author: Stone, J.

text:
    KELLY v. GAUKLER.
    1. Appeal and Error — Chancery Practice — Decree.
    Chancery cases on appeal are heard de novo in the Supreme Court, which makes its' own decree.
    3. Same — Statutes—Bond.
    While Act No. 340, Pub. Acts 1907, does not require a bond on appeal except to stay proceedings, the construction of the bond need not therefore be different than that prevailing under the previous statute, which required the bond to perfect an appeal.
    3. Same — Bond—Personal Decree.
    A decree of foreclosure, ordering a sale of premises for default in the terms of a land contract, is not a personal decree, or different in principle from a. decree foreclosing a mortgage.
    4. Same — Foreclosure—Vendor and Purchaser:
    No personal liability is enforceable against the defendant in foreclosure proceedings under a decree for the sale of land, until after sale and a deficiency, and subsequent proceedings to secure a deficiency decree.
    5. Same — Deficiency—Equity Jurisdiction.
    Under the original equity jurisdiction there was no power to enter a personal decree against the mortgagor; the power being conferred by statute.
    6. Same — Foreclosure—Bond—Decree.
    Where the decree of this court, on appeal from a decree of foreclosure, modified the order of the lower court with costs to the appellee, and no damages were awarded for delay or loss to the appellee, the appellant is not liable for a deficiency arising on sale of the premises in assumpsit, upon the appeal bond given in pursuance of Act No. 340, Pub. Acts 1907.
    Error to Wayne; Erskine, J., presiding.
    Submitted January 4, 1911.
    (Docket No. 12.)
    Decided February 1, 1911.
    Assumpsit by William T. Kelly against Francis O. Gaukler and the Electric City Amusement Company on an appeal bond. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Keena, LigMner & Oxtoby, for appellant.

      George W. Radford and Louis C. Wurzer, for appellees.
   Stone, J.

This is an action of assumpsit brought by William T. Kelly as assignee of Carl E. Schmidt upon the appeal bond in a chancery cause given by defendant Electric City Amusement Company with defendant Francis O. Gaukler as surety in Schmidt v. Gaukler, 156 Mich. 243 (120 N. W. 746).

Without commenting upon counsel’s criticism of the declaration, we gather from the findings of the circuit judge, before whom this cause was tried, the following history of the cause: On September 19, 1907, one Carl E. Schmidt filed his bill of complaint in the circuit court for the county of Wayne, in chancery, against Arthur H. Gaukler, Electric City Amusement Company, and Union Trust Company, trustee, defendants, to foreclose a certain land contract theretofore made between Carl E. Schmidt, as vendor, and said Arthur H. Gaukler, as vendee, and by the latter duly assigned to the said Electric City Amusement Company, which contract is set forth in said bill of complaint. The defendants named in the said bill of complaint appeared and filed separate answers, the Union Trust Company, trustee, amending its answer at the hearing, setting up its rights as a subsequent mortgage incumbrancer, claiming to hold certain mortgages given to secure two issues of bonds, and defendant Gaukler filed a cross-bill with his answer. Upon the issues thus formed the cause was heard on pleadings and proofs taken in open court. On April 30, 1908, a decree of foreclosure was entered in said cause. Said decree was in the form generally used in the foreclosure of mortgages, save that it declared the lien of the Union Trust Company, trustee, under its mortgages. It ordered that, if the money arising from the sale should be insufficient to pay the amount so decreed to be due complainant with interest thereon and costs and expense of sale, as therein provided, the commissioner should specify such deficiency in his report of sale, and that the complainant have leave, upon the coming in of said report, and its confirmation, to apply for execution for such deficiency against defendant Electric City Amusement Company, which was thereby decreed to be personally liable for the debt secured by said contract. The defendant Electric City Amusement Company was in possession of the premises at the date of said decree, and remained in possession up to the sale thereof, hereinafter mentioned, and was, and had been up to the time of the sale, enjoying the rents and profits therefrom, and, desiring to perfect an appeal from said decree to this court, filed its claim of appeal, and thereafter perfected its appeal pursuant to the provisions of Act No. 340, Pub. Acts 1907. On or about June 2,1908, it filed its appeal bond with the defendant Francis O. Gaukler as surety therein. The said bond, together with its approval, was as follows:

“Know all men by these presents, that we, Electric City Amusement Company, a Michigan corporation, as principal, and Francis O. Gaukler, as surety, are held and firmly bound unto Carl E. Schmidt in the sum of five thousand dollars ($5,000.00) lawful money of the United States of America, to be paid to the said Carl E. Schmidt, or to his certain attorney, heirs, executors, administrators and assigns, to which payment well and truly to be made, we bind ourselves, our successors, heirs, executors, and administrators, and each and every one of them, firmly, by these presents.
“ Sealed with our seals and dated the 26th day of May, A. D. 1908.
“Whereas the above-named Electric City Amusement Company has appealed to the Supreme Court of the State of Michigan from the decree of the circuit court for the county of Wayne, in chancery, made on the 30th day of April, A. D. 1908, in a certain cause in said court, in which Carl E. Schmidt was complainant and Electric City Amusement Company et al. defendants:
“Now, therefore, the condition of this obligation is such, that if the said Electric City Amusement Company shall diligently prosecute its said appeal and shall pay all costs which may be taxed, or which have .been taxed against it in this cause, and shall perform all relief which it may be required to perform by the final decree entered in this cause upon the appeal, then this obligation to be void, otherwise to remain in force.
“Electric City Amusement Company,
[Signed] “ By Arthur H. Gaukler,
“President. [Seal]
[Signed] “ Francis O. Gaukler.
[Seal]
“ State of Michigan, )
“ County of Wayne, j ss‘:
“I, Alfred J. Murphy, the circuit judge who entered said decree, do hereby certify that I have examined the within bond, and do hereby approve of said bond, the ' sufficiency of the surety thereon being approved in open court and the sum for which said bond is given being the sum of five thousand dollars ($5,000.00).
[Signed] “Alfred J. Murphy.
“Dated, June — , 1908.”

A subsequent order of approval of said bond was found pinned to said bond at the time the same was offered in evidence on the trial of this cause as follows:

“State of Michigan, )
“ County of Wayne ) ss‘:.
“I, Alfred J. Murphy, the circuit judge who entered said decree, do hereby certify that I have examined the within bond, and do hereby approve of said bond, the sufficiency of the surety thereon, being approved in open court, and the sum for which said bond is given, being the sum of five thousand dollars, said sum of five thousand dollars being fixed as adequate only on the agreement of counsel for appellant that said case on appeal will be settled with all diligence, and will, if possible, be placed on Supreme Court docket for the October, 1908, term. If the matter is delayed until 1909, the court reserves the right to increase the bond, so as to protect the complainant’s rights.
[Signed] “Alfred J. Murphy.
“Dated June 2, 1908.”

There was no evidence introduced showing that defendant Francis O. Gaukler had any knowledge of the making of said last order of approval.

Said chancery cause thus appealed was argued and submitted in this court on April 12, 1909, and decided in an opinion filed April 16, 1909, and reported as above stated. The final decree of this court was entered on April 17, 1909, and was in substance as follows:

“This case having been brought to this court by appeal from the circuit court for the county of W ayne, in chancery, and having been argued by counsel, and due deliberation had thereon, it is now ordered, adjudged, and decreed by the court that the decree of the circuit court for the county of Wayne, in chancery, be and the same is hereby in all things affirmed, except as to paragraphs five (5) and six (6) of said decree, which are stricken out, and in place thereof a new paragraph 5a inserted, to read as follows:
“ ‘(5a) If the lands and premises described in the bill of complaint and in this decree hereinafter described shall sell for more than the amount due complainant, any surplus arising from said sale shall be brought by the commissioner into the said circuit court for the county of Wayne, in chancery, there to abide, until the determination by that court, upon proofs to be taken of the respective rights of the Union Trust Company, trustee, and the Detroit Trust Company, trustee, under the mortgages in which they are at this time respectively trustees.’
“And it is further ordered, adjudged, and decreed that the complainant do recover of and from the appellant Electric City Amusement Company and Francis. O. Gaukler, surety on the appeal bond, his costs to be taxed. And said cause is remanded to said Wayne circuit court, in chancery, for further proceedings under said decree, as herein modified and affirmed.”

The record and proceedings therein were remanded by this court on April 19th following, and on April 26th following complainant’s costs were taxed in this court at $48.15, which were paid on April 28, 1909. On June 1, 1909, the premises were sold pursuant to such decree, and bid in by Carl E. Schmidt for the sum of $61,000, leaving a deficiency of $2,722.54 of the amount due upon said deoree at the date of such sale. The commissioner duly reported said sale to said court, and the report was duly confirmed with the consent of the defendant Electric City Amusement Company. The complainant subsequently thereto took no further steps to procure a decree for the deficiency arising on such sale against the Electric City Amusement Company, nor made demand of said company for the payment thereof. The rental value of said premises during the years 1908 and 1909 exceeded the sum of $3,000 per annum. Upon the above statement of facts, the circuit judge found that the chancery appeal having been prosecuted to effect, and complainant’s costs paid, there was no breach of the appeal bond, and he entered judgment for the defendants.

The plaintiff brings error. The assignments of error may well be considered together as raising the single question of liability on an appeal bond given in a' chancery foreclosure of a land contract, pursuant to Act No. 340, Pub. Acts 1907. It is the claim of the appellant that under the decree of this court the condition of the bond was not performed, and that he is entitled to recover from the obligors therein the amount of his damage, not exceeding the penalty of the bond, and that his damage is proven by the deficiency found upon the sale, being $2,722.54, that sum being less than the rental value of the property for the year during which the complainant therein was deprived of the possession thereof. On the other hand, it is contended by the defendants that the appeal was diligently prosecuted to effect; that the modification of the decree below made by this court should be considered, and that, in any event, the only liability of Francis O. Gaukler as surety on the bond was that fixed by this court for costs, which has been satisfied by payment; that the defendant Francis O. Gaukler, surety, is not liable for the deficiency of $2,722.54, either under the facts, or under the law pursuant to which the bond was given.

