text:
    COOPER v. COOPER.
    1. Incompetenoy — Evidence.
    Preference of a part of decedent’s children by the execution of a deed and its delivery in escrow, although the act was unwise and unnatural, is held not to establish his incompetenoy where he expressed a reason for it, sufficient in his opinion, and did not act under a delusion.
    2. Escrows — Deeds—Delivery.
    In delivering conveyances to a third party in escrow with a direction to keep them until the grantees call for them, the grantor is presumed to have intended an irrevocable delivery, creating a present interest in the property transferred.
    3. Homestead — Signature of Wife — Selection.
    Without the wife’s signature, a deed by the husband of the homestead on which both parties live, consisting of a quarter of a section of land, is invalid as to the portion to which the wife has a homestead right, although no actual selection of a homestead has been made by the grantor.
    Appeal from Ottawa; Padgham, J.
    Submitted June 16, 1910.
    (Docket No. 70.)
    Decided July 14, 1910.
    1 Bill by Frank R. Cooper and others against Herbert D. Cooper and others for the cancellation of certain deeds. From a decree for complainants, defendants appeal.
    Modified.

      George A. Farr, for complainants.

      Walter I. Lillie, for defendants.
   Hooker, J.

In September, 1908, Fitch D. Cooper committed suicide, first shooting and killing his wife. By a former wife he had three children and by his second wife four. All survived him. At the time of his death he was in possession of both real and personal property. In June, 1908, he caused to be drawn a deed of substantially all of his real estate, and a bill of sale of his personal property, to his two sons, Herbert and Earl, aged respectively 17 and 15 years, sons of his second wife, omitting any provision for their sisters, Minnie, aged 19, and Velma, aged 10 years, except a fraternal policy of $2,000, which was payable to the children of the second marriage. The property covered by the deed and bill of sale amounted to about $18,000. On his way home from the scrivener he stopped at the home of a friend, one William Mines, and handed him an envelope, sealed, and said:

“ Keep those papers until the boys call for them.”

The names “ Herbert ” and “ Earl ” were upon the envelope. After the suicide the sheriff found and delivered a letter addressed to Mines:

“I wish you would take those papers and have them recorded immediately. By doing so you will gyeatly oblige.”

Mines did as requested — i. e., caused the deeds to be recorded. All of the other children by both marriages joined in this suit against Herbert and Earl, to cancel the instruments. The court found that Cooper was not incompetent, but that the instruments were never delivered. A decree was made in accordance with the prayer of the bill.

An appeal was taken in accordance with the following stipulation:

“ In this cause all parties desiring to appeal upon the whole record, and desiring to save expense, it is agreed that but one appeal shall be made, which shall be considered as the appeal of all the parties, and shall take up the entire record for consideration. The complainants to pay one-half of the costs of the stenographer’s minutes and of printing the record, and of the clerk of the Supreme Court; that there shall be no costs in the Supreme Court except solicitor fees and for printing briefs, and that said cause may be considered by the Supreme Court as though both parties had separately appealed.
“Dated January 15, 1910.”

Incompetency. We have examined the testimony relating to the grantor’s mental condition at the time he made the deeds, and conclude that the charge of incompetency is not sustained. In this we are in accord with the learned circuit judge who heard the testimony from the lips of the witnesses. On the surface it would seem that the action of the grantor was unwise and unnatural, but he had, and expressed, a reason for it, which was sufficient in his opinion, and which shows that he considered and settled the question according to his judgment, such as it was. This clearly appears, in contradistinction to a condition of mind preventing his mental ability to understand, and ability to resist a delusion.

Delivery of the Deeds. The testimony regarding the deposit of the deeds is, in a nutshell: After executing them, he placed them in an envelope indorsed with the names of the grantees, and left it with a friend with the direction:

“ Keep those papers until the boys call for them.”

This instruction was sufficient in itself to create a presumption that he intended his act to be irrevocable. We have .many cases that hold that such a delivery conveys a present interest to the grantees, and conveys full title on the delivery as directed.

In the early case of Hosley v. Holmes, 27 Mich. 416, we held:

“A delivery of a deed to a third person for the benefit of the grantee, in the absence of anything conveying a different intent, is as much a delivery as if made to the grantee himself; and when papers show upon their face that they are intended to take effect and operate from their execution, it will not be presumed that their delivery to a third person, to be afterwards delivered to the parties, was merely as an escrow, and that they were not to take effect until such subsequent delivery.”

See note to this case. Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178); Wallace v. Harris, 32 Mich. 380, and note; Thatcher v. St. Andrew’s Church, 37 Mich. 264, and note; Latham v. Udell, 38 Mich. 238; Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291).

In Pennington v. Pennington, 75 Mich. 600 (42 N. W. 985), it was held that—

“Until a deed is delivered to a grantee to become presently operative, the grantor retains the right to recall it.”

But in that case it was found that the deed was deposited for safekeeping, and therefore was not beyond recall. Hitchcock v. Simpkins, 99 Mich. 198 (58 N. W. 47), was a case bearing upon the question of the conveyance of a present interest, as, also, is the case of Culy v. Upham, 135 Mich. 131 (97 N. W. 405, 106 Am. St. Rep. 388). Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640), Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201), and Roup v. Roup, 136 Mich. 385 (99 N. W. 389), recognized the doctrine, but turned on the question of fact as to intent, and the same may be said of Cole v. Cole, 144 Mich. 676 (108 N. W. 101); Leonard v. Leonard, 145 Mich. 566 (108 N. W. 985), and Young v. Young, 157 Mich. 80 (121 N. W. 264).

The direction in this case was unequivocal and contained no indication of an intention to retain a control of the deeds. The letter found upon the person of the grantor was not inconsistent with an irrevocable deposit. It was but a later direction to deliver to the boys at once, in another way, without waiting for them to call for the deeds. The. will, made some time before, made other provisions, but the conveyancer who drew the deeds gave testimony accounting for his change of mind, and showing that he did. not overlook the necessities of his younger children, and his duty toward them. We may question his judgment in this matter, but that will not justify setting aside his action, and it is possible that he knew the situation and exigency best. It is a question of intent, and we are unable to find circumstances overcoming the presumption arising from his act and instruction.

The question is whether it can be said that the delivery was such as to convey a present interest. The subject is considered and numerous authorities cited in an exhaustive note to the case of Munro v. Bowles, 187 Ill. 346 (58 N. E. 331, 54 L. R. A. 865).

Homestead. At the time these deeds were made the premises described therein were occupied as a homestead. The bill alleges that the N. E. £ of section 10 (160 acres) was the homestead of Cooper and his wife at the time the deeds were made. They certainly lived there and apparently had no other land. It is contended that the husband had not selected a homestead, and that none can be selected for him now. At the time these deeds were made these parties resided on these premises. The wife might assert a homestead right, and this did not depend on her husband’s selection before that time. His attempt to convey it was futile, and the deeds were void as to such interest, and they could not afterwards be made valid by the death of one or both. The title to the homestead remained in the husband. Wallace v. Harris, 32 Mich. 380; Stevenson v. Jackson, 40 Mich. 702. This homestead involved an undefined tract, and the value is limited to $1,500. Complainants’ rights can be protected however. See Beecher v. Baldy, 7 Mich. 488; Dye v. Mann, 10 Mich. 291; Wallace v. Harris, supra; Stevenson v. Jackson, 40 Mich. 702. To this extent the deed must be canceled.

We do not lose sight of the case of Sammon v. Wood, 107 Mich. 510 (65 N. W. 529), where it was said that—

“It may be impossible to locate it (the homestead), and in such ease the title (i. e., deed) to the entire farm must fail.”

If this was more than a dictum, it does not appear whether the subsequent proceedings involved the carrying out of that suggestion. In any event, we doubt the propriety of applying such a rule here. That statement is based on Engle v. White, 104 Mich. 15 (62 N. W. 154), and that in turn upon Phillips v. Stauch, 20 Mich. 369, and Hall v. Loomis, 63 Mich. 709 (30 N. W. 374), all of which were cases where the right to specific performance only was denied. See Walker v. Kelly, 91 Mich. 217 (51 N. W. 934), where specific performance was enforced in a somewhat similar case.

We are unable upon this record to ascertain the situation of the estate, or who 'is entitled to the homestead or its value, in view of the will that has already been admitted to probate. We therefore direct a decree of cancellation so far as the homestead interest is concerned, only denying relief as to the remainder of the premises. The complainants will recover costs. This is without prejudice to such further proceedings in this court or cause, or any other proper tribunal, if any, by the complainants, as may be proper to determine and enforce their rights to such portion of said homestead interest as they may be entitled to.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    HAXER v. GRIESSEL.
    1. Negligence — Personal Injuries — Employes of Independent Contractors — Use of Ladder.
    After having been warned to take his ladder down when he had finished certain work, as it was getting windy, the alleged negligence of a painter in leaving his ladder resting on the freshly-painted surface of the house, so that it could and did blow down and injure the employé of another contractor, was a question for the jury.

    2. Same — Master and Servant — Fellow-Servant.
    The employé of a contractor engaged in painting a house is not the fellow-servant of a carpenter employed by a different contractor.
    S. Same — Assumption of Risk — Contributory Negligence.
    The injured employé cannot be held to have been guilty of contributory negligence, as a matter of law, for failing to protect himself from the danger, which, it appeared, he had not observed or appreciated.
    Error to Wayne; Murphy, J.
    Submitted June 16, 1910.
    (Docket No. 65.)
    Decided July 14, 1910.
    Case by Frank Haxer against Adam G. Griessel and J. Henry Leuzen, copartners as Griessel & Leuzen, for personal injuries. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      James H. Bayne (George P. Palmer, of counsel), for appellant.

