text:
    PEOPLE v. TILLMAN.
    Assault and Battery — Self-Defense — Evidence — Previous Assault.
    A person charged with assault and battery, who claims to have acted in self-defense, may show that on the previous day the complaining witness made an assault upon him for the same cause, as tending to justify a belief that he was in the act of commencing another assault.
    Error to Houghton; Streeter, J.
    Submitted November 20, 1902.
    (Docket No. 218.)
    Decided December 16, 1902.
    Arthur A, Tillman was convicted of assault and battery.
    Reversed.
    Respondent was convicted of assault and battery upon one Komoll. Komoll testified that he had pawned certain tools with the respondent, and secured thereon a loan of $2, for which he had agreed to pay 50 cents. Respondent testified that he had purchased them, and afterwards sold them back to Komoll. Komoll paid respondent $2.50, and received back the tools.- Upon examining them he claimed that some were missing. He charged respondent with taking them, and threatened him with criminal prosecution. Komoll entered the store of respondent, charged him with taking some of the tools, and an affray between them-ensued, each claiming that the other was the aggressor and struck the first blow. On the day previous, Komoll and respondent met upon the street, and Komoll then charged respondent with taking some of the tools. An altercation there ensued, in which each charged that the other was the aggressor. The details of the transaction between the two were fully detailed to the jury. The court instructed the jury that the altercation upon the street the day before could not be considered by them, except as it bore bn the credibility of the witnesses, and added:

      “But it would have considerable bearing — might have a considerable bearing — if the case rested alone on the complaining witness and on the testimony of the. defendant as to which one was likely to be the aggressor on the night of the 12th.”

      W. A. Burritt, for appellant.

      Oscar J. Larson, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). We think the court erred in this instruction. The affray took place in the respondent’s store. He claimed that he acted in self-defense. The complaining witness admitted that he was under the influence of liquor when both altercations occurred. Previous assaults, the conduct and threats of the complaining witness, were competent for.the jury to consider in determining the state of mind of the defendant and the character of his acts. The respondent was justified in acting in view of the surrounding circumstances as they appeared to him at the time. If the complaining witness had made a previous assault upon him for the same cause on the day before, and his attitude and conduct were such as to justify a belief that he was in the act of commencing another assault upon him, the law did not require him to wait until an actual assault had been made. Galbraith v. Fleming, 60 Mich. 403 (27 N. W. 581).

Conviction reversed, and new trial ordered.'

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PEOPLE v. WALBURN.
    Larceny — Felonious Intent — Conditional Sale.
    Where the assignee of a contract authorizing the vendor to take possession of an organ in case it is not fully paid for takes possession of such organ under the belief that it has not been fully paid for, he is not guilty of the felonious intent necessary to constitute larceny, although the jury find that the purchase price had been paid.
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted November 21, 1902.
    (Docket No. 224.)
    Decided December 16, 1902.
    James Walburn was convicted of larceny.
    Reversed and respondent discharged.
    The respondent was convicted of the larceny of an organ. The statement of facts made by the respondent’s attorneys is not disputed by the people, and will therefore be taken as correct. It is as follows: In 1898 one Moran, the complaining witness, made a contract with the Ear-rand-Yotey Organ Company for the purchase of an organ through the company’s agents, Samuel and Edward Spicer. Moran made several payments upon the organ, and claimed to have had an arrangement with the Spicers by which, when they stopped with him, he was to charge the cost of board and horse-keeping against them, to be applied towards the payment of the organ. This arrangement was denied by the Spicers. He claimed to have a charge against them for this of $11.80. No settlement of such account was ever made. After a part, if not all, of such board bill had accrued, and the original contract was past due, the Spicers and Moran met, agreed upon the amount due upon the old lease at $56.75, and made a new lease therefor. Moran made three cash payments thereafter. The Spicers before this time had paid the organ company in full, but the new lease was made in the name of the organ company. The organ company, at the request of the Spicers, assigned the lease to the respondent. The Spicers paid the organ company for this and other leases or contracts for sale, and borrowed the money from a bank. Afterwards, being in need of money to meet this obligation, they sold this contract or lease to the respondent, who paid them in cash therefor $17.42; being the balance due on the contract, aside from the disputed board bill.

      Respondent afterwards drove to Moran’s house — 17 miles — to secure payment. Moran was not at home, and at the request of Mrs. Moran he drove with her several miles farther to Montague, where she telephoned to Mr. Moran. Soon after Moran went to Fremont, where respondent lived, but did not call upon him, as he had agreed to. Respondent went a second time to see Mr. Moran, but did not find him, as he was absent from home. He started a third time, and met Mr. Moran on the road, and asked him to pay the balance due on the contract. Moran’s testimony of the conversation at that time is as follows: '
    “He says, ‘I was just going down to your place.’ I says, ‘Yes.’ He says, ‘What about that organ, Patsy?’ ‘Well,’ I says, ‘Jim, there is $4.10 due on that organ;’ and I says, ‘I have the money here to pay for it,’ — put my hand in my pocket.' He says, ‘ Patsy, that is no use to me. I have got to have $17. There is that due on the organ now.’ I says, ‘Jim, I paid .$35, $15, $12, and $15, and $11.80 board bill that the Spicers owed me, and $8.90 interest,- — -leaves a balance due of $4.10.’ ‘ Well,’ he says, ‘ I don’t think they will pay it, — the board bill.’ He says, ‘I have got to do my duty in regard to this matter. I have got to either have $17 or the organ.’ Now, that was the weight of the conversation.”
    Respondent denies this conversation. The settlement and second lease or contract were ignored by Moran. In his testimony in chief he was not asked by the prosecuting attorney and made no reference to the second lease or agreement, but referred to all his payments as having been made upon the first one. After the several attempts to collect, respondent succeeded in bringing one of the Spicers and Moran together, and tried to have them effect a settlement. Moran then informed them that he had turned the matter over to an attorney, and had nothing to do with it. Subsequently respondent, taking a man with him, went to Moran’s house, arriving there about noon. Moran was not at home. He informed Mrs. Moran and her daughter that he had come to take the organ. They protested, but made no resistance, and he used no violence or force. He told them that he was going to take the organ to Fremont, and that Mr. Moran could come there and settle the matter.

      Smith, Nims, Hoyt & Erwin, for appellant.

      Charles B. Cross, Prosecuting Attorney, and George S. Lovelace, Assistant Prosecuting Attorney, for the people.
   Grant, J.

{after stating the facts). Several questions are raised upon the admission and exclusion of testimony, the remarks of the prosecuting attorney, and the charge of the court. In the view we take of the case, it. is unnecessary to discuss them. We find nothing in the evidence to show that respondent was guilty of the felonious intent necessary to constitute the crime of larceny. If the organ was not fully paid for, respondent was entitled to take possession of it. The criminal intent was made to depend entirely upon the question of whether the jury should find that Moran had fully paid. The theory of the prosecution was that respondent bought this lease for the express purpose of helping the Spicers to escape the payment of this board bill. There is no testimony to establish such claim. Eespondent paid the Spicers the full amount due upon the contract. They all so testified, and there is nothing on the record to dispute it. The Spicers wanted money to pay their note at the bank, and asked the respondent to assist them by buying this lease or agreement. There is nothing unnatural about the transaction, or about anything they did. There is nothing in it to show any disposition or wish to defraud anybody. If Moran had a valid agreement with the Spicers to pay for their board, he could have sued them and recovered judgment. It is significant that, when the second lease or contract was executed, nothing was said by Moran to the Spicers about this board bill, part or all of which had . then accrued. They then had a settlement to determine the amount due. Evidently Moran attempted to avoid this settlement by ignoring it and the contract based thereon, and relying upon the first contract. There was a dispute between these parties, which is the proper subject of a civil suit, but not of a criminal one.

The conviction is reversed, and the prisoner discharged.

The other Justices concurred.


author: Carpenter, J.

text:
    GOPPELT v. BURGESS.
    Witnesses — Undisputed Testimony — Directing Verdict.
    Where it cannot be said that a party’s undisputed testimony is so clear, certain, and consistent that the jury are bound to accept it as conclusive proof, a verdict should not be direoted in his favor by the court.
    Error to Saginaw; Snow, J.
    Submitted November 21, 1902.
    (Docket No. 115.)
    Decided December 16, 1902.
    Replevin by Martha Goppelt against William W. Burgess. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Eugene Wilber, for appellant.

      James H. Davitt, for appellee.
   Carpenter, J.

Plaintiff, replevied a quantity of household goods which defendant, undersheriff of Saginaw county, had on February 27, 1901, seized under an execution against plaintiff’s husband. A large part of these goods belonged to plaintiff’s husband when he and plaintiff were married. Plaintiff claimed that her husband sold this property to her. The only witness who testified on this subject was the plaintiff herself. The court, in directing a verdict for the plaintiff, decided that the jury was bound to believe her testimony, and the only question before us is whether or not this decision is correct. The determination of this question requires an examination of plaintiff’s testimony. She testifies that she was married June 34, 1896, and commenced housekeeping the next day in a house rented by her husband; that the furniture in question was then .'her husband’s furniture, and in his house; that on November 8, 1897, she received from’her father’s estate a check for $500; that this check she indorsed and gave to her husband (and this check, bearing her and her husband’s indorsement, was produced on the trial) upon the understanding that she was to have the entire household furniture; that she cannot repeat the conversation respecting this transaction. On cross-examination she was asked: “Was it talked over, you were buying the household furniture and giving him the check? Was that ever talked over ?” To that plaintiff answered, “Why, I don’t know as that was ever talked over.” She also testified that no computation was made to determine the value- of the furniture transferred. Asked whether she did not loan her husband the money, plaintiff replied, “No; I gave him the money. I gave it to him outright. I didn’t loan it to him.” Until early in February, 1901, the furniture was used in the house occupied by plaintiff and her husband. In that month they removed to Milwaukee, Wis., and plaintiff stored the furniture with her brother. Until February 18, 1901, the furniture was insured in the name of plaintiff’s husband. Respecting this, plaintiff testified, “Mr. Goppelt took out the insurance. Whether in his name or my name I do not know.”

