition a very fair one. * * * ' I trust you have used every effort to get the papers (quitclaim deed) back on time, otherwise what I have done would be of no avail whatever.”

To this letter defendants made no reply.

Plaintiff wrote again January 9, 1904, saying:

“ In case there is anything in this thing that you don’t want to do so as it can be carried through, kindly advise me at once, and I will drop the matter. * * * Court convenes on the 20th inst. I have started the case as I have already stated in my letter when I sent the deed, and I cannot go into court and carry this thing through without something to show' my authority to do so. I will be home again on Saturday next the 16th inst. and if the papers are not here at that time will have to drop it entirely.”

The statement in the foregoing letter that plaintiff had started a suit was untrue.

Defendants never answered this letter, and plaintiff wrote again on January 16, 1904:

I have heard nothing from you. * * * I think you are taking the wrong course in this matter. I am perfectly willing and will only be too glad to drop this matter at this point, as this thing concerns you and not me. * * * All that I ask is an answer to my letters.”

January 25, 1904, defendants wrote plaintiff:

“ An attorney advised us not to sign any Q. C. D. If you wanted to do us a kindness you could get it settled without it, so we wrote a friend of ours, and he advised us to let Hart and Swigart handle it, so we did, and to our satisfaction. It is all settled, and we are in possession of it, so I think this is all. ”

By the settlement above referred to, defendants, following the plan devised by plaintiff, purchased the tax titles on their property for $50.

No contract was entered into by the foregoing correspondence, unless defendants’ assent to that contract maybe found in their letter of October 26, 1903, their letter of December 26, 1903, or in their letter of January 25, 1904, for they wrote no other letter. It is clear that such assent cannot be found in the letter of December 26th or that of January 25th, for in each of those letters defendants rejected plaintiff’s proposition. It follows that there was no contract, unless defendants’ assent thereto may be found in their letter of October 26th. If we construe that letter most favorably to plaintiff, we find therein that defendants proposed to give plaintiff an interest in their land if he wóuld clear up their title. This proposition did not create a binding contract unless and until plaintiff accepted it. Did plaintiff accept it ? He certainly did not notify defendants that he accepted it: He notified them that he would clear up the title if they would give him a one-half interest in the land. This was certainly not an acceptance, for it cannot be claimed that the interest that defendants offered plaintiff was a one-half interest. It is argued that, notwithstanding this notice, it is to be inferred that plaintiff accepted defendants’ proposition. Before giving such notice plaintiff had, as the correspondence shows, performed some service for the purpose of clearing up defendants’ title. It is claimed, as we understand the brief of counsel, that plaintiff’s acceptance of defendants’ proposition is to be inferred from his performance of this service, “and whether or not he afterwards wanted one-half, or misunderstood defendants’ offer, does not alter the established contract.” For the purpose of this case it may be conceded that if plaintiff, on receipt of defendants’ letter, had not replied thereto, but had proceeded to clear up the title, his acceptance of the terms of that letter would be implied. There can, however, be no such implication where, as in this case, plaintiff notified defendants that those services were not rendered upon the terms proposed by them, but upon terms proposed by him to which he asked their assent. As was said in a similar case:

“ The law cannot imply that a person promised to do that which in express terms he refused to do.” Lamson Consolidated Store-Service Co. v. Weil, 15 Daly (N. Y.), 198.

I conclude, therefore, that plaintiff never accepted the proposition made by defendants in their letter of October '26th. Instead of accepting it, he made a counter proposition — a proposition which, as above stated, defendants rejected. It follows that the trial judge was right in deciding that there was no contract.

Plaintiff contends that he has a right to recover upon the quantum meruit because defendants received the benefit of his services and expenditures. We answer this in "the language of the trial judge:

“The right to recover at all must be based upon a contractual relation between these parties, and, as no such relation existed, it follows that no recovery can be had.”

Judgment affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., •concurred.


source: Caselaw Access Project

author: Carpenter, C. J.

license: Public Domain

text:
    MUNGER v. SANFORD.
    1. Sheriffs and Constables — Execution — Return — Liability of Officer.
    A constable’s return on an execution, that he has sold the chattels levied on at public auction to the judgment creditor, the highest bidder, for $275, means either that the chattels were turned over to the buyer, or that the amount bid was paid, and in either case the officer is bound to account.
    3. Execution — Sale—Payment of Purchase Price.
    The rule excusing a judgment creditor buying at an execution sale from paying the amount of his bid applies only where his bid does not exceed the amount due under the execution, and, where his bid exceeds the amount due, the excess must be paid.
    3. Same — Proceeds—Disposition.
    Where mortgaged chattels are sold on execution for more than sufficient to pay the judgment, the surplus belongs to the judgment debtor; section 10318, 3 Comp. Laws, expressly providing that mortgaged property levied on must be sold subject to the mortgage.
    4. Sheriffs and Constables — Execution Sale — Liability for Surplus — Demand—Neoessity.
    Where a constable sells chattels on execution for more than sufficient to pay the judgment and retains the surplus, the judgment debtor is entitled to sue for the surplus without a previous demand, since the constable holds the surplus contrary to section 884, 1 Comp. Laws, requiring him to return the surplus to the person against whom the execution issued.
    Error to Kalamazoo; Adams, J.
    Submitted April 19, 1906.
    (Docket No. 103.)
    Decided May 24, 1906.
    Assumpsit by Anna S. Munger against Clark Sanford for money had and received. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Osborn & Mills, for appellant.

      Frost & Jackson, for appellees.
   Carpenter, C. J.

The following is a statement of the case, taken almost verbatim from the brief of defendant’s counsel:

“On April 2, 1902, Dreskell-Jupp Paper Company recovered a judgment before one of the justices of the peace at the city of Kalamazoo of $126.26 and $3.50 costs. On April 12, 1902, an execution was issued for the collection of this judgment and placed in the hands of the defendant, Clark Sanford, then a constable, who levied it upon a quantity of chattels, which are described in the record, subject to two chattel mortgages upon same, one for $254 and the other for $300. He advertised the property for sale subject to these chattel mortgages. Subsequently, he made a return upon the execution—

“ ‘That on the 2d day of May, at 10 o’clock in the forenoon, I sold the goods and chattels mentioned in said notice in one parcel at public auction to the Dreskell-Jupp Paper Company, they being the highest bidder therefor, for the sum of $275.

“‘Dated June 9, 1902.

“ ‘Clark Sanford,

“‘Constable.’

“He did not return that he received the money, which was bid for the property, nor that he turned the property over to Dreskell-Jupp Paper Company. * * * Clark Sanford was not asked or required to make any further return to the execution. On December 31, 1902, the plaintiff, who claims to be an assignee under mesne assignments from Gr. H. Munger Co., the defendant in the execution, brought this action to recover of the defendant constable the sum of $150 upon the theory that that amount remained in his hands as surplus after the satisfaction of the Dreskell-Jupp Paper Company’s judgment. No proof was offered [unless the return upon the execution is such proof] that the defendant had turned the property over to the Dreskell-Jupp Paper Company, or that the defendant ever received or had in his hands a penny of the money bid at the sale, or indeed, that the sale was ever completed. The case was tried before the circuit court for Kalamazoo county without a jury. The only testimony offered at the trial is contained in a stipulation of facts. The circuit court filed special findings upon the facts and law as requested by the plaintiff. He refused the requests presented in behalf of defendant.”

Judgment was rendered upon these findings in favor of plaintiff for the amount left in defendant’s hands after paying the judgment of the Dreskell-Jupp Paper Company.

Complaint is made because the trial court found as a fact “that on the execution sale said defendant received #275 in money.” It appears from the record that the trial court found this fact from the following statement in the notice attached to defendant’s plea:

“ The defendant will show in his defense that he paid over before the commencement of said suit to the persons lawfully entitled thereto the moneys alleged in said declaration to have been received by him.”

It is unnecessary to determine whether this statement was under Circuit Court Rule 7, subd. e, which subdivision reads, “ Any statement of fact set forth in a notice added to a plea shall be treated as an admission by the defendant, and need not be proved by the plaintiff,” an admission that defendant received the money for which he was held liable, because the inference that he is liable to account for such money must be drawn from his return of the execution. By that return, which is set forth in the stipulation of facts as well as in the findings of fact, it appears that defendant sold the goods and chattels levied upon to the Dreskell-Jupp Paper Company for the sum of $275.

It is true that it does not appear, by this return or otherwise, that defendant actually turned over the property sold to the purchaser. I regard this omission as unimportant. The return states that the property was sold. From this it must be inferred that the sale was completed; that all the title whatsoever — and this includes the right of possession — of the judgment debtor levied upon was transferred by the defendant to the purchaser. That title would not be transferred unless the property was turned over, or the amount bid paid. The return then means either that the property was turned over or that the amount bid was paid. In either case defendant was bound to account. Heald v. Bennett, 1 Doug. (Mich.) 513; Robinson v. Brennan, 90 N. Y. 208; Studebaker v. Johnson, 41 Kan. 326.

