text:
    COMSTOCK v. McDONALD.
    Partnership — Retiring Partner — Purchase of Share — Gift— Notes — Interest — Investment by Partner — Consent of Firm — Salary to Partners — Death of Partner — Dissolution — Compensation of Surviving Partners — Partnership Realty — Distribution on Dissolution — Personalty—Partition.

      1. Complainants, who were brothers, and one B., were equal partners, and owned a large amount of pine .lands, lumber, and other property, worth about $1,000,000. B. offered to sell his interest for $300,000. Complainants and the decedent, their brother, a young man without means, purchased the interest. Fifty thousand dollars was paid in cash and other property by the complainants. For the balance of the purchase price several notes were given, signed by the partners as individuals, and not as a firm. These notes were paid out of the assets of the firm, and the entries of such payments made upon the books of account. Joseph died, and complainants filed a bill for an accounting. The defendants claim that complainants by the transaction made a gift to Joseph of a one-ninth interest in the partnership property and business, which interest was then worth over $100,000. The sole evidence to support this claim is the entries upon the books, which it is claimed are consistent with that theory, and with no other. Held, that the books are not .conclusive evidence of such gift; that the other testimony shows that Joseph did not regard the transaction as a gift, but as a purchase by him, and that that evidence must control.
    2. The interest paid upon the notes given by the three brothers was a part of the purchase price, and the estate of Joseph must pay its share thereof.
    3. Under the facts stated, the expenditure of $17,165.25 is held to have been a partnership transaction, and the investments made therewith to belong to the partnership.
    4. Where each partner has, by mutual consent, drawn from the partnership each year a certain amount as salary, the death of one partner terminates the arrangement, and upon a partnership accounting each is entitled to receive the salary to the time of the death.

      5. The surviving partners, under the facts in this case, are not entitled to compensation for services rendered in closing up the affairs of the partnership.
    6. Complainants, in appropriating notes bearing interest, charged themselves with the amount of accrued interest. They also appropriated notes bearing no interest. Held, that in the accounting they should be allowed a discount upon such notes as bore no interest, and were not due when appropriated.
    7. After all the partnership debts have been paid, and all that remains is the division of the property, including the real estate, among the partners, held, that the real estate resumes its character of realty, and the partners are entitled to a partition of the lands.
    8. Where the division of the personal assets is difficult, the sur. viving partners are authorized to sell such assets and divide the proceeds.
    Appeal from Alpena; Kelley, J.
    Submitted January 8, 1901.
    Decided March 26, 1901.
    Bill by Andrew W. Comstock and William B. Com-stock, surviving partners of the firm of Comstock Brothers, against George R. McDonald, administrator of the estate of Joseph B. Comstock, deceased, and others, for an accounting. From the decree rendered, complainants appeal.
    Modified.

      Frank Emerick (Bussell C. Ostrander, of counsel), for complainants.

      McDonell & Hall, for defendants.

       Head-notes by Grant, J.

   Grant, J.

The main issue in this case is sufficiently stated in 113 Mich. 626 (71 N. W. 1087). It is now before us for final hearing upon the proofs. The record is voluminous, and contains 1,480 pages. Accurate books of account were kept, in which were entered all the transactions of the firm in their dealings with others, and also with each other, so far as the amounts drawn out by each of the partners are concerned. The following questions are submitted for determination:

1. In the purchase of Mr. Bewick’s interest by the three brothers for $300,000, did Joseph agree to pay one-third of that amount, to be taken out of his share of the profits and assets of the firm, or did complainants make-him a gift of a one-ninth interest in the firm ?

2. Should his estate be charged with one-third of the interest paid upon the notes given by the three for the purchase of the Bewick interest?

3. Should a deposit in the Detroit Savings Bank, amounting to $17,165.25, be charged wholly to the complainants, or to the firm ?

4. Should the estate receive $625 as salary due Joseph for t\ months of the year in which he died, or $1,000, to cover the entire year ?

5. Are complainants entitled to salary or compensation for services since the death of Joseph, during the settlement of the estate ?

6. Should complainants be credited with the sum of $956.46 for discounts on notes not drawing interest, taken by and charged to them on maturity ?

Complainants, for some time prior to 1867, carried on a lumbering business under the firm name of “A. W. Comstock & Company.” In 1867 Charles Bewick became an equal partner. The firm name then became “Bewick, Comstock & Company.” The business consisted of lumbering, banking, and carrying trade by vessels. They had no written articles of partnership. The business was very successful, and, as stated in the former opinion, in 1886 its property was estimated to be worth nearly $1,000,000. In that year Mr. Bewick offered to sell out to his copartners for $300,000. The offer was accepted, and Joseph became a purchaser of one-third of Mr. Bewick’s interest. He thus became the owner of a one-ninth interest, each of the other partners owning-four-ninths. The new firm was known as “Comstock Brothers.” Bewick made no bill of sale of the personal property to the new firm, but executed deeds of the real estate. Fifty thousand dollars was paid in cash, each of complainants contributing $15,000 of that amount; the-other $20,000 being paid by the money of the firm. Six notes were executed, signed by each of the brothers individually, aggregating in all $250,000, payable in one, two, and three years. Subsequently, at the request of Mr. Bewick, one of these notes, amounting to $25,000, was taken up, and a note in the firm name given in its place.

It is the contention of the defendants that the books of account were kept upon the theory that the purchase price was paid out of the assets and profits of the firm, and that these books conclusively show that Joseph was to pay nothing for his interest. It is the theory of the complainants that the books do not necessarily sustain this theory; that Joseph purchased this interest, and agreed to pay therefor $100,000; and that in the settlement the purchase price should be charged against him. The court below sustained the claim of the defendants.

Defendants invoke the rule that when the books of a copartnership clearly show the relative rights and interests of the partners, as well as the respective claims or contentions which they made relating to the same during its existence, nothing short of documentary evidence should be allowed to change such rights and interests as they appear upon the books. ■ This rule is conceded by counsel for the complainants, but they insist that the authorities upon which the rule is based present no such case as that presented by this record.

We do not think it necessary to enter into a discussion of the science of bookkeeping, to which counsel for defendants have devoted a considerable part of their brief. We cannot reach the conclusion that the entries upon the books are so clear as to show conclusively that complainants and Joseph understood that the former were making a gift to the latter of an interest in their business and property, which they had been many years in accumulating ; that interest being worth at least $100,000, and probably more. Such magnanimity, even between brothers, is not common. He who asserts such a magnificent gift should be able to point to conclusive evidence to sustain it. The proof relied upon is found entirely in the manner of keeping the accounts, and counsel for defendants state that the entry in the “capital stock” account furnishes the most important evidence. All the parties and all the witnesses to the transactions in the purchase of Bewick’s interest, and the admission of Joseph as a partner, are living, except Joseph. All have been witnesses, and it is singular that not one has testified to any statement made at the time, either by Joseph or the complainants, that they were making Joseph a gift of a one-ninth interest in the business and property which they had been so many years in establishing and accumulating. The books of Bewick, Comstock & Co. contain no account of “capital stock” until August 15, 1883, on which date appears the following entry:

August 15th, 1883.
Sundries, to capital stock.................................$39,000
A. W. Comstock & Co., to bal. transferred----------$26,000
Chas. Bewick..........................-........... 13,000
Sundries, to capital stock................................- 24,000
A. W. Comstock..............-.................... 8,000
W. B. Comstock.................................... 8,000
Chas. Bewick, agreement------------------1.......- 8,000

No other entry of “capital stock” was made until August 4, 1886, when the following entry was made:

August 4th, 1886.
Capital stock......................................$300,000
To Chas. Bewick..............-...........................$300,000

On August 5, 1886, the bookkeeper made the following entry:

Chas. Bewick, to sundries-------------------------$300,000
A. W. Comstock..........................-............... $15,000
1-6 of San Diego..................-........$5,000
1-4 of Alcona............................... 10,000
W. B. Comstock.-.!..........................-............. 15.000
1-4 of Alcona..............-................ 10,000
Cash........................-.............. 5,000
Alpena Banking Company. 20.000
Bills payable.............. 250,000
Notes as on bill-book.

This entry stood until January 12, 1893, when the following entry was made:

Jan. 12th, 1893.
Profit and loss.......................•.............§237,000
To capital stock___________________________________________§237,000
To balance the account, as it represents nothing.

Whatever the entry of August 4th may mean, it does not seem to us conclusive evidence that the complainants were to pay the entire amount of the Bewick purchase, and make a donation of one-third of it to Joseph. We think the explanation given by the complainants’ counsel the reasonable one:

“When Harry Bewick on August 4, 1886, charged, ‘Capital stock, $300,000,’ and credited Charles Bewick with the same, his only idea was to give Bewick a credit to balance what was being charged to him, namely, the $50,000 paid down, and $250,000 credited ‘bills payable.’”

It is unnecessary to enter into a further discussion of the entries on these books, and the deductions drawn therefrom by counsel for each. side. We think it proper to look elsewhere to determine what the real transaction was. In doing this it is unnecessary to consider the testimony of the complainants,' or to determine whether their testimony is competent under the circumstances of its introduction.