We think it was the[ province of the jury to decide whether or not this testimony was to be believed. While the transfer of household goods, claimed by plaintiff to have been made, is legal (Davis v. Zimmerman, 40 Mich. 34), it was nevertheless an unusual and peculiar transaction. There was no change in the possession or use of the property. The transfer was accompanied by no circumstance which would furnish certain proof or secure publicity, and .was known only to the immediate parties, and capable of being proved only by the impressions retained in their memory. It cannot' be said of plaintiff’s testimony that it came from a disinterested witness; nor can it be said that it was so clear, certain, and consistent that the jury was bound to accept it as conclusive proof of the transfer under consideration. We think this conclusion is justified by the cases of Druse v. Wheeler, 26 Mich. 189, and Michigan Pipe Co. v. Marine Ins. Co., 92 Mich. 482 (52 N. W. 1070, 20 L. R. A. 277).

The judgment of the court below is reversed, and a new trial ordered.

The other Justices concurred.


text:
    McCORMICK v. OLBINSKI.
    1. Appeal — Evidence—Objections.
    Rulings on the admission of testimony will not be reviewed in the absence of objections or exceptions, or on other objections than made in the court below.
    2. Same — Harmless Error.
    The admission of immaterial testimony that could not have affected the result is not reversible error.
    Error to Kent; Wolcott, J.
    Submitted December 3, 1902.
    (Docket No. 187.)
    Decided December 16, 1902.
    ' Assumpsit by Henry F. McCormick and Simon La Grou,' copartners as McCormick & La Grou, against Antonia Olbinski, for services rendered. Erom a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Boger Olbinski (E. J. Aclams, of counsel), for appellant.

      Grove & McDonald, for appellees.
   Grant, J.

This suit originated in justice’s court, where plaintiff's had judgment. The amount involved is $110, of which $100 is for the services of plaintiffs as attorneys in defending Frank Olbinski, a son of the defendant, who was charged with larceny of property exceeding in value $25, and is the only item in controversy. Her son was acquitted. Plaintiffs attended to the examination before the j ustice and the trial in the superior court. The defendant denied that she employed them. This was the chief issue. The reasonableness of the charge cannot be seriously disputed. Verdict and judgment were rendered for the plaintiffs.

Fifty-three assignments of error are made and insisted upon. Forty-six of them relate to the rulings of the court upon the testimony during the progress of the trial. To some of these no objection was made; to others no objection was taken; in others the objections now made were not made in the court below. In some cases the testimony admitted may have been immaterial, and could have been properly excluded, but it could not have prejudiced the defendant or affected the result. The charge of the court stated the questions at issue, and covered the principles of law necessary for the instruction and direction of the jury.

We find no prejudicial error, and the judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    CRIPPEN v. ADAMS.
    Mistake — Gift Inter Vivos.
    When a person 85 years old, desiring to give a domestic in his household $500, on the day of his death, in order to carry out his wish, indorsed in lead pencil four certificates of bank stock, of the aggregate value of $4,500, it was Tield that the transfer was a mistake, and should be set aside, except that the servant should be allowed' to retain $500 in par value of the stock, conceded to her by the executor and heirs of the deceased.
    Appeal from Wayne; Donovan, J.
    Submitted December 4, 1902.
    (Docket No. 72.)
    Decided December 16, 1902.
    Bill by William H. Crippen, executor of the last will and testament of Abram Shear, deceased, against Rachael Adams and others, to set aside a transfer of bank stock. From a decree for complainant, defendant Adams appeals.
    Affirmed.

      Alfred LueMng (W. M. Lillibridge, of counsel), for complainant.

      Moore & Moore, for appellant.
   Montgomery, J.

Abram Shear died February 7, 1901, at the advanced age of 85 years. The immediate cause of. his death was bronchial pneumonia. He was stricken with this disease on February 4th, and the disease apparently progressed steadily until the 7th, when, at about 4 o’clock in the afternoon, he died. On Wednesday, the 6th, he was possessed of his faculties, and at that time expressed the desire to his niece, Mrs. Moon, that the defendant Mrs. Adams should receive $500 out of his estate. Mrs. Adams had been a domestic in the decedent’s household for some years at a salary of $1.50 per week, and decedent evidently desired to reward her faithfulness. On the morning of the 7th, Mrs. Moon undertook, at the suggestion of defendant’s son-in-law, to provide a means for decedent to complete his gift. Mr. Bennett, the cashier of the Plymouth Savings Bank, was sent for, and produced four certificates of stock in the bank, standing in the name of Mr. Shear, representing an aggregate value of $4,500, which were indorsed by him in pencil. This bill is filed to set aside this transfer on the ground that the decedent never intelligently and understanding^ made such disposition of the stock. On the trial below, complainant and the heirs expressed entire willingness to carry out the expressed desire of decedent, and allow her to retain $500 in par value of this stock. The court so decreed, but found for complainant in general, and set aside the transfer as to the balance. Defendant appeals.

We are satisfied with the holding of the circuit judge. The testimony leaves no doubt in our minds of the merit of the case made by the bill. While no fraud was intended, it is apparent that some one blundered, and that, in an attempt to make a provision of $500 bounty to the defendant in accordance with the wishes of Mr. Shear, there was an apparent nominal transfer of $4,500, which was accomplished, so far as it was accomplished, without the intelligent assent of Mr. Shear.

The decree is affirmed, with costs to complainant.

The other Justices concurred.


author: Moore, J.

text:
    POWERS v. PERKINS.
    1. Water Rights — Sale—Construction.
    Complainant built a water-power canal, the power of which was placed at 66 run of stone, or 990 horse power, known as ‘ ‘ first-class powerall over that being known as ‘ ‘ second-class power. ” Defendant purchased one run of first-class power and two runs of second-class power. The latter could only be used when the canal developed more than 66 run of stone.' No run of first-class power took any priority over other runs of the same class, but defendant’s two runs of second-class power took priority over other runs of that class of power. Held, that the fact that the canal had a capacity of 1,000 horse power, instead of 990, did not entitle defendant to the use of one and two-thirds first-class runs and one and one. third second-class runs.

      3. Same — Amount of Power.
    A decree that there could not be any second-class power until over 68,000 cubic feet of water was flowing into such canal per minute was a proper interpretation of the rights conferred by the owner of such water power.
    3. Same — Excessive Use — Liability.
    Where a person purchases a certain amount of water power from the owner'of an artificial waterway, constructed for the purpose of furnishing power, he is not entitled to a greater amount than he purchased, although there is water going to waste; and, if he uses more than he purchased, he must pay for it.
    4. Same — Damages—Finding of Court.
    In this case the proof on the question of damages was very conflicting, and the finding of the lower court, who heard the evidence, was not disturbed.
    Cross-appeals from superior court of Grand Rapids; Newnham, J.
    Submitted October 10, 1902.
    (Docket No. 38.)
    Decided December 29, 1902.
    Bill by William T. Powers against Willis J. Perkins to restrain the excessive use of water for power, and for an accounting. From the decree rendered, both parties appeal.
    Affirmed.

      Kingsley & Wicks, for complainant.

      Loyal E. Knappen and Stuart E. Knappen, for defendant.
   Moore, J.

The questions involved in this litigation are stated by the judge of the superior court in a written opinion filed by him as follows :

“The complainant, William T. Powers, files his bill against the defendant, claiming damages on account of the excessive use of water on the part of the said defendant, and asking an injunction against the said defendant from using a certain wheel known as a Risdon Wheel, ’ and from using more than his just proportion of water. I find the facts in this case to be as follows: That William T. Powers, the complainant, built what is known as the ‘West Side Canal;’ that the power developed by said canal was placed at 66 run of stone, which was to be known as ‘first-class power,’ and that all above 66 run of stone, ■or 990 horse power, was to be known as ‘ second-class power;’ that the said complainant deeded to one Harrison one run of first-class power and. two runs of second-class power; that of the said first-class power none of the runs of stone took priority over the other, but that of the second-class power there was a priority, and that, when there was more water in the canal than was necessary to run the 66 run of stone of the first-class power, then the two run of stone which was sold by the said complainant to the said Harrison took priority over any other second-class run. The power which was purchased by Harrison was after-wards acquired by the defendant in this case.
“I find, under the evidence in the case, that during three months of the year there was a full head of water, in which not only all the first-class power could be used, but that the second-class power belonging to the defendant could also be used, but that during the balance of the year there was not enough to run any of the second-class power; that there was about four months of the year in which the run of stone of the first class belonging to the defendant could be used to its full capacity, but that for the balance of the year, and for a period of six months of the year, there was only what was known as a ‘ 50 per cent, canal.’ The defendant placed in his factory, in order to run his machinery, what is known as a ‘Risdon Wheel,’ six feet in diameter, which required more than one run of stone to operate the same, and that in operating the same the said defendant did use more of the water than he was entitled to; that the said Risdon wheel was put in against the objection of the complainant, and against his protest; that the said Risdon wheel occasioned a waste of water on the part of the defendant. I find, also, as a matter of law, that'the defendant was only entitled, when the water was below that stage which was required to develop 66 run of stone, to e» of the power, but that he used more than his just proportion. It is a difficult matter to estimate the damages correctly in this case which should.be awarded to the complainant, but I am of the opinion that the sum of $3,000 would not exceed the amount which the defendant should pay for the extra water which he has consumed. I find also that the complainant is entitled to a perpetual injunction restraining the said defendant from using more than his just proportion, or from using any wheel which will require a greater amount of water to run it than he is entitled to.”

A decree was entered in accordance with the opinion. It is the claim of complainant that, under the proofs, he-should have been awarded upwards of $9,000. The-defendant claims that, if he used any water in excess of what he had a right to use, — which he does not admit, — - the damages were nominal, not more than $466.66. He also claims the decree is wrong as to what constitutes low water. ’ Both parties appeal.