In reaching the foregoing conclusion we deny the claim of defendant that the rule which excuses a plaintiff who buys on an execution sale from paying the amount of his bid has any application to this case. That rule applies only where the plaintiff’s bid does not exceed the amount due under his execution. He is excused from paying that amount because it belongs to him. In this case his bid was in excess of that amount. This excess did not belong to him, and it was obviously his duty to pay it.

Appellant’s counsel also urge “that any balance over and above the amount necessary to satisfy the Dreskell-Jupp Paper Company’s judgment stood in place of so much of the property covered by the chattel mortgages.” To this we cannot agree. Section 10318, 3 Comp. Laws, expressly provides that mortgaged property levied upon must be sold as a whole subject to the mortgage. See Baldwin v. Talbot, 46 Mich. 19. The sale under consideration was so made, and had no effect upon the rights of the mortgagees. The balance, therefore, belonged to plaintiff as the assignee of the defendant in the execution.

Defendant also contends that plaintiff was bound to make a demand before instituting this suit, and as the trial court found that she did not do so, judgment should be rendered against her. No demand was necessary. When this suit was instituted defendant was a wrongful holder of the money sued for because he held it contrary to the provisions of section 884, 1 Comp. Laws, which required him to return ‘ ‘ the surplus to the person against whom the execution issued.” No other question demands discussion.

Judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Per Curiam.

text:
    SHARP v. MONTCALM CIRCUIT JUDGE.
    Mandamus — Propriety—Remedy by Error.
    Mandamus will not lie to compel a circuit judge to dismiss an appeal from the probate court since relator may review the order by writ of error after final judgment.
    Mandamus by Henry S. Sharp to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order denying a motion to dismiss an appeal from probate court.
    Submitted May 1, 1906.
    (Calendar No. 21,657.)
    Writ denied May 24, 1906.

      George E. Nichols, for relator.

      N. 0., Griswold, for respondent.
   Per Curiam.

The probate judge of Montcalm county made an order allowing relator’s annual guardianship account. An appeal was taken from that order to the circuit court for said county. Relator moved to dismiss on the ground that the appeal was taken by one who had no right to take it. Respondent denied this motion. Relator asks us to compel him to grant it by issuing a writ of mandamus.

It is obvious that relator (provided he does nothing that amounts to a waiver) may review the order complained of by writ of error after final judgment. It is settled by many recent decisions of this court (see Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; Cattermole v. Ionia Circuit Judge, 136 Mich. 274; Roberts v. Lenawee Circuit Judge, 140 Mich. 115; Chatfield v. Lenawee Circuit Judge, 140 Mich. 636) that he must content himself with that method of review, and is not entitled to a writ of mandamus.

Mandamus denied.


author: Moore, J.

text:
    MORELAND v. LENAWEE CIRCUIT JUDGE.
    1. Venue — Change — Statute — Construction — Appeal prom Justice’s Court.-
    Act No. 309, Eub. Acts 1905, relating to changes of venue, is applicable to cases pending in circuit court on appeal from justices’ courts.
    2. Same — Dates op Papers Filed.
    A notice of motion for change of venue dated March 5th, the motion itself dated March 7th, and an affidavit dated March 12th, all filed on March 12th, are properly treated as one proceeding for a change of venue.
    3. Same — Appidavit.
    Where a motion for change of venue states that it is based on the affidavit of the party annexed thereto, but' there is annexed thereto an affidavit of the attorney of the party, and no one is-misled, it is sufficient.
    4. Same.
    An affidavit for change of venue under Act No. 309, Pub. Acts 1905, need not be made by a party, but may be made by his attorney.
    5. Same — Time por Applioation.
    Under Supreme Court Rule 58, which took effect February 20, 1906, and provides that in oases pending and at issue when the rule shall take effect, a motion for change of venue shall be entered within 20 days' therefrom, a motion on March 12th,. March 11th being Sunday, was on time.
    Mandamus by Eobert S. Moreland and Eugene W. Crane, copartners as Moreland Bros. & Crane, to compel G-uy M. Chester, circuit j udge of Lenawee county, to set aside an order granting a change of venue.
    Submitted May 1, 1906.
    (Calendar No. 21,663.)
    Writ denied May 24, 1906.
    Smith, Baldwin & Alexander, for relators.

      Theodore M. Joslin, for respondent.
   Moore, J.

This is an application for a writ of manda< mus to compel the respondent to vacate an order changing the venue in the case of Robert S. Moreland and Eugene W. Crane v. American Electric Fuse Company, which was commenced in justice’s court, and appealed by the defendant to the circuit court on December 29, 1905. This order was based upon an application, duly served, filed in said court on March 12, 1906, which application was accompanied by a notice dated March 5, 1906, that the defendant would move the court on March 19th for a. change of venue. It was also accompanied by a motion for a change of venue dated March 7, 1906, and by the affidavit of Theodore M. Joslin, dated March 12, 1906, who stated therein that he is the attorney for the above-named defendant and appellant.

The question involves a construction of Act No. 309 of the Public Acts of 1905. It is claimed:

First. That this statute does not apply to appeals in justice’s court.

Second. If it does not apply, that there was no proper motion made for the following reasons: (a) The notice of the motion was dated March 5th, the motion was dated March 7th, the affidavit upon which it is claimed the motion was based is dated March 12th; (6) because the notice stated that the motion would be based upon the affidavit of Mr. Jones, when he in fact made no affidavit, but the affidavit was made by his attorney, Mr. Joslin.

Third. Because the statute provides that a change of venue may be made upon the application of either party, and in this case the affidavit is not made by the party, and cannot be treated as an application made by the party.

Fourth. Because said motion was not entered and notice of application served within 10 days after issue joined, nor within 20 days after Sup. Ct. Rule 58 took effect.

We will consider these objections in the order in which they were presented.

First. A reference to Act No. 309 will show that it was intended to apply to any civil action pending in the circuit court. The language of the statute is broad enough to include cases appealed from justice’s court which were then pending in the circuit court.

Second. The return of the respondent shows that the notice, the motion, the affidavit, and the application, though bearing different dates, were all filed with the clerk on the 12th of March, and were presented on that day, and we think the judge very properly considered them as one proceeding. It is true the motion stated it was based upon the files and affidavit of Frank G. Jones hereto annexed, but it is also true that the affidavit annexed to the motion when made and the copy which was served, was not the affidavit of Frank G. J ones, but was the affidavit of his attorney. No one was misled thereby. The statute itself does not restrict the making of the affidavit to one of the parties to the suit, but states that the change of venue may be made upon the application of either party made upon affidavit, etc.

Third. It has already appeared that the statute does not require the affidavit to be made by one of the parties to the litigation, and we think in that respect an affidavit made by the attorney of one of the parties to the litigation is a compliance with the statute.

Fourth. Supreme Court Rule 58 was adopted February 16, 1906. It took effect February 20, 1906. It provides that in cases pending and at issue when this rule should take effect said motion shall be entered within 20 days therefrom. The 11th of March came on Sunday. The motion was made on Monday, the 12th of March. We think it was made in time, under Supreme Court Rule 58, construed in connection with Circuit Court Rule 36, and Supreme Court Rule 25.

The application for the writ of mandamus is denied.

Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


author: Hooker J.

text:
    WHITE v. BRACELIN.
    1. Stattites — Intoxicating Liquors — Constitutional Law — Special Legislation.
    Act No. 663, Local Acts 1905, making it a penal offense to keep a saloon within 100 rods of any public school in Berrien county, is not unconstitutional as private legislation, infringing constitutional rights of persons residing in Berrien county.
    2. Constitutional Law — Intoxicating Liquors — Equal Protection or Laws.
    Act No. 663, Local Acts 1905, making it a penal offense to keep a saloon within 100 rods of any public school in Berrien county, does not violate the fourteenth amendment of the Constitution of the United States.
    Certiorari to Berrien; Coolidge, J.
    Submitted May 1, 1906.
    (Calendar No. 21,659.)
    Decided May 24, 1906.
    Mandamus by Charles E. White, prosecuting attorney, to compel Prank Bracelin, justice of the peace, to issue a warrant for violation of the liquor law. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      Charles E. White (George W. Bridgman, of counsel), for relator. ,

      James O’Hara, for respondent.
   Hooker J.

At.its 1905 session the legislature passed a law making it a penal offense for any person to keep a saloon where spirituous or intoxicating liquors are sold within 100 rods of any public school in Berrien county. See Act No. 663, Local Acts 1905.

The respondent/ a magistrate, was asked to issue a warrant against a person charged with violating that law, but refused to do so, whereupon he was proceeded against by mandamus to compel such action. The. circuit court ordered a peremptory writ to issue, and the cause is now before us on certiorari.