The six notes given to Mr. Bewick for $250,000 were not, upon their face, partnership notes, but were notes of the individuals, and upon their face imported that each was to pay one-third of the amount. 1 Bates, Partn. § 452; 17 Am. & Eng. Enc. Law, 1031. On these notes, therefore, Joseph was equally bound with the others. The manner of giving these notes is of no little significance, because it appears that they were the only notes or contracts ever given by the firm which were not signed, “Comstock Brothers.” One of the notes for $25,000, at the request of Mr. Bewick, and for reasons which throw no light upon the relations between the brothers, was subsequently surrendered, and a firm note given in its place. Both Charles Bewick and his son Harry testified that, in the conversation at the time of the sale, the three brothers purchased his interest. On direct examination, Charles Bewick testified:

“On this purchase each was to get one-third of my interest, and each was to pay $100,000. Joseph had no money, and they said we had a good deal of lumber and logs on hand; as they would sell and get the money, these notes would be paid from the proceeds. In talking that over with Joseph, my recollection is that it was to be charged up to his account, — the purchase, — and his-share would be paid out of his ninth interest.”

On cross-examination he testified: “He [Joseph] said that A. W. and William B. had sold him one-third of my interest.”

Harry Bewick testified that his father made a proposition to sell his one-third interest in the business, which was accepted, and that:

“When the papers were to be drawn up, they notified me that they had sold Joe Comstock one-third of my father’s interest. As I understand it, they agreed to let Mr. Joe Comstock in on the same basis as themselves. At the time when it was talked over as to who would purchase from my father, Joe, A. W., and Will were all in the office, and each was to pay to my father $100,000. * * * The deeds were made out to Joseph B., A. W., and W. B. Comstock.”

Balfour Lee testified to a conversation with Joseph a few days after he had become a member of the firm, and congratulated him upon it. The witness testified: “He [ Joseph] said that he had it all to pay for yet.”

One Benjamin C. Jolly, who kept the books of Com-stock Bros, from September 15, 1890, to September 15, 1892, testified to a conversation with Joseph'-in the spring of 1892; that Joseph.told him “that, when Bewick sold out, he was taken in as a partner, getting a third of his interest, for which he was to pay a hundred thousand dollars. He said his interest was worth $60,000. He-' said he had still to pay his $100,000, but after doing so his interest would be $60,000.” This statement corresponds with the theory of the complainants, — that Joseph obtained his interest in the partnership by purchase, and not by gift.

To sustain the contention of the defendants would be to disbelieve the testimony of these four witnesses, and draw deductions from entries upon the books which upon their face are silent as to how Joseph obtained his interest, — books which upon their face do not even show that he was a partner; for the books continued right along, without change of name or balancing of accounts. It is entirely reasonable and consistent with the books and the evidence above given that neither party considered it necessary to place the exact transaction upon their, books, which they might easily have done. The business continued to be carried on the same as before. No new books were opened and kept. We think it is established by a fair preponderance of the evidence that Joseph was to pay for his share, and in the final settlement it should be charged to him.

The authorities cited and relied upon by the learned counsel for the defendants do not, we think, go so far as to exclude parol testimony in this case, or to make the accounts upon the books conclusive.

In Adams v. Gordon, 98 Ill. 598, there were written articles of partnership, specifying that the two partners had contributed capital stock to the sum of $20,000. The articles provided that the copartners “shall share equally in stock and all profits and losses that may accrue in their business during the continuance of their copartnership,” and that, upon the winding up of the concern, all gains and increase in stock were to be divided between them, share and share alike. One of the partners died. The other partner sought to prove that he had put in more of the capital stock than the deceased partner. No credit was given upon the books to the surviving partner. Two partial settlements had been made, in which no such claim had been made. The court said: “There is no evidence that even tends to show that the partners were not equal owners of the sum ‘delivered in ’ as capital stock.”

In Knapp v. Edwards, 57 Wis. 191 (15 N. W. 140), there were no profits or losses aside from the destruction of the property by fire. The firm had no assets except some real estate, and no debts. The plaintiff’s investment had been fully accounted for by sums drawn out by him and by loss by fire. The defendant had put in more capital than the plaintiff. It was held that plaintiff was not chargeable for any sum beyond his investment. The reasoning of the court is this:

“Neither is the defendant entitled to be allowed any more than he has already received from the firm, although he invested in the business more money than did the plaintiff. This is so because the firm met with no losses other than by the fire, and hence it would be unjust to require the plaintiff, in addition to losing his whole investment, to pay several hundreds of dollars to his partner. It being settled that the firm made no profits and suffered no other loss, the plaintiff cannot be held chargeable for any sum beyond his investment.”

In Cunningham v. Smith’s Ex’rs, 11 B. Mon. 325, books of account had been kept to show the correct amount of purchases and sales. It was sought to charge one of the partners with from 25 to 30 per cent, more, because other concerns in the like business had made large profits. The books were kept under the general superintendence of both partners, and, as the court said, “furnish evidence of a high character between them, and which has not been successfully impeached.” It was therefore held that the general evidence of the profits made by others was inadmissible.

All that is decided in Ryder v. Gilbert, 16 Hun, 163, is that, in the absence of evidence of the precise amount of the respective shares of the partnership, the presumption is that they are entitled equally. The question arose under a proceeding for the distribution of the proceeds of an execution sale against one of the partners.

In Griggs v. Clark, 23 Cal. 427, it was held that, in the absence of any special agreement, the rule of law is that the partners share equally in both profits and losses. The mere fact that partners had put in unequal amounts of capital will make no difference in the rule. The evidence whether there was a special agreement was conflicting.

In Van Ness v. Van Ness, 32 N. J. Eq. 669, it was simply held that where a member of a firm, whose duty it is to keep the accounts, claims to have omitted to enter credits to which he is entitled, he must make satisfactory proof of such mistakes.

Topliff v. Jackson, 12 Gray, 565, goes no further than to hold that the books of the partnership are prima facie evidence against each partner.

It follows from the conclusions above reached that the estate of Joseph should be charged with one-third of the interest paid upon the notes given by the three brothers for the purchase of Bewick’s interest. The interest upon these notes is as much a part of the purchase price as was the principal.

On the 1st day of May, 1893, Comstock Bros, had a deposit in the Detroit Savings Bank amounting to $17,-165.25. During that month A. W. Comstock drew a check for $5,000 against this account, ,and used it for his own purposes. For it he gave his individual note to Comstock Bros., payable one year from date at the office of the Alpena Banking Company. It was paid there on May 7, 1894. Joseph, of course, knew of this, for he was the manager of the bank. For some reason, the note was not entered upon the books of the bank or of Com-stock Bros. The balance of this account was also drawn out by A. W. Comstock. The sum of $15,000 of the firm’s money was loaned by A. W. Comstock to three concerns in Sioux City, Iowa, upon three notes, for $5,000 each,— one executed by D. T. Hedges, another by the StockYards Company, and the third by the-Dressed Beef & Cattle Company. These three concerns were jointly interested in business in Sioux City. They failed, and, in place of the notes, $15,000 in stock of the Credit Commutation Company was issued to the Alpena Banking Company. Joseph knew of this transaction, and it was partly, at least, conducted through him. Assessments were afterwards made upon this stock amounting to $1,375, making the total amount invested in that concern $16,375. This stock was transferred to Comstock Bros. September 30, 1897; the original certificates being retired, and new ones issued instead. The Alpena Banking Company also subscribed and paid for $1,500 first-mortgage bonds of a concern known as the Combination Bridge Company, with semi-annual coupons at 5 per cent, per annum. The bonds were delivered, and the coupons paid as they matured. This bridge company was one of the properties of the commutation company, which owned the franchise for building the bridge. The subscription was made to protect the stock of the commutation company.

The circuit judge said that the evidence did not clearly satisfy him that “this"$17,000, or some part of it, did not go into that transaction.” Neither the books of the banking company nor of Comstock Bros, show what particular moneys were loaned for the above three notes. Mr. A. W. Comstock testifies positively that the money drawn from the Detroit Savings Bank was finally used for that purpose. "We find nothing in the record to justify the conclusion that he testified untruthfully, or that he acted dishonestly in the matter. Without entering more into detail, we are satisfied that it was; that this was a partnership transaction; that each partner must bear his proper share of the investment, and is entitled to his share of the bonds and stock, or the proceeds thereof if sold.

Each year during the partnership, each of the complainants was credited on the books with $4,000, and . Joseph with $1,000. Seven and a half months of the year in which Joseph died had expired at his death. The complainants having credited his account with $635 for that time, being his salary at the rate of $1,000 a year, the cir-' ■cuit judge rejected this item, holding that it should be $1,000, on the theory that the $9,000 thus credited each year was a division of the assets, and did not represent ■expenses as salaries. He was clearly in error. The evidence shows that these items were yearly entered in the expense account as salaries, and were so considered by all ~the parties. The partnership was dissolved by the death of Joseph, and this agreement to pay salaries was also terminated by the dissolution. Each partner should therefore be' credited with his salary for 7£ months only, and not for a full year, — each of the complainants at the rate of $4,000 a year, and the estate of Joseph at the rate of $1,000.

It is strenuously urged that the complainants are ■entitled to compensation for services rendered by them in closing up the partnership affairs after the death of Joseph, and that the allowance to each of salaries during the lives of all the partners is evidence of an agreement that the salary should continue to the surviving partners. There is nothing in the record to indicate that this payment of salaries was to continue after the dissolution of the partnership. As we have already held, that arrangement ceased with the dissolution. One of the risks assumed by the partnership is dissolution by the death of either; and the implied contract is that the survivor shall wind up the affairs of the concern without extra compensation. 2 Bates, Partn. § 772; Loomis v. Armstrong, 49 Mich. 521 (14 N. W. 505); Porter v. Long, 124 Mich. 584 (83 N. W. 601). The death of one partner often undoubtedly requires the employment of others to do his work, and this expense comes out of the general fund; "but, except in very extraordinary cases, courts of equity will not allow a surviving partner compensation for his services. "We do not find that the complainants in this case did any more in winding up the affairs of the partnership than the law and their contract of partnership required of them. Their claim for such services is therefore disallowed.