      James H. Pound, for appellees.
    The appellant, a carpenter 69 years of age, was injured by falling from a scaffold which was broken down by a falling ladder. The scaffold upon which he was working at the time of his injury was built by himself and his fellow workmen; it was only six or seven feet high, and was of sufficient strength to sustain the weight of two men. Appellant was alone upon it when injured. The scaffold was standing close to the wall of the building, and appellant was engaged in completing the finishing work under a bay window, easily within his reach when standing upon the scaffold. Defendants were independent contractors, having the contract for the painting of the building upon which appellant was working as a carpenter for a different master, the carpenter contractor. Appellant was working at one side of the bay window, when defendants’ servant, Bishop, placed a 20-foot ladder against the building upon the other side of the window,' one upright of the ladder resting against the wall, and the other against the edge of the roof of the bay window, which, at the point of contact, was but seven-eighths of an inch thick. At about 4 o’clock in the afternoon, defendant Grriessel called at the building, and found Bishop on the ladder at work. He told Bishop to take his brush and finish a certain portion of the work and then to take his ladder down, as it was getting windy. This order made it necessary for Bishop to change his paint and use a different color. To accomplish this he descended from the ladder and went into the building, where he kept the different paints. While he was absent a gust of wind caught the unprotected ladder, causing it to fall. In falling it struck the scaffold upon which appellant was standing, broke it, and appellant was precipitated to the cement walk and injured. .Plaintiff’s testimony was to the effect that the ladder struck him on the head. There was testimony tending to show that the edge of the bay-window roof, against which one side of the ladder rested, was newly painted, and therefore slippery. A verdict was directed for defendants upon two grounds, first, that no negligence had been shown on the part of the defendants, and, second, that appellant had assumed the risk of a danger clearly as obvious to him as to Bishop, the painter. Appellant has removed the case to this court for review by writ of error.

       As to liability of master to servants of independent contractor, see note to Bright v. Barnet & Record Co. (Wis.), 26 L. R. A. 524.

   Brooke, J.

(after stating the facts). A careful reading of the record impels us to the conclusion, that the question of defendants’ negligence should have been submitted to the jury. While the placing of the ladder in the position in which it stood at the time of the accident, and its use by Bishop while in that position, may be said to indicate reasonable care upon his part, or at least to afford no evidence of negligence, we are still of the opinion that his leaving it, even for the time necessary for him to change his paints, leaning against the freshly-painted* slippery edge of the roof of the bay window, under the weather conditions which prevailed and to which his attention had been at that moment called by his master, was such an act as to warrant the court in taking the verdict of the jury as to its character. Barnowsky v. Helson, 89 Mich. 533 (50 N. W. 989, 15 L. R. A. 33); Detzur v. Brewing Co., 119 Mich. 383 (77 N. W. 948, 44 L. R. A. 500); Lauer v. Palms, 139 Mich. 671 (89 N. W. 694, 58 L. R. A. 67). Towards this appellant Bishop owed the duty of reasonable care. They were not fellow-servants, and, if his act in leaving the ladder unattended in the position and under the weather conditions disclosed by the record amounted to negligence, the defendants, his masters, were liable.

Appellant testified that, while he saw Bishop painting the bricks and the other bay window, he paid no attention to the position of the ladder before it fell; that he did not look at it, or at the painter upon it; that he was busy with his own duties. Whether, under all the circumstances, he should have noticed, appreciated, and protected himself against the danger which caused his injury, was a question of fact for the determination of the jury. Upon this question reasonable minds might draw different conclusions. He cannot be held guilty of contributory negligence as a matter of law. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441); Briant v. Railroad Co., 104 Mich. 307 (62 N. W. 365); Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Graham v. Evening Press Co., 135 Mich. 298 (97 N. W. 697).

The judgment is reversed, and a new trial ordered.

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


author: Moore, J.

text:
    MUELLER v. DETROIT UNITED RAILWAY.
    Damages — Pleading—Sufficiency of Declaration.
    Evidence of uterine trouble, caused to plaintiff, a passenger, by the derailment of a street car, is admissible, under a declaration which alleges bodily and internal injuries, a bruised side, derangement of her nervous system, and permanent injuries.
    Error to "Wayne; Hosmer, J.
    Submitted June 14, 1910.
    (Docket No. 59.)
    Decided July 14, 1910.
    Gase by Anna Mueller against the Detroit United Railway and another for personal injuries. A judgment for plaintiff is reviewed by defendant Detroit United Railway on writ of error.
    Affirmed.

      Brennan Donnelly & Van De Mark, for appellant.

      Sellers & Sellers (Cassius Hollenbeck, of counsel), for appellee.
   Moore, J.

From a judgment obtained by plaintiff for injuries received while she was a passenger on one of the cars of defendant, the case is brought here by writ of error. The record shows plaintiff was injured by a derailed car colliding with a building, throwing her from her seat. There is testimony to the effect that the car was running about 30 miles an hour; it left the broken track on Michigan avenue, ran across the pavement, over the curb, against and breaking off a sound telegraph pole, across the sidewalk, through a brick wall, and several feet into the building, throwing the rear end of the car around and the car over on its side, tearing its roof off and smashing the car. The shock rendered plaintiff, unconscious, and she was in that condition when removed from the wreck.

It is claimed by appellant that the declaration is insufficient to admit testimony of uterine trouble. The sufficiency of the declaration to permit this testimony is the only question presented by the brief. So much of the declaration as is necessary to present the issue reads as follows:

“That plaintiff’s body, back, limbs, arms, sides, and chest were then thereby greatly bruised, mangled, and lacerated and plaintiff’s right shoulder was dislocated, and she was hurt internally, and her right side was greatly bruised and injured, and also one of her hips was bruised and wounded, and plaintiff thereby suffered great and excruciating pain of body and mind, and by reason of the premises the said plaintiff’s nervous system was thereby greatly shocked, deranged and weakened, and by reason of the premises the said plaintiff then and there suffered severe and permanent internal injuries and was confined to her bed for a long space of time, * * * and by reason of the premises this plaintiff then and there became, and still is, and during the remainder of her natural life will be, * * * permanently disabled and injured.”

The averments of the declaration permitted the admission of the testimony under the following authorities: Leslie v. Traction Co., 134 Mich. 518 (96 N. W. 580), and the many cases therein cited; Renders v. Railroad Co., 144 Mich. 387 (108 N. W. 368); Groat v. Railway, 153 Mich. 165 (116 N. W. 1081).

Judgment is affirmed.

Ostrander, Hooker, MoAlyay, and Brooke, JJ., concurred.


text:
    TRADERS’ BANK OF CANADA v. FRASER.
    1. Equity — Effect of Demurrer.
    A demurrer in equity admits the truth of the averments of the bill of complaint.
    2. Trusts — Equity —Adequate Remedy at Law — Banks and Banking — Fraud.
    Equity has jurisdiction of a bill of complaint, notwithstanding a possible remedy by an action at law and garnishment proceedings, where it is averred that the defendant by fraudulent representations obtained money deposited with complainant in the name of her deceased husband, that she took the money to another bank, which is made a defendant, and deposited it in her own name, that complainant is liable for the amount of the fund to the estate of her husband, that the wife is insolvent, and has no authority to receive the money, as administratrix or otherwise, and that unless protected by an injunction, as prayed, the complainant will lose the fund, and that the same is a trust fund in the hands of defendant.
    Appeal from St. Clair; Tappan, J.
    Submitted June 16, 1910.
    (Docket No. 71.)
    Decided July 14, 1910.

      Bill by the Traders’ Bank of Canada against Margaret Fraser and the First National Exchange Bank of Port Huron to enjoin the dissipation of an alleged trust fund. From an order overruling a demurrer, defendant Fraser appeals.
    Affirmed.

      Joseph Walsh, for complainant.