Section 2 of said act of 1907 reads as follows:

“Any person conceiving himself aggrieved by the decree of any court in chancery may, within forty days after the filing of the decree, claim an appeal from the said decree to the Supreme Court of the State of Michigan by filing a written claim of appeal with the register of the court in which the decree complained of was rendered. Final process shall not issue nor shall any proceeding for the enforcement of said decree be had if said appellant shall file with the aforesaid claim a bond to the opposite party in amount to be fixed by the court in which the decree was rendered, or by any judge thereof or by any circuit court commissioner of the county in which the decree was rendered, signed by one or more sureties to be approved by the court which rendered the decree or in his absence by a circuit court commissioner and conditioned for the diligent prosecution of the appeal, for the payment of costs which may be taxed or which have been taxed in the cause, and for the performance of all relief which the appellant may be required to perform by the final decree entered in said cause upon the appeal.”

The condition of the bond given is in exact conformity with the above provision of the statute, to wit:

“And shall perform all relief which it may be required to perform by the final decree entered in this cause upon the appeal.” ,

There having been no decision of this court construing this particular statute, it may be well to compare its provisions with those of the former statute, in order to reach a correct construction of the statute in question, and thereby determine whether the surety on the bond here in suit is liable for the deficiency reported after the foreclosure sale. The first statute in this State providing for chancery appeals appears in Rev. Stat. 1888, p. 379:

“ Sec. 122. Such appeal shall be claimed and entered within ninety days from the time of the making of such decree or final order, and the appellant shall, within the said ninety days, file a bond to the appellee, with sufficient sureties to be approved by the chancellor, and in such sum as the chancellor shall direct, conditioned to pay, satisfy or perform the decree or final order of the Supreme Court, and to pay all costs, in case the decree or order of the court of chancery shall be affirmed; and upon the entering of such appeal and the filing of said bond, as above directed, all further proceedings in the cause shall be stayed in the court of chancery, until otherwise ordered by the Supreme Court.”

The first decision under the act of 1838 was handed down in 1857, being Kephart v. Farmers’ & Mechanics’ Bank, 4 Mich. 602. The case was the foreclosure of a mortgage. The decree of the court of chancery ordered the sale of the mortgaged premises, if payment should not be made by a given date, in which case the equity of redemption would be foreclosed. It is also decreed that the mortgagor Ward, who was personally liable, should pay such deficiency of the mortgage debt as might appear after a sale of the mortgaged premises, precisely the same as the decree in the instant case. The appeal bond was conditioned—

To pay, satisfy, or perform the decree or final order of the Supreme Court, and pay all costs, in case the decree or order of the court of chancery shall be affirmed.”

The decree of the court of chancery was affirmed by this court, the case remanded, sale followed, and deficiency found. A suit was brought on the bond for the deficiency and recovery had in the circuit court for the full amount. This judgment was reversed in this court; it being held that the contention of counsel for the plaintiff that the appeal of the defendants operated to delay the complainant in the enforcement of his decree, urging as a reason that it was the intention of the legislature to require security for the performance of the entire decree appealed from, was untenable, for the reason that this court had ample power to award damages against the defendants for the delay occasioned by such appeal, and the same might have been fixed and determined by the decree of this court, that, this court not having made any such award of damages, no recovery for deficiency could be had.

The statute remained unchanged as to the provision in question until the adoption of Act No. 13, Pub. Acts 1877 (1 Comp. Laws, §§ 550, 551), when the statute was changed to read as follows:

“Sec. 144. Such appeal shall be claimed by a written claim, delivered or transmitted, within forty (40) days from entry of such decree or final order, to the register of the court where such decree or order was entered, which said register shall make entry of, and the appellant shall, within said forty (40) days, file with said register, a bond to the appellee, or appellees, with sufficient sureties, approved by a circuit judge or circuit court commissioner of said county, and with such penalty as such judge or commissioner shall approve, conditioned for the performance or satisfaction of the decree or final order of the Supreme Court in the cause, and payment of all costs of the appellee or appellees in the matter of the appeal. * * *
“ Sec. 145. • Upon the entering of such appeal and the fixing of such bond, as directed in the preceding section, all proceedings in the cause in the circuit court, in chancery, shall be stayed, except taxation of costs and proceedings in relation to an additional bond, provided for in said section, until otherwise ordered by the Supreme Court. * * * ”

This statute remained unchanged as to the condition of the bond until the act of 1907, here under consideration. A number of decisions were handed down construing the act of 1877. The first case was decided in 1883, being Kennedy v. Nims, 52 Mich. 153 (17 N. W. 735). In that case suit was brought on- an appeal bond, given on appéal of a mortgage foreclosure case, the decree of the lower court being affirmed by this court, the cause remanded, sale had, and deficiency found. The single question presented was,'Were the sureties liable for anything beyond the amount of the costs taxed in this court, the costs in the circuit court having been paid, and no damages having been assessed by way of penalty on the appeal? In other words, Were the sureties on the appeal bond liable for a deficiency, to be ascertained after sale, this court not having assessed any damages for the appeal by way of penalty? This court held that the sureties were not liable upon the bond for any portion of the deficiency left on sale of appellant’s property to satisfy the decree; that the costs in the circuit court having been paid from the moneys realized on the sale of the property under the decree, and when the suit was brought on the bond, the surety having tendered the costs of this court and the expenses of the suit to that time, his liability was discharged. It will be borne in mind that in the case at bar this court did not assess any damages by way of penalty for the appeal. It did fix the liability of the surety, and in express terms limited it to the costs of the appeal, and the decree was promptly satisfied by payment thereof.

The next case was that of Michie v. Ellair, 60 Mich. 73 (26 N. W. 837), decided in 1886, in which Kennedy v. Nims, supra, was followed, and it was held that the intention of the legislature in amending the statutory condition of the bond given on a chancery appeal (Act 1877) was to limit the liability of the obligors to the payment of costs upon the appeal proceedings, and the undertaking of the sureties in such bond cannot be enlarged by the courts; that the condition in such bond, “for the performance of the decree of the Supreme Court,” cannot be construed as raising a liability for the payment of the costs below, any more than the payment of a money decree; and that said bond is not intended as additional security for the original indebtedness, but as an indemnity to the appellee against further trouble, expense, and costs while the case is undergoing a review in this court. And Kountze v. Omaha Hotel Co., 107 U. S. 378-391 (2 Sup. Ct. 911), is cited. In Warner v. Cameron, 64 Mich. 185 (31 N. W. 42), decided in 1887, this court again held in affirmance of the doctrine in Kephart v. Farmers’ & Mechanics’ Bank, supra, Kennedy v. Nims, supra, and Michie v. Ellair, supra, that recovery upon a chancery appeál bond was limited to costs upon the appeal proceeding, in the absence of an order awarding damages in this court. In Richardson v. Richardson, 82 Mich. 305 (46 N. W. 670), decided in 1890, this court drew a distinction between a bond on appeal from a personal decree, requiring a party to do some act, or pay some amount of money, not otherwise secured, and a foreclosure decree, and cited with approval Michie v. Ellair, supra, Kennedy v. Nims, supra, and kindred cases. At page 307 of 82 Mich. (46 N. W. 671), the court said, referring to those cases:

“All of these decisions arose in cases where mortgages were foreclosed, except one, which related to costs. This court gave a construction to the statute in the case of Kephart v. Bank (4 Mich. 602), and it was there held that the statutory condition did not require parties who were not personally obligated to pay a mortgage debt to' pay a deficiency arising from the sale of the premises mortgaged. The principle applicable to such cases is that, where the parties have agreed upon the security for the debt, the statute was not intended to afford an additional security to that which the parties had agreed upon, but as an indemnity against damages for the delay.”

It will be noted that the decree appealed from in Richardson v. Richardson, supra, was a personal decree for diverting moneys from a trust fund, hence the distinction.

The last case in this court bearing upon the subject is Reid v. Wayne Circuit Judge, 132 Mich. 406 (93 N. W. 914), decided in 1903. In that case Edmund Hall filed a bill in chancery against James Reid and others for an accounting, and obtained a decree for a large sum of money. The indebtedness, however, was secured by certain property. The decree ordered that this property should be sold, the proceeds applied to reduce said indebtedness, and declared that said Hall was entitled to a personal decree against the defendants for the balance. The court below, proceeding upon the ground that the appeal bond secured the payment of said balance, made the order fixing the penalty of the bond at $30,000, and refused to approve a bond proffered for the penal sum of $1,000. In granting a writ of mandamus to compel respondent to set aside the order, this court said:

“Kennedy v. Nims, 52 Mich. 153 (17 N. W. 735), decides that the appeal bond does not secure the payment of such balance. While the reasoning upon which this decision was based was disapproved by this court in the case of Richardson v. Richardson, 82 Mich. 305 (46 N. W. 670), its effect as an authority, on the facts involved, has never been shaken. Indeed, in Richardson v. Richardson, this court recognizes that the appeal bond does not secure the payment of a decree which is ‘otherwise secured.’ Respondent’s counsel contends that Kennedy v. Nims was incorrectly decided, and should be overruled. We must decline. Even if that case was not properly decided, the rule of stare decisis should apply. To overrule it would impose upon those who became sureties, relying upon said decision, obligations never voluntarily incurred, and from which they had a right to suppose themselves exempted.”

We direct special attention to the case of Kountze v. Omaha Hotel Co., already cited, which goes even further than this court has gone, and would render it at least (doubtful whether such a bond would cover damages assessed in the appellate court.