The complainants took and charged themselves with certain notes, some of which bore interest and others of which were without interest. They appear to have been charged at their face value. The court below correctly held ‘(and of this complainants do not complain) that they are chargeable with the accrued interest upon the interest-bearing notes at the time complainants took them. Complainants also asked to be allowed a discount upon those notes which they took before due, and which' bore no interest. This amount is, as stated by the circuit judge, $956.46. We think the judge in error in finding that the interest had been deducted at the time they were appropriated by the complainants. If this were so, his. conclusion would be correct. We think it just and equitable that complainants should be allowed this amount.

The decree provides for a partition of the firm lands and the division of the personal assets. The assets consist of about 48,000 acres of pine land in Mississippi,, stump lands in Michigan, lots in Alpena, vessel property, and a large amount of bills receivable, stocks, bonds, and mortgages. The debts have all been paid. The complainants insist upon the right to sell all these assets, personal and real, and to divide the proceeds between the surviving partners and Joseph’s representatives. They insist that the real estate belonging to the partnership is-personalty.

The authorities cited and relied upon by counsel for complainants from this State do not decide the question. They all hold (and such is the established rule) that real estate is personal property for the purpose of settling and paying the debts of the partnership. In Way v. Stebbins, 47 Mich. 296 (11 N. W. 166), it was held that partnership lands are to be equally divided among the survivors and the heirs of the deceased when there are no partnership debts to be satisfied. In England all the partnership assets are held to be personalty, and, after the payment of partnership debts, must be divided as personalty, and go to the representative, and not the heir. The authorities in this country have not been -uniform as to the character of real estate of a partnership after the partnership debts are paid. Story, Partn. § 93. There are authorities which hold that either partner is entitled to have all the assets sold and the money divided; but the weight of authority in this country is to the contrary. Bates says:

‘ ‘ Equity will not go further, and convert it [realty] into personalty for additional purposes, such as for the mere purpose of division, unless the intention to convert for more than partnership purposes appears; hence, in this country, the widow has dower out of a partner’s share in the surplus, and the share goes to the heir, and not to the executor.” 1 Bat'es, Partn. § 297.

The reasons for the English rule are stated in T. Pars. Partn. § 271. That author states the rule in America to be that, after the real estate has been subjected to the payment of the debts of the partnership, what remains—

“Becomes at once real estate, or, rather, all the incidents and qualities of real estate revive. This rule goes upon the ground of a trust imposed upon all who hold the legal title, in behalf of all partnership objects; and, that trust once discharged, the residue resumes its former character.” T. Pars. Partn. § 272.

The decree of the court, therefore, as to the partition of the lands, must be sustained. A division of the personal assets obviously would be very difficult, and, unless the parties can agree upon a division of these, we think the surviving partners should be authorized and directed to proceed to collect the debts due the firm, sell the personal assets, and divide the proceeds.

The decree will be modified and entered in accordance with this opinion. Complainants will recover costs of this court.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WILLIAMS v. CITY OF WEST BAY CITY.
    Defective Sidewalk — Question for Jury.
    Where a flagstone in a walk is broken and partly sunken, making a depression from two to six inches deep, it cannot be said, as a matter of law, that the walk is reasonably safe and fit for travel.
    Error to Bay; Sharpe, J., presiding.
    Submitted January 9, 1901.
    Decided March 26, 1901.
    Case by Susan Williams against the city of West Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Lee E. Joslyn, for appellant.

      John Golden (James Van Kleeck, of counsel), for appellee.
   Moore, J.

This case has been here before. It is reported in 119 Mich. 395 (78 N. W. 328). Upon the second trial the plaintiff recovered a verdict of $300. The case is brought here by writ of error.

The defendant insisted that, under the evidence in the case, the sidewalk was shown to be reasonably safe and fit for travel, and the judge should have directed a verdict in favor of defendant; citing Shietart v. City of Detroit, 108 Mich. 309 (66 N. W. 221), and Jackson v. City of Lansing, 121 Mich. 279 (80 N. W. 8).

If the case rested upon the testimony of the witnesses produced upon the part of the defendant, it would have been the duty of the judge to direct a verdict; but it did not. Witnesses were sworn on the part of the plaintiff, who swore that a flagstone in the walk was broken, and that part of it was sunken down, making a depression or “pocket,” as some of the witnesses called it, from two to five or six inches deep, and that in the evening, when it was raining, the plaintiff stepped into this depression and was thrown down. If this testimony was true, it cannot be said, as a matter of law, that the walk was reasonably safe and fit for travel.

The case was very carefully tried, and, we think, is free from error.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    GRINNELL v. BEBB.
    Assumpsit — Default—Assessment of Damages.
    On the assessment of damages in assumpsit on a contract of sale, after the default of defendant, the amount of the dam ages alone is in issue; the liability of defendant on the contract being fixed by the default.
    Error to Wayne; Donovan, J.
    Submitted January 10, 1901.
    Decided March 26, 1901.

      Assumpsit by Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Bros., against John E. Bebb, for goods sold and delivered. From a judgment for defendant, plaintiffs bring error.
    .Reversed.

      W. L. January (Moore & Moore, of counsel), for appellants.

      William M. Me'rtz, for appellee.
   Hooker, J.

The plaintiffs are dealers in musical instruments. In March, 1896, they delivered a piano to the defendant, and took from him a writing signed by him, acknowledging the possession of the piano, which he thereby agreed to purchase on conditions mentioned, as follows, viz.: To pay therefor $425, in installments stated, at times specified (or sooner, at his option); the piano to remain the property of plaintiffs and subject to their order until fully paid for. It contained a clause providing that in case of failure to pay, or in case of removal, etc., the right to possession should, at the option of plaintiffs, be forfeited and at once ended. It contained the further provision that in case of a failure by defendant to perform any of the stipulations of the contract, or if plaintiffs should ^rightfully take possession of the piano, all payments theretofore made should be forfeited, and if enough should not have been paid to cover an ordinary rental, damages, and expenses, plaintiffs might collect the deficiency, and any judgment for any part of the contract price should not be a waiver of their right to retake the instrument. It also provided that plaintiffs might replace the piano with another if any rightful fault should be found with it.

Plaintiffs’ action is assumpsit. The declaration contains a copy of this contract, and alleges a delivery of the piano, and that defendant found fault with it, and that at his request another was substituted for it, and that the same was accepted as satisfactory by the defendant. The special count concluded with the averment that the defendant had not performed his promises as contained in the writing, and alleged damage to the plaintiffs. No plea was filed. A demurrer to this special count was overruled, with leave to plead upon payment of $10 costs. The defendant declined to pay the costs or plead, and, his default being entered, the case came up for assessment of damages before a jury.

Upon the assessment the defendant was allowed to introduce testimony in support of the claim that an arrangement was made between the parties whereby the plaintiffs accepted the piano back without claim of further payment, upon defendant’s promise to ‘c help them out ” if he knew of any one to whom it could be sold. This was upon the theory that it affected the question of damages, which counsel insists to have been an open question, upon which defendant was entitled to offer proof. Counsel for the plaintiffs contend that the default established their right to recover, and that the damage should have been assessed according to the terms of the instrument, and that it was not. They also urge that the testimony offered by defendant did not sustain his claim. The court instructed the jury that, unless they found that the piano was surrendered and accepted by the plaintiffs, the latter were entitled to a verdict for all the damages that they had suffered, but, if they believed Mr. Bebb, their verdict would be, “No cause of action;” that, if they should find that the plaintiffs were entitled to recover damages over the $25 paid by Bebb when the piano was delivered, they could recover only such damages as they had honestly suffered by reason of Bebb’s refusal to take the piano and pay the agreed price. The jury rendered a verdict of no cause of action.

The defendant has a right to appear and contest the amount of damages, but the default fixes his liability on the cause of action alleged, and admits that something is due the plaintiff. Clark v. Compton, 15 Tex. 32; Thompson v. Haislip, 14 Ark. 220; Banks v. Manufacturing Co., 108 N. C. 282 (12 S. E. 741); Memphis, etc., R. Co. v. Dowd, 56 Tenn. 179; O'Flynn v. Holmes, 8 Mich. 97; Bridges v. Stephenson, 10 Ill. App. 369; Froust v. Bruton, 15 Mo. 619; Garrard v. Dollar, 49 N. C. 175 (67 Am. Dec. 271); Lee v. Knapp, 90 N. C. 171. The defendant had the right to contest the amount of damages and to call witnesses for the purpose, but the burden of proof was upon the plaintiffs to establish their claim to more than nominal damages. Anthony v. Estes, 101 N. C. 541 (8 S. E. 347); Parker v. House, 66 N. C. 374. In Green’s Practice (page 464) it is said that:

“All that the plaintiff is called upon to prove, or that the defendant is permitted to controvert, is the amount of damages (1 Bos. & P. 365); the cause of action being impliedly admitted by the default (1 Strange, 612; Doug. 315). * * * The plaintiff is entitled to nominal damages, at least, whether he produces any evidence or not. Jackson v. Rathbone, 3 Cow. 296. And an inquest which finds for the defendant will be set aside for that cause alone. 2 Bag. 466.”