      B. D. Gady (W. L. Jenks, of counsel), for appellant.
   Moore, J.

Complainant filed its bill of complaint, which, after the formal part, averred in substance that November 1, 190?, William A. Fraser of Port Huron deposited in its branch bank at Embro, Ontario, $1,606, for which a passbook was issued to him; that November 19, 1907, Margaret Fraser presented to the cashier of said bank said passbook and obtained the full amount of said deposit, $1,500 of which she deposited on the 23d of November in a bank at Sarnia; that December 7, 1907, she withdrew $1,490 of said money and deposited the same in defendant bank, December 10, 1907, “where she ¿has kept the fund intact up to and including this date.” Then follow averments which it is not necessary to set out. Then comes the following:

“That prior to the obtaining of said money by said Margaret Fraser, the said William A. Fraser had died; that said Margaret Fraser, his wife, fraudulently obtained from your orator the whole amount of money deposited as aforesaid; that at the time of procuring said money she falsely and fraudulently represented to the officers of said bank that when said money was deposited in said branch bank it was placed in said bank in the name of both the said William A. Fraser and the said Margaret Fraser and under an arrangement and in such a manner that both or either of them could legally draw it out; and, also, that she was duly authorized to demand and receive said money and was entitled to the same. Your orator avers that all of said representations were false and fraudulent and made with the intent and purpose of deceiving your orator and obtaining said money, and that the said, Margaret Fraser was not entitled to receive said money and was not authorized so to do, and said money had not been placed in said bank in her name or so that she could draw the same, and the officers of your orator’s said branch bank were deceived and defrauded by said false and fraudulent representations and by mistake, and relying upon such false and fraudulent representations paid to the said Margaret Fraser the whole amount of said deposit on the date hereinbefore mentioned. * * *
“Petitioner therefore alleges that the said moneys so deposited and subsequently paid to said Margaret Fraser and now on deposit in the First National Exchange Bank of Port Huron, Mich., was a trust fund as it verily believes, and that if wrongfully paid to the said Margaret Fraser by the said bank as alleged, or otherwise wrongfully paid as claimed, then the same will be wholly lost to this complainant, unless protected by the writ hereinafter prayed to be issued out of this court.
“Fifth. Petitioner alleges that the said Margaret Fraser presented no letters of administration or probate or other legal authority to the said bank as evidence of her legal right to receive the said money, and that said petitioner now seeks to protect itself by having this court come to its aid in preventing the said Margaret Fraser from dissipating this fund until her legal right to receive, have, and control the same is established, and to that end petitioner alleges that the said fund should be returned to it and be held until the said Margaret Fraser has been determined by a court of competent authority to be the person legally entitled to receive the same from your petitioner.
“Your orator avers that it is legally indebted and liable to the said William A. Fraser’s estate for the full amount of said deposit; that it will be compelled to pay such sum of money to the estate; that said Margaret Fraser is financially irresponsible, and no judgment can be collected against her; that she has no property out of which an execution can be collected, and unless the fund so placed by her in the First" National Exchange Bank of Port Huron, Mich., as above mentioned, is held to be the property of and belonging to your orator and is caused to be turned over to your orator, your orator will entirely lose the amount of the same and will lose all the money so paid to her as aforesaid.”

Then followed a prayer for an injunction and a general prayer for relief. A demurrer was interposed, and from an order overruling the demurrer the case is brought here for review.

The claim of defendant Fraser is stated in the brief as follows:

“ Complainant could obtain all of the relief to which it could possibly be entitled by bringing its suit at law against Margaret Fraser, and taking garnishment proceedings against the defendant bank, the fund, if there were any, belonging to defendant, to be held pending the trial, so that, if the decision of the court and jury was that the money did belong to the bank, its remedy would be perfect, and its right to the money in the defendant bank fixed. In other words, every issue involved in this suit could be completely and satisfactorily disposed of in a suit at law, and the questions of fact involved are those which the defendant Margaret Fraser has the right to ask to be determined in such a court and by a jury.”

To this contention it is replied that the remedy might or might not be adequate.

“It may be that there are garnishments against this fund, or the fund may have been assigned to other parties. If we had resorted to a suit at law and garnishment, we might have found that an assignment of this money had been made to some other creditor of Mrs. Fraser, who, in such action, would be entitled to a preference of the fund. We submit that we have the right to follow the fund itself, and not to run the danger of having other claims made on it that might have precedence over our claim.”

The demurrer admits the truth of the averments of the bill of complaint. We think the action of the circuit judge in overruling the demurrer is supported by 1 Pomeroy’s Equity Jurisprudence (3d Ed.), § 878; 3 Pomeroy’s Equity Jurisprudence (3d Ed.), § 1047, and the authorities cited in the notes. See, also, H. Stern, Jr., & Bros. Co. v. Wing, 135 Mich. 331 (97 N. W. 791).

The decree is affirmed, with costs.

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


author: Bbooee, J.

text:
    STONE v. STONE.
    1. Divorce — Dismissal for Want of Prosecution.
    The dismissal of a bill for divorce for want of prosecution is warranted, where the complainant, after obtaining an order for temporary alimony and a solicitor’s fee, and after receiving the alimony for about four months, made no further progress in the case; and defendant, after several years, obtained a divorce in another State on the ground of desertion, and remarried, but continued to contribute to the support of complainant’s daughter, who was permitted to visit him, and the complainant knowing of the remarriage, made no demand for the unpaid solicitor’s fee and alimony for thirteen years, when she threatened to proceed to enforce collection.
    2. Same — Contempt—Alimony.
    An allowance of temporary alimony is not intended to extend over a period of thirteen years, and in the absence of a demand for its payment during that period, the defendant is not in contempt so as to affect his right to have the bill dismissed for want of prosecution.
    Appeal from Wayne; Hosmer, J.
    Submitted June l1?, 1910.
    (Docket No. 81.)
    Decided July 14, 1910.
    Bill by Flora H. Stone against Forrist P. Stone for a divorce: On petition of defendant to dismiss the bill for want of prosecution. From a decree for petitioner, complainant appeals.
    Affirmed.

      Hunt & Altland, for complainant.

      Frank C. Cook, for defendant.
   Bbooee, J.

Complainant appeals from a decree dismissing her bill of complaint.

The parties were married in the year 1885. Complainant filed a bill of complaint for divorce, upon the ground of nonsupport, on June 21, 1895. Defendant filed his appearance, and on July 1, 1895, an order for alimony and solicitor’s fee was made, fixing the alimony, pending the cause, at |5 per week, and the solicitor’s fee at $25. Defendant paid the alimony for 16 weeks, but did not pay the solicitor’s fee. At the time the bill was filed, the parties had one child, a girl, three years of age. This child is now between 18 and 19 years old. Defendant moved from Detroit to Cleveland shortly after the bill was filed, and paid a portion of the alimony from that city. After paying temporary alimony for four months he ceased, and for a period of about three years heard nothing from complainant. He claims he then made inquiries as to the whereabouts of his wife, and the condition of the suit; that he learned that complainant had left Detroit, but could not learn her whereabouts, and found that she had not proceeded with her suit for divorce. He thereupon, believing that she had abandoned her suit, filed a bill for divorce upon the ground of desertion, in Cuyahoga county, Ohio, and on May 25,1898, was granted a decree; service upon defendant having been obtained by publication. In that year he remarried in the State of New York, and has ever since lived with his second wife. Complainant knew of this divorce and remarriage in 1899 or 1900, and since that time has permitted her daughter to pay frequent and lengthy visits to her father, defendant herein. Defendant claims, and complainant does not deny, that since the year 1900 he has contributed largely to the support of their daughter. In the year 1908, complainant, through her counsel, made a demand upon defendant for the unpaid temporary alimony, then in arrears for about 13 years, and amounting to more than #3,000, and threatened to take proceedings for its collection.

Whereupon defendant, in May, 1908, filed his petition in this cause, praying that complainant’s bill be dismissed for want of prosecution. This petition was answered by affidavit of complainant in November, 1909, but the material facts set out in the petition were not denied. The only reason offered by complainant for her failure to proceed seasonably with her suit was that defendant had not paid the $25 solicitor’s fee ordered by the court, and her solicitor refused to prosecute her cause to decree until said fee was paid. It is her claim that she was herself financially unable to pay said fee. The record does not show that she made any demand on defendant at any time to pay it, but, on the contrary, it does appear affirmatively that she allowed her case to slumber for nearly 13 years, during 8 of which, at least, she knew that defendant had secured a divorce in Ohio, and that, relying thereon, another woman had entered into marital relations with him.

Can she be heard at this late day, and under this state of facts, to object to the dismissal of her bill of complaint upon the ground of gross laches in failing to seasonably prosecute her suit to final decree ? We are of opinion, that it would be inequitable and against sound public policy to permit her to do so. Had she been ignorant during all these years of her husband’s whereabouts, and of his acts relative to their marriage, and to his new status, a different situation would be presented. But with full knowledge of his acts, she voluntarily elected to stand aloof, and permit another woman to sustain the relationship of wife towards the man, who, if her present position is tenable, is still her husband. Equity will not lend its aid to those who are not diligent in protecting their own rights. The original controversy between the parties has become stale, the facts remote, and the witnesses, doubtless, dispersed. It would, at this late day, be extremely difficult to arrive at the truth, and no court should undertake to do so. As was said by this court in Zoellner v. Zoellner, 46 Mich. 511 (9 N. W. 831):

“ The proceeding is consequently subject to the proposition that the public peace and good order are concerned in withholding the assistance of equity from those who grossly neglect to take care of their own rights.”

See, also, Reed v. Reed, 52 Mich. 117 (17 N. W. 720, 50 Am. Rep. 247), and cases cited therein.

It is urged that inasmuch as defendant is in default in payment of alimony, he is in contempt, and therefore in no position to demand favors from a court of equity. McClung v. McClung, 40 Mich. 493. As before pointed out, no demand was made upon defendant for 13 years. It can scarcely be claimed that the demand made in 1908 was such a demand as is required to be made for temporary alimony. Such an allowance, as its name indicates, means an allowance for such temporary period as is reasonably necessary to permit the cause to proceed to a final decree. It is not contemplated that such an order shall be extended over a period of years. To meet such a situation the rights of the parties should be fixed by decree. But we are disposed to view the demand of defendant herein not as a favor, but as a matter of strict right.

The case of Abe Stein Co.v. Wood, 151 Mich. 657 (115 N. W. 1046), relied upon by complainant, is not in point. In that case and in those cases cited therein, the cause was at issue, and either party might have noticed it for trial. In the case under consideration there was neither answer nor replication, defendant of his own motion could not have brought it on for hearing, while complainant, upon taking his default, could have, at any time, proceeded to decree.

The decree is affirmed, but without costs.