It seems very clear from the foregoing decisions of this court, that, under the statutes of this State previous to the act of 1907, it is conclusively settled that a surety on an appeal bond in a chancery foreclosure case was in no way liable for rent of the property to the extent of the deficiency resulting after the sale under such a decree as was made in the case at bar. A comparison of the previous statute with the statute of 1907 will show that the required condition of the bond on appeal as to the liability of the surety in the previous statute was even stronger and broader than that provided in the act of 1907. The condition of the original statute construed in the cases cited was:

“ For the performance or satisfaction of the decree or final order of the Supreme Court, in the cause.”

That of 1907 is:

“For the performance of all relief which the appellant may be required to perform by the final decree entered in said cause, upon the appeal.”

We should not forget that chancery cases on appeal are heard de novo in this court, which makes its own decree. It fixed the liability of thp surety in this cause by its decree herein set forth, to be the payment of the costs to be taxed. We cannot agree with counsel for appellant that because the statute of 1907 did not require the giving of a bond in order to perfect an appeal, the bond when given to stay proceedings should require a different construction than that given to a bond under the former statute. We see no essential difference between them. In both instances the bonds were given to stay proceedings.

Neither can we assent to the proposition that the decree of* either the circuit court or of this court was a personal money decree in the sense in which that term is generally used. In principle we see no difference between the foreclosure of a contract and of a mortgage. It is also worthy of note that in the chancery cause no proceedings were taken subsequent to the sale and report of deficiency to adjudicate the liability of the Electric City Amusement Company for such deficiency. Where a foreclosure decree provides for the sale of land, there is no -personal liability to be enforced against a defendant, until after it is sold and a deficiency reported, and subsequent proceedings are taken to secure a deficiency decree. Under the original equity jurisdiction there was no power to enter a personal decree even against the mortgagor himself. This is a statutory innovation. Johnson v. Shepard, 35 Mich. 115; Howe v. Lemon, 37 Mich 164; Gies v. Green, 42 Mich. 107 (3 N. W. 283); Mickle v. Maxfield, 42 Mich. 304 (3 N. W. 961); Vaughan v. Black, 63 Mich. 215-219 (29 N. W. 523); Shelden v. Erskine, 78 Mich. 627-634 (44 N. W. 146).

We repeat that the condition of the bond here sued upon was for the performance of all relief which the appellant might be required to perform by the final decree entered in said cause upon the appeal. The appellant was not, upon the appeal or upon any subsequent proceeding, required by decree, or otherwise, to pay this deficiency. The court having sole jurisdiction has not so adjudicated.

So, in any view of the case which we are able to take, we are of opinion that the circuit judge reached a correct conclusion; and the judgment below is affirmed.

Ostrander, O. J., and Bird, Hooker, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    OTTO v. CITY OF DETROIT.
    Public Officers — Appointment—Statutes—Salary.
    A street commissioner of the village of Fairview, lawfully appointed for the year 1906, and reappointed at a date prior to the second Monday in April, 1907, the date fixed by 1 Comp. Laws, § 2704, continued to hold office under the statute until the qualification of his successor, and was entitled to his salary whether or not his reappointment was valid.
    Error to Wayne; Murphy, J.
    Submitted January 9, 1911.
    (Docket No. 59.)
    Decided February 1, 1911.
    Assumpsit by Julius C. Otto against the city of Detroit and village of Grosse Pointe Park, for plaintiff’s unpaid salary as a street commissioner. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Richard I. Lawson (P. J. M. Hally, of counsel), for appellant city of Detroit.

      William E. Henze, for appellant village of Grosse Pointe Park.

      Moore & Moore, for appellee.
   Blair, J.

The plaintiff brings this suit against the defendants for his salary as street commissioner of the village of Fairview from May 1, 1907, to October 24th next following. He was appointed street commissioner of that village in 1906, and reappointed to the same office on the 18th day of March, 1907, for the year 1907, and claims he qualified on the following day by taking the oath of office. He recovered verdict and judgment for $369.50. On the 27th day of March, 1907, the legislature passed an act by which it undertook to annex certain territory of the village of Fairview to the city of Detroit, the act to take effect May 1, 1907. Act No. 455, Local Acts 1907. This act was declared unconstitutional on October 15, 1907. See Village of Fairview v. City of Detroit, 150 Mich. 1 (113 N. W. 368). The legislature was in special session in October, 1907, and on the 24th day of that month re-enacted the act of March 27, 1907 (Act No. 1, Local Acts Ex. Sess. 1907), only changing the title thereto. May 8, 1907, the village of Grosse Points Park, one of the defendants herein, was created out of the territory of said village of Fairview that remained. On May 1, 1907, the authorities of the city of Detroit, assuming that the act of March 27th was valid, took possession of the property and territory of the village then annexed, and has continued to exercise governmental functions therein ever since.

The contention of defendants, as stated in their brief, is as follows:

“The defendants claim that the appointment of the plaintiff on March 18, 1907, was illegal, and that, as he was paid for the services he actually performed, he cannot recover the salary for which he now sues. This claim is based upon the statute under which the office of street commissioner is created. Section 2701, 1 Comp. Laws, provides:
“ ‘Appointments to office excepting appointments to fill vacancies “shall” be made on the second Monday in April in each year, unless a different time shall be prescribed in the ordinance or resolution creating the office, but appointments which for any cause shall not be made on that day or on the day provided in the ordinance or resolution creating the office may be made at any subsequent regular or special meeting of the council.’

‘'Section 2704 provides:

“‘All appointive officers * * * “ shall ” hold their respective offices until the second Monday of April next after such appointment and until their successors are qualified and enter upon the duties of their offices, unless a different term of office shall be prescribed in this act, or in the ordinance or resolution creating the office. Officers appointed to fill vacancies shall hold their office until the next annual election, and unless their successors are elected or appointed and qualified. All persons elected or appointed to office shall enter upon the duties thereof upon taking the oath of office and filing the requisite security, if any is required of them.’
“ Under this statute how could the village council make a valid appointment previous to the second Monday in April, when no vacancy had occurred, and the office to which they undertook to make the appointment was then being held by an officer who was regularly appointed for a regular term ? The counsel for plaintiff in the lower court contended that this provision of the statute was merely directory, and not mandatory; that it was a question of time, and not of power; and that the board to whom was delegated the power of appointment, might exercise it before the time fixed in the statute, and, having done so, the act of appointing the plaintiff was a valid act.”

We do not consider it necessary to determine the validity of plaintiff’s reappointment, since under the express provision of section 2704 he would continue to hold the office de jure until his successor qualified and entered upon the duties of the office. People v. Lord, 9 Mich. 227; Lawrence v. Hanley, 84 Mich. 399 (47 N. W. 753).

The judgment is affirmed.

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


text:
    GRAGG v. MAYNARD.
    1. Quieting Title — Cancellation oe Instruments — Equity Jurisdiction — Adequate Remedy at Law.
    A bill of complaint averring that defendant obtained, by undue influence and fraud, the execution of a deed to him, by a person towards whom he sustained a confidential relation, praying for cancellation, and asking that the deed be declared a cloud on complainants’ title, presents a case for equitable cognizance and is not a bill to quiet title.
    3. Cancellation of Instruments — Fraud—Sufficiency of Bill —Demurrer.
    Averments of a bill of complaint for the cancellation of a deed, that defendant was the confidential agent of the grantor, and employed undue influence and fraud to secure the deed, and that the grantor was feeble in mind and body, and under the influence of the defendant, are sufficient on general demurrer.
    3. Deeds — Wills—Life Estate.
    A clause in a warranty deed reserving a life estate to the grantor, the instrument “not to become operative in any way until her death,” makes the conveyance testamentary in character.
    4 Equity — Jurisdiction—Deeds—Conveyance on Condition.
    Equity has not jurisdiction to cancel a deed testamentary in nature, executed with due formality to constitute a will, and may only determine its character or strike it from the record as a deed.
    5. Same — Duplicity—Inconsistent Claims.
    A demurrer is not sustainable to a bill in equity for presenting the case in a double or inconsistent manner when it avers that a deed was obtained by fraud and undue influence, and was executed without consideration, and was never delivered during the lifetime of the grantor.
    6. Same — Pleading—Fraud.
    And whether the defendant obtained the deed by fraud before or after the death of the grantor, the averments of the pleading were sufficient.

      Appeal from Van Burén; Des Voignes, J.
    Submitted January 13, 1911.
    (Docket No. 75.)
    Decided February 1, 1911.
    Bill by John A. Gragg and other heirs of Lucy M. Bangs, deceased, against Charles S. Maynard and others to annul a deed. From a decree overruling a demurrer to the bill of complaint, defendants appeal.
    Affirmed.

      Osborn & Mills, for appellant.

      W. J. Barnard and B. F\ Heckert, for appellees.
   Blair, J.

The complainants, heirs at law of Lucy M. Bangs, filed their bill of complaint for the annulment and cancellation of a certain instrument in writing recorded by the defendant Maynard as a deed in the office of the register of deeds after the death of the said Lucy M. Bangs. The bill of complaint contains, among other averments, the following:

“Your petitioners further show unto the court that the said instrument in writing, purporting to convey the said premises as aforesaid, was never delivered to the said Charles S. Maynard during the lifetime of the said Lucy M. Bangs, and that no consideration was paid by the said Charles S. Maynard to the said Lucy M. Bangs, for and in consideration of the said purported conveyance, either in money, property, or services of any kind, name, or nature.
“ Your petitioners further represent unto the court that the said Charles S. Maynard in some way procured the possession of said instrument in writing after the death of the said Lucy M. Bangs, and placed the same of record on the 14th day of January last past, knowing that the same was illegal and void and without consideration, and conveyed to him no interest whatever in the said premises. * * *
“Your petitioners further show that, for some time previous to the day of making the purported instrument in writing as aforesaid, the said Lucy M. Bangs was feeble in body and mind, and was unable to look after and transact all of her own business, and that the defendant, Charles S. Maynard, prior to, at the time of, and subsequent to the execution of said instrument in writing, proceeded to manage the affairs, business, and property of the said Lucy M. Bangs, and thereby occupied a fiduciary and confidential relation to her, being in her employ as agent and otherwise, and that by reason of said relations to the said Lucy M. Bangs, was able to and did exercise a marked degree of undue influence over the feeble and weakened mind of the said Lucy M. Bangs, and by means of which procured from her, the said Lucy M. Bangs, the said instrument in writing, by fraud, artifice, deceit, and undue persuasion. * * *
“Your petitioners further represent that the said Charles S. Maynard has, since the death of the said Lucy M. Bangs, taken possession of said premises, and is now in the control, occupation, and use of the same, and claims to be the owner thereof, to the exclusion of your petitioners, and all others interested in said property as heirs at law or otherwise of said Lucy M. Bangs.”