A verdict cannot be rendered for the defendant in such a case. Shepard v. New Haven & Northampton Co., 45 Conn. 54; Parker v. Roberts, 63 N. H. 434; Rogers v. Moore, 86 N. C. 85; Turner v. Carter, 1 Head, 520; Sheldon v. Sheldon, 37 Vt. 152; Cooper v. Roche, 36 Md. 563; Memphis, etc., R. Co. v. Dowd, 56 Tenn. 179; Ellis v. State, 2 Ind. 262; Allen v. Lioteau, 9 Mart. (La.) 459; Reigne v. Dewees, 2 Bay, (S. C.) 405.

The court was in error in instructing the jury that, if they believed Mr. Bebb, their verdict should be no cause of action. The testimony offered by the defense was such as, under a proper plea, would have gone to the whole claim of the plaintiffs. It was, in effect, a claim that he had been released from the contract, and that claim was-inconsistent with his admission that plaintiffs had a cause of action upon the contract. He should not have been allowed to introduce testimony for the purpose of denying-the allegations of the declaration, but should have been restricted to proof upon the subject of the amount of damages suffered through his admitted breach of contract. The subject is tersely treated by Judge Black in his work on Judgments (section 91), where authorities in support of the text are cited. He says:

“A default admits the cause of action and the material and traversable averments of the declaration, although not the amount of damages; and upon the proceeding for their assessment the amount of damages is all that the plaintiff is required to prove, or the defendant is permitted to controvert. The former must produce whatever evidence is necessary to fix the amount of his claim with precision. Thus a judgment by default in assumpsit, where an account is filed in the declaration, is an. admission of indebtedness for the articles charged; but the-value of the articles and the amount of the items require to be proved. As for the defendant, he may offer any evidence which is confined to the question of damages solely, or which goes in mitigation or reduction of damages ; but evidence tending to deny the cause of action, or to show that a right of action does not exist, or to avoid the alleged contract, is irrelevant and inadmissible.”

There are many assignments of error, but we think it unnecessary to discuss them. What has been said should sufficiently indicate the course to be pursued upon a future assessment of damages. It is only necessary to determine the amount of damages suffered by the plaintiffs through the defendant’s breach of his contract; and this depends somewhat upon the circumstances under which the plaintiffs received the property, as they would be less if the property were taken under the forfeiture clause than they would be if taken under an arrangement to store the piano for the defendant.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    TOBIN v. MODERN WOODMEN OF AMERICA.
    1. Life Insurance — Cause of Death — Cancer—Development of Disease — Question for Jury.
    Where physicians testified, in an action on an insurance certificate, that it was possible that a cancer, which caused the death of the insured 10 days after he received his certificate, might have originated and developed within so short a period of time, but that it was extremely improbable that such was the fact, and that no similar case had come within the range of their personal knowledge, it was proper for the court to submit the question as. one of fact to the jury.
    2. Appeal — Denial of New Trial — Review.
    An order denying a motion for new trial is not review able on 126 Mich. — ll. error where the record does not show the reasons for the denial, or that any exception was taken to the ruling.
    3. Life Insurance —Conditions—Good Health — Temporary Indisposition. »
    A condition of an insurance certificate that insured should be in good health at the time of receiving his certificate would not be violated because of some slight -indisposition, as headache or colic, only temporary in its effect.
    4. Same — Breach of Warranty.
    Where an insurance certificate makes the truth of the insured’s statement in his application, that he is at the time in good health, essential to the validity of the certificate, it would be error to permit the jury to excuse a breach of such warranty on the theory that the false statement was such as to work no prejudice to the insurer.
    , 5. Trial — Instructions—Harmless Error.
    An instruction containing language which is erroneous in the abstract does not require a reversal where the context renders it harmless, and it is apparent that the jury considered it in its proper connection.
    Error to Saginaw; Wilber, J.
    Submitted February 1, 1901.
    Decided March 26, 1901.

      Assumpsit by Helen Tobin against the Modern Woodmen of America on a benefit certificate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      J. W. White and Emory Townsend, for appellant.

      Ferdinand Brucker and Fred H. Allen, for appellee.
   Hooker, J.

The defendant is a fraternal society, and the action one brought against it by a beneficiary named in one of its certificates issued to her late husband. Upon the certificate was the following:

“1. That the application for membership in this society made by the said member, a copy of which is hereto attached and made part hereof, together with the report of the medical examiner, which is on file in the office of the head clerk, and is hereby referred to and made part of this contract, is true in all respects, and that the literal truth of such application, and each and every part thereof, shall be held to be a strict warranty, and to form the only basis of the liability of this society to such member and to his beneficiary or beneficiaries, the same as if fully set forth in this benefit certificate.
‘ ‘ 2. That, if said application shall not be literally true in each and every part thereof, then this benefit certificate shall, as to the said member, his beneficiary or beneficiaries, be absolutely null and void.
“3. This certificate is issued in consideration of the warranties and agreements made by the person named in this certificate in his application to become a member of this society, and also in consideration of the payment made when adopted as a Neighbor in prescribed form, and his agreement to pay all assessments and dues that may be levied during the time he shall remain a member of this society.”

The application for membership referred to in the declaration was in writing, duly executed by Michael Tobin, and delivered by him to defendant as a consideration for and the basis of the benefit certificate sued on in this case, a substantial copy of which application was attached to the declaration. . It appeared that by the terms of the said application, and of the benefit certificate sued on, each is made a part of the contract applied for; that, by the terms of the contract, the statements and answers contained in the application were warranted to be strictly and literally true; and that it was further agreed by the terms of the contract that, if any answer or statement made in said application should not be literally true, any benefit certificate issued on the application should be void; that, by the terms of the contract, there should be no liability on the part of the defendant by reason of said contract unless said Michael Tobin should be in sound health at the time he should receive the benefit certificate.

Among the questions asked of Michael Tobin in said application was the following: ‘ ‘Are you now of sound body and mind, in good health, and free from disease or injury?” to which question he answered, “Yes.” “Have you ever had any serious illness, local disease, or personal injury?” The answer of the said Michael Tobin thereto was “No.” “Have you, within the last seven years, consulted any physician in regard to personal ailments?” His answer thereto was “No.”

The evidence disclosed that the application was executed on the 4th day of April, 1898, and the applicant was initiated and received his certificate on May 23,1898. On the -27th day of the same month he was seriously sick from a cancer. It is claimed that the testimony conclusively shows that he was not free from disease, but had the cancer, at the time he was initiated, and that the certificate was thereby invalidated; and error is assigned upon a refusal to direct a verdict for the defendant.

The court instructed the jury that if, either at the time he made his application or when he received his certificate, he was not in good health, but was suffering from disease, then, according to the contract that he made with the society, his wife could not recover. If the testimony could be said to conclusively show that the deceased had this cancer at the time of his initiation, the court should not have permitted the jury to find the contrary. Most of the testimony tended to show that the cause originated before the deceased was admitted to the order. The gist of the testimony of the two witnesses supposed to show otherwise is that, while it is possible that such a tumor' might develop after May 23d, and end in death under circumstances such as these on June 2d, it was so improbable that neither had ever seen or heard of such a case. Neither of them gave his opinion that it was probable that this cancer originated after May 23d. The most that Leach said was that, judging from the rapidity of the growth of this cancer, he should say it could have formed and grown after the 23d of May. Duncan said that, taking Dr. Leach’s testimony as true, it would be a very rapid growth, but, from the way it did grow, a person would conclude that it might be so.

While courts should not hesitate to take from juries matters of fact which are clearly not in dispute, they are and should be careful not to invade the province of the jury. We see many cases where the preponderance of evidence is clearly against the verdicts rendered, and we consider this to be palpably so; but we cannot say that the court erred in not taking upon himself the function of the jury, and weighing the evidence, though it was within his province to set aside a verdict clearly wrong. This society is an aggregation of individuals, not for the purpose of making money out of an insurance or other business, but to obtain mutual protection for their families against the want that sometimes follows the death of the husband and father. . It was agreed that sick men should not be eligible, and there was no concealment of the fact. The prohibition was not confined to those who should believe themselves sick, but to those who should be sick as a matter of fact, when initiated, whether known or not. This was a contract they had a right to make, and to have enforced. It is not the province of juries to bestow charity at others’ expense, and, where it clearly appears that they attempt it, the trial court should frustrate the attempt by setting aside the verdict. In this case a motion for new trial was denied; but, as the record does not show the reasons for such denial, nor that any exception was taken, we cannot review the court’s action in that matter. McRae v. Garth Lumber Co., 102 Mich. 488 (60 N. W. 967); Finley v. Widner, 116 Mich. 679 (75 N. W. 132); In re Gallagher's Estate, 120 Mich. 365 (79 N. W. 570); Brennan v. O'Brien, 121 Mich. 491 (80 N. W. 249).

There was testimony tending to show that upon the evening of his initiation the deceased was not in good health. It was shown, and not disputed, that some members were standing with him on the sidewalk in front of the hall, and one asked him how he felt, and he said, “Pretty sick.” He started upstairs, and, after going five •or six steps, he rested on the railing of the stairway. After waiting a minute or two, one walked up to him, and said, “You got a pretty hard way of getting up;” and he said, “Yes, sir.” The member said, “I will help you up,” and he said, “All right;” and he helped him up. The witness stated that he helped him up because he was sick, and that he said he was very weak, and not strong enough to climb the stairs. The witness helped him up the second flight. He did not stay until the camp closed, but asked to be excused because not feeling well. He stayed but about five minutes after being obligated. There was also testimony that he said the reason he was not initiated at the previous meeting was because he was sick. The meetings were held twice a month. This testimony, which was uncontradicted, has a strong tendency to show that he was not in good health; but we cannot say that the court erred in leaving the question to the jury.