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


author: Stone, J.

text:
    McBROOM v. CHEBOYGAN BREWING & MALTING CO.
    1. Trial — Findings of Fact and Law — Amendments.
    The refusal to amend findings of fact made by the trial court, without the aid of a jury, is not reviewable in the Supreme Court, where the findings are supported by the evidence.
    2. Corporations — Contracts—Authority to Execute.
    A guaranty of the rent of a dwelling house and business building, to be occupied by a saloon keeper, who makes no agreement to buy liquors exclusively of, or to do any other act for the benefit of the guarantor, and who offers no other inducement, is not within the authority of the secretary of the brewing company who executes the guaranty, and who is not its manager, when it was not expressly authorized by the board of directors, and the time of the lease extended far beyond his term of office.
    3. Same — Principal and Agent — Holding Out — Estoppel.
    Estoppel is the basis of the doctrine that a principal is bound to third persons who have relied in good faith on the apparent authority of an agent.
    4. Same.
    Matters occurring subsequently to the execution of the guaranty are not evidence tending to show that the plaintiff was thereby induced to rely on the authority of the agent.
    Error to Cheboygan; Shepherd, J.
    Submitted June 20, 1910.
    (Docket No. 108.)
    Decided July 14, 1910.
    Assumpsit by Mollie E. McBroom against the Cheboygan Brewing & Malting Company on a contract of guaranty. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      James F. Shepherd, for appellant.

      Frost & Sprague, for appellee.
   Stone, J.

This is an action of assumpsit brought upon a guaranty of lease bearing date March 30, 1905. At that date the plaintiff was the owner of a business building on Main street, in Cheboygan, and a dwelling house immediately back of the same, fronting on Water street. Max Schoenith was a saloon keeper, who, prior to March 30, 1905, had occupied the business building for a saloon and the house back of it for a residence. On that day he and the plaintiff executed a lease from her to him of the premises in question for five years from the date, under which the rent reserved for both properties was $44 per month. One of the conditions of the’execution of the lease was that the rent should be guaranteed. Schoenith at the time he executed the lease was a customer of defendant, buying his beer from it. The defendant is a Michigan corporation, organized for the purpose of manufacturing and selling lager beer and malt. On the same day and soon after the execution of the lease, the plaintiff’s agent took the lease, with the contract guaranteeing the payment of the rent printed thereon, to the office of the defendant, and the guaranty was.signed “Cheboygan Brg. & Malting Co., per S. Wilhartz, Mgr.” It was later signed by William H. Craig as a co-surety, but he was not served with process. The contract of guaranty reads as follows:

“In consideration of the letting of the premises in the foregoing instrument described, and for the sum of one dollar, to them paid, they do hereby become surety for the punctual payment of the rent and performance of the covenants in said instrument mentioned, to be paid and performed by the second party therein named; that if any default shall at any time be made therein, they do hereby promise and agree to pay unto the said party of the first part named in said instrument, the said rents and arrears thereof that may be due, and fully satisfy the conditions of said instrument, all damages that may occur by reason of the nonfulfillment thereof, without requiring notice or proof of the demand being made.
“ Witness their hands and seals this 30th day of March, 1905.
“ Cheboygan Brg. & Malting Co.,
“ Per S. Wilhartz, Mgr. [L. S.]
“William H. Craig. ”

The case was heard before the court without a jury, and the following findings of facts and of law were filed, before judgment:

“ Finding of Facts.
“ (1) The plaintiff in this case sues upon the obligation covered by the lease and the guaranty set out in the declaration as Exhibit A.
“ (2) Prior to the time of making Exhibit A, Mr. Max Schoenith, the lessee, in Exhibit A, had been renting the saloon building from the plaintiff, paying, therefor $30 a month. At the time of making this lease, Exhibit A, he rented the saloon building, which had been previously occupied by him as a saloon, and was thereafter similarly occupied by him, and also the house on Water street immediately adjoining the same piece of property. The saloon is on lot 17, the first described property in said lease, the house is on lot 18, the second described piece of real estate. The agreed price at that time was $9 for the house and $35 for the saloon building. The amounts were not separately stated in the written contract but each of the lots is described, and it appears from the face of the lease that the property was to be occupied ‘ for a retail liquor business and residence of his family.’
“(2^) The defendant, Cheboygan Brewing & Malting Company, is a Michigan corporation, organized, as stated in its articles of association, for the purpose of the manufacture and sale of lager beer and malt.
“ (3) The defendant company changed its list of stockholders completely on February 1, 1905. On that day Mr. Moloney and the old stockholders held their last meeting and adjourned to Minneapolis, and on the same day transferred their stock to new purchasers who held a meeting in Minneapolis on February 7, 1905, and elected their board of directors, who in turn, on the same day, elected Mr. Barnum as president, Mr. Rutherford as treasurer and assistant secretary, and Mr. Wilhartz as secretary. Special authority was given to Mr. Rutherford to collect all moneys and deposit them in the bank and to check against same, evidently in the name of the company, and a resolution was passed authorizing Mr. Rutherford to create a special fund of $1,000 against which Mr. Wilhartz could check. Mr. Wilhartz was not elected general manager and was not expressly given any such powers; on the contrary his specified powers were limited even as secretary.
“ (4) The testimony shows that Mr. Barnum, the president, spent much of the first year in Cheboygan. He had the power to, and did, draw checks, as did also Mr. Rutherford.
t£ (5) Mr. Wilhartz was never authorized by the defendant company to make the contract sued on in this case, or any one similar to it. The making of this contract was never known to any of the officers, directors, or stockholders of said company, neither were any of the alleged conversations or acts, if any, of Mr. Wilhartz which were subsequently done through Mr. Harpster, or Mr. Schoenith, or Mr. Moloney, known to any of the stockholders, officers, or directors.
_ “ (6) Mr. Schoenith bought beer of the company previous to the making of this contract and subsequent thereto. There is no testimony of any kind of any agreement between Mr. Schoenith and the company or Mr. Wilhartz that if the company or Mr. Wilhartz would sign the guaranty lease Mr. Schoenith would buy of them his beer, and there is no testimony of any benefit contemplated or received by the company by virtue of the undertaking sued on.
££(7) It appears that at the time of the making of the lease one Alexander Grieve was acting as the agent of the plaintiff in renting the property. After Mr. Wilhartz signed the guaranty Mr. Grieve took Exhibit A to Mr. Craig who signed. There is no evidence of any notification by Mrs. McBroom or any one for or in her behalf given to the defendant company of her acceptance of the arrangement created by the signing of the instrument by the defendant company, except the evidence of Mr. Grieve as to his agency, and that he took the paper to Mr. Wilhartz who signed, and thereafter he, Grieve, took the same away for Mr. Craig’s signature.
^ “(8) The testimony shows that Mr. Wilhartz never signed, either before or afterwards, the company’s name to any similar guaranty to that shown by Exhibit A. The testimony also shows that previous to the making of this lease he never indorsed any of the company notes, though at a later date his authority was increased to include the indorsement of company notes of purchase. Mr. Wilhartz drew checks previous to the making of Exhibit A as well as afterwards. He was the officer of the company coming most in contact with the public and most active in making sales.
“ (9) Mr. Sehoenith was not joined as a defendant.
“ (10) The lease in question, the guaranty of which was sued upon, covered rent for the term of five years from and after the 1st day of May, 1905, for the premises to he occupied by Mr. Sehoenith in his business, and also for the house which he and his family occupied.
“ (11) There is no evidence that the plaintiff or any one acting for or in her behalf either saw, knew of, or relied upon any acts of Mr. Wilhartz indicating that the company were holding him out as having authority to execute such a guaranty. Neither plaintiff nor her agent gives any such testimony.
“Findings of Law.
‘ ‘ (1) The failure to join Sehoenith in the proceeding may not be taken advantage of under the general issue here pleaded.
“ (2) Acceptance by plaintiff by her agent, Grieve, is sufficiently proved.
“ (3) The contract sued on is not ultra vires the corporation.
“ (4) Mr. Wilhartz was the manager of defendant corporation, having charge of its office and 'authorized, through the holding out by the defendant, to make such contracts as may be presumed to be made by a general agent; however, the extension of a guaranty for so long a term beyond the saloon year would be beyond the power of any general agent aside from the board of directors, and perhaps even them.
“ (5) There was nothing in such holding out of Mr. Wilhartz’s authority as would warrant any one, without inquiry, to accept his authority to execute the contract sued upon.
“ (6) Judgment shall be entered in favor of defendant of no cause of action.”

The plaintiff brings error. The first 11 assignments of error relate to rulings of the court in the admission of evidence. We have examined them with care, and find no error. There would be no profit in discussing them at length.

The 12th and 13th assignments of error deal with the refusal of the court to amend the findings of fact as proposed by plaintiff. This court held in Beal v. Polhemus, 67 Mich. 130 (34 N. W. 532), that the refusal to allow amendments to findings of fact is not a subject of review in this court, where, as in this case, the findings are supported by the evidence.

The 14th assignment of error Is based upon the refusal to strike out in findings of law No. 4 all after the word “agent” in the fourth line, and insert:

“The defendant’s secretary and general manager, Mr. Wilhartz, as general agent, had the authority to execute the lease in question. It was in the promotion of the corporate purposes of the defendant.”

The 15th and 16th assignments of error relate to the judgment entered.