The specific prayers for relief are as follows:

“(b) That the record of said purported instrument in writing, mentioned in paragraph five (5) of this bill of complaint, may be declared to be a cloud upon your petitioners’ title in and to said premises, and that the same may be declared to be null and void as against the titles of your petitioners, and that said instrument in writing may be decreed to be delivered and canceled.
“(c) That the said Charles S. Maynard, one of the defendants herein, shall be decreed to quitclaim all of his pretended claims and interest in and to said premises, hereinbefore described in paragraph four (4) of this bill of complaint, and that in default thereof that the decree of this honorable court shall stand in lieu thereof.
“(d) And that the said defendant, Charles S. Maynard, shall be decreed to account for,the rents and profits of said premises from and after the time he took possession of said premises described in paragraph four (4) of this bill of complaint.”

The written instrument in question is made a part of the bill of complaint, and is in form a warranty deed stating the consideration to be “the sum of fifteen hundred dollars, and for care and attention given and to be given by second party to first party.” After the description of the land the following clause is inserted:

“The said party of the first part hereby reserves unto herself the use, income and possession of the above-described premises, for and during the time of her natural life, and this deed is not to become operative in any way until her death.”

Defendant Maynard demurred to the bill of complaint upon the following grounds:

First. Because all and every the matters in said complainants’ bill of complaint mentioned and set forth in respect whereof relief is prayed, are matters which may be tried and determined in a suit at law, and with respect to which the complainants are not entitled to any relief in a court of equity.
Second. Because the complainants have not in and by said bill of complaint set forth or pleaded any such facts or case as do or ought to entitle them to any relief on account of the matters pleaded in and by the ninth paragraph of said bill of complaint or the bill of complaint as a whole.
Third. Because said bill of complaint does not make out or set forth any case of equitable cognizance.”

The demurrer was overruled and defendant Maynard has appealed to this court.

The demurrer was properly overruled. The bill is not a bill to quiet title, but to procure the annulment and cancellation of the alleged deed upon the ground that it was obtained by fraud. The bill is, therefore, sustainable under well-recognized heads of equity jurisdiction. King v. Carpenter, 37 Mich. 363; John Hancock, etc., Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Beaton v. Township of Inland, 149 Mich. 558 (113 N. W. 361).

As against a general demurrer, the bill sufficiently charges fraud. Greenley v. Hovey, 115 Mich. 504 (73 N. W. 808); Smith v. Boyd, 127 Mich. 417 (86 N. W. 953).

The brief in support of the demurrer treats the instrument in question as a deed, and, so treated, the equitable jurisdiction is unassailable. The instrument appears upon its face, however, to be testamentary in character, and if the evidence should demonstrate that it was executed with the statutory formalities, the jurisdiction of equity might fail, except, perhaps, as to determining the character of the instrument and striking it from the record of deeds. Enc. PI. & Prac. p. 1218-V.

Neither do we think the demurrer should be sustained upon the ground that “the petition in view of its allegations presents the case in a double aspect and is not consistent.” Hart v. McKeen, Walk. Ch. ( Mich.) 417.

The ultimate fact alleged in the bill is that the defendant obtained possession of the instrument by fraud, and the decree would be precisely the same whether he obtained it by fraud before or after the death of Mrs. Bangs.

The order overruling the demurrer is affirmed, with leave to answer in accordance with the rules and practice of the court.

Moore, Mo Alva y, Brooke, and Stone JJ., concurred.


author: Moore, J.

text:
    VOIGT v. MURPHY HEATING CO.
    Assignments — Contracts—Heating—Real Property.
    A contract to heat an office building with steam at specified rates is assignable by the owner to a purchaser of the property.
    Appeal from Wayne; Rohnert, J.
    Submitted January 11, 1911.
    (Docket No. 70.)
    Decided February 1, 1911.

      Bill by Edward W. Voigt against the Murphy Heating Company to restrain the breach of a contract. From a decree for complainant, defendant appeals.
    Affirmed.

      Orla B. Taylor and Charles F. Delbridge, for complainant.

      William H. Wetherbee, for defendant.
   Moore, J.

In August, 1906, Helen H. Newberry was the owner of a large office building in the city of Detroit. At this time defendant was in the business of furnishing steam from a central plant for heating purposes. The following contract was made:

“Detroit, Mich., August 1, 1906.
“ To Murphy Heating Company:
"The subscriber hereby requests and authorizes you to furnish steam for heating, into the premises at cor. Gris-wold and Earned Sts., now occupied by tenants as office building, and she agrees to use such steam so furnished by you to said premises and pay for the same at the rate of 50 cents per thousand pounds of condensation, measured by meter, subject to the following conditions:
“(A) It is understood and agreed that the total amount of the net bills rendered during any one year shall not exceed one thousand and sixty-five dollars ($1,065.00).
“(B) That if during the life of the contract created by the acceptance of this proposal and of any extension thereof, the rate charged by the Murphy Heating Company to any consumer in the neighborhood of the subscriber’s premises, consuming as much or less (but not more) steam as the subscriber, shall be less than the rate above specified, viz., 50 cents per 1,000 pounds of condensation, then the subscriber’s rate shall be reduced, and she shall pay no higher rate than that charged to such other consumer, notwithstanding the rate above specified.
"Rules and Regulations.
“(1) All bills shall be payable monthly at the office of the company.
“(2) The heating system proposed to be supplied with steam, including all pipes, radiators, valves, fittings and other appliances, shall be subject to inspection and approval of the company before steam will be supplied, and the consumer shall at all times keep such pipes, radiators, valves, fittings and other appliances in proper repair and good working order.
“(3) No part of the system, including all pipes, valves, radiators, fittings and appliances of every kind, shall be changed or altered after connection is made, without the written approval of the company.
“(4) All meters and service valves, as well as all service lines from street mains to building, shall be furnished by and remain the property of the company.
“(5) The company shall, at all reasonable times, by its inspectors, agents and workmen, have right of free access into the premises supplied with steam for the purpose of examining or adjusting the whole or any part of the heating apparatus, or service line, or for the removal of or necessary repairs to any fixtures or property belonging to the company.
“(6) The company reserves to itself the right at any time to shut the steam from any consumer and cap the service pipe in case of abuse, fraud, or the violation of any of the terms of this contract.
“(7) The company may, whenever it shall deem it expedient, require security for the payment of steam expected to be consumed, or a deposit of a sum of money in advance to secure the company against loss.
“(8) The company shall not be liable for damage caused by interruption in the flow of steam when caused by strikes, accident or causes beyond its control, or on account of any defect or insufficiency of any pipe, radiator, valve fitting, or other appliance furnished by the consumer.
“(9) This request to establish services becomes a contract when accepted hereon by the proper officer of the company, and is intended to cover the period from the date of acceptance hereof to June 30th, 1911, and unless canceled by written notice from the subscriber to the Murphy Heating Company, thirty days before the expiration of the above specified term, shall be understood as a renewal of the contract for an additional period of five (5) years. Receipt of copy of this application is hereby acknowledged.
[Signed] “Helen H. Newberry, Subscriber, Owner, “ By T. H. Newberry, Attorney.
“Accepted: Murphy Heating Company,
“ By^J. F. Lewis, Superintendent.”

In December, 1908, Helen H. Newberry sold the office building to the complainant, and assigned in writing the heating contract. The defendant caused the following letter to be sent to complainant:

“Detroit, Mich., May 39, 1909.
“ Mr. A. D: Stansell,
“ 14 Butler Bldg.,
“Detroit.
Dear Sir:
“We beg to inform you that after June 30th, 1909, we' will furnish steam to the Equity Building on a strictly meter basis. As we have no contract with the owners of. this building, we are inclosing blank contracts in duplicate, which we would ask you to have signed and returned to us.
“Very truly yours,
“Murphy Heating Company.”

The blank contract inclosed in the letter was an exact duplicate of the contract between Helen H. Newberry and the defendant, except the provisions found in (A) and (B) of the Newberry contract. The parties were unable to agree. The bill of complaint in this case was filed to restrain the defendant from refusing to furnish steam as provided in the Newberry contract. From a decree in favor of complainant the defendant has appealed.

Both parties are agreed that the sole question involved in this case is whether the heating contract between defendant and Mrs. Newberry was assignable, and passed, with all its benefits and privileges, to the complainant by virtue of her assignment thereof. The complainant insists it was assignable, while defendant insists it was of such a personal character as to be unassignable.

The solicitors for the respective parties argued the case at length orally, and have filed excellent briefs. We do not deem it necessary to comment at length upon the propositions presented by counsel, but content ourselves with saying that we think the case is ruled by the principles of law as stated in the last edition of the fifth volume of American and English Encyclopedia of Law and Practice, at pages 885, 886, and 906, and the many cases cited in the notes thereto. Justice Stone, before he became a member of this court, in a case tried before him, stated the rule applicable in this class of cases, so that his statement met the approval of this court, in the comparatively recent case of Northwestern, etc., Lumber Co. v. Byers, 133 Mich. 534 (95 N. W. 529).