In the case of Powers v. Hibbard, 114 Mich. 533 (72 N. W. 339), many of the questions involved in this case arose. A copy of the deed given to persons entitled to use water is set out in that case. A reference to it will, make it unnecessary to make so long a statement here as would otherwise be necessary.

Mr. Perkins is the owner of one run of-first-class power and two runs of second-class power. Instead of putting in two wheels, one of which might be used when he was entitled to use only first-class power, he put in only one wheel, which, according to a table introduced by him in evidence, developed 49 horse power at ordinary head. The use of this wheel is shown by the cross-examination of Mr. Perkins as follows:

Q. Now, what did Mr. Powers or Mr. Spooner say their objections were to the Risdon wheel, aside from combining the first and second class runs upon it ? In other words, didn’t they say, when you only used one run of the first-class, that wheel would not use it economically?
“A. That was the substance of their answers.
" Q. Now, you say that, prior to the decision in the Voigt Case by the Supreme Court, you believed that you had a right to use 45 horse power on the Risdon wheel at ordinary stages ?
“A. Yes, sir.
Q. Combining the first and second class together at ordinary stages ?
“A. Yes, sir.
Q. And that you also had the right absolutely to 15 horse power of the first class at all stages of the water ?
“A. When I could secure it.
“ Q. So that was the theory on which you had been operating the shop from the time you started it up until the decision in the Voigt Case ?
“A. In the Supreme Court ?
Q. In the Supreme Court, I mean.
“A. Yes, sir.
Q. Forty-five horse power at ordinary stages and 15 horse power on the first-class run whenevór you could secure it?
“A. Yes, sir.
Q. Without regard to the stage of water in the canal ?
“A. Practically.
Q. Well, then, under that theory the practice necessarily must have been that, as long as there was power in the canal, you ran this Pisdon wheel with the gates wide open, in low stages ?
“A. Yes, sir; in low stages.
Q. And ordinary stages, — that is, down to a five-foot head ?
“A. Oh, we would not need it. We ran the wheel many months without it being wide open.
‘ ‘ Q. That would be when there was a higher head ?
“A. Yes, sir; we didn’t need it.
Q- Did you ever have occasion to observe at what particular head the Pisdon wheel could be run with the gates wide open, and furnished power to operate your shop and keep it up to motion ?
“A. I could not answer that, sir.
Q. Assuming that that was a five-foot head, then you would run the Pisdon wheel from that head of five feet down through four and a half, four, and three, or whatever it might be, with the gates wide open ?
“A. The gates open wide enough to get power to run the shop; not necessarily wide open.
Q- They must necessarily be wide open, if you pay heed and discriminate on the question, when I say a five-foot head will just furnish the power with the gates wide open, every one of them.
“A. If we assume that ?
Q. Yes, sir; that is the question. You say you don’t know what head. Now, I am assuming a five-foot head. That was the question.
“A. Yes, sir.
Q, Haven’t you been in the shop, and given instructions, when it was not running to motion, to see if you could not open the gate of the wheel wider ?
“A. Yes, sir.
‘ ‘ Q. And tried the hand wheel ?
“A. I cannot say that I ever tried the hand wheel myself.
‘ ‘ Q. Ordered others to try it ?
“A. Probably have.
Q. In order to get power enough to run the shop to motion ?
“A. That is, when there was a low head.
Q. Under a low head?
“A. Yes, sir.
Q. Now, since the Yoigt decision in the Supreme Court you have changed the rule, or rather the practice,, of drawing water from the canal ?
“A. Yes, sir.
Q. Now, just what change have you made, since the-decision in the Supreme Court, in the practice and rules and instructions; in other words, what were your instructions ?
“A. My instruction was to run the large wheel when the water was running over the crest of the dam.
Q. And when it was not running over ?
“A. Then we would put on our steam power.
Q. When did you put in the American?
“A. I could answer that question by looking up the dates, but I couldn’t give it to you offhand, sir.
‘ ‘ Q. Did you use the Risdon wheel before the American was put in, and after the decision of the Supreme Court in the Voigt Case, when the water was below the crest ?
“A. We didn’t make a practice. It may have been used some. I couldn’t answer you that positively. It may have been used some when I was out of the city. I am out of the city a month and two months at a time.
Q. Did you ever make any inquiries of your engineer, or those that were operating your shop, what head your drawing station required to run the shop to full motion on the Risdon wheel alone ?
“A. Not that I am aware of.
Q. Why didn’t you make some inquiries, or at least know the use of the water at that drawing station ?
“A. Well, if we had the water, we used it, and, if we didn’t, we couldn’t. That was all there was about it.
Q. You didn’t care about the details ?
“A. I didn’t go into the details of the head because, as I said before, I assumed we had the right to use the power.
Q. You would use it whether you had a five-foot head or a three-foot head ?
“A. I wasn’t aware that the people below me were taking any cognizance of the head.
Q. 'Were you paying any attention to your pro rata share of the water in relation to other owners and users along the canal ?
"A. I would have to look at the deed to see whether that term occurs in there before I would answer that.
Q.. lou know as a matter of fact during these years whether you paid any heed to the other owners or users ?
“A. No.
Q. Without regard to the language of the deed ?
“A. I said I didn’t.
Q. That is, you mean you didn’t pay any heed to them ?
“A. No, I did not.
Mr. Knappen: I don’t know as I understand the witness now, — the answer ‘ I didn’t,’ — whether he didn’t pay any attention or whether he didn’t know.
Mr. Kingsley: He said he didn’t, as a matter of fact.
Q. By theCourt: Is that what you mean ?
“A. That is what I mean. I simply had the right to use it.
Q. Since the Yoigt decision you have used water from that canal when it was below the crest of the dam, have you not ?
“A. Certainly, and we are entitled to it.
Q. You always did that, didn’t you?
“A. Sir?
Q. You have always been entitled to use water from the canal when it was below the crest ?
“A. We haven’t had a small wheel in until recently. We use it with a small wheel below the crest of the dam.
Q. Did you ever have occasion to inquire how many cubic feet the Pisdon draws at five feet, four feet, or three feet ?
“A. Do you mean head ?
Q. Yes, sir; I mean head.
“A. I never took the opportunity of inquiring.
Q. When these various notices were sent to you that have been spoken of and been introduced in evidence as to the use of the water and the pro rata share of each, did you pay any heed to those ?
“A. Those notices were generally received three or four days after the measurement was taken, and in many instances we had a full head when the notices were received, and the water was not at the stage described in the notice.
Q. In other words, you mean you knew more about the state of the head and the condition of it at your drawing station than the notice gave you ?
“A. I certainly do if there is a rainstorm in the meantime, and if I receive that notice three days after it was 'taken.
Q. I think that is correct.
“A. Sure.
Q. Then you had no use for the notices anyhow?
“A. I don’t say that.
Q. Well, I will ask you that question, were they of any use to you ?
“A. Why, yes, sir; in a certain respect. We tried to respect them to a certain extent, and did, after we received the notice of the Supreme Court,fin regard to the decision.
Q. I am speaking about Mr. Powers’ private notices, before the Supreme Court notified you. Did you pay any attention to those ?
“ A. Not any material attention, because, as I stated, I supposed we had the right.
Q. And you state further that those notices came to your hands after you had used the water on those particular days which the notices came ?
“A. Most certainly. They were mailed and figured up and sent to me.
‘ ‘ Q. And you knew the state of the water better than the notices gave it to you ?
“A. I knew the state at that time better than the notice which referred to several days before.”

It is impossible to read the testimony of Mr. Perkins without reaching the conclusion that for years he has been in the habit of using water in excess of what he is entitled to use. It is the claim of defendant that the canal had a capacity of 1,000 horse power, instead of 990, and that, when the 66 run of stone were satisfied, there was still an excess of 10 horse power, when the water was at the average stage, which he was entitled to use. This is but-another way of saying that, though he bought but one first-class run and ,.two second-class runs, he is in fact entitled to one and two-thirds first-class run and one and one-third second-class run. In Powers v. Hibbard, supra, it is said:

“ But counsel for defendants insist that these attendant circumstances cannot be taken into consideration, as parol evidence cannot be received to modify, vary, or change the terms of the deed. * * * It appears that this canal is nearly two-thirds of a mile in length. The surface of the water in it is much higher than the water in the rapids. The distance between the surface of the canal water and the surface of the water in the rapids increases rapidly from the dam to the lower end of the canal; and the plan or scheme laid out by Mr. Powers originally seems to have been that 66 runs of stones should be distributed along the whole length of the canal, from the dam to the lower terminus. There was sufficient power for driving this 66 runs of stones. This fact was determined by ascertaining the horse power in the canal at the ordinary stages of the water. It was found that, in ordinary stages of water, the canal could deliver for use at the several drawing stations sufficient water to operate 66 runs of millstones, or 990 horse power, but not so much in low water, though much more than that at times when there was an extra supply in the river; that, in order to.ascertain the total water power of the canal, it was necessary to find the quantity of water needed by each of the 66 runs of stones located at the different drawing stations along the whole length of the canal, according to the fall at the respective mill sites where the water was withdrawn from the canal, as it was apparent that a run of stones operated at the foot of the canal would require much less water than one operated nearer the dam, as the quantity of water to operate a run of stones depended upon its location along the course of the canal, for the head or fall at a particular place must be determined first, in order to fix the quantity of water required to operate a run at that place. The scheme or plan was set forth in the general form of the deeds and leases used in making sales or letting privileges, so that each purchaser of power was informed, by the terms of his granting document, just what were his rights, and also what were the rights of his neighbors, as well as the reserved rights of the original proprietor. By these grants, every run was to be used at some fixed point or site; and, when so located, the head or fall was known at once, and the quantity of water required to meet the grant could be readily ascertained.”

We do not think the claim of defendant was contemplated by the owner of the power or the original purchaser of it, or is sustained by the proofs.

Complaint is made of the following portion of the decree:

“ It is further decreed, according to the plan of said canal there was not and cannot be any second-class power until after the water'in the pond is flowing freely over the crest of the dam, when that structure, is in ordinary repair, or over 68,000 cubic feet of water is flowing into the canal per minute, which amount of water is required to constitute a canal which will develop 66 runs of millstones of the first-class.”