It will not be necessary to discuss the first three findings of law more than to say that the evidence in the case does not bring it within the ruling in Timm v. Brewing Co., 160 Mich. 371 (125 N. W. 357). The record here fails to show any agreement to buy beer exclusively or otherwise by Schoenith from the defendant, or any agreement that would tend to benefit the defendant, or did benefit it; or |any inducement held out to defendant; and the guaranty related to the rent of the dwelling house as well as the saloon

Referring to the 14th assignment of error relating to the fourth finding of law, it should be stated that Mr. Wilhartz became secretary of the defendant on February 8, 1905. It is undisputed that at the time of the signing of the guaranty he was secretary of the company, but was not its manager. As a matter of fact, he did not have authority to sign the instrument sued upon, or to do any similar act. No such authority had been conferred upon him by the board of directors. It was an unusual and extraordinary act. We have held that such an officer would not have implied power to sign commercial paper, or pledge the credit of the company to the payment of a debt of a third party. Here he assumed to guarantee the payment by a third party of rent for a period of five years, and far beyond his term of office. He had no express authority. New York Iron Mine v. First Nat. Bank of Negaunee, 39 Mich. 644; Ruppe v. Edwards, 52 Mich. 411 (18 N. W. 193); McLellan v. Detroit File Works, 56 Mich. 583 (23 N. W. 321); Stilwell-Bierce & Smith-Vaile Co. v. Paper Mill Co., 115 Mich. 35 (72 N. W. 1107); Gould v. W. J. Gould & Co., 134 Mich. 515 (96 N. W. 576, 104 Am. St. Rep. 624). We are of opinion, also, that under the doctrine of the case of Laird v. Lubricator Co., 153 Mich. 52 (116 N. W. 534, 17 L. R. A. [N. S.] 177), Mr. Wilhartz had no such authority.

It only remains to consider whether Mr. Wilhartz was, by defendant, clothed with apparent authority — whether he was “ held out ” by the defendant as having authority to sign this guaranty. Plaintiff can only bring to her support such “ holding out,” and clothing with apparent authority, as was had and done before the execution' of the instrument sued on, and upon which plaintiff relied. Estoppel is the basis, and the principle is that the other party must have been induced to act upon the “ holding out.” The principal is bound to third persons who have relied thereon in good faith by the apparent authority he has given to the agent. 31 Cyc. p. 1331 et seq.; 1 Am. & Eng. Enc. Law (2d Ed.), pp. 989, 990; Mechem on Agency (Ed. of 1889), § 84; Jewett v. Bryant, 159 Mich. 345 (123 N. W. 1097); Davis v. Kneale, 97 Mich. 72 (56 N. W. 220); Wierman v. Sugar Co., 142 Mich. 422 (106 N. W. 75). In the case last cited, Justice Grant said:

“ The apparent power of the agent is to be determined by the acts of the principal, and not by the acts of the agent.”

See, also, Heffron v. Armsby, 61 Mich. 505 (28 N. W. 672); Barry v. Insurance Co., 62 Mich. 424 (29 N. W. 31); Verdiner v. Olney, 77 Mich. 310 (43 N. W. 975); Leo Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50, 34 Am. St. Rep. 350); Hirschmann v. Railroad Co., 97 Mich. 397 (56 N. W. 842). See language of Justice Hooker in Clark v. Dillman, 108 Mich. 627 (66 N. W. 570).

We are unable to find in this record any holding out ” by the defendant which was relied upon by the plaintiff when or before the guaranty was signed. The plaintiff was not a witness, and her agent does not testify to any such act. Practically all of the testimony as to the ‘c holding out, ” relates to matters subsequent to the signing of the guaranty. Certainly, such matters did not induce the plaintiff to.rely upon the apparent authority of Mr. Wilhartz.

Plaintiff cites Constantine v. Sugar Co., 132 Mich. 487 (93 N. W. 1088). The case is readily distinguishable. There the manager and secretary was held to be clothed with the power to make a reasonable contract for the benefit of the company’s legitimate business. Here the secretary sought to bind the company as surety for a third person.

We think that there was no prejudicial error in the case, and that the circuit judge reached the correct conclusion.

The judgment below is affirmed.

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


text:
    HOAG v. BOEHMER.
    Highways — Removal of Obstructions — Notice—Statutes.
    Where proceedings for laying out a highway' were regular, and a notice was duly served by the highway commissioner, after April 1st, to remove a fence in the highway, within thirty days, the notice was sufficient and a substantial compliance with the statute requiring a notice of not less than sixty days, and providing that the removal shall not be required between April 1st and November 1st, the commissioner having taken no action until after November 1st.

      Error to Calhoun; North, J.
    Submitted June20,1910.
    (Docket No. 115.)
    Decided July 14, 1910.
    Trespass guare clausum fregit by William Hoag against Hugh Boehmer and others. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Winsor & Miller, for appellant.

      Jesse M. Hatch, for appellees.
   Stone, J.

This is an action of trespass guare clausum fregit to recover for removing a certain fence in the township of Lee, Calhoun county. The defendants sought to justify under the claimed statutory authority of the defendant Stultz, a commissioner of highways, to remove the fence as an obstruction of a public highway.

The proceedings, in laying out this road, by said officer, were conceded to be regular, and that question was settled by the recent case of Page v. Boehmer, 154 Mich. 693 (118 N. W. 602). It is also conceded that the fence taken down here covered 240 rods, between lands owned by Page and the plaintiff.

The only question raised upon this record is whether proper notice to remove this fence was given, or waived. The circuit judge held that such notice was given, and directed a verdict for defendants. The plaintiff brings error. The plaintiff admits that he received a notice, in fact, the same notice that was served on Page in the former case.

The order and notice served on plaintiff April 12, 190'?, were as follows:

“County or Calhoun,
“Township of Lee.
“The undersigned commissioner of highways of the township of Lee, county of Calhoun, having ascertained that the public highway in said township, running east and west between sections twenty-one (21) and twenty-eight (28) is encroached upon the east, and where said highway intersects highway running north and south upon the north side thereof along the lands in the occupation of Jim Page, or L. A. Page, by a barn or building and a fence erected by the present or former occupant of the same, and having ascertained the within bounds or limits thereof to be upon and according to the following line beginning at a highway running north and south, and running west between sections twenty-one (21) and twenty-eight (28), and having ascertained that all that narrow strip or piece of land which lies under said obstruction or all that strip of highway is a part of said highway, it is therefore ordered by said commissioner of highways that said obstruction be removed, so that the said highway shall be open and unobstructed and of the width originally intended, which was 4 rods.
“Given under my hand this 12th day of April, 1907.
“Frank Stultz,
“Commissioner of highways, Lee.”
Notice (copy served April 12, 1907):
“To Mr.................:
“ Take notice that an order, a copy of which is herewith served upon you, has been made by me, and you are required according to the statute in such case made and provided, to remove the obstruction therein mentioned within 30 days after service upon you of a copy of said order.
“Dated this 12th day of April, 1907.
“Frank Stultz,
“ Commissioner of highways, Lee township.”

It appears, therefore, that the plaintiff had notice on April 12, 1907, of the intention of the commissioner to open the road for public travel, yet no action was taken by that officer to remove the fence until November 11, 1907.

The statute, section 4059, 2 Comp. Laws, which authorized a notice, does not give the form of notice. It provides that whenever compensation for any damages that may have been awarded, shall have been paid, or tendered to the person entitled thereto, pursuant to the statute, the commissioner may give notice to the owner or occupant, and require him, within such time as he shall deem reasonable, not less than 60 days after giving such notice, and after the time when it shall have been determined to open such highway, to remove his fence or fences, and in case such owner or occupant shall neglect or refuse to remove the same within the time specified in such notice, the commissioner or other proper officer shall have full power, and it shall be their duty, to enter upon the premises and remove such fence or fences, and open such highway without delay, except that in townships such removal shall not be required between the 1st day of April and the 1st day of November.

It appeared that the plaintiff was supervisor, and signed the petition for the road; that he at that time owned adjacent land, and received $30 damages or compensation for the same and took it; and that his grantor of the premises in question was allowed $50, which he accepted.

The principal claim of the plaintiff is that the notice served was insufficient, in that the order and notice could not run between the 1st day of April and the 1st day of November, and that they were wholly void, for the reason that they required him to remove such fence between those times. The plaintiff quotes from, and relies upon, Kellar v. Earl, 98 Wis. 488 (74 N. W. 364), and the cases there cited, which, in construing a similar statute, seem to support his position.

It will be noticed, also, that the notice in this case required the obstruction to be removed within 30 days after service, instead of 60 days after giving such notice, as required by the statute. In this case the fence was not removed until about seven months after the notice was given. The notice was sufficient to inform the plaintiff that the highway commissioner desired the road opened, and the plaintiff had ample time to remove his fence before the commissioner, with the other defendants, proceeded to open it.

The fact that the notice was for removal within 30 days would make no difference, if the commissioner waited a sufficient length of time after giving the notice before he removed the fence, as he did in this case. We think that the same rule should govern in this case as in a notice to quit, given by a landlord to his tenant.

This court has held that a notice to quit in 14 days is as good as a three months’ notice, if no proceedings were instituted until the end of the three months. Chamberlin v. Brown, 2 Doug. (Mich.) 120, note; Hart v. Lindley, 50 Mich. 20 (14 N. W. 682); Shaw v. Hoffman, 25 Mich. 163; Hogsett v. Ellis, 17 Mich. 366. We can see no distinction in principle here. We therefore are not inclined to follow the Wisconsin rule, but to adhere to our own, which has been the law of the State for more than 60 years.