Defendant’s second request was as follows:

“If you believe from the evidence in this case that on the evening of May 23, 1898, when Michael Tobin secured the benefit certificate sued on in this case, he was not in good health, then your verdict should be for the defendant, as the plaintiff would not be entitled to recover if said Tobin was not in good health when he received said certificate.”

The court said:

“I give you this charge as requested, but with the same qualification I have just given you in regard to the other, —that some slight indisposition that would be only temporary in its effects, and that would not prejudice the rights of the defendant in any way, would not be such a statement as would forfeit her right to recover; but, if it was the other, then it would.”

He had previously been asked to charge as follows:

“You are instructed that the rights of the plaintiff in this case are subordinated to, defined and controlled by, the contract made by her husband; that if he made an untrue statement in his application concerning his health, or if the certificate sued on was delivered to him when he was not in good health, the plaintiff has no right to recover, as a recovery under such circumstances would be in violation of the terms of the contract, which provides that if any of his statements made in the application were untrue, or that if he was not in good health when he received his certificate, it would be void and of no effect.”

. The court gave the same with the following modification :

“ I have substantially told you the same thing, and I so charge you in the language of the request. But let me say to you that an untrue statement which would defeat a recovery must be such a statement as would be likely to work an injury or a prejudice to the rights of the defendant. Some slight indisposition, that could be only temporary in its effects, would not prevent a recovery. The defendant in that case would not be damaged or injured by it.”

As to the second, we may say that we can hardly consider a temporary headache or colic as justifying a forfeiture upon the ground that the person was not in good health within the meaning of this policy. We are satisfied that this applicant was not in good health when he received his certificate; but the question was submitted to the jury, and the verdict is conclusive. It was not competent, however, to make the question depend upon whether it prejudiced the defendant. Being coupled with what preceded it, perhaps it should not be so understood, how. ever.

But, as regards the first request, his instruction was erroneous. It was not for the court to permit the jury to excuse a breach of warranty upon the ground that the statement, though false, was not material. • The parties had made the statements warranties. They had seen fit to contract that all statements should be material, and what the effect of a false statement should be. The court set this aside, and substituted another provision in its place. As said in the case of Modern Woodmen of America v. Von Wald, 6 Kan. App. 231 (49 Pac. 782), it was provided by the contract that “the certificate should be void in case of the untruthfulness of any of the answers, and neither the court nor the jury are at liberty to inquire into the materiality of the questions and answers, and, unless they are true, the beneficiary, cannot recover.” See, also, Northwestern Benevolent & Aid Ass’n v. Hall, 118 Ill. 169 (8 N. E. 764); Ketcham v. Accident Ass’n, 117 Mich. 521 (76 N. W. 5); Continental Life Ins. Co. v. Rogers, 119 Ill. 474 (10 N. E. 242, 59 Am. Rep. 810); Finch v. Modern Woodmen of America, 113 Mich. 646 (71 N. W. 1104).

In Ætna Life Ins. Co. v. France, 91 U. S. 510, it was said:

“We decided in the case of Jeffries v. Insurance Co., 22 Wall. 47, that the question of the materiality of the answer did not arise; that the parties had determined and agreed that it was material; that their agreement was conclusive on that point; and that the only questions for the jury were: First, Was the representation made? Second, Was it false?”

But this general language, though erroneous in the abstract, should not be treated as a ground for reversal, for the reason that the only misrepresentation complained of was that he said that “he had no disease, and was in good health;” and we should treat this discussion as directed to that question, and the instruction under consideration limited by its concluding sentences. The only question in dispute was whether deceased had this cancer on April 4th; and the jury must have found that he had not, as all the testimony showed that the cancer was a fatal malady, and there is nothing to indicate that the jury could have considered it a mere temporary ailment, or that they took any other view of it. Our attention is not called to any testimony tending to show that he had any other disease at the time the application was made. There was no chance for a misapprehension upon the part of the jury.

The judgment is affirmed.

Moore, Long, and Grant, JJ., concurred with Hooker, J. Montgomery, O. J., concurred in the result. „


author:
Grant, J.
      Montgomery, C. J.

text:
    PRIEUR v. E. H. STAFFORD CO.
    Negligence — Contributory Negligence — Evidence—Questions eor Jury.
    Plaintiff backed his horse and wagon to a freight house, as was his custom, to load the wagon with barrels. The street in front of the door was 29 feet wide, and the horse and wagon ■standing across it occupied 22 feet, leaving a way but 7 feet wide for other wagons to pass. The back of the wagon was '2 feet from the building, to allow plaintiff to get in between it and the building to fasten a wire across the wagon to hold ■on the barrels. While plaintiff was so engaged behind the wagon, defendant’s servants attempted to pass plaintiff’s horse with a furniture wagon 7 feet wide, on which church pews 12 feet wide were loaded, one of which struck the head of plaintiff’s horse, causing it to back, injuring plaintiff. Held, in an action for the injuries received, that defendant’s negligence and plaintiff’s contributory negligence were for the jury, and that it was error to direct a verdict for defendant. Grant, J., dissenting.
    Error to Muskegon; Russell, J.
    Submitted February 1, 1901.
    Decided March 26, 1901.
    Case by Hilaire Prieur against the E. H. Stafford Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff was a dealer in oil and barrels, and as such frequently went to the freight house of the Chicago & West Michigan Railway Company to receive and unload barrels. He had a tall rack, with slanting sides, upon his wagon, on which to load the barrels. Opposite the freight house the roadway was 29 feet wide, and then crowned to an elevation of 2 feet 4 inches higher to the railroad track and packing house opposite. Plaintiff backed his horse and wagon at the first door of the freight house next to Third street, and 100 feet therefrom. The hind wheels of the wagon extended a few inches beyond the end of the wagon. With the wheels against the side of the freight house, his horse and wagon occupied 20 feet of the roadway. After he completed his load, he started his horse up 2 feet to enable him to step between the rear of his load and the freight house, for the purpose of tieing wires across the rack to prevent the barrels from falling off. Thus standing, the horse and wagon occupied all but 7 feet of the level part of the roadway. He testified that it was necessary for him to get between his load and the building to tie the wires. While he was thus standing-behind his load, the defendant’s wagon, driven by its servant, turned into the roadway from Third street with a load of furniture, to be taken to one of the doors of the freight house beyond where the plaintiff’s horse was standing. The platform wagon was 7 feet wide, and a portion of the load consisted of church seats 10 or 12 feet long, which projected from the sides. These seats were in the middle of the wagon. The driver saw the horse and wagon, but did not see plaintiff. Thinking that there was room to drive in front of plaintiff’s horse, he did so, with the right wheels as far upon the elevated part of the highway as he thought was safe. As defendant’s horses passed the head of plaintiff’s horse he saw them, and testified that he hallooed to the defendant’s driver, but that he paid no attention. No one heard the plaintiff’s call, . not even the man who stood in the freight house 12 feet from him. Plaintiff’s testimony tends to show that one of the seats struck the head of his horse, causing him to back; that he had not time to extricate himself before he was caught between the rear of his wagon and the building, and injured. Plaintiff’s testimony also tended to show that his horse and wagon stood in the usual way and place for loading and unloading. The only disagreement of fact is whether the head of plaintiff’s horse was struck by one of the seats, plaintiff testifying that it was, and the two men on defendant’s wagon testifying tha it was not. The court directed a verdict for the defendant.

      James E. Sullivan and Cross & Lovelace, for appellant.

      Smith, Nims, Hoyt & Erwin, for appellee.
   Grant, J.

(after stating the facts). 1. Was defend-. ant guilty of negligence? The defendant is, of course, responsible for the negligent acts of his driver when engaged in his master’s business. The defendant had employed a competent driver and safe horses, and he had placed another employe upon the rear of the load, whose duty it was “to watch and see that the load cleared everything, and that nothing fell off.” But these precautions did not relieve him from the negligence of his servant. His servant was driving in a careful and prudent manner, unless the act of attempting to pass within the space left was in itself negligence. Plaintiff’s horse and wagon were standing across the roadway, without any driver in sight. Plaintiff was behind his load, and could not beseem It is a matter of common knowledge that teams, in such places, drive in close proximity to the heads of horses. If there is sufficient room to pass, the driver of the passing vehicle is not guilty of negligence, though the horse take fright and back or run away. The driver of defendant’s team would have been justified in backing plaintiff’s horse and wagon so as to give him room to pass, unless he had reason to believe that somebody was standing behind the wagon in danger of being injured. Defendant’s driver had no reason to suppose or believe that plaintiff was standing there. If he had, defendant would, undoubtedly, be liable, if his driver had intentionally backed his horse, or had driven in such close proximity as to strike the horse’s head, and thus cause him to back. Defendant’s driver had no knowledge that it was necessary or customary for plaintiff to stand behind his load to draw wires across it. Why should the driver of defendant’s team expect that plaintiff was at work in this space of two feet, in the absence of any evidence tending to show that he had any information that this was common or necessary ? For all that appeared, plaintiff might be in the freight house. The learned counsel for plaintiff invoke the rule, as to plaintiff’s negligence, that the law did not require him to be on the lookout for danger that could not be expected to exist. For the same reason, defendant’s driver could not be required to guard against danger which he had no reason to anticipate. The driver’s act can only be made negligence by finding that he had good reason to expect that danger to plaintiff would result by his conduct, and there is no evidence to support such a finding.