The only question in the case is whether the act is constitutional. It is too late to seriously question the power of the legislature to prohibit the manufacture or sale, in this State, of spirituous or intoxicating liquor. Since 1859 an uninterrupted line of cases have so held. We need not consider the arguments, that this legislation infringes the right of “incorporated villages and cities to maintain saloons,” without the wishes of the inhabitants of the locality being considered, or what the effect will be upon owners of orchards and vineyards. The only questionable point is whether this act, being legislation pertaining to a portion of the State, is private legislation of a' class which infringes constitutional rights of persons residing in Berrien county. In discussing the question of ‘ ‘ unequal or partial legislation,” Mr. Justice Cooley has said:

“ Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application; they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The authority that legislates for the State at large must determine whether particular rules shall extend to the whole State and all its citizens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. The circumstances of a particular locality, or the prevailing public sentiment in that section of the State, may require or make acceptable different police regulations from those demanded in another, or call for different taxation, and a different application of the public moneys. The legislature may there* fore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the State Constitution does not forbid. These discriminations are made constantly; and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capacities of citizens. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments.. If the laws be otherwise unobjectionable, all that can be required in these cases is, that they be general in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the legislature must judge.”, Cooley on Constitutional Limitations (6th Ed.), p. 479.

This law is general in the sense that the author indicates. It applies to every one who lives or comes within the State. It is not limited to citizens of Berrien county. It is true that it prohibits saloons only in that county, and it may be that there is not the same necessity for that particular prohibition elsewhere. Innumerable instances of such legislation can be found. All of our local option laws involve this principle, and it is a common thing for the legislature to pass special acts, establishing exceptional municipal bodies, such as cities, villages, and school districts. A recent case-sustained such action in relation to a school district in Hillsdale county. See Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639, affirmed 199 U. S. 233.

Again, the legislature has passed many laws regulating or restraining the taking of fish in particular lakes or streams. All of these laws apply to all persons, though they apply to limited territory. It is manifest that the necessity for a law may depend upon local conditions, of which the legislature must judge. Among the cases apropos to the subject are Haskel v. City of Burlington, 30 Iowa, 232, and Iowa Railroad Land Co. v. Soper, 39 Iowa, 115.

In Harrison v. Gordy, 57 Ala. 49, it was held that “the legislature may, by a special or local.act, prohibit -the sale of vinous or spirituous liquor, within a town and territory adjacent thereto.”

In Block v. State, 66 Ala. 493, a law prohibiting the ■sale of liquor within a specified distance from two churches (naming them) situated in different counties was held valid.

In State v. Berlin, 21 S. C. 292, a law which permitted the sale of spirituous liquors in cities and villages, and prohibited it elsewhere in the State, was attacked, both .as violating the State Constitution and the Fourteenth Amendment. The court held it valid, saying:

“The practical question, therefore, presented in this case, is whether the legislature can, in the exercise of the police power, prescribe different regulations for the sale of -spirituous liquors in different localities within its borders. It is quite clear that regulations which might prove very effective in one locality, might be found very inefficient in another, and it would seem, therefore, that to render the exercise of this admitted power most effective the regulations should be adapted to the wants and conditions •of the different localities to which they are to be applied.”

Again, in Georgia (Howell v. State, 71 Ga. 224) a law was sustained forbidding such a sale within two miles of two specified academies, in a particular county. Both of these cases refer with approval to the language of Mr. Justice Cooley above quoted. See, also, Marmet v. State, 45 Ohio St. 63; State v. Baltimore County Com'rs, 29 Md. 516; and Unity v. Burrage, 103 U. S. 455.

The claim that such statutes do not violate the Fourteenth Amendment is equally well supported. Thus in Missouri v. Lewis, 101 U. S. 31, the court said:

“We might go still further and say, with undoubted truth, that there is nothing in the Constitution to prevent .any State from adopting any system of laws or adjudicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York •City, and the surrounding counties, and the common law and its methods of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be deniód the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.

“ The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State. A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, provided that in each and all there is no infraction of the constitutional provision. Diversities which are allowable in different States are allowable in different parts of the same State. Where part of a State is thickly settled, and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions — trial by jury in one, for example, and not in the other. Large cities may require a multiplication of courts and a peculiar arrangement of jurisdiction. It would be an unfortunate restriction of the powers of the State government if it could not, in its discretion, provide for these various exigencies.

“ If a Mexican State should be acquired by treaty and added to an adjoining State, or part of a State, in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion, and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the Fourteenth Amendment. It would not be based on any respect of persons or classes, but on municipal considerations alone, and a regard to the welfare of all classes within the particular territory or jurisdiction.”

Again, in Unity v. Burrage, 103 U. S. 455, it was said:

“The courts said: ‘Statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, etc., for public uses, all operate upon local subjects. They are not for that reason special or private acts.’ [West v. Blake, 4 Blackf. (Ind.) 234.] In this country the disposition has been on the whole to enlarge the limits of this class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. Pierce v. Kimball, 9 Me. 54; Inhabitants of New Portland v. Inhabitants of New Vineyard, 16 Me. 69; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 58; Burnham v. Webster, 5 Mass. 266; Com. v. McCurdy, 5 Mass. 324; Com. v. Inhabitants of Springfield, 7 Mass. 9; Bac. Abr. 'Statute,’ F. On these and many other authorities which might be cited, we think that the act by which the issue of the bonds sued on was authorized'is a public act, of which the courts are bound to take judicial notice, and that it need not be specially pleaded.”

In Davis v. State, 68 Ala. 58, it was held that a statute making it unlawful to transport or remove cotton in the seed, in certain counties, after sunset and before sunrise -of the succeeding day, was not in conflict with any provision of the State or Federal Constitution. We need not discuss the Michigan cases of Whitney v. Grand Rapids Township Board, 71 Mich. 234, and Feek v. Bloomingdale Township Board, 82 Mich. 393 (10 L. R. A. 69), further than to say that they are not authority for a contrary doctrine. Many authorities similar to the above are cited in the opinion of the learned circuit judge.

The order is affirmed.

Carpenter, C. J., and McAlvay, Blair, and Moore, JJ.j concurred.


author: Blair, J.

text:
    WOODWORTH v. OLD SECOND NATIONAL BANK. SAME v. MALTBY CEDAR CO.
    Venue — Change — Statute — Application — Mandamus — Civil Action.
    Mandamus proceedings are “civil actions,” within Act No. 309, Pub. Acts 1905, providing for changes of venue in civil actions. •
    Certiorari to Bay; Gage (Chauncey H.), J., presiding.
    Submitted May 8, 1906.
    (Calendar Nos. 21,678, 21,679.)
    Decided May 24, 1906.
    Mandamus by Frank T. Woodworth to compel the Old Second National Bank and others, and by the same relator to compel the Maltby Cedar Company and others, to turn over their books and papers for relator’s inspection: On motion for a change of venue. There was an order granting the motion, and respondents bring certiorari.
    Affirmed.

      Gillett & Clark and John C. Weadock, for relator.

      Stoddard & McMillan, for respondents.
   Blair, J.

The sole question presented for our consideration upon this writ is whether or not mandamus proceedings are “civil actions,” within the meaning of Act No. 309, Pub. Acts 1905, providing for changes of venue. In 19 Am. & Eng. Enc. Law (2d Ed.), at pages 719, 720, the rule is stated in the text as follows:

“The cases are very numerous wherein it is said that mandamus is an action at law, or a civil action under the code. But there are cases which deny that it is either ap action at law, or a civil action under the code, and hold that mandamus is a special proceeding. Originally the proceeding was not in the nature of a civil suit between parties to. settle private rights. But since the statute of Anne authorizing pleadings and proceedings by mandamus, and wherever a similar statute is in force, mandamus is regarded as in the nature of an action.”

To the same effect see 1 Cyc. p. 733. In Kentucky v. Dennison, 34 How. (U. S.) 66, Chief Justice Taney, delivering the opinion of the court, says:

e It is equally well settled that a mandamus in modern ■practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English crown, and was subject to regulations and rules which have long since been disused. But the right to the writ and the power to issue it has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.”

To the same effect, see Brown v. Crego, 29 Iowa, 321; State, ex rel. Green Bay, etc., R. Co. v. Jennings, 56 Wis. 113; Seymour Water Co. v. City of Seymour, 163 Ind. 120, 130; Hartman v. Greenhow, 102 U. S. 672; Crissey v. Morrill, 125 Fed. 878.