The decree is affirmed, with costs.

Brooke, McAlvay, and Stone, JJ., concurred with Moore, J. Blair, J., concurred in the result.


author: Brooke, J.

text:
    MOORE v. CITY OF DETROIT.
    1. Municipal Corporations — Presentation of Claims — Waiver of Verification.

      A municipality waives the requirement that a claim presented to it be verified (1 Comp. Laws, § 3754, and Detroit city charter, § 134), by considering an unverified bill for legal services and rejecting it without raising that objection.
    2. Same — Contracts—Authority of Village President.
    The president of a village has no authority, in view of the provisions of 1 Comp. Laws, § 2752, to contract on behalf of the village to pay an attorney’s retainer to act as village counsel.
    3. Same — Attorney and Client — Work, Labor and Services— Quantum Meruit.
    By a resolution of the village council» appointing a firm of attorneys as village attorneys, the municipality bound itself to compensate them not only for services rendered in and out of court in litigated cases, but for all services rendered for the village with its knowledge and consent, under the appointment.

      4. Same — Attorney and Client — Retainer.
    It was error to permit the jury to award to the attorneys a sum as retainer in addition to the full and fair value of the services rendered.
    Error to Wayne; Donovan, J.
    Submitted January 9, 1911.
    (Docket No. 58.)
    Decided February 1, 1911.
    Assumpsit by George William Moore and George Whitney Moore, copartners doing business as Moore & Moore, against the city of Detroit and the village of Grosse Pointe Park, for legal advice and services. Judgment for plaintiffs. Defendants bring error.
    Reversed.

      William E. Henze and Richard I. Lawson (P. J. M. Hally, of counsel), for appellants.

      T. A. E. Weadock and Moore & Moore, for appellees.
   Brooke, J.

Plaintiffs, who are in partnership in the practice of the law in the city of Detroit, were made attorneys for the village of Fairview on May 7, 1906, by virtue of the following resolution:

“Resolved that Moore & Moore be and they are hereby elected attorneys of Fairview. Resolution supported by Trustee Rider. Ayes — Trustees Garsky, Royal and Rider. Nays — Andres, Pearson and Rice. The vote being a tie, the president voted ‘ aye.’ ”

Plaintiffs entered upon the discharge of their duties as such attorneys, and continued to perform the same until October 24, 1907, when by Act No. 1, Local Acts Extra Session 1907, a portion of the village of Fairview was annexed to the city of Detroit. By the terms of that act, the debts and obligations of the village of Fairview were made obligations of the city of Detroit and the village of Grosse Pointe Park, to be borne proportionally.''

Plaintiffs presented their bills for services amounting to $5,818.65 to both municipalities. The claims as presented to the defendants were not verified as requried by law. See 1 Comp. Laws, § 2754, and Detroit city charter, § 134. The record shows, however, that both municipalities considered the claim; that the defendant the city of Detroit heard testimony in the matter, and that payment thereof was refused by both defendants. Apparently no objection was raised to the claim for this irregularity before the council committee. We think it has been waived. Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663); Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141); Foster v. Village of Bellaire, 127 Mich. 13 (86 N. W. 383).

Plaintiff George William Moore was permitted to testify, apparently without objection, as follows:

I was employed by the president, Mr. Keith, to render service for the village before any of the services in this bill were rendered. He wanted to know what my charges would be, and I told him my charges were generally based on $50 a day, whether in court or in the office. It was not in writing. The arrangement was for the litigated cases. When we had to arrange and prepare to try them, we were to be paid $50 a day for the services for the investigation, examination, and trial of the case. And the work outside of the litigation would be $2,500 a year, and that sum that would be for consultation and all that sort of things growing out of the village organization and State work. * * * I have made no charge in my bill of particulars for specific services which would be covered by the retainer.
“Mr. Henze: I object to that. Let him state what he did, and then we can find out what he ought to recover. Perhaps your honor did not understand the question. Let him state what services he rendered, and then we can tell whether covered by the retainer or not.
The Court: It seems to me where he has an oral contract he would be the one to put his construction upon that. Until we hear from the other side, the jury will not know.
“Mr. Weadodk: The jury will decide just the facts, and your honor will charge, and I want to show just which were rendered and which were not.
“ The Court: If we had a writing, we could go by that, but we have not, and I think we will have to let him swear what came under the retainer and the extra. You may have an exception.”

Plaintiff thereupon testified to the value of the services in the litigated matters. On re-direct examination he testified as follows:

“Q. I wish you would explain to the jury a few of these terms that have been used here, viz., a ‘retainer’ — what does a retainer mean ?
“Mr. Lawson': May it please your honor, our position is that Mr. Keith, the president of the village, had no power to enter into a contract with Mr. Moore with reference to a retainer, and therefore we claim that, there being no power to make a contract, all Mr. Moore could claim for would be the value of his services.
“Mr. Weadock: I do not concede that for a moment that he has not the power to retain, because that is the only thing that the president of a corporation or municipality or otherwise has a right to employ counsel.
“The Gourt: I think we have a right to take the testimony.
“A. The retainer in this particular case?
“Q. Speaking of it generally.
“A. The general understanding of a retainer in the legal form now is that it secures to the client the absolute services of the attorney when those services are called for, .the client to pay for the services rendered in addition to .the retainer.
“Q. When you have the annual retainer to cover certain items ?
“A. In this case the retainer covered all the ordinary work of the village.
“Q. In such a case as that, is any charge made upon the books for the items covered in the retainer ?
“A. No, sir-; so far as possible, I made my bill out for the services actually rendered. Of course, there were quite a number of cases where they would say to me, ‘Here is a case pending,’ and I would go to work upon the matter for a long time before the suit was actually started, but we knew that the case was coming and I did not delay, but I went right ahead. * * *
“Q. Including the idea of a retainer and considering only the services that you did, that is in question in this bill, from first to last, the time it took, the importance of the question and everything in regard to it, state whether in your opinion the amount you have charged is a reasonable one, excluding the idea of a contract.
“A. It was a very reasonable charge.”

During the examination of Seneca Traver, a witness for defendant, the following colloquy occurred:

“Q. Covering a period of one year, what would you state such services to be worth ? (Objected to. There is no testimony whatever that this was not covered by a special contract as testified to by Mr. Moóre, and, if there was a special contract, then somebody else’s test is immaterial until some testimony is offered by the defendant that there was not a special contract. This is immaterial.)
“Mr. Henze: We deny that there was a special contract.
“ The Court: You are simply standing up and denying it and offering no evidence.
“ Mr. Henze: They have to prove a contract, and they have only proved it that the man who was president of the village and no contract shall be made or any expenses incurred as the law says, except upon the two-thirds vote of the board of trustees.
“ The Court: You have not introduced this yet.
“ Mr. Henze: It is for them to prove that.”

The value of the plaintiff’s services, outside those covered by the retainer, as testified to by Mr. Moore, was something over $2,000. The difference between this sum and the amount of the judgment is practically the amount of the retainer during the period of employment. We think there can be no doubt that in making up their verdict the jury allowed to plaintiffs a sum equivalent to the retainer.

Defendant requested the court to charge:

“ (1) It appears from the testimony of one of the plaintiffs, George William Moore, that he made a verbal agreement with Evelyn Keith, who was the president of the village of Fair’view, to the effect that the village of Eairview would pay the plaintiffs the sum of $2,500 as an annual retainer. I charge you that it was beyond the power of the president of the village of Fairview to enter into such a verbal agreement or arrangement with the plaintiffs. The only way in which such a contract could be legally made on behalf of the village of Fairview would be by a resolution of the village council, which would incorporate the provisions of such a contract and be passed by the required majority of the members of the village council.
“(2) I charge you that upon plaintiffs’ own theory they are not entitled to the retainer or any part thereof, because there is no power under the village charter delegated to the president of the village to make such an arrangement or contract that would be binding legally upon the village.
“(3) I further charge you that persons dealing with a municipality through its officers must at their peril take notice of the authority of the particular officer to bind the corporation. If this act is beyond the limit of his authority, the municipality is not bound.
“(4) As bearing upon the powers and limitations of the president of the village of Fairview, the law declares, i. e.:
“ ‘The president shall by and with the consent of the council, appoint a village marshall, street commissioner and such other officers as shall be provided for by resolution or ordinance of the council; and the council may from time to time provide by ordinance or resolution for the appointment of such other officers whose election or appointment is not herein especially provided for, as they shall deem necessary for the execution of the powers granted by this act; and the powers and duties of such officers shall be prescribed by the council; provided that the marshal may also be appointed as street commissioner.’
“This provision of the statute limits the powers of the president of the village. I therefore charge you that the contract or arrangement made with the plaintiffs by the president of the village was beyond the power of the president, and therefore no recovery can be had under such alleged contract or arrangement.
“(5) I charge you that the plaintiffs are entitled to such reasonable compensation as they have satisfied you their services were worth for the different matters they had in charge, and no more.”

The first of these requests were given with this addition -.

“But they did pass such a resolution, only they omitted (this is qualified) to make the price. They admit the hiring, only they omitted to state the price.”

The second was refused. The third was given. The fourth was given and modified. The fifth was given.

We think it very clear that the contract between the plaintiffs and the president of the village as to the retainer was absolutely void. The president had no power to bind the village by any such contract. See 1 Comp. Laws, § 2752; Tennant v. Crocker, 85 Mich. 328 (48 N. W. 577). The village, by its resolution of appointment (which was silent as to compensation), bound itself to reasonably compensate plaintiffs, not only for services rendered in and out of court in litigated cases, but for all services rendered for the village with its knowledge and consent, under the appointment. The jury should have been instructed to disregard all testimony as to a retainer, and to award plaintiffs fair and full compensation for all services performed. The error into which the jury may have fallen is apparent, when we consider the definition of the word “retainer” given by Mr. Moore. He testified:

“ The general understanding of a retainer in the legal form now is that it secures for the client the absolute services of the attorney when those services are called for, the client to pay for the services in addition to the retainer.”