2. Was plaintiff guilty of contributory negligence? Plaintiff was in a public roadway. He knew that teams were liable to pass. Though it be true that his horse was steady, yet had he a right to suppose that his horse would not become frightened at some load passing in close proximity to him, or that it might strike his head, or that the horse might back for fear that he would be struck ? He still left room for many teams to pass, and there is no doubt that defendant’s driver thought he could pass without striking the horse, and, according to himself and his attendant, who were the only ones in position to see, they did. There is no testimony to show that it was a custom for teamsters doing business at this freight house to start up their teams two feet, and stand behind their loads to arrange them, or that any one ever did so except the plaintiff. He was so intent upon his business that he did not see the defendant’s team, and took no steps to look for it, until the heads of the horses were past his own horse. So, too, the driver of defendant’s team was intent upon driving his team through this space, taking care not to get his right wheels too far upon the high ground so as to endanger his load, and to avoid hitting the plaintiff’s horse. I think it was the duty of the plaintiff to be on the lookout, and that he was guilty of contributory negligence in not doing so.

The judgment should be affirmed.

Montgomery, C. J.

In addition to the facts stated by my Brother Grant, it should be stated that the plaintiff, in backing his wagon up to the freight house to take on the load, was pursuing the usual course, as the testimony shows; indeed, such testimony was hardly needed, for the very fact that this door was provided suggested that it must have been intended that vehicles to take on freight must approach it in some way. The construction of plaintiff’s wagon was such that the freight could not be taken over the side. The only way possible, then, was to back the wagon up to the door. What, then, is the effect of this holding of the circuit judge F It is that there is no actionable negligence in driving a portion of a load against a horse standing in the highway, or that the occupation of this portion of the street was negligence per se on the part of the plaintiff. In my judgment, neither position can be maintained upon authority. We have so often held that the question of negligence is for the jury when different persons might honestly draw different conclusions from the facts that it is unnecessary to pause to cite the cases. Can it be said that men might not differ as to whether it was negligent for this plaintiff to back up to the door of this building provided for that purpose, to take on his load, start his steady 22-year-old horse ahead far enough to permit it, and step to the rear of his wagon and fasten the load on before driving away, particularly when the evidence shows that it was indispensable to start the horse up in order to admit of fastening the load on ? I confess I cannot conceive upon what principle or authority such a holding can be made. On the contrary, in the case cited by defendant (Le Baron v. Joslin, 41 Mich. 313 [2 N. W. 36]), the question was held to be for the jury under circumstances quite as strongly tending to show want of care on the part of the plaintiff. In that case the plaintiff left his horse tied by the side of the road, with the hind wheels of the buggy extending to the traveled part. The horse was left standing unattended.' The evidence on the part of the defendant tended to show that the defendant’s carriage would have passed in safety if the plaintiff’s horse had not backed up. Plaintiff’s contributory negligence was held to be a question for the jury. It will be seen that in that case there was no necessity for plaintiff’s wagon to occupy the position it did, as was the case here. See, also, Park v. O'Brien, 23 Conn. 339; Greenwood v. Callahan, 111 Mass. 298.

But, in another view, this case was, as to this question, a case for the jury. The position of the plaintiff’s horse was seen by the defendant’s driver. It was apparent, or should have been, that, if he attempted to drive through the space left, some portion of the load must come in contact with the plaintiff’s horse. Two solid substances cannot occupy the same space at the same time. Had the driver, then, the right to proceed to drive against the plaintiff’s horse, and charge the consequences to the plaintiff’s alleged pre-existing and discovered negligence? The law has not been so since the decision of Davies v. Mann, 10 Mees. & W. 546. In this leading and familiar case the question presented was very similar to the one here involved. Plaintiff had left his donkey tethered in the public highway. The court said :

“Although the ass may have been wrongfully there, still the defendant Was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.”

Was there evidence tending to show defendant’s negligence? My views upon this question can, perhaps, be deduced from what has been said. The idea that the defendant’s driver, approaching this place with a load too wide to pass through it without striking the horse in the way, might proceed, and not be chargeable with negligence, is not justified.

The judgment is reversed, and a new trial ordered.

Hooker, Moore, and Long, JJ., concurred with Montgomery, C. J.


author: Grant, J.

text:
    CHURCHILL v. REA.
    Replevin — Affidavit—Clerical Error.

       A clerical error in an affidavit for writ of replevin, substituting in one place the names of the defendants for the plaintiffs, will not vitiate the affidavit, where the error is manifest upon its face.
    Error to Alpena; Kelley, J.
    Submitted February 1, 1901.
    Decided March 26, 1901.
    Replevin by Worthy L. Churchill and Hobart D. Churchill against Robert Rea and the Detroit & Mackinac Railway Company. From a judgment for plaintiffs, defendant Rea brings error.
    Affirmed.

      O ’Brien & Francis, for appellant.

      L. Gr. Dafoe, for appellees.

       Head-note by Grant, J.

   Grant, J.

This action of replevin for 89 logs was ■commenced in justice’s court. The logs were the property of the plaintiffs, were taken by defendant Rea, and shipped by defendant railway company, which had no other interest in them than that of carrier. They were in the actual possession of the railway. The affidavit stated that the logs were the property of plaintiffs, and were unlawfully detained from their possession by the defendants, naming them. The affidavit then stated that “ said Detroit & Mackinac Railway Company and Robert Rea are now lawfully entitled to the possession of said goods and chattels.” The railway company appeared and defended. Mr. Rea’s counsel advised him that the court had no jurisdiction, and not to appear. After rendition of judgment he obtained the writ of certiorari to the circuit court, and, being defeated there, has brought the case to this court.

The case is easily distinguished from that of Freer v. White, 91 Mich. 74 (51 N. W. 807), which is not cited by counsel, and we therefore presume that they do not rely upon it. That was an attachment suit, in which the affidavit stated that the defendant “is not a resident of this State, and has resided in this State for one month next immediately preceding this date. ” The two statements were not necessarily inconsistent, because defendant might be a nonresident, and still have temporarily resided in the State for a month. In the present case the affidavit expressly states that the property was unlawfully detained from the plaintiffs’ possession by the defendants. Had the affidavit stopped there, it would have been sufficient, although not in the exact words of the statute; for it alleged that the property described was that of the plaintiffs, and by clear implication that they were entitled, to it, and that it was unlawfully detained from their possession.

Judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    VAN BENSCHOTEN v. FALES.
    1. Attachment — Alias Writ — Rules of Court — Effect.
    Under article 6, § 5, of the Constitution, providing that the-Supreme Court shall, by general rules, establish, modify, and simplify the practice in the circuit courts, the Supreme Court was authorized to make a rule (Circuit Court Rule No. 1, subd. V) permitting the issuance of alias and pluries writs, including writs of attachment, which rule, in the absence of anything in the statute conflicting therewith, is to be given the force and effect of a statutory provision.
    2. Same — New Affidavit — When Unnecessary.
    No new affidavit is required to' support an alias or plurieiwrit of attachment, where the property has. been seized under the original writ, and the further writ is desired merely to subserve the purposes of a summons.
    3. Same —Copartners—Joint Wrong — Sufficient Allegation.
    ■ In attachment proceedings against two partners, an affidavit reciting that the deponent “has good reason to believe, and does believe, that the said C. and H. have assigned, disposed of, and concealed their property with intent to defraud their creditors,” sufficiently alleges that each defendant is guilty of the wrong charged.
    4. Same — Misnomer—Identification.
    A writ of attachment was issued against two partners doing business under a firm name in a small town where there was no other firm of the same name. Held, that a misnomer, consisting only of an, error in the Christian name of one of the partners, did not invalidate the writ, since the parties were sufficiently identified.
    Error to Ionia; Davis, J.
    Submitted February 12, 1901.
    Decided March 26, 1901.
    Replevin by Harvey ,L. Van Benschoten and George W. Harris against Elmer E. Fales. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Reversed.

      Charles L. Barden (George E. & M. A. Nichols, of counsel), for appellant.

      Morse & Locke, for appellees.
   Long, J.

The defendant is a deputy sheriff for Ionia county, and on the 29th day of July, 1899, at the city of Belding, levied an attachment upon the goods in controversy in favor of Henry Stern and Gotthilf Bloch, copartners, doing business under the firm name of Stern '& Bloch, and against John V. Cahill and William Hudson, copartners, doing business at Belding, Mich., under the firm name of Cahill & Hudson. The writ issued' on the 27th day of July, 1899, and was made returnable on the 5th day of September following. A proper inventory and appraisal of the goods was made on the date of the levy. The affidavit for the writ recited that the names of the defendants in the attachment suit were George V. Cahill and William Hudson, and the writ was issued against George Y. Cahill and William Hudson. After the issuance of the writ, the plaintiffs discovered that Cahill’s name was not George Y. Cahill, but was John Y. Cahill. On the 12th day of September, 1899, the sheriff made his return to the writ, with the inventory and appraisal attached, which return showed that he had been unable to find either of the defendants, and that neither of them had been served with the writ. The next day the plaintiffs caused an alias writ to be sued out against John Y. Cahill and William Hudson as copartners, in which it was recited that John Y. Cahill had been “erroneously named in the original writ as George Y. Cahill,” which writ was on the 18th day of September served upon William' Hudson at the city of Greenville, Montcalm county. The service on Hudson was made by delivering to him a certified copy of the alias writ, and certified copy of the original writ, and affidavit, inventory, and appraisal, and the return of the officer to the original writ; and on the 4th day of October the sheriff made his return to the alias writ, with his doings thereunder.

The plaintiffs in this case claimed the goods by virtue of two bills of sale, dated the 10th day of July, 1899, and the 5th day of July, 1899, and under that claim, on the 18th day of August, replevied the goods from defendant, Fales, who was holding them by virtue of the writ of attachment; and afterwards, and on the 30th day of August, 1899, filed their declaration in this cause, to which the defendant pleaded the general issue, and gave notice thereunder that he would justify his possession by virtue of the writ of attachment.