McBride v. Common Council of Grand Rapids, 32 Mich. 364, upon which respondents strongly rely, is cited in note 2 on page 720, 19 Am. & Eng. Enc. Law, to the effect that mandamus was not a suit originally at common law. In that case, the question was whether the Constitution allowed mandamus to be used by the circuit courts generally or in all cases to which it was applicable, and it was held that it did not, and in the course of the majority opinion the writ was treated as a prerogative writ. After that decision, the Constitution was so amended as to confer authority upon the Supreme Court to prescribe by rule the general jurisdiction of the circuit courts over the writ. Pursuant to the amendment referred to, a rule was adopted which now stands as Circuit Court Rule 46 (134 Mich, xxxii). Supreme Court Bule 13 provides for a review of the proceedings in the Supreme Court by writ of certiorari. Under these rules and the statutes relating to mandamus proceedings, the practice has grown up which is stated by Mr. Justice Carpenter in Lewis v. Detroit Board of Education, 139 Mich. 306. That practice is widely variant from the original common-law theory of a prerogative writ, and is in harmony with the practice prevailing in the majority of the States in providing for an orderly trial of issues upon pleadings. While there are cases supporting the contention of appellants, we think the great weight of authority is to the contrary, and we therefore hold that mandamus proceedings are civil actions, within the meaning of Act No. 309 of the Public Acts of 1905.

•This determination also disposes of the case of Frank T. Woodworth, relator, v. Maltby Cedar Company et al., respondents.

The orders of the circuit judge are affirmed in both cases.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    CRAMTON v. SECRETARY OF STATE. GUSTIN v. SAME.
    Elections — Primaries—Submission oe Question — Petitions— Time to File.
    Section 2 of chapter 3 of the primary election law of 1905 (Act' No. 181), providing that petitions for the submission of the question shall be filed at least 30 days before the second Tuesday in June, is mandatory, and the secretary of State properly refuses to consider petitions not filed in time under such section.
    Separate petitions for mandamus by Louis C. Cramton and Henry K. Gustin to compel George A. Prescott, secretary of State, to submit the question of direct nominations by political parties.
    Submitted May 24, 1906.
    (Calendar Nos. 21,743 and 21,747.)
    Writs denied May 24, 1906.

      W. E. Brown and H. K. Gustin, for relators.

      John E. Bird, Attorney General, and Henry E. Chase, Deputy Attorney General (Thomas • Ambrose Lawler and J. Shurly Kennary, of counsel), for respondent.
   Per Curiam.

The writs of mandamus in these two cases are denied, for the reason that petitions containing the requisite number of names were not presented to the secretary of State within the time prescribed by Act No. 181, Pub. Acts 1905. The language of the statute (section 2, chap. 3, of the act) is:

‘ ‘ The petition *, * * shall be delivered to said city clerk, county clerk or secretary of State at least 30 days before the second Tuesday .of June.”

This provision of the statute is mandatory. These petitions were not presented within the time, and therefore the respondent properly refused to consider them.


author: Blair,, J.

text:
    DETLAFF v. IDEAL MANUFACTURING CO.
    Accord and Satisfaction — Payment by Check — Statement of One Party — Sufficiency.
    The receipt by an employé of a check handed him by his employer with the statement that it constitutes a payment of the amount due on their account, there being nothing to show that the employé knew the manner of keeping the account,, does not constitute an accord and satisfaction.
    Error to Wayne; Rohnert, J.
    Submitted January 9, 1906.
    (Docket No. 42.)

    Decided June 4, 1906.
    Assumpsit by Anthony J. Detlaff against the Ideal Manufacturing Company for work and labor. There was judgment for plaintiff, and defóndant brings error.
    Affirmed.

      John H. Bissell (H. E. Spalding, of counsel), for appellant.

      Stellwagen & MaoKay, for appellee.
   Blair,, J.

The plaintiff, in 1899, was the foreman of several departments of the defendant’s manufacturing business, and, among others, of the cast-iron toy department, at a salary of $1,158 a year. At the end of that year his salary was raised to $1,400, and he also, made a contract with the defendant, through its superintendent, Mr. Bush, by which he was to finish up and assemble the castings for toy pistols and prepare them for market at an agreed price, the defendant furnishing the rough castings, advancing the pay-roll and all other expenses. Plaintiff was to be paid for his work as the goods were shipped, and the contract was to continue from January 1, to July 1,1900. Work commenced under the contract, and plaintiff received payments from time to time, but claims that there is still due him, on goods manufactured under the contract between January 1st and July 1st, $2,230.85, with interest thereon, over and above the amounts paid him. After July 1,1900, plaintiff continued in the defendant’s employ, in charge of the same departments he previously had charge of, and at the salary of $1,400 a year until early in 1902, when defendant’s iron toy business was bought out by a new corporation, the Ideal Toy Company, which was controlled, however, by the same persons who control the Ideal Manufacturing Company. Plaintiff became superintendent of the toy company and continued in its employ until early in 1904, when the defendant repurchased the iron toy business. He began this suit in June, 1904.

All the payments made to the plaintiff on this account were in checks signed by John (H. Bissell, who. has been treasurer of the defendant since its organization. The last of these checks was for $56.57, and was received on the 21st of December, 1900. When the check of December 21st was made, Bissell claims he said to plaintiff he would see how the account stood; that he thought it was nearly paid and would give him a check for the balance; that he then either looked at the books or had the bookkeeper do so, taking a memorandum of the account, and from that memorandum made out the check for $56.57 and handed it to the plaintiff, saying: “There is a check that pays the balance due on the account. ” Mr. Bissell further-said that the plaintiff accepted the check, making no objection to it as a payment of the balance due, and making no claim that there was anything further due, and went away, and that plaintiff made no claim to him that there was anything more due until late in 1902, when his connection with the defendant had ceased. Plaintiff testified:

“I had a conversation with Mr. Bush [defendant’s superintendent] with reference to the contract between the 1st of April and the- 10th, when I handed in my statement to him, and he looked at it, and he said, ‘ Why, you are coming out ahead, ain’t you ? ’ I don’t remember exactly what he said but anyway he made out that I was making more than he thought I would. He did not say anything further then. I had a further conversation when I handed in the next monthly report. He looked at it and he said, ‘ You are making too much money.’ And I laughed and said, ‘ That is what I am here for, to make all I can.’ That was the next month, about May, I think it was. I had no conversation with him except that one conversation between the 1st and 10th of April until May, as near as I can remember. He did not tell me on the 1st of April that the contract must be stopped. He did not tell me that in May. He said that I was making too much money, and he did not know whether the firm would stand it or not, and I laughed. * * * I don’t know why that check was made for $56.57. That check was not paid to me as a final balance on the account which was agreed to be paid me in settlement of the contract. I don’t know whether I received it from you or somebody in the office, and I don’t remember why it was $56.57. When I received that check I did not then understand, and we didn’t all understand, that that was a final payment on the settlement of that contract matter with me. When I received other checks I' understood that they were paid on the contract; that was what they were paid on always. Every time I asked for money I got about one-quarter what I asked for.”

The making of the contract in question was conceded,' and wé find no evidence in the record, or offer to prove, that any notice of the rescission of the contract had ever been given to the plaintiff during its life or that the same had ever been terminated by mutual consent. Plaintiff was, therefore, entitled to recover the entire amount due under the contract for the period agreed upon, unless his acceptance of the check for $56.57 was in settlement of his claim.

Defendant contends that the court erred in charging the jury in effect:

“(a) That there could be no settlement of a liquidated demand for less than its face.

(b) That there cannot be an unliquidated demand unless there is a dispute as to the amount due and that amount is doubtful.”

It is argued that—

“The jury would naturally suppose from the charge that if, on the testimony submitted to them, the amount seemed clear and readily ascertainable, it was a liquidated account and, therefore, incapable of settlement at less than its face.”

The undisputed evidence is that plaintiff performed, on his part, for the entire contract period. It is not claimed that the check, by means of which the alleged satisfaction was made, was for the balance of an account of the business of the contract period. It is claimed, and was asserted on the trial, that it was for the balance of an account kept by defendant according to some theory or assumption that the contract had been rescinded, or abrogated, on or about April 1, 1900. There is no evidence of such a rescission, no evidence that plaintiff knew the manner of keeping the account, no evidence of any settlement or aocord, except the disputed testimony that the check was handed to plaintiff with the statement that it was the balance due on the account, that he took it, said nothing, and went away. Plaintiff received the check from the treasurer of defendant. The undisputed testimony is that very soon thereafter he took the matter up with the superintendent of the defendant and then with the successor to that superintendent, was put off from time to time until December, 1902, when he received a statement of his alleged account. I think it has never been held and should not now be held, admitting the testimony introduced by defendant to be true, that accord and satisfaction has been proven. ■

In this view of the matter, defendant was not entitled to take the opinion of the jury upon that subject, and the judgment should be affirmed.

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


text:
    COLE v. COLE.
    Collateral Attack — Divorce—Decree—Subsequent Allowance of Alimony.
    After the granting of a decree of divorce without alimony and without reserving that question, the wife petitioned to reopen the decree on the ground of fraud, and to be allowed to make a defense. After hearing, the court amended the decree by making a money allowance, though no amendment was prayed. Held, that as the object of the petition was a subject over which the court had jurisdiction and could dispose of, if properly brought before the court, the order allowing the amendment, though unauthorized, was not void so as to-be subject to collateral attack, and not having been appealed from, must be considered a valid order in all subsequent proceedings in the case.