Other errors assigned require no discussion.

The judgment is reversed and a new trial ordered.

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


text:
    STONE v. TYACK.
    1. Husband and Wife — Liability of Husband — Funeral Expenses.
    The husband is primarily liable for the ordinary funeral expenses of his wife.
    2. Same — Parent and Child.
    And where the wife’s stepfather undertook to pay the funeral expenses, he may recover the amount thereof, if reasonable, from the husband who had deserted the deceased.
    3. Same.
    It is not a sufficient defense to the action that he did not first notify the husband of her death, although he took the best course known to him to advise defendant, who had knowledge that the wife was in an asylum, and who had made no provision for notifying himself of her condition.
    4. Same.
    Nor was it necessary that plaintiff should have expected to be reimbursed at the time he paid the expenses.
    5. Same — Actions—Demand.
    No demand was required to fix defendant’s liability before suit.
    Error to Oakland; Smith, J.
    Submitted January 12, 1911.
    (Docket No. 80.)
    Decided February 1, 1911.
    Assumpsit in justice’s court by Aaron Stone against Thomas O. Tyack. On appeal to the circuit court judgment was rendered for plaintiff and defendant brings error.
    Affirmed.

      J. Arthur Tillson, for appellant.

      Pelton & McGee, for appellee.
    Plaintiff was the stepfather, and defendant the husband, of one Flora Tyack, who died at the State asylum for the insane at Pontiac, September 6, 1909. Thomas Tyack and Flora Tyack were married in 1888, and lived together as husband and wife up to about 1907. In January, 1908, Mrs. Tyack caused her husband’s arrest for adultery; but upon the trial her complaint was withdrawn, and Tyack was dischárged. In July, 1908, Tyack filed a bill for divorce against his wife; but the cause was never brought on for hearing. It appears from the record that during the year 1908 the wife from time to time worked outforher support. At other times she seems to have lived with Tyack at the home of his parents. On October 21, 1908, she was admitted to the insane asylum as a public charge. From the day of her admission to the day of her death, Tyack did not visit her at the asylum, being advised by his mother that this was the best course for him to follow. Upon the death of Flora Tyack, the asylum authorities sent a telegram to her mother (plaintiff’s wife) advising her of the death, and requesting that arrangements be made for the removal of the body. Thereupon plaintiff made the necessary funeral arrangements and incurred the liability therefor. It appears that neither plaintiff nor his wife knew where Thomas Tyack was at this time. A letter was, however, written to Frank Tyack, brother of Thomas, who resided at Pontiac, and he was advised to notify Thomas. Frank and his wife attended the funeral. Thomas was not present at the funeral, and seems not to have learned of his wife’s death until a week after it occurred. Plaintiff recovered a judgment for $90.18, being the amount of the funeral expenses, and defendant has removed the case to this court for review.
   Brooke, J.

(after stating the facts). Defendant urges, four reasons why plaintiff should not recover, as follows:

(a) Because it is admitted by plaintiff that he made no effort to notify the defendant of the death of defendant’s wife, and defendant had no notice and no opportunity to bury the deceased.
(b) Because plaintiff voluntarily and gratuitously assumed the obligation.
(c) Because plaintiff made no demand upon defendant before bringing suit.
(d) Because there was no contract, express or implied.

That the husband is primarily legally liable for the ordinary funeral expenses of his wife, is not open to question. Sears v. Giddey, 41 Mich. 590 (2 N. W. 917, 32 Am. Rep. 168); Galloway v. McPherson’s Estate, 67 Mich. 546 (35 N. W. 114, 11 Am. St. Rep. 596); Gleason v. Warner, 78 Minn. 405 (81 N. W. 206); 21 Cyc. p. 1233, and cases cited; 15 Am. & Eng. Enc. Law (2d Ed.), p. 880.

Defendant’s first position is untenable for the reason that the record clearly shows that plaintiff did not know where defendant lived. He was therefore unable to notify defendant, even if it was his duty to do so. Under the circumstances presented by this record, he did not owe this duty to defendant, though, by causing a letter to be written to defendant’s brother, he apparently took the best means at hand to bring the fact of Mrs. Tyack’s death to defendant’s notice. Had defendant displayed the slightest interest in his wife’s welfare, he would have arranged with the asylum authorities to keep him advised of her condition and of her death, if it should occur. This simple act of humanity towards the woman he had lived with for nearly 20 years, as husband and wife, he did not perform. He should not be heard to complain now, because a stranger did not cause him to be notified. It was his duty to have provided for such notice himself.

The fact that, at the time the liability for the funeral expenses was incurred by plaintiff, he expected to discharge that liability himself, is of no consequence. Public necessity demands burial, and, when not furnished by those legally liable, may be furnished by strangers, and the value thereof recovered from the person liable therefor. The liability of the husband, in the case at bar, is not altered by the fact that at the time of his wife’s death they were living apart. Cunningham v. Reardon, 98 Mass. 538 (96 Am. Dec. 670); Ambrose v. Kerrison, 10 C. B. 776, 20 L. J. C. P. 135.

No contract between defendant and plaintiff was necessary, nor was it necessary to make a demand before bringing suit. The suit was itself a demand.

It should, perhaps, be noted that, in the case here considered, there is no claim of unlawful or officious interference with the husband’s rights on the part of the plaintiff, and it does not appear that the cost of the burial was greater than was reasonably consistent with the station in life of deceased and her husband.

The judgment is affirmed.

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


text:
    PRINDLE v. ALLEN.
    1. Brokers — Real Property — Vendor and Purchaser — Commissions — Contract.
    Evidence that defendant told plaintiff he would pay a commission of $500 if plaintiff would sell his farm, fixing the price at $16,000; that defendant offered the purchaser which plaintiff secured certain additional crops and personal property at the price named, and offered to sell the bare farm for $14,500; that he subsequently sold the premises to the same party at $15,500, warrants a finding by the jury that the contract was one of ordinary agency, and the vendor retained control of the selling price, which he modified during the negotiations until a satisfactory agreement was reaohéd; and a verdict for the broker’s commissions was justified.

      2. Same.
    That the sale was made, at a price lower than plaintiff was first instructed to ask, did not defeat the broker’s right to compensation.
    Error to Van Burén; Des Voignes, J.
    Submitted January 12, 1911.
    (Docket No. 74.)
    Decided February 1, 1911.
    Assumpsit by Eugene F. Prindle against Eugene Allen for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thos. J. Cavanaugh, for appellant.

      David Anderson and William J. Barnard, for appellee.

      As to when real estate broker has performed contract to find purchaser or effect an exchange of his principal’s property, see note in 44 L. R. A. 593.
      As to broker’s right to commission where principal sells to broker’s customer at reduced price, see note in 15 L. R. A. (N. S.) 272.

   Brooke, J.

Plaintiff brought suit and recovered against defendant a judgment for $500, that being the amount claimed by plaintiff as a commission upon the sale of defendant’s farm to one Michael Burris. Defendant has removed his case to this court for review.

The principal contention of defendant is that, under the testimony offered by and on behalf of the plaintiff, the defendant, at the close of plaintiff’s case, was entitled to a directed verdict in his favor, for the reason that, he claims, the undisputed evidence shows that the contract of agency between the parties was special in character, and was to the effect that plaintiff should sell defendant’s farm for the sum of $16,000, in which event defendant would pay plaintiff $500. The contract as testified to by plaintiff was as follows:

“As to the conversation we had with reference to the 200-acre farm, after he bought that farm I saw him and his wife at different times, and at one time when they were together they spoke about selling the farm, and I said, ‘Mr. Allen wouldn’t sell the farm,’ and she said, ‘I will sell it if you bring a buyer for such a farm; you bring them there and I will sell it.’ She stated that when they bought the farm, Mr. Allen promised that she should have a hired girl, as there would be so much work, and that it was so hard to keep a hired girl they simply had to do the work alone, and that they would sell. After that I met Mr. Allen several times, and he told me to sell the farm and what to get for it; and he told me how much it was, described the buildings, and told me as much about the place as one naturally would, and then when I would meet him he would ask what the prospects were. I usually would meet him when he would be going to or from his Porter farm. I think the first time we talked about selling the 200-acre farm he said that he sold the old farm, and he paid the man who sold it for him $500 for making the sale, and when the price was set on the 200 acres he told me he would give the $500 commission for selling that. He told me about the house and gave me the description of the farm in detail. The price on the place was $16,000, including crops growing on the place, and he had at that time 100 acres of corn, 20 acres of potatoes, and 35 acres of wheat ground he was fitting. Of course that fore part of the season when we talked about that he didn’t tell about the crops because they wasn’t on the ground. He said he had paid the other agent $500 and he would give me $500, and that would leave $15,500 for himself. I know J. A. Flanigan, of Champaign, Ill. He has relatives near Lawton.' I had a real estate business arrangement with him, and he and I were working together in the real estate business. I called his attention to the Allen farm, and the two Burris brothers, purporting to come from Mr. Flanigan — Michael and Sylvanus — came, but I do not remember the date, and we drove out in Porter, and I think over north of Mattawan, and saw one farm over there, and I think we drove out in Porter and saw different places, and as I remember it I showed Mr. Allen’s farm in Porter at that time. They told me the kind of farm they wanted, and it took pretty near all day to tell just what they did want; that is for me to get an idea of what would suit them. I told them of Allen’s Bloomingdale farm when I showed them the other and spoke of it at different times during the day, when I began to realize that there wasn’t anything there that they wanted. I told them we would go out to the Allen farm the next day. They said they wanted two to four hundred acres. They did not stay over that time, as there was a train due in a few minutes, and as Michael went to see about the train the other man stayed with me and I went and telephones Allen’s house and Mrs. Allen answered the phone, but I was unable to get Mr. Allen while the Burrisses were in Lawton, but I think I did later in the evening, and told him about having them in there, and they were talking of coming over, and they decided not to come as they were dissatisfied with what they had seen. I didn’t think there was in the country what they wanted, and they didn’t think it would pay to stay over. I hadn’t seen the place, and couldn’t describe it from my personal knowledge, and they thought the best thing to do was for me to find out more particularly about the place and then write them. Allen said the place was 200 acres, and the price would be $16,000, including my commission, and when I asked him for the description of the place he said he was coming to Paw Paw in a day or two, and it would be the best plan to meet him there, and he could tell me all about it, and we left it that he would meet me here. I recall nothing further that was said over the phone. As you remind me, there was some talk about the Tedrow place. He said if they wanted more there was 200 acres in the Tedrow place across the road so they could get 400 acres if they wanted it right together, and I told him to see them, and find out what they would take, and be sure and explain that he was seeing them for me, and my commission would be 5 per cent. I met Allen at Paw Paw as appointed, and while we talked in front of the old courthouse the Bloomingdale band passed. He gave me the description of the place, told me what the house was, and the rooms, barns, outbildings, scalehouse, orchards, and other fruits on the farm, and the gravel pit, and what he was getting out of the gravel pit, and how much crops he had on the place. I cannot remember the particular items, but I wrote it down on a piece of paper that I happened to have in my pocket — the description of his place and the Tedrow place. He said he had a nice crop of corn the year before and had kept so many head of cattle there, and fed a lot of cattle, and I think he told about feeding a lot of hogs, too. He said the farm with the hundred acres of corn and potatoes and with all crops on the ground would be $16,000, and the commission out of that. He says, ‘ I will give you $500 commission out of that, and that will leave me $15,500.’ He said, too, that the crops were worth more than he was putting them in at, because with what the place cost him, and what the crops were actually worth on the ground, would amount to more money than that, and it was holding out a big inducement to the people to take it at those figures in that way. I told him that the commission wasn’t full commission, but I thought he was a man that could take hold and help the deal along, and help a good deal in the deal, and it was a pretty good sized deal, and we would let it go at $500. He said he would do the very best he could to carry the deal through and he thought he could do considerable.”