The case came on to be heard before the court at the city of Ionia on the 22d day of December, 1899, before a jury. The plaintiffs gave evidence tending to show their right of possession by virtue of their bills of sale, and rested. Then the defendant, to maintain his case, offered in evidence the writ of attachment, together with the inventory and affidavit, and the returns and proceedings of the officers had in the attachment case. To the introduction of the attachment proceedings, plaintiffs, by their attorney, made the following objections :

1. That there was no legal service made upon either of the defendants, and only an attempted service made upon Hudson, which was void because the court had*no jurisdiction to issue an alias writ of attachment.

2. That the affidavit was defective because it did not allege that each defendant was guilty of the wrong charged.

3. That the affidavit was not sufficient to support a writ of attachment against John V. Cahill and William Hudson, copartners, and no new affidavit was made, and the existing affidavit was not amendable.

4. That the court obtained no jurisdiction in the attachment suit, because it does not appear from the officer’s return that he had attached the property of John V. Cahill and William Hudson.

Counsel for defendant, Bales, thereupon moved to amend the writ and affidavit in the attachment case, changing the words “George V. Cahill” to “John V. Cahill.” This motion was denied, and the court directed the verdict in favor of plaintiffs upon the following grounds:

(а) That the affidavit in the attachment case did not state with sufficient certainty that the wrong or fraud was committed by each of the individuals comprising such copartnership.

(б) That the misnomer of George V. Cahill for John V. Cahill in the affidavit for the writ of attachment could not be cured by amendment.

(c) That there is no authority in law for the issuance of an alias writ of attachment.

It is conceded that the statute does not authorize the issuance of an alias writ of attachment, nor prohibit it; but counsel for defendant contend that the question is governed and controlled by Circuit Court Rule No. 1, subd. b, which provides for the issuing of alias and. pluries original writs. On the other hand, counsel for plaintiffs claim that an attachment is not an original writ, but a special writ issuing under the statute, which must be strictly followed, and that it resembles an original writ only in the fact that it is prescribed by the statute that it shall bear an indorsement for security for costs, and that it is to be dated and signed and made returnable on the same days as original writs. It is the-further claim of counsel for plaintiffs that no rule of court can extend the power of the statute and give validity to proceedings not in compliance with it; that the court cannot, therefore, by rule, aid in enlarging the writ by providing for an alias.

We think the Supreme Court had ample power to make this rule, and that it applies, and-was intended to apply, to writs of attachment. The Constitution of this State, by article 6, § 5, provides:

“The Supreme Court shall, by general rules, establish, modify, and amend the practice in such court and in the circuit courts, and simplify the same.”

Stevens, in his new work on Michigan Practice (section 22 d), says in regard to this rule:

“Prior to the adoption of the revised rules, there was no provision for the issue of an alias writ of attachment. The rule now applies to all original writs, and authorizes an alias and pluries writ, under certain restrictions. * * * If the only purpose in issuing the alias or pluries writ is service on the defendant, its function is only that of a summons, and in-such case no new affidavit is necessary; but, if the alias or pluries writ is desired for the purpose of authorizing a seizure of property, a new affidavit must be made and annexed to the alias or pluries writ, in order to meet the requirement that no writ of attachment shall be executed without having annexed thereto an affidavit, and to show a continuance of the cause for attachment down to the time of issuing the alias or pluries writ. It is obviously improper to detach the original affidavit from the original writ, and annex it to an alias or pluriesj and a new affidavit, where property is to be ■seized, would seem absolutely essential to the validity of the alias or pluries writ.”

In the present case, the property had been seized under the original writ, and all that remained to be done was to summon the defendants, and service was had in accordance with the rule. The case is very different from one where the statute has provided a rule of practice, as in the case of Ismond v. Scougale, 119 Mich. 503 (78 N. W. 546), cited by plaintiffs’ counsel. An alias writ is permitted to issue in replevin cases. Maxon v. Perrott, 17 Mich. 332 (97 Am. Dec. 191); People v. Mecosta Circuit Judge, 26 Mich. 414. These cases were decided, however, before the revision of the rules; and counsel for plaintiffs contend that this being a common-law writ, and not like an attachment writ, the same rule cannot be applied. Counsel cite the case of O’Brien v. Haynes, 61 Ill. 494, in which it was held that an alias writ of replevin could be issued, and also the case of Pack, Woods & Co. v. American Trust & Sav. Bank, 172 Ill. 192 (50 N. E. 326), in which the same court held that there was nothing in the statute which authorized the issuing of an alias writ of attachment. Other Illinois cases are cited to the same rule. Those cases, however, have no bearing upon the question involved here. We think that, under the power vested in the Supreme Court by our Constitution, the rule was properly made, and that it has the same force and effect as a statutory provision. The court was therefore in error in holding that no alias writ could issue.

We think the affidavit sufficiently charged both defendants with a wrong. It recites that “this deponent has good reason to believe, and does believe, that the said George V. Cahill and William Hudson have assigned, disposed of, and concealed, their property with intent to defraud their creditors.” This question is ruled by Smith v. Runnells, 94 Mich. 617 (54 N. W. 375); Cottrell v. Hatheway, 108 Mich. 619 (66 N. W. 596).

We think the court erred in holding the attachment proceedings void by reason of tbe misnomer in the given name of Mr. Cahill. Under the decisions of this court, the defendants were sufficiently described, and no officer or other person could have made any mistake as to the parties described in the affidavit and writ of attachment. Cahill & Hudson was the only firm of that name in the-little village of Belding. It is not, and cannot be, urged that the defendants were not sufficiently identified. The mistake was corrected in issuing the alias writ, and fully explained. That suit was still pending when this one was tried. In my judgment, the case is ruled by Barber v. Smith, 41 Mich. 138 (1 N. W. 992), and Emerson v. Detroit Steel & Spring Co., 100 Mich. 127 (58 N. W. 659).

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    GORMAN v. KENNEDY.
    Contract — Construction—Modification by Parol.
    * Plaintiff sold to defendants under written contract a specified amount of curbstone. Defendants, after that contract was made, sent another order. Both orders were filled, accepted, and paid for. Defendants testified to a subsequent parol contract, by which the price was reduced, plaintiff guaranteed the stone should be up to the specifications of the board of public works, and agreed to reimburse them for expense incurred by the failure to comply with such specifications. Plaintiff denied the oral agreement, except as to the reduction in price. Held, that the question of an oral contract was properly submitted to the jury, and that the inspection agreed upon was not upon the cars, but upon the streets, where the inspection was made by the board of public works.

      Error to Wayne; Steere, J., presiding.
    Submitted February 12, 1901.
    Decided March 26, 1901.

      Assumpsit by Charles A. Gorman against Thomas Kennedy and Thomas J. Kennedy, copartners as Thomas Kennedy & Son, for goods sold and delivered. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    During the season of 1891, plaintiff was engaged in the business of quarrying stone at Medina, N. Y.; and the defendants, as copartners under the firm name of Thomas Kennedy & Son, in the business of paving streets in the city of Detroit, required Medina curbstone, and corner stone or circles, for their use in the contracts which they had with said city for paving streets therein. On July 7, 1891, they entered into the following written agreement:
    “ I hereby agree to deliver to Thomas Kennedy & Son, f. o. b. cars at Detroit, Mich., 6,800 lin. ft. of 4x18 curb, not less than 3 ft. long, and 1,200 lin. ft. of 4x18 curb, not less than 4 ft. long, on or before July 20, 1891, railroad delays excepted, at 40 cts. per lin. ft. Cash or drafts to be accepted at five days after shipment.
    “Charles A. Gorman.
    “I hereby accept the above proposition.
    “Thomas Kennedy & Son,
    “Per T. J. Kennedy.”
    On the same date, but after the above contract was made, defendants wrote plaintiff to send them 10 to 20 circles of 4-foot radius with the first shipment. These orders were filled, and more shipped than was ordered; but as to them no question is raised, as they were received and paid for. Defendants claim to have made another parol contract on August 6th, by which the plaintiff agreed to ship stone at 39 cents per lineal foot, and to guarantee it up to the specifications of the board of public works of Detroit, and that, if it was not up to such specifications, he would reimburse defendants for what expense they were put to for handling it. Plaintiff admits a conversation with defendants at Detroit, but places the time as the last of July or the first of August, and claims that all subsequent orders and shipments were made under the above written agreement, and that the only change was to reduce the price from 40 to 39 cents per lineal foot. On August 11th defendants sent an order for two cars. At the same time they wrote plaintiff, complaining of the character of the stone, and closed the letter by writing:
    “I want no culls, and nothing less than 3 feet long, at 39c. a lin. foot on cars at Detroit; 30 days’ time, on draft.”
    ■ Other orders and shipments were made afterwards. Defendants paid for all the stone shipped, deducting $556.95 for expenses incurred on account of the unfitness of some of the stone, and its failure to pass the inspection of the board. The greater part of the expense was incurred in redressing some of the stone. For this amount plaintiff brought suit. Verdict and judgment were for the defendants.