      2. Divorce — Alimony—Subsequent Allowance.
    Where, after granting a decree for divorce without provision for alimony, and without reserving that question, the court modifies its decree so as to make a money allowance to the wife, the whole question of alimony or allowance is then open under section 8641, 3 Comp. Laws, though the modification of the decree was unauthorized had the proper objection "been made.
    3. Same — Alimony—Further Allowance — Change of Circumstances.
    Where, since the last hearing on the question of an allowance to a divorced wife, the husband’s second wife has died, and the divorced wife has developed a serious physical ailment incapacitating her to labor, there is a sufficient change of circumstances to justify a further allowance.
    Appeal from Wayne; Brooke, J.
    Submitted February 9, 1906.
    (Docket No. 121.)
    Decided June 4, 1906.
    Bill by George E. Cole against Mary E. Cole for a divorce : On petition of defendant for a modification of the decree. From an order amending the decree, complainant appeals.
    Affirmed.

      Henry W. Axford, for complainant.

      Wesley L. Nutten, for defendant.
   Blair, J.

This is an appeal from an order amending a decree for divorce. The decree was entered on the 34th day of February, A. D. 1903. The bill for divorce was filed December 4, 1901, by George E. Cole, the appellant, charging the defendant, Mary E. Cole, with extreme cruelty. After service of the áubpcena upon hér, she entered her appearance in said cause. Not answering, pleading, or demurring to the bill, the same was taken as confessed. The complainant was given his decree. There were no children by the said marriage, and the decree gave no alimony, nor was the question of alimony reserved. A year after the decree, the complainant remarried. On June 35, 1903, after the complainant’s remarriage, and about a year and a half after the decree was granted, the defendant, Mary E. Cole, filed her first petition to reopen the said decree on the ground of fraud, and to set aside and vacate the same, and to allow the defendant the privilege of answering and defending. The fraud complained of was that he promised to support her during the remainder of her life, and had failed to do so. After hearing the testimony, the court made a decree in accordance with the following opinion, viz.:

“I will amend this decree and compel this defendant to pay the $90, and the $50, $140. Those amounts he is in law bound to pay and should pay. I am not prepared to say whether this woman is imposed upon or not. She is a woman of extraordinary intelligence, and it seems to me strange that she could have been induced to take the course she did by anything that he said, unless, as she says, she was afraid of him. She has some little property of her own now and he appears to have nothing. I will not make a decree for any permanent alimony, but this $140 he must pay, $35 every three months, the whole to be paid within one year. You may amend the decree in that regard.”

One hundred dollars'of the sum of $140 decreed to be paid was paid by the complainant as a compromise. On August 20, 1904, defendant filed a second petition, asking for “an additional allowance, as and for permanent alimony,” and alleging that since the allowance of the $140 she has discovered that she is afflicted with a uterine tumor, and has become unable to do any work. After hearing the proofs, the circuit judge amended the decree by adding the following clause:

“Said complainant, George E. Cole, shall pay, until further order of this court, to said defendant, Mary E. Cole, as and for permanent alimony, or an allowance, the sum of $2 per week, for each and every week, payable monthly. Said weekly allowance of $2 shall date and commence from Monday, September 5, 1904, which is the date of her application for an amendment of the decree herein.”

Appellant contends that the petition of the defendant and appellee should have been dismissed; that the amendments to the original decree were made without authority of law, for the following reasons:

“jFirst. Because the court had no jurisdiction to give alimony, as alimony was neither granted nor reserved in the original decree, and the refusal to reopen the decree and to grant alimony on the first petition was res judicata.

Second. Because the $140 ordered to be paid at first hearing to reopen was not ‘alimony or other allowance,’ and if it is alimony, it is a sum in gross, and a bar to any further proceeding for alimony.

Third. Because the order of October 12, 1903, and the amendment of June 5, 1905, were made after the term in which the original decree was rendered, and are void.

Fourth. Because the testimony does not show such new facts as would warrant the giving or altering of alimony had the court jurisdiction to do so.

“Fifth. Because public policy makes judgments of this character more stable and unassailable than any other species.”

There is nothing .in the record to indicate that appellant questioned the jurisdiction or power of the court to make the first amendment. On the contrary,’ he admitted the jurisdiction, so far as he could by his conduct, raised no such question in his answer to the petition, went to hearing upon the merits and finally compromised, and paid the allowance decreed to petitioner.

We agree with counsel for appellant that the allowance of the first amendment was unauthorized as against a proper objection. Moross v. Moross, 129 Mich. 27. We do not think, however, that the amendment was void so as to be subject to collateral attack. The petition alleged fraud in the procuring of the decree,' and prayed that it might be opened and vacated, and petitioner permitted to file an answer, and make a defense. There was no prayer for or suggestion of an amendment to the decree; the object of the petition was to vacate the decree. This was a subject over which the court had jurisdiction and could dispose of, if properly brought before the court. The fact that the wrong practice was pursued and an unauthorized decree was entered, would not oust the court of his jurisdiction over the subject-matter so as to render the decree void, and subject to collateral attack. Reynolds v. Reynolds, 115 Mich. 378. No appeal having been taken from the order of the court allowing the amendment, it must be considered a valid order in the subsequent proceedings.

The fourth paragraph of appellee’s petition in the present proceeding avers, amongst other things:

But said court, on the hearing of said petition, modified his said decree by making an allowance of $140 to petitioner, and said allowance was made on, to wit, the ,12th day of October, 1903, and $100 has since been paid by complainant as a compromise in full for said allowance.”

Appellant in his answer admits the statement of paragraph 4. In his opinion for a decree, the circuit judge says:

“ The court, without passing upon the question of fraud, and because of the fact that the rights of an innocent person had intervened, that is, the second wife of the complainant, declined to set aside the decree, but modified it so as to compel the complainant to pay to the defendant about $180 by way of alimony or allowance. After the decree was amended and after the complainant had paid said amount, his second wife died. * * * In January of this year, the present application for a further allowance to the defendant by way of alimony was made. At that time the complainant was a single man, but shortly after service of the application to amend was made upon him, he again married, and is now living with his third wife. The testimony shows beyond question that the defendant is in very poor health; that she “suffers from rheumatism, has some chronic heart trouble, and has a uterine tumor which necessitates the performance of an operation.”

It is stated in the brief for complainant and appellant:

“The court in its decision on hearing of the first petition to reopen the decree, said that it ‘ would not make a decree for any permanent alimony.’ Mrs. Cole testified on that hearing that she was surety for Mr. Cole on two notes, $90 and $50 — $140—and that she had to pay the •same. The court in its decision ordered Mr. Cole to pay her the amount of those two notes, ‘$90 and $50 — $140. Those amounts he is in law bound to pay and should pay.’ By that order, the court specifically enforced the payment. But as to giving alimony, the court refused to do so. ‘ I will not make a decree for any permanent alimony.’ ”

The testimony on the hearing of the first petition does not appear in this record, and, while the first opinion of the court would indicate that the statement of appellant was correct ¿nd that the granting of the $140 was neither by way of alimony or allowance, we must be governed by the record, which compels us to determine, as admitted by appellant, that “said court * * * modified his ■said decree by making an allowance of $140 to petitioner.”

The first order having been held to be valid, it necessarily follows that the court had jurisdiction of the subject-matter and power to “revise and alter such decree respecting the amount of such alimony, or allowance.” 3 'Comp. Laws, § 8641.

We think the situation of and circumstances surrounding the parties had changed sufficiently since the first ■order to justify the second.

The decree is affirmed, with costs of both courts to appellee.

Grant, Montgomery, Ostrander, and Hooker, JJ., •concurred.


text:
    DELANEY v. MICHIGAN ELM HOOP & LUMBER CO.
    .Appeal and Error — Dismissal—Incomplete Record — Failure to Return Judgment.
    Where an examination of the printed and manuscript record discloses that no judgment has been returned, there is nothing for this court to consider, and the writ of error will be dismissed.
    Error to Kent; Wolcott, J.
    Submitted June 16, 1905.
    (Docket No. 26.)
    (Docket No. 152.)
    Decided September 20, 1905.
    Re-argued February 14, 1906.
    Former opinion vacated, and appeal dismissed June 4, 1906.
    Summary proceedings by Ellen Delaney and others against the Michigan Elm Hoop & Lumber Company for the possession of certain real estate. Defendant brings error from a judgment for complainants.
    Appeal dismissed for want of a proper return of the judgment rendered in the circuit court.

      .Dwight Goss, for appellant.

      Joseph Benihdn, for appellees.
   Blair, J.

An examination of the printed and manu- • script record in this case discloses that no judgment has been returned. . There is, therefore, nothing for this court to consider, and the writ of error is dismissed, with costs to appellees.