On cross-examination plaintiff testified:

“Q. When you asked him, did he tell you that the place would have to be sold for $15,500 net to him ? 4
4 “A. Well, I don’t know as he said ‘net to^him.’ He said that ‘that would leave me,’ he says ‘$15,500, and give you a commission of $500.’
“Q. Did he or did he not say to you that the place would have to net him $15,500 ?
“A. No; he didn’t put it in that way.
“Q. Did he say anything about $15,500 ?
“A. I think he did.
“Q. What was talked over here on the street ?
“A. The $15,500/
"Q. That he was to have net ?
“A. Well, it would leave him $15,500.
“Q. In other words, you were to sell the place for $16,-000?
“A. Yes. That was the price he gave me.
“Q. Well, that was the price you took it upon, wasn’t it?
“A. Yes, that was the price that I was asking. He told me to ask.
•“Q. Well, that is the price he told you to ask ?
“A. Yes.
“Q. That is the price that he told you to sell it for ?
“A. Yes.
“Q. And that is the price you took it to sell for ?
“A. That is the price I offered it for.
“Q. And your talk and understanding with him was that out of that $16,000 he was to have $15,500 ?
“A. That is what it would leave him.
“Q. In what way was it put?
“A. Justas I told you. It would leave him $15,500.
“Q. So that there was an understanding between you and him at that time that you were to sell his place at $16,000?
“A. Yes, sir; that is the price he told me to ask for it;
“Q. If it was sold for that you were to have $500 ?
“A. I was to have $500 for my commission. The understanding was, of course, that I was to ask $16,000.
“Q. And that you were to get $16,000 ?
“A. That I was to ask it. It was up to him whether he took any less or not. I couldn’t offer it for ■ any less without his authority.
“Q. Well, that is what you took it to do, to sell it for $16,000, didn’t you?
“A. Yes, sir.
“Q. You understood that he wanted $15,500 net out of it?
“A. .1 understood if I took $500 off from the $16,000 it would leave $15,500.
"Q. That was talked, wasn’t it ?
“A. It was said that it would leave him that; yes.
“ Q. And that is what he wanted, wasn’t it ?
“A. I suppose it was.
“Q. Didn’t he say so ?
“A. Not the way you want to put it.
“Q. Well, the way you want to put it, then ?
“A. Yes, sir.
“Q. And you so understood it ?
“A. Why, certainly.
"Q. And you knew it all the time ?
“A. Yes. This talk was not over the phone. It was out here on the street.
“Q. Now, we will go back and see if you can remember the talk that you had over the phone?
“A. The commission was stated over the phone.
“Q. At what ?
“A. Five hundred dollars.
“Q. In what event?
“A. Why, selling the place.
“Q. At what?
“A. $16,000, the price he gave me. Nothing said about any other price or any other commission, except that Allen offered the place at $14,500 without the crops.or personal property. I saw Allen within a day or two after that, and then wrote Exhibit I on August 20th and Flanigan came in two or three weeks to his relatives and stayed throughout the grape season. We then went, within a few days, over and looked at the land. We stayed at Allen’s all night. We looked at the Tedrow place. I don’t know as there was anything said about the price of the Allen farm. Mr. Allen didn’t say he would have to have $15,500 for it, and I didn’t tell him, ‘Then you ask $16,000 for it, and that will leave $500 if we sell it for that.’ I swear that is not true. The same talk did not occur over the phone. $16,000 was the price he always put on the place. I didn’t tell him my commission wouid be $500. He offered the commission as $500, and I told him that was not the regular commission but we would accept that on a large deal. That talk was on Main street in Paw Paw. No one was present at the time. He had a son there part of the time. George, the one that was in the army, came up a minute and talked and went away. Allen put in some such words as ‘he would give me $500 and that would leave him $15,500.’ I believe that is what I swore to this morning. In the presence of Flanigan, Allen talked generally about the farm, but said nothing about the price. Mr. Allen did not then say that he had to have $15,500. He never said so. He told me that he would give me $500 commission and I took it upon that .theory.”

It appears that after the conversation at Paw Paw, and about the middle of August, plaintiff and Flanigan went out to defendant’s farm and examined it. Upon that occasion defendant offered, as a further inducement to effect a sale, to include, with the real estate and crops, some personal property. He likewise offered to sell the bare farm for $14,500. Shortly after this examination, and in the early part of September, Flanigan took the Burris brothers to the farm, who went over it, and negotiated for it with defendant, but failed to reach an agreement. Prior to this visit, and on September 2d, plaintiff had written a letter to one of the Burris brothers, offering the farm and fully describing it. Plaintiff testified that, after the first visit of the Burris brothers to the place, defendant authorized him to offer to them, as an additional inducement to purchase, defendant’s new farming tools at half price. On September 24th plaintiff again wrote to the Burris brothers, urging them to close the deal. On October 15th, the Burris brothers, apparently in response to a letter written by defendant’s wife, returned to defendant’s farm, and after defendant had agreed to include in the deal some further personal property, Burris drew up a memorandum of the terms of an agreement to be thereafter entered into between Michael Burris and defendant, if he, Burris, concluded within 10 days to buy. The price named in this memorandum was $15,500. On November 3d Michael Burris closed the deal at this figure. About October 1st, a conversation occurred between plaintiff and defendant, at which time defendant paid to plaintiff $4.50, being the livery hire expended by plaintiff upon the occasion of the first visit of the Burris brothers to the farm. The details of this conversation are in sharp conflict. Defendant’s claim is that upon that occasion plaintiff accepted the $4.50 in settlement, and told him to go on with Michael Burris and “ help yourself if you can.” This is denied by plaintiff.

Is the contention of the defendant, that plaintiff’s version of the contract clearly shows that plaintiff was to secure a purchaser for the farm for $15,500 net to defendant, tenable ? We think not. The contract as testified to by plaintiff was one of ordinary agency, wherein the vendor retains the right to control the selling price. That price was controlled by defendant, and modified from time to time during the brief negotiations, until an agreement was reached satisfactory to the vendor. The defendant’s theory of the case was submitted to the jury under instructions which, to say the least, were quite as favorable to defendant as he was entitled to demand.

Under the facts disclosed by the record, it is beyond dispute that plaintiff and Flanigan, his associate, brought Burris and defendant together; that this was done at the instance of defendant, and that the negotiations, after the introduction, continued until they ripened into a sale. That the sale was made at a price lower than defendant was first instructed to ask, is a matter of no moment, if plaintiff’s version of the contract was correct. Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544); Ranson v. Weston, 110 Mich. 240 (68 N. W. 152); Martin v. Silliman, 53 N. Y. 615; French v. McKay, 181 Mass. 485 (63 N. E. 1068); Henry v. Stewart, 185 Ill. 448 (57 N. E. 190).

The jury by their verdict determined this issue in plaintiff’s favor. The cases of Williams v. McGraw, 52 Mich. 480 (18 N. W. 227), and Antisdel v. Canfield, 119 Mich. 229 (77 N. W. 944), relied upon by defendant, have been examined, but in our opinion they do not support his contention.

Other errors assigned have received consideration, but require no discussion.

The judgment is affirmed.

Moore, MoAlvat, Blair, and Stone, JJ., concurred.


text:
    DAVIS v. WARDOWSKI.
    1. Appeal and Error — Tenants bv Entireties’ — Husband and Wipe — Motion to Dismiss — Interest op Wipe as Appellant.
    In a suit to foreclose a mortgage executed by husband and wife on an estate by the entireties, the wife has such an interest as entitles her to appeal from a decree of foreclosure, denying to the defendants relief under their cross-bill wherein it was averred that the mortgage was secured by fraudulent representations of complainant’s agent, and that, in reli,ance on such representations, defendants transferred their homestead in exchange for the property covered by said mortgage, which was executed as a part of the transaction; the appellant claiming the right to a release from personal liability on the mortgage, but not to rescission of the entire transaction; and a motion to dismiss the wife’s appeal is therefore denied.