Without going into the matter in detail, we think this a proper interpretation of the rights conferred by the owner of the power.

Counsel say:

“When the canal furnishes'as low as 5 ft. 6 in. head at Mr. Perkins’ drawing station (being a 90 per cent, canal), all the runs of Mr. Powers located and equipped with wheels, or ever prepared for use, whether assessed for expenses of maintaining the canal or not, could be operated to their full capacity. We make no claim that, when the water is below a stage at which the lawful demands of all located power can be supplied, the defendant could be permitted, by overuse of his right, to curtail the full enjoyment of Mr. Powers of his located rights; but we do contend that, so long as that point is not reached, Mr. Perkins has the right to all his power of both classes to the extent the canal will supply it. As, under such circumstances, no one is in the slightest degree trespassed upon, this construction does no violence to the terms of-the contract defining the respective rights of the parties to this controversy. The proposition of counsel that the right to the water of a river flowing in a natural channel, and the right to the water flowing in an artificial channel, such as a canal, do not rest upon the same principles, and that in the.case of a canal the right to draw from it rests exclusively upon the grant, and is limited by it, has no application to the facts of this case. The only prohibition in the grant itself against the use of second-class runs is that they ‘shall not be used when, by reason of low water, their use will prevent the fair and ordinary use of any of the first class, and the rights of the owners thereof.’ Manifestly, no owner of first-class power could complain of a use by other owners which did not affect the ‘ fair and ordinary use ’ by such holder. It would palpably be unfair, and against both the spirit and the letter of the ‘grant,’ to deny Mr. Per kinks the right to use his second-class runs, when otherwise the water would go to waste.”

We cannot agree with this contention. If it is true, Mr. Perkins, by buying one run, could use several, and Mr. Powers would have no right to complain, simply because he had not found purchasers for the other runs. This is an artificial waterway, constructed for the purpose of furnishing power, some of which was to be sold. A purchaser of power was entitled to what he bought, and no more. If his needs require more power than he has purchased, he should buy more; and, if he does not do so, but uses power in excess of what he has purchased, he must pay for it.

This brings us to the question of damages. Complainant submits the following table of damages:

Months. Excess in H. P. Value.
3 Mos. None. $000 00
1 Mo. 22 h. p. 114 40
2 Mos. 56 h. p. 291 20
6 Mos. 44 h. p. 686 40
One year ne year. 122 h. p. $1,092 00
Total, 81 years, at $1,092 per year, is $9,100.

Counsel for defendant question these figures in nearly every particular, and submit a computation which shows the damages amount to but $460.66. Proof is offered in respect to these respective claims. We have already decided what constitutes low-water mark, and disposed of the claim that the canal carried 1,000 horse power. It is impossible to figure out with any degree of accuracy 'the damages to which complainant is entitled. There is great conflict in the testimony. We are very clear that complainant should recover much more damages than defendant says he is entitled to. The judge who heard all the testimony gave complainant substantially all to which he was entitled.

The decree is affirmed, without costs in this court to either party.

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


text:
    F. W. KAVANAUGH MANUFACTURING CO. v. ROSEN.
    1. ' Sale of Goods — Credit—Financial Reports.
    A purchaser of goods, who has secured a term of credit, cannot be made to anticipate the payments because the seller has obtained a commercial agency report of the purchaser which is not satisfactory.
    2. Same — Breach op Contract.
    A manufacturer who, after accepting an order for goods and ■shipping a portion of them, obtains a commercial agency report of the purchaser which is unsatisfactory, and refuses to fulfill his contract, is liable to the purchaser for damages.
    3. Same — Damages.
    The measure of damages for failure to deliver goods sold, where they can be obtained in the open market, is the additional cost of the goods; where they cannot be obtained in the market, the purchaser is entitled to recover the profits lost through the fault of the seller.
    Error to Wayne; Donovan, J.
    Submitted October 15, 1902.
    (Docket No. 65.)
    Decided December 29, 1902.

      Assumpsit by tbe F. W. Kavanaugh Manufacturing Company against Aaron D. Rosen, Louis Rosen, and Myer S. Fink, copartners as A. D. Rosen & Company, for goods sold and delivered. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Anderson & Backham, for appellants.

      Ira A. Lieghley, for appellee.
   Montgomery, J.

On the 8th of' February, 1899, the plaintiff’s agent called upon defendants, A. D. Rosen & Co., at Detroit, and defendants gave an order to plaintiff for 600 dozen of Gem underwear, assorted sizes, for the price of 75 cents per dozen for size 16, with a rise of 25 cents per dozen for each larger size, and a trade discount of 15 per cent.; same to be shipped June 1st on the following terms: Net 10, October 31st.' This order was forwarded to the plaintiff and entered upon its books at the home factory,’ in Cohoes, N. Y. Two shipments were made, aggregating 174 dozen, and this action is brought to recover the purchase price of these goods shipped. The case originated in justice’s court, and the defendants gave notice of recoupment, and claimed damages for a breach of contract on the part of plaintiff, for failure to deliver the balance of the goods. On the trial at the circuit, plaintiff recovered.the full value of the merchandise shipped, and defendants were defeated of any recoupment.

It will be noted that, upon the face of the contract, it appeared that payment was not due until 10 days after October 31st, or November 10th. On the 11th of September, plaintiff wrote defendants:

“ If you will send us your check for goods delivered to you on your order, it will assist us greatly, as we are in need of cash, and goods are sold very close, so that we cannot afford to carry accounts to maturity. In fact, we sell all our goods with the understanding that bills will be anticipated by our customers. If you will help us out, we will try and send your goods promptly.”

To this defendants replied as follows:

“We are in receipt of your favor of 9/11/1899, and was quite surprised to note contents. We suppose you are aware that our order calls for 600 doz. Gem vests, p., and dr. Up to date you have only shipped us about 184 doz. There is still coming to us 416 doz., which should have been shipped nearly three months ago. We will make you a proposition, since you want the money badly. Ship us 300 doz. more Gems, and we agree the same day we check the goods off to send you our check in full up to date, less anticipation.”

It appears that no immediate response was made to this letter, but on the 9th of October defendants again wrote plaintiff, notifying it that, unless supplied with the underwear, they would be compelled to go into the open market and buy them, and charge plaintiff with the difference. Plaintiff replied, saying that it had some time before asked for a check in settlement for goods already delivered, and added that:

“Our request was made on account of reports we received from a commercial agency to which we are subscribers, said reports being far from favorable to you or satisfactory to us; and we know of no law that will compel delivery of goods to customers'whose financial stand-, ing is not satisfactory to the seller. Your refusal to pay' for the goods already delivered certainly did not justify us in shipping you more goods, and rather indorsed the report which we had received. When our account matures, we certainly will use all means in our power to collect the same in full, as called for in our invoices.”

To this defendants replied, expressing their surprise at the attitude taken by the plaintiff, and offering, if it would ship 300 dozen, to send check on the receipt of the goods. To this plaintiff replied that it would send goods on receipt of check for goods already shipped. To this defendants replied, in substance, that the bill was not yet due, but offering to receive the remaining 416 dozen underwear for spot cash, and authorizing shipment with draft attached to the bill of lading. This Appears to have closed the correspondence.

On the trial the court charged the jury as follows:

“I charge you, as a matter of law, that if you find, as a matter of fact, that the plaintiff received a report from the commercial agency, which report gave defendants a rating that was not satisfactory — ■ Now, the test is not whether it was actually true or not. The test is not whether they were actually poor or not. The test is, did the seller in good faith honestly believe that they were in danger? and, if they believed it, they had a right to act upon it. That is the test. To reread a little, — that was not satisfactory to the plaintiff, and that plaintiff notified defendants of the fact, and offered to send the remainder of the goods if the defendant would pay for those already shipped, and the plaintiff relied upon the report, I will say in good faith, and the defendants refused then to pay for the goods already delivered to the defendants, and that the bills were to be anticipated, then and in that case you will allow no damages for the nondelivery, but would render a verdict for the plaintiff for the value of the goods delivered under the contract, with the interest thereon.
“Now, you will not need to rely entirely on one person, for there are quite a number here. You will not need to say Rosen & Co. are actually insolvent. Some firms are entirely solvent, and slow-like. If the report was a true report, like in regard to their ability to pay, that is not the question for you to determine. We are not to pass upon their solvency. It is what they believed, — just like a man in self-defense strikes over a man, even in no danger. We are not to judge of it; it is what he believed to be the danger. And if they were in danger, even if they had sent the goods on, — even if they lay here in the station house, —if they were in danger they could order them back; they could stop them by telegram and say, Bring them back to us,’ because the law protects a man if he is in danger; you can bring back your goods.”

In the first part of this charge, it appears, the circuit judge made the defendants’ right to recoup to depend on whether the plaintiff had acted in good faith upon the report made to it by the commercial agency, and whether there had been an effort made to anticipate the payments for which the contract provides. There was no evidence of such an agreement to anticipate payments. The correspondence clearly shows that a term of credit was extended to the defendants by the terms of the order itself, and the defendants were in no way in default for refusing to pay until the termination of that term.

The other proposition embodied in this charge is still more startling. The rule of law amounts to this: That if A. and B. make a contract, and B. afterwards meets C. upon the street, and C. says to B., “A. intends to beat you in that contract,” this would excuse B. from perform-. anee. We have made some investigation, and have found no authority to sustain such proposition. It was open to the plaintiff to investigate the financial condition of defendants before making the contract. Failing to do this, nothing short of a breach of contract upon defendants’ part, or actual insolvency, would excuse the plaintiff from fulfilling the contract on its parti Any other rule would leave a purchaser at the mercy of the seller, and could not afford a safe rule for the transaction of business.