McAlvay, Grant, Montgomery, and Moore, JJ.„ concurred.


author: McAlvay, J.

text:
    FINCH v. HAYNES.
    Deeds — Construction—Estate Conveyed.
    A deed which conveys land to two grantees, “and the survivor of them, and to their heirs and assigns forever,” conveys a moiety to each for life, with remainder to the survivor in fee, and neither of them, by conveyance during his lifetime, can create a tenancy in common, so as to cut off the contingent remainder..
    Appeal from Monroe; Lockwood, J.
    Submitted February 28, 1906.
    (Docket No. 207.)
    Decided June 4, 1906.
    Bill by Cora Finch against John B. Haynes to set aside a deed to quiet title to land, and for an accounting. From a decree for complainant, defendant appeals.
    Affirmed.

      Willis Baldwin and John J. Kiley, for complainant.

      Clark, Jones & Bryant, for defendant.
   McAlvay, J.

Complainant and Nellie Haynes, her sister, on July 6, 1899, acquired title to lot 62 in the village of Dundee, in Monroe county, from Joseph S. Dickerson and wife, the material provisions of which were as follows: •

“This indenture, made the 6th day of July in the year of our Lord one thousand eight hundred and ninety-nine, between Joseph S. Dickerson and Ella T. Dickerson, his wife, both of the village of Dundee, county of Monroe, and State of Michigan, of the first part, and Nejlie Haynes, of the same place, and Cora Finch, of the city of Lansing, Ingham county, and State of Michigan, and the survivor of them, of the second part,

Witnesseth, That the said party of the first part, for and in consideration of the sum of one dollar, love, and affection and other considerations to them in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, do by these presents, grant, bargain, sell, remise, release, and forever quitclaim unto said parties of the second part and the survivor of them, and to their heirs and assigns, forever, all that certain piece or parcel of land, situated in the village of Dundee in Monroe county, and State of Michigan, known and described as follows: * * *

“ Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining. To have and to hold the said premises as above described to the parties of the second part and the survivor of them, and to their heirs and assigns, to the sole and only proper use, benefit, and behoof of the parties of the second part, and the survivor of them, and their heirs and assigns, forever.”

On April 9, 1904, Nellie Haynes quitclaimed to defendant, her husband, all her right, title, and interest in said premises, described as an undivided one-half. She died May 16, 1905. During her lifetime defendant acted as agent of these two sisters in renting this property and collecting the rents for them. After the death of his wife, defendant placed his quitclaim deed on record, May 22, 1905, and thereafter claimed to be a tenant in common with complainant in said premises, owning an undivided one-half thereof, and entitled to one-half of the rents.

Complainant filed her bill in the circuit court for Monroe county, in chancery, setting forth the above facts, claiming as survivor to be sole and absolute owner in fee of said premises, and praying that she be decreed to be such owner, that the cloud of said deed upon her title be removed; and for an accounting-with defendant for rents received by him. Defendant demurred to this bill of complaint for the following reasons: That by conveyance to complainant and Nellie Haynes, the latter received title to an undivided one-half of the premises and a lawful right to convey the same; that by the deed to him he took title to such undivided one-half interest, and was entitled to possession and rents and profits thereof. The demurrer was overruled and defendant’s counsel having stated upon the argument that in such case they did not desire to answer the bill of complaint, a decree was entered for complainant granting the relief prayed.

Defendant asks this court to reverse this decree for the reasons set forth in the demurrer. The case must be determined upon the construction of the deed from Dickerson and wife to complainant and her sister. The intent of the grantor, as clearly expressed in the deed, was to convey a moiety to each of these parties for life, with remainder to the survivor in fee. This is expressed in the premises, in the granting-clause, and in the habendum. By a conveyance of her interest, could either of the grantees in this deed create a tenancy in common, so as to cut off the contingent remainder ? The case of Midgley v. Walker, 101 Mich. 583, is urged as authority that this might be done. That was a case where the interest of one of two joint tenants under a deed, where the right of survivorship was expressly granted, Was purchased under an execution sale upon judgment against him, and this court held that such interest was subject to levy and sale. The decision goes no further than that. No greater estate can be alienated, either by the act of a party or by operation of law, than such party has in the real estate. In Midgley v. Walker, supra, this court quotes with approval 1 Washburn on Real Property (6th Ed.), § 862:

“No charge, therefore, like a rent, or a right of way, or a judgment, created by one co-tenant, can bind the estate in the hands of the survivor, unless the charge be created by “the one who becomes such survivor, or the creator of the -charge releases his estate to a co-tenant, who, as releasee, •accepts, with that part of the estate, the charge inhering "therein by his own act.”

In the case at- bar neither grantee could convey her •interest in the estate so as to cut off the remainder. The ■deed which we are construing conveys to the grantees, “to them and the survivor of them, and to their heirs and assigns forever. ” The use of the words ‘ their heirs ” ■does not obscure the plain intent of the grantor. The fact that the plural is often used where the singular was intended is recognized. If the deed under consideration had as defendant contends made the grantees therein named joint tenants of the fee, either of those grantees ■could, by conveyance in her lifetime, have deprived the other of the right of survivorship. 1 Washburn on Real .Property (6th Ed.), § 864; 1? Am. & Eng. Enc. Law (2d Ed.), p. 650. But that deed did not make the grantees joint, tenants of the fee.

“ Deeds and devises are often made to two or more, and to the survivor of them and his heirs, the effect of which is to make them joint tenants for life with a contingent remainder in fee to the one who survives.” 1 Washburn on .Real Property (6th Ed.), § 866.

In such cases — and this is such a case — it is settled (see Schulz v. Brohl, 116 Mich. 603; Ewing's Heirs v. Savary, 3 Bibb [Ky.], 235) that no joint tenant can, by his •conveyance or otherwise, affect the right of survivorship.

The decree of the circuit court is affirmed, with costs.

Carpenter, C. J., and Blair, Ostrander, and .Moore, JJ., concurred.


author: Grant, J.

text:
    PETROSKI v. MINZGOHR.
    1. Vendor and Purchaser — Hostile Claim of Purchaser.
    One who enters upon land under a bill of sale of all the timber he can cut and remove before a certain date, stands as a pur. chaser under contract, and will not be allowed to dispute his vendor’s title.
    2. Same — Acquiring Hostile Title — Equity — Compelling Transfer.
    Where a person in possession of land, under a bill of sale of the timber standing thereon, acquires a title hostile to that of his vendor, he holds it in trust for his vendor, and equity will compel him to transfer it to the vendor.
    3. Same — Advances to Fortify Title — Reimbursement.
    Where a purchaser in possession acquires an outstanding title hostile to that of his vendor, equity will lend its aid to reimburse all reasonable advances expended for that purpose, while at the same time it will rebuke every effort of the purchaser to betray his vendor’s title.
    Appeal from Baraga; Streeter, J.
    Submitted April 5, 1906.
    (Docket No. 13.)
    Decided June 4, 1906.
    Bill by Matilda Petroski against Matt Minzgohr and the C. H. Worcester Company for an accounting. From a decree for complainant, defendant Minzgohr appeals.
    Affirmed.
    In December, 1891, one Edward Phelps purchased from the United States the W. £ of the W. \ of section 15, town 51 N., range 34 W. He received a patent, but never recorded it. He immediately cut off and sold the valuable pine timber, abandoned the land, left the State, and went to Minnesota. He paid no taxes. A purchaser of the land at a tax sale wrote to Mr. Phelps, who replied that he did not want the land. Complainant purchased this tax title, and also another tax title, and paid the subsequent taxes. She, through her husband, entered upon the land, upon which there was a small house, and cut ties and timber therefrom. On April 14, 1902, she executed to the defendant under her hand and seal a bill of sale of all the tamarack and cedar timber he might remove from- said land before the 1st day of July following at $1.50 per 1,000 feet. He entered upon the land and commenced cutting the timber. He knew that complainant had, and relied upon, a,tax title. He ascertained the residence of Mr. Phelps in Minnesota, went to see him, and procured from him' a deed for the sum of $50. He also obtained from him an assignment of all rights to recover for timber which had previously been cut by her from the land. He testified that he got the title for the purpose of protecting himself in cutting the timber under his contract with complainant. He subsequently obtained the advice of his attorney, repudiated his contract with complainant, notified other parties not to pay her for timber bought from her, and claimed title to the land. The bill of complaint is based upon the theory that the defendant is a trustee of complainant, and prays for an accounting of the tim-. her cut by him, and that he be decreed to transfer all his rights in said land and timber to her. The case was heard upon pleading and proofs, and decree entered for the complainant, upon payment by her to him of $118.50, the amount of his expenses in procuring the deed from Phelps.

      G. F. Button, for complainant.

      Joseph F. Hambitzer, for appellant.
   Grant, J.