      3. Parties — Mortgages—Foreclosure—Fraud.
    Relief may be given, in a suit to foreclose a mortgage which, the defendants claim was procured from them, as husband and wife, by fraud, on the cross-bill of both husband and wife, who were parties defendant. Lang v. Prindle, 163 Mich. 356 (128 N. W. 220), distinguished.
    3. Equity — Hearing—Admission and Rejection of Evidence-Practice.
    Evidence offered in chancery proceedings should not be rejected by the trial court at the hearing.
    4. Same.
    The court, on appeal, may not accept defendants’ claim, as stated in their cross-bill, as true, because evidence in support of their contentions, offered at the hearing, was rejected by' the trial judge.
    Appeal from Wayne; Donovan, J.
    Submitted January 11, 1911.
    (Docket No. 69.)
    Decided February 1, 1911.
    Bill by Elizabeth Davis against Louis M. Wardowski, Nellie Wardowski, and the Dime Savings Bank, to foreclose a mortgage. Defendants filed a cross-bill claiming affirmative relief. From a decree for complainant, defendant Nellie Wardowski appeals.
    Cause remanded for further proceedings.

      May & Dingeman, for complainant.

      Stellwagen & MacKay, for defendant Dime Savings Bank.

      Palmer & Palmer (Lewis T. Wilcox and Albert L. Chandler, of counsel), for defendant Wardowski.
   Stone, J.

The bill of complaint in this cause is the usual foreclosure bill, filed by complainant to foreclose a mortgage accompanied by a promissory note for |4,250, upon certain real estate consisting of dwelling, lots, and outbuildings, located in the city of Corunna, Shiawassee county, executed by the defendants Louis M. Wardowski and Nellie Wardowski, his wife, bearing date July 7, 1906, and payable in seven years with interest at 5J- per cent, per annum, payable semi-annually. In and by the bill of complaint the whole amount secured by said note and mortgage is claimed to be due and unpaid, amounting to the sum of $4,580, or thereabouts. The bill of complaint contains the following paragraph:

That the said Louis M. Wardowski and Nellie Wardowski pay to your oratrix any balance that shall remain due to your oratrix of the principal and interest of said promissory note and mortgage, if the sale of said mortgaged premises as aforesaid fails to produce sufficient to pay the whole of said mortgage debt and the costs of this suit.”

The complainant assigned as collateral security the said note and mortgage to the Dime Savings Bank of Detroit to secure a loan made by her of $4,000. It appears that the indebtedness to said bank has, since the filing of the bill, been fully paid and discharged by the complainant, and therefore the bank is no longer interested in this matter, and may be dismissed without further consideration. The controversy is therefore between the complainant and the two defendants, Louis M. Wardowski and Nellie Wardowski.

In their answer to the bill of complaint, the last-named defendants admit that they signed and acknowledged the said mortgage, but they claim and insist that they were induced to sign and execute said note and mortgage on the representations of complainant, on which they relied, and which representations were false and fraudulent, and by means of which false and fraudulent representations they were damaged and injured to the full extent of the amount named in said note and mortgage, and they claim that said note and mortgage are void for want of consideration. They allege certain matters by way of cross-bill in their answer, to the effect that in the month of June, 1906, they were the owners of certain city property in the city of Detroit; that they resided upon the same, and held title thereto, as tenants by the entireties; that they were approached by one Webster Davis, as agent for complainant, and were induced by his false representations to trade their interest in the said Detroit property for the said Corunna property above referred to; that in said negotiations said Webster Davis, acting as the agent of complainant duly authorized, falsely represented that said Corunna real estate had cost, and was worth, $12,000; and relying upon his representations they conveyed their said Detroit homestead, and gave the note and mortgage on the said Corunna property to which they had taken title as tenants by the entireties, said mortgage representing a part of the purchase price of the Corunna property. They aver that at the time of the making of said trade the said Corunna property was not worth to exceed $7,750; that they were ignorant of the values of real estate, and relied implicitly upon the representations of said Davis. They aver that they have practically sold said Corunna property, and that if complainant shall be allowed to enforce collection of said note and mortgage, as prayed in the bill, the amount of the sum so collected will be a total loss to said defendants, and that they will thereby entirely lose their homestead deeded to complainant in said trade. They pray in their cross-bill for the following relief:

(1) That said note and mortgage be declared illegal and void, so far as the same is legally and equitably owned by the complainant, and that complainant be decreed to surrender said note and mortgage to the defendants, and the said mortgage be discharged of record and canceled.

(2) They pray that the said bank shall first look to its other security for the collection of its indebtedness against the complainant, and. that they be relieved entirely from any liability by reason of said note and mortgage.

Upon the hearing of this cause, on testimony taken in open court, the circuit judge dismissed the cross-bill, and entered a decree in favor of the complainant against these defendants for the whole amount claimed to be due upon said note and mortgage so given to complainant. From this decree the defendant Nellie Wardowski alone has appealed. A motion was made before the hearing to dismiss this appeal, on the ground that the said defendants owned the property as tenants by the entireties, and that the defendant Nellie could not alone appeal. We think that counsel for complainant in making this motion misconceived the claim of the said défendants. They nowhere in their answer or cross-bill asked to be restored to their property in the city of Detroit, which they traded for the Corunna property. They aver in their answer that they have disposed of their interest in the Corunna property. Whether this is by deed or otherwise does not clearly appear from this record, for reasons which we shall hereinafter state. They simply asked to be relieved of their liability under the note and mortgage given upon the Corunna nroperty. Upon the hearing of the cause their solicitor distinctly stated to the court that these defendants were not seeking a rescission of their trade or sale; and on this appeal the appellant is simply seeking to escape liability on the mortgage and note. The claim of both defendants was by way of defense to the bill of complaint, and the cross-bill simply asked that the mortgage and note be canceled and surrendered. Both husband and wife are parties, and Lang v. Prindle, 163 Mich. 256 (128 N. W. 220), does not apply.

Because the husband did not appeal, is no reason why the wife should be deprived of that right. We think that the defendant Nellie Wardowski has a right to appeal from the decree, which contains a provision:

That on the coming in and confirmation of said report the said defendants, Louis M. Wardowski and Nellie Wardowski, who are hereby decreed to be personally liable for the debt secured by the said mortgage, pay to the complainant the amount of such deficiency, with interest thereon from the date of such report, and that the complainant have execution therefor.”

For aught that appears in this record, the appellant maybe possessed of other property, and her right to be relieved of such deficiency would, if entitled to the same, be a very substantial right. We must therefore refuse to dismiss the appeal for the reason stated.

It is further claimed by complainant that, under Chancery Rule 34, the defendants Wardowski have parted with their interest in the suit, and that the same should be suggested of record. At most they have deeded away their equity of redemption in the Corunna property, pending this suit. This would not prevent them from defending against the note and mortgage.

We regret exceedingly that we cannot now dispose of this cause on its merits. It appears clearly that the defendants were precluded from introducing their testimony in support of their claimed defense. Pending the cross-examination of Louis M. Wardowski, the following colloquy took place between the court and counsel:

“The Court: I have heard enough of this case.
“Mr. Chandler: We are satisfied of that. May it appear of record that we have Mrs. Wardowski in court and the other witness here, the builder of the property, for the purpose of showing the cost, etc., and we stand ready to put that in the record. I am not complaining in any way of your honor’s disposition of it, but to put ourselves correctly on the record, you know. I desire to call your honor’s attention, also, to 152 Mich. 177 (115 N. W. 964, 15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406), the case of Smith v. Werkheiser, a case which, we claim, is on all fours with this. With that statement I am willing to let your honor make a disposition of it.
“Mr. May: I think that so far as complainant herself is concerned, I am satisfied that your honor has given us more latitude in taking this matter up than we are entitled to. It is exasperating to me because I know a good deal about the matter, but the complainant herself being in court, I am perfectly willing to cease the cross-examination and put her on.
The Court: She may be sworn then.
“Mr. Palmer: We are not through with this witness, and if you are going to prepare a record and you have decided—
“The Court: I will stop right, now, you have gone far enough on your showing. Now, that is the end of it.”

And this ended all testimony in the cause, and a decree was entered for complainant.

Now, we are asked by counsel for appellant to consider as testimony the claim of Mrs. Wardowski in her answer and cross-bill, urging that the same should be taken as true, as she was not permitted to testify in support thereof. We certainly cannot do this. It was the clear duty of the court to permit the defendants to offer their testimony. The rule requiring the admission of testimony offered in a chancery proceeding is well established, and we need not cite cases in support of the practice. Hewlett v. Shaw, 9 Mich. 346; Bilz v. Bilz, 37 Mich. 116. In and by her answer and cross-bill Mrs. Wardowski claimed that certain representations made to her by complainant’s agent were false. and fraudulent in fact, that she relied upon the same, believed them to be true, and, so relying and believing, executed the mortgage and promissory note. We are deprived of her testimony, notwithstanding the fact that she was in court as a witness at the time the circuit judge announced that he would hear no further testimony.

It is also claimed that the testimony of the builder, and of Mr. Wilcox, who seems to have taken some sort of title to the Corunna property, was important, and should be received.

This court is certainly in no position to pass upon the merits of the cause. We have no alternative but to remand the same to the circuit court with direction that the decree be opened and Mrs. Wardowski be permitted to testify in support of her answer and cross-bill, and to offer such other evidence as she may be entitled to. The cause will be so remanded. The appellant will recover the costs of this court, the other costs to abide the event of the cause.

Cause remanded.

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