We are of the opinion that the trial judge reached the correct conclusion, and the judgment below is affirmed.

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


text:
    WOOD v. SMITH.
    1. Brokers — Commissions—Contracts—Evidence.
    Disputed testimony that the plaintiff, a real estate man, interviewed defendant as to the price of his house, and obtained the refusal of it, at two per cent, commission, no price being fixed, that he arranged for an inspection of the house by a prospective purchaser, who subsequently purchased the property directly from the vendor, presents a question of fact for the jury as to the procuring cause of the sale and the broker’s right to a commission.
    2. Same.
    In order to recover commissions the broker must show that he was the procuring cause of the sale, that the purchaser learned of the property through him, and bought the property because of his efforts, which must be shown to have been more than a mere introduction of the vendor and vendee.

    Error to Wayne; Rohnert, J.
    Submitted June 20, 1910.
    (Docket No. 92.)
    Decided July 14, 1910.
    Assumpsit by Ira L. Wood against Joseph N. Smith for commissions on the sale of real estate. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Stanton Clarke and Arthur D. Prosser, for appellant.

      Bowen, Douglas & Daman, for appellee.

      As to when a real estate broker is considered the procuring cause of a sale or exchange, see Hoadley v. Savings Bank of Danbury (Conn.), 44 L. R. A. 331.

   Stone, J.

This is an action of assumpsit to recover a commission claimed to be due the plaintiff upon a sale of real estate alleged to have been brought about by him for the defendant. The case was submitted to the jury, and the defendant had a verdict. The plaintiff brings error. The assignments of error are based upon the exclusion of testimony, the refusal to give plaintiff’s requests to charge, and upon the charge as given; but the meritorious question is whether the plaintiff was the procuring cause of the sale to one Mrs. Moore, the purchaser.

The plaintiff, a real estate broker, testified that, learning that Mrs. Moore wanted a house, he went to defendant the latter part of May, 1907, to find out if his house was for sale, and if he (plaintiff) could have the refusal of it, and told defendant that he had a customer for the property, and gave the name of Mrs. Moore; that defendant gave plaintiff the refusal of it; that defendant asked what his commission was, and plaintiff replied 3 per cent; that defendant said others had offered to do it for 2 per cent., and that he would not pay 3; that plaintiff made an appointment with Mrs. Moore to see the house the next day; that the next morning plaintiff went to defendant’s house and told him that Mrs. Moore wanted to see the house that afternoon, and that defendant said: “I want you to put her off two or three days; tell her the family is away from home, and that she cannot see it; it will look better after it is decorated;” that plaintiff saw Mrs. Moore, and told her it would be impossible for her to see the property for a day or two; that he said to her: “Mr. Smith will call me up and let me know when „u can see the property;” that plaintiff waited two or three days and then called up defendant, who said that Mrs. Moore had made an appointment to see him that afternoon; that plaintiff called up Mrs. Moore, who said she was going up there that afternoon; that plaintiff saw her again that night or the next morning, and she said: “I will give Mr. Smith $13,000 for that place;” that plaintiff said, “That is cheap for it,” and she said, “You can go ahead. I will take it at that; he is hard up, I suppose, and he needs the money. You can get the place for me, he wants to sell it bad;” that plaintiff submitted the $13,000 offer to defendant, and he said, “No, I cannot take it, but you go ahead, and if you are any good you can work her up to the price and sell it to her;” that defendant gave it to him at $17,000; that after this interview plaintiff was calling up or seeing Mrs. Moore'or defendant often; that Mrs. Moore went to look at the house about June 3d; and that from that time on plaintiff was talking with her and defendant as late as August 2d; at that time he called up Mrs. Moore and asked her if she had found anything yet, and she said “No;” that he then called up defendant, and he said she had bought; that a few days after August 10th plaintiff met Mrs. Moore, and she told him she had closed the deal — had bought the Smith property. Then he called up defendant and asked for his commission.

When defendant said the house was for sale at $17,000, he put no restrictions on the selling price or sale, he simply gave the place to plaintiff to sell it; plaintiff had no contract in writing, nor power of attorney; that defendant did not reserve the right to sell the place himself at a less price than $17,000, and made no reservation; that defendant swore in justice’s court that he sold the place for $14,500; that defendant did not tell plaintiff that the place was in the hands of other real estate men; he said others had offered to do it for 2 per cent. Mrs. Moore never offered plaintiff more than $13,000 for the place. Defendant never authorized plaintiff to sell for less than $17,000; that plaintiff had been at Mrs. Moore’s house on other deals. Plaintiff did not take Mrs. Moore to defendant except in name. She was considering other houses all of the time. All plaintiff did was to do telephoning and go and see them. He claimed that he got the two parties together, and that they closed the deal when he was working and talking between them; that defendant testified in justice’s court that plaintiff was the only one that ever mentioned Mrs. Moore to him; that the property was not at any time withdrawn from his list.

On behalf of defendant, Mrs. Moore testified that plaintiff never came to her house; that the first time she ever heard from plaintiff concerning the sale of defendant’s house was over the phone; he asked her if she had seen the house, and she replied she had; that she first heard of defendant’s house being for sale through Mr. and Mrs. Candler; Mr. Hunter asked her if she had seen it; plaintiff never called at her house personally to sell her the defendant’s house; that the only time he was there he never mentioned it; that she never offered him a cent for this house, because she was negotiating with Mr. Hannan for a house on Perry avenue; she had offered $13,000 for that house, but could not get it for that, and she agreed to pay $15,000, and close the deal; that was the Hayes house, and she thought she had bought it. After she thought she had closed that deal, she never carried on any negotiations with defendant for his house. In her negotiations with defendant she did not remember who took the initiative. It was some time in the latter part of July that she decided to go and see the house again. When she first saw the house defendant did not show her the whole house, and she went to the house' again. Before plaintiff said anything to her about the Smith house she had seen it, but not all of it, so she went up and had defendant show her the whole house.

Some time in July she wrote defendant and asked him if his house was still for sale, and if so to come and see her. He came down and she offered him this amount for it. He wanted $17,000, and she was not willing to pay that much. The first time she went there she thought he asked her $17,500. She let him know that she had no idea of purchasing for that. In the deal in July with defendant, she never mentioned plaintiff in the transaction. She had no reason to. She would not have purchased the property through plaintiff. She did not want it then. She decided later that she would take it. The plaintiff never took her to see the property; he never went over to see defendant at all. He did telephone her about the Hayes house; he wanted to try and sell that. She told him that he could not sell it; that he had no right to do it; that he could not get a commission; that Mr. Hannan and she were negotiating about that, and he said that he would look out for the commission; that she need not worry about that. She did not remember anything of the kind; that he was telephoning her, only about — he never told her about the Smith house, but he telephoned her about the Hayes house. She could not tell when she first learned that the deal on the Hayes house had fallen through. Mr. Smith and she came to an agreement with regard to this place the latter part of July; he wanted $17,000. She first offered him $14,500; that was the only offer she ever made. She told him if he could not take that, all right; if he would take it he might have it. Later on he informed her that he accepted that offer; that was the only offer she ever made him. On the occasion of her only interview with defendant relative to this property, they did not agree to conceal the fact that they had made a contract and the terms of it. She told him she did not want — he need not say what she paid for it. Nothing was said about commission.- She did not remember whether the plaintiff mentioned the Smith house to her except when, subsequently to the sale, he asked her if she had bought a house. He never tried to sell her the Smith house. He told her about it. She said she had seen it and did not want it. He did not try to sell it to her; just mentioned it to her. He did not ask her what price she would give for it.

The defendant testified that he advertised the house for sale, and that the plaintiff was among the number that spoke about it. He wanted defendant to allow him to sell the place and defendant asked him what commission, and he said 3 per cent.; that defendant said he would not pay it, and he wanted to know why, and defendant told him that several others had offered to take it at 2 per cent. Defendant told plaintiff the house was in the hands of no person in particular, and would not be; that there was no exclusive agent; that the party that sold the place, did the business, and closed the deal would be the party that would get the commission, and that defendant would pay but one person. Mr. Wood telephoned Mrs. Moore’s name after that, but not at that time. He never brought her to look at the place; he never introduced her to defendant; he never made a sale of the house. Defendant asked $17,000 for it. Plaintiff never communicated any offer from anybody to defendant. He did communicate an offer of $13,000 from Mrs. Moore for the house. Defendant saw plaintiff but once, and that was when he came to defendant’s office; that was the last of him. He did communicate with defendant in some form about Mrs. Moore; he wanted to make an appointment for her to call. She did not come. She had been to defendant’s house before that — before this transaction. Defendant next heard from Mrs. Moore in connection with the sale of the house; it must have been the latter part of July that he received a letter. She wrote him about the house, asking if it was still for sale. He called her by phone and made an appointment to see her, and saw her. Later on the house was sold to her for $14,600. The sale must have been between the middle and latter part of July. The transaction was closed on August 14th.