As to the question of damages, there was testimony tending to show an advance in price of the identical goods in question by the plaintiff itself. There was also testimony tending to show that, when this contract was finally broken, defendants were unable to procure the goods in the open market; that they had contracted a large quantity of these goods at an advance of something over $1 per dozen, and were unable to fulfill their contract. The rule of damages in case they were able to procure the goods in the open market would be the additional cost to them; but, if the goods were not obtainable, defendants would be entitled to recover the profits lost through the fault of plaintiff. Den Bleyker v. Gaston, 97 Mich. 354 (56 N. W. 763).

The judgment will be reversed, and a new trial ordered.

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


text:
    LINCOLN v. FELT.
    1. Evidence — Witnesses—Credibility—Deeds.
    Proponent, who asked to have a lost instrument, in the form of a deed, probated as a will, testified on a former 'trial that, after the death of the grantor, he saw the deed, and read the names of the witnesses and notary, who were strangers to him, and that he did not remember the names. On the second trial the evidence showed that he was acquainted with the notary and the witnesses before whom the deed was executed. Held, that a request to charge that the deed seen by proponent could not be the one executed before the witnesses and notary was properly refused.
    2 Same — Question for Jury.
    Inconsistency between the testimony of a proponent and his testimony on a former trial affects his credibility only, and is a question for the jury.
    3. Trial — Requests to Charge — Error.
    It is not error to refuse a request to charge where the sub-, stance of the request is given.
    4. Wills — Testamentary Deed — Evidence—New Trial.
    A motion for a new trial on the ground that there was no evidence of the execution of an instrument of testamentary character was properly denied, where there was testimony of the execution of a deed containing a description of certain land, and a statement that it should go to proponent after the grantor’s death, and also proof that the grantor said she had given the property to proponent, “to take-place after her ■death.”
    5. Deeds — Wills.
    A deed which in form is to take effect after the death of the grantor may be admitted to probate as a will.
    Error to Wayne; Donovan, J.
    Submitted October 17, 1902.
    (Docket No. 87.)
    Decided December 29, 1902.
    Otis Lincoln presented for probate an instrument, in form a deed, as the last will and testament of Laura L. Felt, deceased. The instrument was disallowed in the probate court on a contest by Noah Felt, and others, the husband and heirs at law of deceased, and proponent appealed to the circuit. From a judgment for proponent, contestants bring error.
    Affirmed.

      Jasper O. Gates, for appellants.

      Wells, Angelí, Boynton & McMillan (Samuel W. Burroughs, of counsel), for appellee.
   Montgomery, J.

This controversy relates to the probate of an instrument, in form a deed, as the last will- and testament of Mrs. Laura L. Felt. Mrs. Felt was proponent’s mother. The contestants are the three children of Mrs. Felt by her second marriage. It appeared that she was the owner of a 29-acre piece of land, — that in controversy in this case, — and that her husband was the owner of a 50-acre piece. In these circumstances Mrs. Felt sought to make some provision for proponent, who would not'inherit from her second husband. The testimony adduced on the part of proponent tended to show that she executed a paper in the form of a warranty deed, covering the 29-acre tract; that it was found by proponent, after her death, with her other private papers; that he 'examined it at that time, and put it back in the box, which was locked, and the keys of which were kept by his half-brother; that after the funeral, when the box was again opened, the paper was gone, and has never since been found. The inference was doubtless drawn by the jury that the paper was abstracted by one of the half-brothers from the box, and there was testimony tending to support this view. The fact that there was a deed of some character in existence does not rest upon the testimony of the proponent alone, but is not only corroborated by other witnesses, but by a letter admittedly in the handwriting of one of the contestants.

On the trial the contestants presented but two requests to charge, which" were as follows:

“1. The proponent having testified that he read the names of the witnesses to the deed and the name of the notary public who witnessed the acknowledgment of the deed, and that they were strangers to him, and that he cannot remember the name of either of them, such a deed cannot be the deed which the witness Hamilton testified he and his wife witnessed and Slinger took the acknowledgment of, for the reason that the proponent testifies that he had known Slinger all his life, and that he had known Hamilton, who had lived within three-quarters of a mile of his mother for many years before her death.
‘ ‘ 2. The paper which proponent claims that he found must be shown to be the identical paper which Hamilton claims he witnessed, to entitle proponent to recover. There is no evidence of identity, and the verdict must be for the defendants or contestants. ”

After the verdict in favor of proponent, a motion for a new trial was made, one ground of which was that the testimony did not establish the execution of an instrument of testamentary character. It is argued in this court that error was committed in refusing, each of the two requests, and in refusing to grant a new trial upon the ground stated. It is argued that the testimony of the proponent given on a previous trial before Judge Frazer was to the effect that he had seen the names of the notary and the witnesses, and that they were strangers to him; and it is contended that the testimony on this trial shows that he was acquainted with those whose names appeared as witnesses, and that this showed that the instrument which proponent saw was not the one testified to by other witnesses in the case.

It would extend this opinion to too great length to set out the testimony in full given by the proponent. It should suffice to say that, in our opinion, whatever inconsistencies there may have been in his testimony on the two occasions was a question for 'the jury, and affected his credibility only. Eastman v. Railway Co., 101 Mich. 597 (60 N. W. 309). The first request of contestants was, therefore, properly refused.

The second request, so far as it was proper, was covered by the charge of the court. But one deed was referred to in the charge of the court or in the testimony, and the court said in his charge that the deed propounded “is a deed purporting to be signed — that is, the original — by Mrs. Laura Felt, to be witnessed by Hamilton and his wife, and to be acknowledged. It is the theory that the deed, just as the reproduced one I hold in my hand, — the one we have been talking about, made an exhibit in this case, — that a similar deed to this was signed in the lifetime of Mrs. Felt, and left with her private papers, and found there at the date of her death.” At the 'close of the charge, contestants’ counsel asked the court orally to charge that “the jury must find that the instrument which Lincoln says he found in the box and the one which Hamilton testified to having witnessed, — they must find that to be the identical paper.” The court said:

“That is right, because the same witnesses must be to it. Well, that is correct; I had given it to the jury, if that is the paper; that Lincoln claims-that the deed giving him the property was signed by Mr. and Mrs. Hamilton as witnesses.” *

There could be no room for the jury to mistake this, and we think the question of the identity of the paper was fairly a question for the jury upon this record.

The contention made upon the motion for a new trial, that the court erred in submitting the case to the jury, for the reason that the testimony failed to establish the execution of an instrument of testamentary character, presented that question to the court for the first time, and this might be sufficient ground for refusing a new trial; but, more than this, we think that there was testimony which tended to show that the deed in its terms was limited to take effect after the death of the grantor. The proponent testified that he examined the instrument, saw that it was a warranty deed, and “turned it over, and saw that it described the land there, and also down further that it was to go to me after her death.” A Mrs. Waldron testified that decedent said she had made the homestead property to her son, — “it should take place after her death; he was to have it.”

The theory of the contestants is that the testimony, fairly construed, shows that this conveyance was an instrument of absolute conveyance, with a reservation of a life estate to the grantor. Unfortunately the deed cannot be produced, and the testimony tends strongly to show that the proponent is in no way responsible for that fact. Upon this record it is not a matter of surprise that the jury should have taken the testimony most favorable to the proponent. If the deed was in form a deed to take effect after the death of the grantor, it is clear that, within our previous decisions, proponent was entitled to the probate of it as a will. Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98); Lautenschlager v. Lautenschlager, 80 Mich. 285 (45 N. W. 147); Ferris v. Neville, 127 Mich. 444 (86 N. W. 960, 54 L. R. A. 464). In the .present case the court charged the jury that, to entitle the instrument to probate as a will, it must be found that the instrument was executed in the form of a warranty deed, giving to proponent the land described, and, second, that Mrs. Felt executed the instrument with the intent that the gift should take effect only after her death, and that that intent was expressed in the instrument in some appropriate form. If the jury so found, it brings the case within our previous holdings.

The case appears to have been tried without error to the prejudice of contestants, and the order will be affirmed.

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


author: Per Curiam.

text:
    HALPIN v. WAYNE CIRCUIT JUDGE.
    Foreclosure — Costs Against Codependant.
    Where, in a foreclosure suit, a tenant of the mortgagors appears and disclaims, he cannot recover costs against his codefend,ants, the mortgagors, who have not appeared.

      Mandamus by William EL Halpin and Mary J. Halpin to compel Joseph W. Donovan, circuit judge of Wayne county, to set aside an order for costs against relators.
    Submitted November 11, 1902.
    (Calendar No. 19,596.)
    Writ granted December 29, 1902.
    One David P. Lapham filed a foreclosure bill in equity against William H. Halpin, his wife, Mary, and one Pierce. Halpin was the mortgagor. Upon the chancery subpoena was indorsed that no personal decree was claimed against Mary Halpin or Pierce. The bill was taken as confessed against the Halpins. Pierce filed a brief answer that he was living on the premises as the tenant of Hal-pin; that his lease expired in March, 1902; that he was ready and willing to vacate the premises and to comply with the order of the court, — and asked the direction of the court as to what he should do in the premises. After the decree was rendered in favor of the complainant, the court made a supplemental order allowing $30 costs to Pierce against the relators. The relators moved to set this order aside, which the court refused, and they now seek the writ of mandamus for that purpose.

      J. Emmet Sullivan, for relators.

      Harry H. Wait, for respondent.
   Per Curiam.

We are not aware of any rule of law or equity to authorize this order. The Halpins did not appear. Defendant Pierce appeared and disclaimed. If he was. entitled to any costs, it was against the complainant, and not against his codefendants.

The writ will issue, with costs to relators.


text:
    JACOBS v. WAYNE CIRCUIT JUDGE.
    1. Justices’ Courts — Jurisdiction—Certiorari.
    Where a defendant appears and pleads to the jurisdiction of a justice of the peace, which issue is decided against him, and no appeal is taken or notice given of an intention to remove the cause to the circuit court by certiorari within five days, as provided by statute, the common-law writ of certiorari will not lie to review the decision.
    2. Same.
    The common-law writ of certiorari will lie to remove a case from justice’s court only where the statutory remedy is impossible of application.
    3. Same — Mandamus.