(after stating the facts). Complainant was in the possession of the land at the time she made the contract with defendant. He went into possession under her. He remained in possession under her until he had secretly acquired the original title. The bill of sale by complainant to him contained a covenant of warranty and an agreement to defend the sale made thereby. He had an irrevocable license for the term specified in the contract. She could not eject him in a suit at law, or restrain him from cutting and removing the timber by a suit in equity. He had purchased standing timber and possession of the land. They stood in the position of vendor and vendee of land. He had recognized her title and was not in a position to disavow it or to obtain for his own benefit a title hostile to it. By his conduct he held the land in trust for her, and equity will compel him. to transfer it to her. Galloway v. Finley, Kirkpatrick v. Miller, 50 Miss. 521; Stephens v. Black, 77 Pa. 138; Peay v. Capps, 27 Ark. 160; Cromwell v. Craft, 47 Miss. 44; Mitchell v. Chisholm, 57 Minn. 148. See, also, Thredgill v. Pintard, 12 How. (U. S.) 24.

“ The vendor and vendee [of land] stand in the relation of landlord and tenant; the vendee cannot disavow the vendor’s title.” Galloway v. Finley, 12 Pet. (U. S.) 295.

“After doing homage to his vendor’s title by purchase and entry under it, the vendee will not be tolerated to repudiate his allegiance to it, and transfer it to another title acquired whilst thus in possession. If such after-acquired title should be paramount, the vendee shall be esteemed as holding it in trust for his vendor, as having provided it to support and maintain his possession, and his right under his original vendor.

• “Whilst a court of equity holds the vendee to entire good faith to his vendor, and will not allow him to get in. an outstanding title or incumbrance and set it up in opposition to his vendor, yet it will lend its aid to reimburse all reasonable advances expended to fortify the title. At the same time it will rebuke every attempt by the purchaser to betray or invalidate the title.” Kirkpatrick v. Miller, 50 Miss. 527.

“A vendee under articles may set up an outstanding title not in himself, but when he buys such title, he is trustee of his vendor, and is entitled only to what he paid to perfect the title.” Stephens v. Black, 77 Pa. 138.

“A vendee in possession under a contract of sale cannot retain possession and avoid payment of the balance of the purchase money on the ground that the vendor cannot make as good a title as agreed. Before he can avail himself of such defense he must offer to rescind the contract. Peay v. Capps, 27 Ark. 160.

“ A vendee, continuing to hold the possession of land to which his vendor admitted him, cannot acquire an adverse title and set it up against his vendor.” Cromwell v. Craft, 47 Miss. 44.

“While a vendee remains in possession he is estopped from denying the plaintiff’s title, whether it is good or bad.” Mitchell v. Chisholm, 57 Minn. 148.

Decree is affirmed, with costs.

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


text:
    HOPKINS v. MICHIGAN TRACTION CO.
    Carriers — Street Railways — Negligence — Injuries to Passengers — Action—Declaration—Sufficiency.
    A declaration alleging that defendant street railway company negligently permitted a live electric wire resembling a rope to be suspended from the roof of the car upon which plaintiff was a passenger, and at the rear platform thereof, and that, believing such wire to be a rope, plaintiff’s hand came in contact therewith, that he received a shock of electricity “and was unable to release his hands from contact with the wire until relieved by the power being shut off,” and that, without any fault or negligence on his part, he was injured, etc., is sufficient to support a judgment based thereon, though his reason for grasping the wire is not stated.
    Certiorari to Kalamazoo; Adams, J.
    Submitted April 23, 1906.
    (Calendar No. 21,747½.)
    Decided June 4, 1906.
    Case by Rollin H. Hopkins against the Michigan Trac-. tion Company for personal injuries. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.
    Affirmed..

      Plaintiff filed a declaration alleging that lie was a passenger on the defendant company’s road on July 21, 1905, at 8 o’clock p. m.; that the car was crowded; that he was compelled to stand upon the rear platform; that the defendant “ caused to be left suspended a live electric wire from the roof or ceiling of the car in a manner and at a place where passengers standing on the rear platform, as plaintiff was, would easily come in contact therewith; and that the wire suspended as aforesaid, appeared and looked very much like the rope which is ordinarily and commonly suspended by the defendant on its motor cars for the purpose of raising and lowering the trolley arm on said cars, and, believing the wire aforesaid to be a rope, the plaintiff’s hand came in contact therewith, and without any fault or negligence on his part, and without contributing in any way thereto, he received, suffered, and sustained a severe shock,” etc. The declaration further alleges that this wire so suspended was used to transmit electrical power from the motor car to a trailer, when one was attached, for the purpose of illuminating the trailer, but that at the time of the accident there was no trailer. A second count sets forth substantially the same facts, and alleges that the defendant, through some of its employés, had left said wire “ carelessly and negligently hung in a position so that the plaintiff, without any fault or negligence on his part, came in contact therewith, and that, upon coming in contact therewith, he received a shock of electricity, and was unable to release his hands from contact therewith until relieved by the power being shut off.”
    To this declaration the defendant demurred. The cause of the demurrer relied upon is that the declaration does not allege, with sufficient certainty or definiteness how or why plaintiff came in contact with the wire, and that it practically avers that plaintiff came in contact with the wire voluntarily and without any necessity or occasion so to do, and as a trespasser. The demurrer was overruled, and the decision of the court is brought to this court for review under Act No. 310, Pub. Acts 1905, which provides:
    ‘ ‘ Whenever in any action at law in a circuit court, a motion to quash the writ or declaration upon jurisdictional grounds, or the issues raised on a demurrer, plea to the jurisdiction or other dilatory plea shall be decided adversely to the party filing such motion, demurrer or plea, the decision may be reviewed by writ of certiorari forthwith,” etc.

      Hoioard & Howard, for appellant.

      Alfred J. Mills, for appellee.
   Grant, J.

{after stating the facts). The declaration alleges that the defendant was guilty of negligence in permitting this live wire to hang from the roof of the car; that while standing upon the platform, on account of the crowded condition of the car, he came in contact with it, without any negligence on his part. Evidently he took liold of it with his hand — but why the declaration does not allege. If he had good reasons for taking hold of it, h.e was not guilty of contributory negligence. If he had no occasion to touch the wire, and did it out of curiosity or voluntarily, without any necessity therefor, he would be guilty of contributory negligence. The liability depends upon the proofs.

We think the declaration is sufficient to support a judgment based thereon.

The decision is therefore affirmed.

McAlvay, Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    HITCHCOCK v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Propriety—Remedy by Appeal.
    Appeal and not mandamus is the remedy to review a final order dismissing a bill, though the dismissal was upon the ground of lack of jurisdiction.
    2. Same — Adequacy op Remedy — Injunction.
    The bill in such case being to restrain the officers of a foreign, corporation from disposing of its property, the contention that, if mandamus be not granted, the defendants will have disposed of the property before the appeal can be decided, is untenable, as complainant may appeal immediately and obtain an injunction from this court, which will preserve the corporate assets until the appeal is decided.
    Mandamus by Edward M. Hitchcock to compel Morse Rohnert, circuit judge of Wayne county, to set aside a decree dismissing a bill of complaint.
    Submitted May 26, 1906.
    (Calendar No. 21,663½.)
    Writ denied June 4, 1906.

      Willard E. Warner (Edward J. Tisdale, of counsel), for relator.

      Van Zile & Brownson, for respondent.
   Carpenter, C. J.

Relator, a stockholder in the Detroit & Kent County Oil & Gas Company, Limited — a corporation organized under the laws of the Territory of. Arizona — filed a bill of complaint against said corporation in the circuit court for the county of Wayne, in chancery, praying, among other things, that said corporation, ‘ ‘ its officers, agents, trustees, attorneys, and counselors, may be both temporarily and permanently enjoined and restrained from selling, transferring, or otherwise disposing-of the options, leases, lands, properties, and utilities owned or controlled by the said company.” A temporary injunction in accordance with this prayer was issued. The defendant corporation, after a general appearance in the case, filed a plea to the jurisdiction of the court, and relator filed a replication to this plea. Upon this issue testimony was taken before respondent who found the material facts in the plea to be true and entered a final decree dismissing relator’s bill of complaint. Relator thereupon instituted these proceedings asking for a mandamus to compel said respondent to set aside said decree. We are of the opinion that relator has mistaken his remedy. It is clear that relator can review the order complained of by appealing therefrom to this court. Under these circumstances, according to our recent decisions, that is his only method of obtaining relief (see Cattermole v. Ionia Circuit Judge, 136 Mich. 274, and cases there cited), and he is not, therefore, entitled to a writ of mandamus.

It is argued in his brief that relator is entitled to a writ of mandamus under the rule laid down in Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270:

‘ The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such circumstances, the party would be without remedy.”

It is quite apparent from this entire language that we were attempting to describe cases in which the trial court refused to make a final order which might be reviewed by appeal or writ of error. If such an order is made, even though made upon the erroneous notion that the trial court has not jurisdiction, mandamus will not lie. See Cattermole v. Ionia Circuit Judge, supra.