It is not true that plaintiff was continually telephoning defendant, and working between him and Mrs. Moore during June and July. Defendant remembers that plaintiff came to see him once; plaintiff phoned defendant once about Mrs. Moore’s offer of $13,000. That was early in June. It was soon after the first call, probably a week or ten days, and that was the last he heard from him. At no time did Mr. Wood bring Mrs. Moore to defendant, he never brought her to look at the house, and never made a sale for defendant at all. When defendant refused to take the $13,000 Mr. Wood urged defendant to let him have another trial to see if he could not get a better offer, and defendant asked him how long he would want, and he said he would do it right away, and defendant said if he would take care of it in a day or two, he could go right ahead, and defendant never heard any more of it. After that it is not true that Mr. Wood frequently communicated with defendant by phone with regard to negotiations concerning this place. He does not know that Mr. Wood telephoned him after that. Mr. Wood was the first agent with whom defendant had placed the property to bring Mrs. Moore to defendant’s attention as a buyer. Mrs. Moore did not come to see defendant’s property by appointment made with Mr. Wood. She saw the property two or three weeks, perhaps longer, prior to the time the offer of $13,000 was made. Mr. Wood phoned it to defendant. Defendant did not tell Mr. Wood that he (the defendant) reserved the right to sell the place at less than $17,000 to anybody that he might bring. There was no appreciation in the value of the place from the time defendant authorized Mr. Wood to sell it, until it was sold, and defendant does not state that there was any depreciation. When Mr. Wood conveyed the $13,000 offer to defendant he gave him a day or two in which to get a better offer. That was all there was to it, except that defendant told him that, if he could not do any better than that, to drop the deal, and plaintiff said he would like the privilege of making another offer, or getting Mrs. Moore to make another offer; defendant told him if he would take the matter up right away, within a day or two, and secure another offer, defendant would give him the opportunity.

We have made this extended extract from the testimony to show that there was a question of fact for the jury, and that it would have been error had the court directed a verdict as requested by the plaintiff. We find no error in the rulings of the court upon the admission of evidence.

We have already said the meritorious question is whether the plaintiff was the procuring cause of the sale to Mrs. Moore, This was clearly a question for the jury under the evidence. We have examined the assignments of error based on the refusal of the court to give plaintiff’s requests to charge. The court did not err in refusing the requests.

The 18th assignment of error is based upon the following summary of the charge:

“ Now, gentlemen, to summarize the proposition again: In order to find for the plaintiff, you must find that he was the procuring cause. It is necessary for the plaintiff to show you, either that he introduced Mrs. Moore to this property, or, in other words, he was the first to call Mrs. Moore’s attention to this property; that Mrs. Moore was his customer, and that he initiated the negotiations, and that by reason of that negotiation and that introduction the negotiations were acted upon; the introduction was acted upon by Mrs. Moore and the negotiations were brought by reason of that introduction as a procuring cause to a successful and satisfactory conclusion between Mrs. Moore and Mr. Smith. Or, he must show you, if he did not introduce Mrs. Moore, that it was through his active negotiations that final satisfactory arrangement was reached between Mrs. Moore and Mr. Smith. Now, by active negotiations is meant, not a single introduction, not a single calling attention to, but carrying back and forth propositions, etc., which would result in a conclusion satisfactory to both parties. If he did not introduce Mrs. Moore to this property, but Mrs. Moore’s attention had been called to the property before that, and was not active in carrying back and forth propositions, and in inducing Mrs. Moore to purchase this property by such negotiations, then he cannot be said to be the procuring cause. If it should appear to you that Mrs. Moore had been introduced to this property before Mr. Wood was known in the transaction, and had her attention called to it as a purchaser, and that incidentally Mr. Wood had called her attention to it; that she had authorized the proposition; he carried that proposition and that then the negotiations ended; and that afterwards Mrs. Moore, after the interval of a time Mrs. Moore went back and conducted her own negotiations for the purchase of the property — then Mr. Wood would not be the procuring cause.”

We find no error in the charge, but that it correctly states the law and is supported by our own decisions. The first proposition, that, in order to recover, the plaintiff must show that he was the procuring cause of the sale; that the purchaser learned of the property through him; and that through his efforts a sale was made — finds support in the cases of Thuner v. Kanter, 102 Mich. 59 (60 N. W. 299); Douville v. Comstock, 110 Mich. 693 (69 N. W. 79); Brooks v. Leathers, 112 Mich. 463 (70 N. W. 1099); Antisdel v. Canfield, 119 Mich. 229 (77 N. W. 944).

We cite in support of the charge the following cases: Scribner v. Hazeltine, 79 Mich. 370 (44 N. W. 618); Hannan v. Fisher, 82 Mich. 208 (46 N. W. 225); Kelso v. Woodruff, 88 Mich. 299 (50 N. W. 249); Young v. Hubbard, 154 Mich. 218 (117 N. W. 632); Heenan v. Harris, 157 Mich. 187 (121 N. W. 741).

We have examined the following cases cited by plaintiff: Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544); Decker v. Widdicomb, 137 Mich. 331 (100 N. W. 573); McGovern v. Bennett, 146 Mich. 558 (109 N. W. 1055); Reade v. Haak, 147 Mich. 42 (110 N. W. 130). In our opinion, these cases are not applicable, under the evidence in this case.

We find no error in the record, and the judgment of the circuit court is affirmed.

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


author: Hooker, J.

text:
    ANDERSON v. ANDERSON.
    Cancellation of Instruments — Fraud.
    The validity of deeds given by a mother to her sons, whom the bill of complaint charged with fraud, is held, as a matter of fact, to be sustained by the testimony.
    Appeal from Muskegon; Sessions, J.
    Submitted June 17, 1910.
    (Docket No. 77.)
    Decided July 14, 1910.
    Bill by Lydia Anderson against Boy Anderson and Irving Anderson for the cancellation of certain deeds on the ground of fraud. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Turner & Turner, for complainant.

      Alex. Sutherland, for defendants.
   Hooker, J.

The bill in this cause prays the cancellation of some deeds, given by a mother to her two sons, on the ground of fraud. The only question raised is one of fact. We have examined the testimony and find an absence of anything like fraud on the part of the defendants. It is like many other cases where a parent conveys her property to children, and dissatisfaction, discontent, and quarrels follow. Happily the complainant has reserved to herself a life estate in the premises from which she gets rent, so that the case is not one where the property has been dissipated and the parent neglected.

We think the decree dismissing the bill was right, and it is affirmed, with costs.

Ostrander, Moore, MoAlvay, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    CHAMBERS v. CITY OF GRAND LEDGE.
    Municipal Corporations — Bridges—Townships—Joint Municipal Control — Constitutional Law.
    The charter of the city of Grand Ledge provides that the bridge across Grand river in that city shall be maintained, repaired, and rebuilt, when necessary, by the city and the township in which it is located, jointly. No provision is made for the levy and collection of taxes for such purpose by the township, or for adjusting any disagreement which might arise between the municipalities. Nor does the title of the act (Act No. 322, Local Acts 1893) indicate the purpose to burden the township with the expense of maintaining the bridge. The city proceeded to construct a new bridge without requesting the township to participate. Seld, that an injunction at the instance of a taxpayer of the city would not lie, and that the provision of the charter imposing a liability on the township is without force.
    Appeal from Eaton; Smith, J.
    Submitted June 21, 1910.
    (Docket No. 21.)
    Decided July 14, 1910.
    Bill by Lorenzo Chambers against the city of Grand Ledge and others to enjoin the construction of a bridge. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Osmond H. Tower, for complainant.

      Raymond A. Latting, for defendants.
   Ostrander, J.

The city of Grand Ledge, by the action of the council and of the qualified voters of the city, issued its bonds to defray the cost of a bridge over Grand river, in said city, in place of an existing bridge, and later entered into a contract for the construction of the new bridge. The work of construction is going on — or was until this suit was begun — and something more than $15,000 of the contract price of $50,000 has been paid to the contractor. The bill in this cause was filed by a resident qualified voter and taxpayer of the city, owning real estate therein, against the said city and the treasurer and clerk thereof, and it is charged that since the passage of Act No. 215 of the Public Acts of 1895 (1 Comp. Laws, chap. 88), the city has had no right to operate under the special charter incorporating said city in the year 1893, and is without authority under said special charter of 1893 (Act No. 322, Local Acts 1893) to construct said bridge except in conjunction with the township of Oneida, out of the territory of which the said city was carved and erected. It is prayed that the clerk and treasurer of the city may be enjoined from issuing and paying further warrants for money in favor of said contractor. Defendants filed a joint answer, the complainant replied. It was stipulated by counsel that the facts are as stated in the bill and answer, and that the cause might be heard upon the pleadings. The bill was dismissed, and the complainant has appealed.

The meritorious question, and the only one debated in this court, arises out of facts now to be stated. In 1893 an act was passed, entitled:

“An act to incorporate the city of Grand Ledge, in the county of Eaton, and to repeal act number two hundred and sixty of the session laws of eighteen hundred and seventy-one, and all acts amendatory thereof.”

The act was ordered to take immediate effect and was approved March 27, 1893. Since that time the city has operated under the charter. The community had previously been an incorporated village. Sections 1 and 3 of chapter 17 of the city charter reads as follows:

“Section 1. The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the city, and shall cause the same to be kept in repair, and free from nuisance, except as herein otherwise provided: Provided, That the present Bridge street bridge crossing Grand river within the limits of the said city of Grand Ledge, being located in a highway leading into and through said city, and which was laid out by the commissioner of highways of the township of Oneida, shall be maintained, controlled, kept in repair, and rebuilt when necessary by the township of Oneida and the city of Grand Ledge jointly, according to the assessed valuation of the said township and city, the same as if said city were not incorporated, and all other bridges in said city shall be built, controlled and kept in repair by the said city.
“ Sec. 3. The present bridge across and over the Grand river within the limits of said city, shall be maintained, kept in repair and rebuilt when necessary at the joint expense of the city of Grand Ledge and the township of Oneida pro rata according to the assessed valuation of said city and township, but other bridges shall be constructed and kept in repair at the expense of the city.”