      Mandamus will lie to compel a circuit judge to dismiss a eom'mon-law writ of certiorari issued to a justice of the peace, where the party was not prevented from appealing or obtaining the statutory writ by circumstances beyond his control.

      Mandamus by Abram Jacobs to compel Flavius L. Brooke, circuit judge of Wayne cbunty, to dismiss a writ of certiorari.

    Submitted November 18, 1902.
    (Calendar No. 19,595.)
    Writ granted December 29, 1902.
    The relator brought suit in justice’s court against the 'Grand Trunk Railway Company for breach of a contract of carriage. The first summons was not served. An alias summons was issued and duly served. The defendant appeared. Several adjournments were had. On the day of the final adjournment, plaintiff filed his declaration. Defendant filed a plea to the jurisdiction, alleging that the cause of action accrued in Canada, that the,defendant was a foreign corporation, and that therefore the justice had no jurisdiction. Issue was joined upon this plea, proofs were taken, and the plea was overruled. The defendant thereupon appeared no further in the case, and on June 17, 1901, a judgment was rendered against it for $104.39. About two weeks afterwards, application was made to the circuit court for leave to appeal, and was denied. On August 2, 1901, the company made an application for the writ of certiorari, alleging want of jurisdiction in the justice’s court for the reason above stated. The respondent allowed the writ. Belator thereupon moved to dismiss the writ, which motion was denied, and he now seeks to compel the dismissal of the writ of certiorari by the writ of mandamus from this court. In denying the motion the respondent stated that he doubted the authority of the court to allow the writ.

      Bowen, Douglas & Whiting and James O. Murfln, for relator. '

      E. W. Meddaugh and L. O. Stanley, for respondent.
   Grant, J.

(after stating the facts). The railway company knew, or' should have known, of the j udgment rendered against it in season to transfer the case to the circuit court by one of the statutory methods, — appeal or certiorari. It is not claimed that it was prevented from taking such steps by circumstances beyond its control. It could have appealed generally or specially, or procured a writ of certiorari, in accordance with section 935 et seq., 1 Comp. Laws. Instead, it chose to wait nearly two months, and then apply for the common-law writ of certiorari. The want of jurisdiction does not appear upon the face of the proceedings. It was a question of fact, to be determined by the proofs showing where the cause of action arose, and whether the company was a foreign corporation. The justice’s court decided this question of fact against the company upon the evidence before it. Under the statute (section 936,1 Comp. Laws), the company was required to give the justice notice in writing, within 5 days after the rendition of the judgment, of. its intention to remove the cause to the circuit court by certiorari, and to make its affidavit therefor within 30 days. If the contention of the company be sustained, it follows that every case which can be taken to the circuit court by the statutory writ of certiorari can also be taken there by the common-law writ. If this be so, the statute is useless.

In the review of drain proceedings by the writ of certiorari, we held that the common-law writ is open only in cases where the statutory writ is not possible of application. Township of Blumfield v. Brown, 130 Mich. 504 (90 N. W. 284); Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130). The same reason for limiting the time for obtaining the writ in drain proceedings applies with equal force to suits before justices of the peace, and is sufficiently stated in Township of Blumfield v. Brown. Where the statutory remedy is gone, and the party aggrieved had no knowledge of the suit, it is held that the common-law writ may issue, in order to prevent a miscarriage of justice. Withington v. Southworth, 26 Mich. 381; Adams v. Abram, 38 Mich. 302; White v. Boyce, 88 Mich. 349 (50 N. W. 302). Clearly, the sole purpose of the statute is to compel a party to proceed seasonably if he chooses to adopt the remedy by certiorari, and to avoid the long delay incident to the use of the writ under the common-law practice." The statute does not take away the right to issue the writ, but only limits the time within' which parties must proceed. We think the only exception to proceeding under the statute is where the party aggrieved has had no opportunity to proceed under it. This is not a case where the court may exercise its discretion in issuing the writ. The question is whether the statute compels a party to proceed under it when he has ample opportunity to do so. The company had lost its right to the writ of certiorari.

It is also urged on behalf of respondent that mandamus is not the proper remedy. This court has, without exception, entertained jurisdiction to dismiss appeals from justice’s court when allowed by the circuit' court after the-expiration of five days, where the party was not prevented from appeal by circumstances beyond his control. We see no reason why we should not adopt the same rule where the party has ignored' that remedy, and seeks another, where he has chosen to ignore the plain provision of the statute regulating the practice in such cases.

The writ will issue, with costs.

The other Justices concurred.


text:
    PEOPLE v. SMITH.
    1. Seduction — Previous Unchastity.
    Where, in a prosecution for seduction committed on the 30th of April, the complaining witness testified to previous acts of illicit intercourse with respondent in February and early in April of the same year, and there was no evidence of reformation bn her part, the court should have directed a verdict of acquittal.
    2. Same — Inducement—Conditional Promise or Marriage. -
    A person cannot be convicted of seduction whose only inducement to procure the illicit intercourse was a promise to marry the woman if she became pregnant.
    Error to Benzie; Chittenden, J.
    Submitted November 21, 1902.
    (Docket No. 225.)
    Decided December 29, 1902.
    Alba Smith was convicted of seduction.
    Reversed.

      D. 6r. F. Warner, for appellant.

      M. M. Larmonth, Prosecuting Attorney, for the people.
   Carpenter, J.

Defendant was convicted of the crime of seduction. The information charged that the offense was committed on the 30th of April, 1901, in the township of Homestead, in the county of Benzie. The complaining witness testified that she was 20 years old in August, 1901; that she had sexual intercourse with the defendant on or about the date named in the information, and also in February and early in April, 1901; that on each of these occasions defendant promised that, if she got in the family way, he would marry her; that she became pregnant, and was delivered of a child on the 19th of January, 1902.

At -the conclusion of the people’s case, counsel for the defendant requested the court to instruct the jury—

“To render a verdict of not guilty, as the evidence in the case discloses * * * that respondent had illicit intercourse with the complaining witness in February and in April prior to the time charged. It follows that she is not a person who could be seduced at the time alleged in the complaint, warrant, and information. And there has been no sufficient promise to marry proven. She could not be said to be a chaste person at the time alleged.”

This request was denied, to which defendant excepted. In his charge to the jury, the court said:

“ The girl, Miss Brown, has gone on the stand, and testified that the respondent had, on every occasion when they had intercourse, promised to marry her. I charge you, as a matter of law, that, if this respondent did have sexual intercourse with this girl at the time alleged in the information, and, in order to persuade her to allow him to have such sexual, intercourse, did make this promise, no matter whether he intended to carry this promise out or not, if this girl relied on his promises and inducements at that time, and allowed him to have sexual intercourse with her, and if she was a chaste character, then I charge you that the defendant is guilty of this crime as charged in the information.”

To this part of the charge defendant assigns error.

In the case of People v. Clark, 33 Mich. 112, the lower court permitted the jury to find the defendant guilty of seduction because of illicit intercourse in August, 1873, though the complaining witness testified that she had such intercourse with the defendant not only in August, but on the preceding 28th of July. In deciding this case the court said:

“ We do not wish to be understood as saying that, even as between the same parties, there could not be a second, or even third, act of seduction; but, where the subsequent alleged acts follow the first so closely, they destroy the presumption of chastity which would otherwise prevail, and there should be clear and satisfactory proof that the complainant had in truth and fact reformed; otherwise there could be no seduction. * * * And, although the female may have previously left the . path of virtue on account of the seductive arts and persuasions of the accused or some other person, yet, if she has repented of that act, and reformed, she may again be seduced.' We do not say that there may not have been a reformation in this case. Indeed, there may have been many, but they were unfortunately fleeting. Had a reasonable time elapsed between the different acts, a presumption in favor of a reformation might arise; but we think no such presumption could arise in this case, and that the burden of proving Such reformation would be upon the prosecution.”

This decision is decisive of the case at bar. As the people introduced no evidence whatever tending to show a reformation on the part of the complaining witness after the illicit intercourse of the preceding February and early in April, it was the duty of the court to direct the acquittal of defendant, as requested.

There is, in our judgment, however, a more serious error in the case. All that the defendant did, according to the testimony of the complaining witness, to induce her to have illicit intercourse' with him,' was to promise to marry her if she became pregnant. Does sexual intercourse, induced by such a promise, constitute seduction ? In the case of People v De Fore, 64 Mich., at page 699 (31 N. W. 585, 8 Am. St. Rep. 863), Justice Champlin says:

“And it has been held that, when the female submitted through a promise of marriage conditioned upon the act resulting in pregnancy, the crime was committed. People v. Hustis, 32 Hun, 58; Kenyon v. People, 26 N. Y. 203 (84 Am. Dec. 177).”

People v. Hustis sustains the proposition for which it is cited. This decision, however, was made in a lower court, consisting of three judges, one of whom filed a vigorous dissenting opinion. The only argument advanced in the majority opinion was the claim that the case was ruled by Kenyon v. People, above cited in the quotation from Justice Champlin’s opinion. The case of Kenyon v. People holds this, and only this: That it is a sufficient promise of marriage, under the New York statute creating the crime of seduction (in which illicit connection under promise of marriage is the gist of the offense), “that the defendant promised to marry the prosecutrix if she would have carnal connection with him.” The case of Kenyon v. People is, therefore, no authority upon the question under discussion, and furnished no justification whatever for the decision of People v. Hustis.

The best definition of seduction contained in our Reports was framed by Mr. Justice Montgomery, when, as circuit judge, he tried the case of People v. Gibbs, and will be found in the report of that case in 70 Mich., at page 430 (38 N. W. 257):

“ Seduction may be defined to be the act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual- embraces of the person accused. ”

This is in harmony with the case of People v. Clark, 33 Mich., at page 116, where it was said:

‘ ‘ Illicit intercourse alone would not constitute the offense charged. In addition to this, the complainant, relying upon some sufficient promise or inducement, and without which she would not have yielded, must have been drawn aside from the path of virtue which she was honestly pursuing at the timé the offense charged was committed.”