Relator urges that if the mandamus sought be not granted, the defendant corporation will, before this case can be heard upon an appeal, improperly dispose of all its assets and leave him without remedy. If relator has just ground for this apprehension, we can perceive no good reason why he may not at once appeal, and procure from this court an injunction which will preserve the corporate assets until the appeal is determined. See Kent v. Mahaffy, 2 Ohio St. 498.

The application for the writ of mandamus is denied.

McAlvay, Grant, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Hooker, J.

text:
    KRAUSE v. COOK.
    1. Fraud — Misrepresentations—Character—Fact or Opinion.
    Representations, made to induce the purchase of mining stock, that the mine was owned by the company issuing the stock, that it comprised 85 acres, that they had pipe lines run, and water power enough to run their mines, that they had mined enough ore to pay the dividends already paid, and that there was dump ore containing enough gold to pay for the'working of the plant and keep it running, are more than mere expressions of opinion, and, being false, are actionable.
    2. Same — Good Faith — Remedy.
    The rule that one who purchases property in- reliance upon false statements regarding it may recover the damages occasioned thereby, whether the representations were made in good or bad faith, is applied in this State as well in actions at law as in equity.
    3. Same — Personal Knowledge oe Facts.
    If a person receives information from others, and believes it, and repeats it, explaining that he has no personal knowledge, he is not guilty of fraud.
    4. Same.
    Where a representation is concerning á condition of affairs not susceptible of exact knowledge, the assertion of knowledge is to be taken as meaning no other than a strong belief founded upon what appears to be reasonable and certain grounds, and in such a case the question is wholly one of good faith.
    5. Same — Action—Instructions.
    In an action for fraud in the sale of mining stock, it is improper to instruct that if both parties acted honestly, yet where one of two parties, neither of whom acted dishonestly, must suffer, he shall suffer who by his own act obtained the confidence and caused the injury to the other.

      Error to Livingston; Smith, J.
    Submitted April 5, 1906.
    (Docket No. 12.)
    Decided June 5, 1906.
    Assumpsit by Ernest Krause against Fred J. Cook for money-obtained by fraud and deceit. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      William P. Van Winkle and Arthur E. Cole, for appellant.

      S. S. Abbott and Shields & Shields, for appellee.
   Hooker, J.

The defendant was a hardware dealer in Fowlerville, and the plaintiff was his clerk. Previous to his employment of the plaintiff, the defendant, at the solicitation of one Parker, purchased some stock in a western mine, after making a personal examination of the property. It is inferable that an arrangement was made between him and Parker, that defendant should receive a commission of 10 per cent, on all sales of stock in said mine which he should make for Parker. He succeeded in making sales to the plaintiff and several others, and, the investment proving unsatisfactory, the plaintiff brought this action, relying upon alleged fraudulent representations made by the defendant in regard to the mine. No scienter was alleged.

Among the representations relied on are the following, viz.:

(a) That the Longfellow mine was owned and controlled by the company issuing the stock, that it comprised 85 acres, and that the purchasers of the stock had a proportionate ownership of that land.

(b) That the Longfellow mine was good paying property.

(c) That' he, the defendant, had picked up ore there and taken it to an assayer, and that it assayed $20 a ton or better.

(d) That he had seen ore measured up, enough, he thought, to last and pay dividends for 20 years.

(e) That they had pipe lines run, and water power enough to run their mines.

(/) That the company had paid dividends.

(g) That defendant had got interest on the money that he had invested.

(h) That the mine was a good dividend payer.

(i) That he said he would guarantee the plaintiff his money back, if it was not just as he represented it.

(j) That they had mined enough ore to pay the dividends already paid.

(fc) That the New Century Mining and Investment •Company, which issued this stock, owned the Longfellow mine, and that the company owned the 85 acres mentioned.

(l) That there was dump ore containing enough gold to pay for the working of the plant and keep it running.

(to) That the stock was worth 50 cents on the dollar.

Evidence was introduced from which the jury might infer that the mine was worthless; that Parker and the promoters falsified to and deceived the defendant; that it did not own the property shown him, or the water rights, .and that the mine was, to use his language, a fake, and worthless; that no dividends were ever earned, but, if they could be called dividends, they were deductions allowed from the purchase price, or, if actually paid, were from moneys derived from the sale of stock.

It was claimed by the defendant’s counsel that the court erred in refusing to direct a verdict for the defendant:

(1) Because the representations were matters of opinion merely.

(2) Because they were made in good faith.

(3) Because not shown to be false.

1. Many of the alleged representations were clearly statements of fact. Some of them, however, may have been no more than expressions of opinion, such as the value of the stock, and the probable quantity of ore that he saw, and the probable life of the mine.

2. It is the settled rule in this State, whatever the rule may be elsewhere, that one who purchases property in the belief of, and reliance upon, false statements regarding it, may sue for and recover the damages occasioned thereby, whether the representations are made in good or bad faith. The rule, as applied to equity cases, was announced early and frequently. See Converse v. Blumrich, 14 Mich. 109; Beebe v. Young, 14 Mich. 136; Steinbach v. Hill, 25 Mich. 78; Webster v. Bailey, 31 Mich. 36; Busch v. Wilcox, 82 Mich. 336; Sawyer v. Building Ass’n, 103 Mich. 228.

In Holcomb v. Noble, 69 Mich. 396, it was held that there was no sound reason why the same rule should not be applied to actions at law, following Beebe v. Knapp, 28 Mich. 53; Baughman v. Gould, 45 Mich. 481. The Holcomb Case has been followed in several cases. See Ripley v. Case, 86 Mich. 263; Totten v. Burhans, 91 Mich. 499.

In Angell v. Loomis, 97 Mich. 5, the rule was applied in an action against an agent.

3. There was abundant evidence of the inaccuracy of the representations in the statements of Cook himself. It follows that the court did not err in refusing to direct a verdict for defendant. The defendant disputed the testimony offered in support of the action, and it is claimed on his behalf that he made no unqualified representations regarding the mine, but informed the defendant as to his sources of information, and the reasons for his belief, and that under such circumstances the defendant should not be chargeable with fraud. Upon this subject there is a decided conflict in testimony, that of the plaintiff indicating that the statements relied upon were positive in their character, implying personal knowledge,' and justifying reliance upon them as such. It was necessary, therefore, to leave the question to the jury. Counsel for the defendant maintain that the learned circuit judge erred in his discussion of the question of deceit, wherein he read from a text-book upon that subject, for the reason that the absence of deceit was conceded. If this was conceded upon the trial, it is unfortunate that counsel have not pointed us to .the part of the record showing it. The court does not indicate such understanding, and defendant’s third request to charge contains three subdivisions, under each of which it says a plaintiff may have redress for fraud(1) When there is deceit. (2) When statements are recklessly made. (3) Wheré believed to be true without reason for the belief. The request went on to state:

“It is conceded that the defendant supposed all the representations made to be true, and therefore plaintiff cannot recover unless you find * * * that he had no reason for such belief,” etc.

The court incorporated the first portion of this request in his charge, but refused to give the part quoted. Had he understood such a concession to have been made he probably would have said so, and in that case much that he said would have been inapplicable, if not misleading. • If it was not conceded, it was proper to leave the question of deceit to the jury, and to instruct them, as he did, that the methods of deceit aré various, for while there is, in our opinion, little in the case indicating an intention to deceive, we cannot say that such an inference from the proof is' necessarily excluded. That the judge understood this question was in the case is indicated, also, by his instruction relating to fraudulent expression of opinions.

Error is assigned upon the refusal to give a large number of requests in relation to the subject of statements of opinion. As opinions may be fraudulently expressed, the unqualified requests were properly refused. The charge contained general instruction upon the subject of the expression of opinions, which were, in the main, correct. We are of the opinion, however, that the refusal to give the following requests was error:

“ If a person received information from others and believes it, repeats it, explaining that he has no personal knowledge, he is not guilty of fraud. Therefore, if you find that the defendant received information from others and repeated that information to plaintiff, and explained to plaintiff the sources of his information, he is not guilty of any fraud, if he acted honestly and in good faith.

“ Where the representation is concerning a condition of affairs not susceptible of exact knowledge, the assertion of knowledge is to be taken as meaning no other than a strong belief founded upon what appears to the defendant to be reasonable and certain grounds. In such a case the question is*wholly one of good faith.”

Also that the following instruction should have been omitted:

I further charge you that even if you find from the evidence that both Mr. Cook and Mr. Krause acted honestly, yet the law of this State is that where one of the two parties, neither of whom acted dishonestly, must suffer, he shall suffer who by his own act had obtained the confidence and caused the injury to the other.”

There is danger that a jury may misapply so broad a proposition in a case of this kind.

The judgment is reversed, and a new trial ordered.

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