The bridge in question is the bridge mentioned in these sections of the charter, is unsafe, is the only way for public traffic across Grand river for many miles in either direction, and is between the business portion of the city and the railroad station. The river divides, or did divide when the charter was enacted, the two wards of the city. The city is proceeding alone to rebuild it and proposes to pay the entire expense thereof. It does not appear that the township was requested to join the city in rebuilding the bridge.

The city contends:

First. That if the provisions of the charter which have been referred to are given any effect the law will embrace more than one object.

Second. That as the charter makes no further or other reference to the subject the provision for joint liability of the city and township is wholly inoperative.

Third. That these provisions may be eliminated, and the charter will remain a valid and effective law.

The legislation is most singular and can be accounted for only by supposing that it was understood that the particular bridge had greatly served and would continue to serve the inhabitants of the township, which is divided by the river, as distinguished from the inhabitants of the city, and that it would be only fair that they should contribute to its maintenance and to its rebuilding. Whatever the reason which prompted the legislation may have been, it is manifest that the law is not only incomplete, but that the purpose which is expressed involves, and would involve, under any method for carrying it into effect, the levy and collection of taxes in the township of Oneida. The law is not complete because it does not specify in what manner joint control of the bridge by two distinct municipalities may be exercised, nor upon what initiative, in case of disagreement as to necessity for or the form or Cost of repairs or replacement, such repairs or replacement may be effected and contribution to the expense thereof compelled. In what way, for example, may the township authorities discharge the duty to keep the bridge in repair ? See Township of Summit v. City of Jackson, 154 Mich. 37 (117 N. W. 545). Indeed, unless the charter provision is held to expressly confer the power upon the township of Oneida to levy taxes to maintain a structure erected in another municipality, and- subject, in part at least, to the control of another municipality, there is no power to levy taxes, or to disburse the money of the township, to maintain or to replace this bridge. There are insuperable difficulties in the way of working out the apparent legislative purpose, in the absence of a legislative method.

Does the act embrace more than one object ? Almost any provision germane to the purposes of community government, and not prohibited by the Constitution, may be proper in an act to incorporate a city. But there is no apparent connection between the subject of erecting a city and the one of burdening a township in the same or some other county. ®The inhabitants of Oneida township would not be apt to read the charter of the city of Grand Ledge to discover the purposes for which township taxes might be laid, or to learn what duties were imposed by law upon the township officers. What was said by this court in Wilcox v. Paddock, 65 Mich. 23, 28 (31 N. W. 609), is applicable.

In City of Lansing v. Board of State Auditors, 111 Mich. 327 (69 N. W. 723), it appeared that in an act to reincorporate the city of Lansing there was a provision which required the city to afford fire and police protection to property owned by the State, etc., and that the State board of auditors should allow the city a sum of money therefor, to be ascertained1 in a manner pointed out. It was held that this provision of the charter was without force because no such object was expressed in the title of the act. The reasoning of the majority of the Justices is applicable here. And in this case, as in that, the provision may be wholly eliminated and the act sustained. We find no want of power on the part of the city of Grand Ledge to build bridges over Grand river, and have no doubt that it might, if necessity required it, construct the identical bridge by the side of the bridge referred to in the act of incorporation.

The decree of the court below is. affirmed, but without costs to either party.

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


text:
    BEGROW v. BEGROW.
    Divorce — Extreme Cruelty — Improper Conduct.’
    For a wife to call her husband a “dirty dog,” “ street angel,” “house devil,” and like names, to associate with other men, drink intoxicants in a public house, remain out all night without satisfactory reasons, and neglect her household duties, constitutes extreme cruelty.
    Appeal from Wayne; Donovan, J.
    Submitted June 20, 1910.
    (Docket No. 96.)
    Decided July 14, 1910.
    Bill by August A. Begrow against Anna R. Begrow for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed, and a decree entered for complainant.

      Lehman, Biggs & Lehman, for complainant.

      Bohert M. Brownson and Denton Guinness, for defendant.
   Ostrander, J.

The bill in this cause was filed for a divorce , from the bonds of matrimony, and it is alleged therein that the parties were married February 21, 1898, in the city of Detroit, where they have since resided, and where they lived and cohabited together as husband and wife until September 16, 1908. One child was born, which died. The charge is that defendant has been guilty of extreme cruelty, which began soon after the marriage, and the particulars are that defendant began to “nag” and annoy complainant by her exhibitions of jealousy of women who had occasion to go to complainant’s drug store to make purchases, and would make remarks which gave offense to customers who happened to be in the store; that her jealousy had no foundation in fact, had a tendency to drive away business, and did actually cause complainant to lose customers; that during the summer of 190? complainant threatened to procure a divorce from defendant; and that thereupon the defendant, who has a most violent temper, “raised a chair and threatened to brain your orator, and he believes he would have suffered great bodily harm had he not succeeded in grasping said chair as the defendant was about to strike him over the head with it.” He also charges that defendant has, in the company of men, frequented cafés and other places where intoxicating liquors are sold, has remained out until late hours at night, and on one occasion remained away from home all night without informing complainant of her intention to do so or offering any satisfactory explanation of her absence; that during the winter of 1907-08 she refused to prepare breakfast for complainant. Defendant answered, denying each and every of these charges of cruelty. There was a replication, a hearing in open court, and a decree dismissing the bill of complaint.

The testimony discloses that the parties to this suit were acquainted with each other for two years before they were married, during a portion of which time complainant boarded at defendant’s home. A short time before the marriage, complainant, who is a druggist, failed in business and was adjudged a bankrupt. He began business again with very small capital, and for some time his wife was the reputed owner of his stock of goods. Defendant was a milliner and continued her business for some time after the marriage. They have always lived in rented apartments, and he has done and is doing business in a rented store. Doing a small business, and obliged to keep his store open evenings, complainant has not spent much time in the society of his wife and has not often visited with her places of public or of private entertainment. The defendant testified that he neglected her during practically all of their married life. There is testimony tending to prove occurrences which amounted to some interference with and loss to his business; but whether her conduct was the result of jealousy or was a display of temper is not so clear. It is proved that she called him, upon occasion, such names as “ a dirty dog,” “a street angel,” and “a house devil.” The conduct which finally determined complainant to separate from her was her association with other men. It is not claimed that she was guilty of any crime; but it is proved that upon one occasion, shortly before the separation, at 9 o’clock in the evening, she was seen by her husband with her sister, another woman, and some men, who were strangers to the husband, coming from a café where liquors were served and where the party had gone, not to eat, but to drink. He, also, at about the same time, saw her riding in an automobile with men, or a man and other women. She admits that upon one occasion — he says it was four or five years after the marriage, she that it was before the marriage — she was at a roadhouse on Jefferson avenue with another woman and two men, “drummers,” drinking, and that the men became so familiar in their behavior that she was obliged to escape from them. She admits that after the bill was filed in this cause she passed him on the street, and he stepped one side without speaking to her, when she said: “ Oh, Gus! How can you be such a dirty dog ? ” There was an occasion when she remained away from home all night, without notifying her husband of her intention to do so, returning about 10 o’clock in the morning. There was then a quarrel. She offers an explanation, it is true; but her husband says it is not the one she offered at the time. She does not deny that during a portion, at least, of two winters, she refused- to get breakfast for complainant, and offers no excuse for not doing so. There have been frequent quarrels.

However innocent defendant’s behavior may have been, such conduct is not calculated to inspire the confidence of the husband or to insure domestic tranquility. The epithets she bestowed upon him are not approved expressions of respect or of affection. Such expressions made to him and such conduct away from him are-calculated to induce the feeling that she cared nothing for him and but little for her reputation, to excite his distrust and anxiety. Self-respecting men do not submit to such treatment unless they are by circumstances obliged to do so. The law does not compel them. There are no children to be considered here. No question of permanent alimony is involved. We are of opinion that complainant is entitled to a divorce upon the ground of extreme cruelty. The decree below is reversed, and one will be entered in this -.court dissolving the marriage.

Defendant’s motion in this court for an allowance for expenses of the appeal has been considered. Costs of defendant were taxed below at $93.90, including a solicitor’s fee of $30. After the bill was dismissed, defendant obtained an order, at the circuit, that complainant pay to her $3 a week during the pendency of the appeal and a solicitor’s fee of $25. It is our understanding that this order for solicitor’s fee was made in view of the requirement that defendant must be to the expense of preparing a brief on appeal. These sums have been paid, the allowance from and after November 29, 1909. Defendant lives in an eight-room house, the rent of which is $18 a month, and has installed a telephone, a convenience the parties did not have when they lived together. She has possession of all the household furniture. Complainant pays for his room rent $1.50 a week. He does business in a one-story wooden structure situated some three miles from the business center of Detroit, and he is paid $300 per annum as postmaster. The figures are not before us; but it is said that in the court below the complainant exhibited a statement of his resources, after which the order for temporary alimony was entered.

An order may be entered that appellant pay to appellee the sum of $50 in addition to the allowance made by the circuit court.

Bird, C. J., and Hooker, Blair, and Stone, JJ., concurred.