As well as the case of People v. De Fore, 64 Mich., at page 699 (31 N. W. 585, 8 Am. St. Rep. 863), where it was said:

“An act of intercourse, induced simply by mutual desire of the parties to gratify a lustful passion, would not constitute the crime charged in the information. The charge of seduction and debauchery implies that a pure woman will resist, and that the natural sentiment of virtue and of purity will be overcome by a promise of marriage and other means, and submission to his desires finally obtained through such inducements.”

Where the woman is a young, inexperienced girl, the courts very properly hold that promises and means are sufficient which would not move a woman of mature years. People v. Gibbs, 70 Mich., at page 427 (38 N. W. 257). The complaining witness in this case, however, was not a young and inexperienced girl. She was nearly 20 years of age, and, it is apparent, knew quite well the con-sequences of her act. She cannot complain, therefore, if she is judged by the rules applicable to ordinary pure women.

Is a promise to marry, conditioned upon the illicit intercourse resulting in pregnancy, calculated to induce a pure woman to yield her chastity? In our judgment, this question admits of but one answer. Such a promise has no tendency to overcome the natural sentiment of virtue and purity. The woman who yields upon such a promise is in no better position than as though no promise whatever had been made. No Avrong is done her if she is put in the class with those who commit the act to gratify their desire. She was willing to lose her virtue if some provision was made to conceal its loss. If pregnancy does not result from the illicit intercourse, her conduct is, in every respect, as culpable as that of her companion. If pregnancy does result, his conduct becomes more culpable than hers when, and not until, he refuses to marry her. The -commission of the offense cannot depend upon the happening of a subsequent event, though it is to be noted in this case that the complaint is made, not of the intercourse in February', 1901, when the complaining witness lost her virtue, but of the intercourse in the following April, which apparently resulted in her becoming pregnant.

The verdict must be set aside, and a new trial ordered.

The other Justices concurred,


text:
    WILCOX v. MORTON.
    1. Trover — Rescission oe Sale — Conversion—Damages.
    Where, in a trade of lands for a stock of goods, plaintiff fraudulently misrepresented the character of the lands, and defendant seized the stock of goods two days before tendering a reconveyance of the lands, plaintiff was entitled to recover, in an action of- trover for the technical conversion, not more than nominal damages.
    2. Damages — Judgment—Error.
    A judgment for defendant will not be set aside where it appears that plaintiff is entitled to no more than nominal damages, and a judgment in his favor would not carry costs.
    Error to Eaton; Smith, J.
    Submitted December 2, 1902.
    (Docket No. 131.)
    Decided December 29, 1902.
    Trover by Freeman W. Wilcox against Thomas P. Morton and Amanda Morton. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Bollin H. Person, for appellant.

      Huggett & Dann, for appellees.
   Montgomery, J.

Plaintiff traded to defendants land for a hardware stock. Plaintiff fraudulently misrepresen ted the character of the land. Defendants seized the hardware stock with the purpose of rescinding the trade. The seizure was made on Saturday, and the deeds of the land conveyed were not tendered to plaintiff until the following Monday. Thereafter the plaintiff instituted this action of trover. The defendants recovered, and plaintiff brings error.

Plaintiff’s contention is that his right of action was complete when defendants seized the goods on Saturday, and that the subsequent rescission does not bar the action or mitigate damages. If the plaintiff is wrong as to either contention, the verdict ought not to be disturbed, as we have frequently held that a judgment for the defendant will not be set aside where it appears that plaintiff is entitled to no more than nominal damages. Hickey v. Baird, 9 Mich. 32; Haven v. Manufacturing Co., 40 Mich. 286.

We are cited to no case which precisely defines the rights of the parties, but the case can be determined on principle without difficulty. The plaintiff’s fraud vitiated the contract at the election of the defendants. That the defendants had, before the present suit was instituted, made their election to rescind, and had done all that was needful to place the plaintiff in statu quo, is unquestioned. The question, therefore, is whether the fact that defendants were premature in seizing this property before tendering the deeds of the real estate cut off for all time their right to rescind. To give this effect to the transaction would be to impose a very severe penalty upon premature action, for it is clear that the seizure was no intentional waiver of the right of rescission. It may be true that a right of action accrued to plaintiff, but such right of action was subject to be. defeated by the termination of his title before suit brought. Clapp v. Glidden, 39 Me. 448. The tender of deeds on Monday terminated plaintiff’s title.

This case is quite unlike Dalton v. Laudahn, 27 Mich. 529. In that' case defendant seized property of plaintiff under an assumed power, which did not in fact authorize such seizure at the time. It was held that the fact that he might, at a later time, have had authority to seize the property under the power, and make the same disposition he did in fact make of it, afforded no defense. It was said:

“Dalton had no interest in the property by force of the agreement, nor any right to take it on the 20th. Laudahn was owner, and had full legal right to dispose of the chattels at any time during that day, and make the money to pay the rent.”

In the present case, the fraud of plaintiff having been established, it follows that, as between himself'and defendants, the plaintiff had no right to-dispose of the property in question at any time in such manner as to cut off defendants’ right to rescind. The defendants having completed their rescission, the property ceased to be the property of plaintiff, and, if there was a prior technical conversion, the plaintiff was entitled to recover no more than nominal damages, if anything.

The judgment will be affirmed.

The other Justices concurred.


text:
    DREW v. BILLINGS-DREW CO. BALDWIN v. KING.
    1. Corporations — Agency—Lease.
    A vice-president of a corporation, having entire charge of one department of. the company’s business, and acting as manager and agent, has authority to bind the company in leasing a room for the necessary storage of the company’s property.
    2. Lease — Surrender by Operation op Law. .
    A lessee of a building formed, with others, a corporation to carry on his business. The lessor declined to accept the corporation as his tenant for the unexpired term, but agreed with the corporation, through its agent, who was also the lessee, that the company might occupy the building at the same rental until he could find another tenant. Held, that the lease was surrendered by operation of law, and the corporation liable for the rent during the time it occupied the building.
    3. Same — Statute op Frauds.
    A verbal lease which is to continue until the lessor can secure another tenant is capable of performance within a year, and, if terminated within that time, is not void under the statute of frauds. 3 Comp. Laws, § 9509.
    Appeal from Wayne; Brooke, J.
    Submitted December 2, 1902.
    (Docket No. 132.)
    Decided December 29, 1902.
    Bill by Walter B. Drew against the Billings-Drew Company, under which Charles A. King was appointed receiver. Stephen Baldwin intervened and presented a claim against defendant. From a decree for the intervener, the receiver appeals.
    Affirmed.
    Intervener, Baldwin, leased to complainant, Drew, a three-story building (No. 62 Miami avenue, Detroit) for three years from November 1, 1896. The lease was a written one, and provided for a monthly rental of $75. Drew occupied the building for displaying and selling electric and gas fixtures and wooden mantels until February 10, 1898. One Billings wa£ carrying on a similar business on Woodward avenue. February 10, 1898, Billings, Drew, and one Thomas Drew organized the defendant corporation. The directors were Mr. Radford, complainant, and Billings. Radford was president, Drew vice-president, and Billings secretary and treasurer. Drew and Billings conveyed their respective stocks of goods to the corporation, which established its business in the University Building, on Wilcox street. Drew’s former stock of goods was immediately removed from No. 62 Miami avenue to the University Building, and some of Billings’ stock of goods was removed from his store to the University Building, and the balance to 62 Miami avenue, and there stored.

      On July 19, 1898, Drew filed the bill of complaint in this cause against the company, and defendant King was appointed receiver. It is conceded that the company occupied Baldwin’s building for the storage of its property until about May 10, 1898. It is claimed on the part of the receiver that all the property of the company was then removed, while it is claimed on the part of the intervener that the building was still occupied by the company, and that the property was not all removed until September. Mr. Baldwin, claiming that the lease between him and Drew was surrendered upon the organization of the corporation, and that the corporation agreed to pay him rent while his building was occupied by it at the rate of $76 a month, presented a claim to the court for the rent from February 10 to September 1, 1898. The court allowed the claim, and the receiver appeals.

      Barbour & Rexford, for appellant.

      Tarsney & Fitzpatrick, for appellee.
   Grant, J.

(after stating the facts). Four defenses are interposed:

1. There is no evidence to establish the alleged agreement.

2. Drew had no authority to make it.

3. Drew, if authorized to rent storage room, could not, as the company’s agent, without the consent of the directors, relieve himself of the obligations of the lease, and impose them upon the company.

4. The agreement, if any, was not in writing, and is void under the statute of frauds. ' >

We think there was sufficient evidence to establish the agreement. Mr. Baldwin testified that Mr. Drew informed, him of the organization of the corporation, and asked him if he would object to the company’s occupying the premises; that Baldwin replied that would be owing somewhat to what they wanted to occupy it for, — that he objected to putting heavy goods in the building; that Drew said the goods would not be heavy, but light.

“I told him I would object to Billings and Drew carrying out that lease and using it as a storehouse, but that I would let them occupy it until I got a chance to rent it. They were to pay the same as the lease, — $75 per month.”

Pursuant to this agreement, the corporation occupied the building. In September, Baldwin obtained an opportunity to lease the building, and notified the company to vacate. Mr. Billings testified that he knew the building was occupied by the corporation, and that it was not to be occupied rent free, but he supposed Drew would take care of the rent, as he (Billings) took care of his own; meaning the rent of the store formerly occupied by him on Woodward avenue. We think there was sufficient testimony to establish the agreement.

Drew was vice-president of the company, and had the entire charge of the gas-fixture department. He was not acting solely in his capacity as vice-president, but as the agent of the company in control of one department of its business. If it was necessary to procure storage for some of the property under his control, he, as manager and agent, had the power to bind the company in leasing room for that purpose. His action was taken in good faith, and was evidently known to all the directors and stockholders of the corporation. His act was within the scope of his authority. 3 Clark & M. Corp. §§ 686,700,702, and authorities there cited.

It was not in the power of Mr. Drew to impose his lease upon the corporation without the consent of the directors, but we do not think this was the effect of the transaction. The evidence shows that the fair value of the rental was $75 per month. Drew had. gone out of business. Mr. Baldwin’s building was required for the purposes of the corporation. Drew informed Mr. Baldwin of the situation. Baldwin declined to accept the corporation as his tenant under the lease, but was willing to lease the building to the corporation at the same rental as Drew had agreed to pay him until he could secure another tenant. The result was that Baldwin released Mr. Drew, and accepted the corporation in his stead as tenant. A surrender resulted by operation of law. Stewart v. McLaughlin’s Estate, 126 Mich. 1 (85 N. W. 266, 87 N. W. 218); Donkersley v. Levy, 38 Mich. 54; Gingrass v. Mather, 128 Mich. 582 (87 N. W. 758); Youell v. Kridler, 105 Mich. 344 (63 N. W. 439).

It follows from what has already been said that tbe statute of frauds does not apply. There was a surrender of tbe old lease and tbe making of a new one. Tbe time fixed by tbe new lease was indefinite. It was capable of performance witbin a year, and was in fact performed witbin that time. It was therefore valid. Smalley v. Mitchell, 110 Mich. 650 (68 N. W. 978); Carr v. McCarthy, 70 Mich. 258 (38 N. W. 241).

Tbe decree is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.


text:
    SUPREME TENT OF THE KNIGHTS OF THE MACCABEES OF THE WORLD v. McALLISTER.
    1. Husband and Wipe — Marriage Contract.
    Where a man and woman entered into a marriage contract in good faith, and continued to live and cohabit together as husband and wife, no formal ceremony was essential to the validity of the marriage.

      2. Same — Divorce—Mutual Benefit Insurance.
    Where a man and woman lived and cohabited together as husband and wife in good faith, under the mistaken belief that she was divorced from her husband, and the man obtained a certificate of insurance in a mutual benefit association whose by-laws provided that payment should be made to the wife, husband, children, dependent, mother, etc., of a member, at his death the insurance should be paid to her, rather than his mother, who, with full knowledge of the facts, had for 18 years treated them as husband and wife.

      3. Same — Public Policy.
    It is not contrary to public policy to permit mutual benefit associations to issue policies in favor of those who live and cohabit together in the honest belief that they are husband and wife, although one of them may have been married before and not legally divorced.
    Appeal from Eaton; Smith, J.
    Submitted December 3, 1903.
    (Docket No. 126.)
    Decided December 29, 1903.
    Bill of interpleader by the Supreme Tent of the Knights of the Maccabees of the World against Clara E. McAllister and Eleanor McAllister to determine the right to the proceeds of an insurance policy on the life of William R. Mc-Allister, deceased. From a decree for defendant Clara, defendant Eleanor appeals.
    Affirmed.
    Defendant Eleanor is the mother, and defendant Clara is the alleged widow, of William R. McAllister, deceased. October 3, 1890, complainant, a beneficiary association organized under the laws of Michigan, issued to William, then a resident of New York State, a policy of $3,000, payable to Clara E. McAllister, his wife, as beneficiary. Subsequently William and Clara removed to Findlay, Ohio, where he died January 16, 1901. Complainant files this bill of interpleader to determine which one is entitled to the insurance.
    Clara and William in 1883 entered into a contract of marriage, but no ceremony was performed. The circuit judge found that this contract was entered into in good faith, and was consummated by a continuous living and cohabiting together as husband and wife, and by holding themselves out to the world as such, until his death. For 18 years these parties lived in Michigan, New York, and Ohio as husband and wife, were received in society as such, were known as such in every place where they lived, and were recognized as such by the defendant Eleanor and other members of her family. She visited them, and they visited her. The circuit judge, in his finding, said:

      “ It is seldom, where the life in the home for so long a time is laid bare before a court, that the record is as clean, and the loyalty to each other and the trust and confidence in each other are as great and strong, as the proofs show it to have been in this case.”
    The proofs sustain this finding. William was ill for some time previous to his death, and Clara did menial work to earn money to support him and to pay the insurance dues. The defense to her claim is that she had been previously married to one Baker, and that she never had been divorced. She admits her marriage to Baker in 1875 in the State of New York; that she lived with him until 1882; that they had one child; that they separated, and she came to Michigan. Defendant Eleanor insists that there is no proof of a divorce from Baker, who is still living. The evidence upon this point is that Baker delivered to a Mr. Hall, of Gowanda, N. Y., a document purporting to be a decree of divorce issued from a court in Pennsylvania, dissolving the marriage of Baker and his wife. Mr. and Mrs. Hall both testify that Mr. Hall received such a document from Baker; that they read it; that it purported to be a decree of divorce; that they then sent it to Clara, at Charlotte, Mich., where she was then living. It is proved conclusively that this document, whatever it was, was received by Clara. This was before her marriage with William. Relying upon this as a valid divorce, she and William contracted the marriage. The deposition of Baker was taken on behalf of Eleanor, and he testified that he gave her a document; that he thought it was an agreement of separation, and not a divorce; and that he was never legally divorced from her. The court held that Clara was legally entitled to the fund.

      Joseph L. Hooper and L. H. Sabin, for appellant.

      Dean & Davids, for appellee.
   Grant, J.

(after stating the facts). The marriage was valid if the parties were competent to contract it. No formal ceremony is essential to the validity of a marriage. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Peet v. Peet, 52 Mich. 464 (18 N. W. 220).

Counsel for defendant Eleanor cite authorities holding that a marriage is void if either party thereto has another wife or husband living. The validity of a marriage does not depend upon the good faith of the parties entering into it. Both parties must be competent to contract. Unless both are single, their marriage is void, however innocently they may have entered into that relation. It is not necessary to cite authorities to this proposition. • But this rigid rule has not been applied in insurance policies of mutual benefit associations, now so common, where the parties have acted in good faith. The policy in this case was not issued under section 7740 et seq. of the Compiled Laws. That was an act passed in 1893 (Act No. 119, Pub. Acts 1893), while this policy was issued in 1890. The record does not contain the articles of association under which the policy was issued. The act of 1893 expressly provides “that when the laws of any such association already provide that an affianced wife, or any other person who is dependent upon the member for maintenance, food, clothing, lodging, or education, may be made the beneficiary, payment of death benefits may be made to such beneficiaries.” The briefs do not refer to the original articles of association, or cite the act under which the original association was organized. Counsel for defendant Eleanor quote a by-law of the association applicable to this case, and admitted by them to be consistent with the charter. That by-law reads as follows:

“No life benefit certificate shall be made payable to any person other than the wife, husband, children, dependent, mother, father, sister,” etc., “of the member.”

We will assume, therefore, that this is the by-law which controlled the rights of these parties at the time the policy was issued.

It is admitted that defendant Clara was legally married to Baker, and that he is still alive. We will not determine whether the proofs show that she was legally divorced from him, as we deem it unnecessary to determine this question. It is clear that she believed she was, and that William also so believed. Both believed that they were competent to enter into the marriage relation. They did so, and faithfully lived by their obligation until death parted them. She was not the mistress of William, nor was this policy a “wager” policy, under Mutual Ben. Ass’n v. Hoyt, 46 Mich. 473 (9 N. W. 497). This contract was made in New York, and the decisions of that State should have great, if not a controlling, force in determining the rights of these parties. Story v. Mutual Ben. Ass’n, 95 N. Y. 474, is the parallel of this in its facts. Mary Story had in good faith occupied the position of the wife of Bobert Story for 16 years. He had another wife living. The by-laws of the association in that case required the fund to be paid over to the widow; if no widow, then to the children, etc. The court said:

" It may be true that the by-law which prescribes the obligation and duty of the association on the death of a' member contemplated a payment to the person who should be the lawful widow of a deceased member. But this was not a limitation of the power of the company, so as to prevent it from recognizing as the beneficiary a person who might be designated by the member as holding to him the relation of wife. Such designation made during the lifetime of the member, and assented to by the company, until changed by the mutual agreement of the member and the company, or at least until the arrangement was repudiated by one of the parties thereto, was binding.”

Supreme Lodge A. O. U. W. v. Hutchinson, 6 Ind. App. 399 (33 N. E. 816), is another similar case. The law there provided that the beneficiary must be one or more members of the assured’s family, some one related to him by blood, or who should be dependent upon him. He had named as beneficiary a woman who had lived with him as his wife, and who had borne him children. She had no knowledge that he had a lawful wife living. It was held that, though she was not in fact his wife, yet she was dependent upon him, and had a moral right to look to him for support, and her claim to the fund was sustained. See, also, Watson v. Mutual Life Ass’n, 21 Fed. 698; Overbeck v. Overbeck, 155 Pa. St. 5 (35 Atl. 646); Equitable Life Assur. Soc. v. Paterson, 41 Ga. 338 (5 Am. Rep. 535); Supplee v. Knights of Birmingham, 18 Wkly. Notes Cas. 380.

Counsel for Eleanor cite Keener v. Grand Lodge A. O. U. W., 38 Mo. App. 543. The court in that case found that for a period of about four years, with short periods of intermission, the deceased and the claimant, Katie Keener, “lived together in an unlawful, illicit, and licentious way.” Even in the assignments of the certificates he did not designate her as his wife. In one he designated her as his “friend, Miss Katie Burke,” and in the second as ‘ ‘ Mrs. Katie Keener, bearing the relationship to myself of wife.” In such cases there is no obligation, moral or legal, resting upon the assured to care for the woman. She is in no sense his wife, and not dependent upon him. In this case there is no taint upon either of the parties. For 18 years after assuming this relation they were faithful to each other. Though she may have failed to show a valid divorce, we think it not contrary to public policy to permit these mutual benefit associations to issue policies in favor of those occupying such a relation in the honest belief that they are husband and wife. If the assured, the beneficiary, and the association choose to recognize such contracts as valid, we think that it does not lie in the mouths of others to deny their validity,— especially in that of one who for 18 years, with full knowledge of the facts, recognized and treated the parties as husband and wife.

The decree is affirmed, with costs.

The other Justices concurred.