      Walter Barlow, for appellant. t

      Edwin Henderson, for appellees.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). Plaintiff insists that this case is ruled by Talbot Paving Co. v. Gorman, 103 Mich. 403 (61 N. W. 655, 27 L. R. A. 96). If this stone were sold under the contract of July 7th, this contention should prevail. But all the stone sold under that contract had been delivered, and no controversy arises over it. Defendants testified to another oral contract, by which the price was reduced, and plaintiff guaranteed the stone to be up to the specifications of the board of public works, and agreed to pay all expense incurred by defendants if it was not up to the guaranty. Plaintiff admitted a change in price, but denied any other oral agreement, and claimed that all the stone were shipped under the contract of July 7th. The jury found with the defendants, and there was testimony to sustain their verdict. The inspection by the board of public works was made upon the streets where the stone was used, and this was known to the plaintiff. The expression, therefore, “on cars at Detroit,” or “f. o. b. cars at Detroit,” did not mean the place agreed upon for inspection and acceptance, but only defined the place where the expense of transportation of plaintiff ceased and that of the defendants began.

The judgment is affirmed.

The other Justices concurred.


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    SCHRODER v. PINCH.
    Partnership Debt — Evidence—Defect of Parties.

      1. Under the facts stated in the opinion, there was evidence tending to show that the account sued upon was a partnership debt.
    2. The nonjoinder of defendant’s partner could only be raised by a plea in abatement.
    Error to Calhoun; Smith, J.
    Submitted February 12, 1901.
    Decided March 26, 1901.

      Assumpsit by William Schroder against Benjamin W. Pinch for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Defendant, Pinch, and one Robinson, were copartners under the firm name of Pinch & Robinson, and were engaged in the manufacture of carriages. ■ While they were ■copartners, plaintiff, a grocery man, bought of them a phaeton for $150; $50 to be paid in groceries, and $25 per month until the balance was paid. The phaeton was delivered, and groceries were delivered from time to time to Pinch & Robinson and to their employés. There were-other mutual deals between them. In January, 1899, Robinson sold out all his interest in the partnership to-Mary A. Pinch. Mr. Pinch was a party to that agreement, and thereby agreed to pay all the debts theretofore-contracted by Pinch & Robinson, and to save Robinson harmless therefrom. By mutual understanding, and for convenience in settling between the partners, the goods-delivered under the arrangement by plaintiff were charged to each partner separately. At the time Mr. Robinson sold out he had obtained from plaintiff under the arrangement goods to the value of $22.10, and for that this suit-was brought and judgment recovered. The declaration has a special count setting up the two agreements, the one for the sale of the phaeton, and the other for the sale of Robinson’s interest to Pinch, and his agreement to pay the partnership debts. It also contained the common count in assumpsit. A bill of particulars was demanded and furnished. Plea, general issue and notice of set-off.

      W. 8. Powers, for appellant.

      0. S. Clark, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Two defenses; are interposed:

1. That the account sued upon was not a partnership debt-

2. That plaintiff cannot maintain the action, because he was not a party to the agreement between Pinch and Robinson when the partnership was dissolved.

We think there is testimony tending to show that it was a partnership account. That was the only question submitted to the jury, and they have settled it in favor of the plaintiff.

Defendant was liable as a member of the firm, and no-doubt could arise as to plaintiff’s right to recover as against the members of the firm. The declaration informed him of the nature of the claim, and he could only take advantage of the nonjoinder of his partner as defendant by a plea in abatement. Story, Partn. §§ 241 (note), 455; Slutts v. Chafee, 48 Wis. 617 (4 N. W. 763); Hardy v. Cheney, 42 Vt. 417; 15 Enc. Pl. & Prac. 894.

Judgment affirmed.

The other Justices concurred.


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    KOCH v. KOCH.
    Antenuptial Contract — Specific Performance.

       Bill filed to enforce the specific performance of an antenuptial contract. Held :

    1. That the defendant failed to prove that the contract was obtained by fraud.
    2. The agreement, and the mortgage and note mentioned in it, were executed before marriage, and left with a third party, to be handed to the parties after the marriage. After the marriage the defendant received the note and mortgage, and her husband the contract. Both the contract and the mortgage were recorded. Held, that the delivery by the third party related back to the first delivery, and made the contract binding.
    Appeal from Wayne; Frazer, J.
    Submitted February 13, 1901.
    Decided March 26, 1901.
    Bill by Louis Koch, executor of the last will and testament of Felix Koch, deceased, and others, against Katherine G. Koch, to enforce the specific performance of an antenuptial contract. From a decree for complainants, defendant appeals.
    Affirmed.
    Complainants are heirs and sole devisees, and the defendant the widow, of Felix Koch. In his will he left nothing to his wife. She filed a petition to secure her rights as a widow in his property. Complainants thereupon filed this bill to enforce the specific performance of the following antenuptial contract, executed January 7, 1888:

      “Whereas, marriage between said parties is contemplated; and whereas, both said' parties desire that said first party shall pay said second party a sum of money in full satisfaction and discharge of all the right, title, interest, dower, and claim for support which said second party will have, by reason of such marriage, in the property of said first party, both during his lifetime and after his decease, except the right to claim support during the lifetime of first party: Now, therefore, in consideration of-the premises and said contemplated marriage, said parties agree:
    “Said first party, upon the delivery of this agreement, shall execute and deliver to said second party his note and mortgage for two thousand dollars, payable at the death of said first party, without interest. If said second party should die before said first party, then the amount of said mortgage shall be one thousand dollars, to be paid to her heirs.
    “Said second party, in consideration of the premises and of said note and mortgage, the receipt whereof is hereby confessed and acknowledged, hereby releases and forever discharges all the right, title, interest, claim, dower, and demand which she will have or be entitled to by reason of such marriage in the property, both real and personal, of said first party, both during his lifetime and after his decease, except the right to support during his lifetime; it being the desire of both parties that said second party shall have no interest, claim for support, right of dower, or demand of any kind in or to the property of said first party at any time, except as above provided.”
    This contract and the note and mortgage were duly acknowledged, delivered, and recorded. The defendant in her answer set up two defenses: (1) That it was obtained by fraud; (2) that it was not executed until after the marriage. Testimony was taken in open court, and decree entered for the complainants.

      James H. Pound, for complainants.

      Lemuel H. Foster (Foster, Frazer & Aldrich, of counsel), for defendant.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). At the time of the marriage, Mr. Koch was 57 years old, and defendant 52. He had 8 children by his first marriage, the youngest of whom was then 10 years old, and one was weak-minded. She had been married twice; had three children by her first husband, and one by her second. They werq of full age. Her first husband died. From her second she was divorced. She had known Mr. Koch but six weeks before she married him. It was not a marriage of love, but of convenience. Soon after his wife died, he went to defendant with a view to employ her as his housekeeper. She testified, “I told him I would be nobody’s housekeeper.”

The alleged fraud consists in representing to her that he owned only 40 acres of land. It was worth between $2,500 and $3,000. Under her claim, she was willing, in consideration of marriage, to take from his family fully two-thirds of all his property. She was worth more than this in property obtained from her former husbands. The marriage contract was drawn by Mr. Stellwagen, a lawyer of ability and repute, in the city of Detroit. He explained it fully to her, and told her that she would obtain more property as his widow, in case of death, than she would by this contract. Her claim, therefore, that she supposed he was worth only 40 acres of land, is not sustained. The court below reached the correct conclusion upon the question of fraud.

It is urged that the contract was not delivered until after the marriage, and therefore is only binding at her option, under 3 Comp. Laws 1897, § 8934. Both parties went to Mr. Stellwagen, who, at their request, after agreeing upon the conditions, drew the contract, note, and mortgage. They were then, by mutual agreement, left with Mr. Stellwagen; the contract to be by him surrendered to Mr. K., and the note and mortgage to Mrs. 3L, upon the consummation of the marriage. After the marriage they went to Mr. Stellwagen’s office, obtained the papers from him, and she had her mortgage recorded, and he the contract. The parties left these papers with Mr. S., to be delivered upon the happening of a certain event, namely, marriage. The event happened, and the papers were then delivered by their custodian under the agreement, and by the request of both. No one of the cases cited by defendant’s counsel holds that such a delivery, either of a deed or a contract, is not valid. Some of them are cases where there was no contract relation, but where a grantor — in most cases a parent — had made deeds designed to take effect in the future, but over which he kept control until his death. Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291); Pennington v. Pennington, 75 Mich. 600 (42 N. W. 985).

An examination of McCullough v. Day, 45 Mich. 554 (8 N. W. 535), and Connor v. Buhl, 115 Mich. 531 (73 N. W. 821), will show that they are not in point.

When, pursuant to the agreement, Mr. Stellwagen, the custodian, delivered the contract, note, and mortgage, and the parties accepted them, that delivery related back to the first delivery, and made the papers the executed contracts of the parties at the time they were signed, acknowledged, and deposited with Mr. Stellwagen. This contract barred her dower and all interest in her husband’s estate, under 3 Comp. Laws 1897, § 8933.

The decree is affirmed.

The other Justices concurred.


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    HAPEMAN v. CITIZENS’ MUTUAL FIRE-INSURANCE COMPANY OF KENT, ALLEGAN, AND OTTAWA COUNTIES.
    Fire Insurance — Construction or Policy — Loss from Lightning.

       Plaintiff, a farmer, obtained a policy of insurance upon “live stock,” etc. “Stock insured against lightning anywhere in Kent, Allegan, and Ottawa'counties. Situated in Allegan county, Michigan, on section 5, in the township of Heath.” Plaintiff, while absent from his home with his horses on business, stopped overnight at the house, and stabled his horses in the barn, of a relative. The barn was struck by lightning, burned, and the horses destroyed with it. ‘Held, (1) that the insurance was not limited to the loss of stock upon the farm; (2) that the policy covered loss from both lightning, and fire the immediate result of the lightning.
    Error to Allegan; Padgham, J.
    Submitted March 5, 1901.
    Decided March 26, 1901.

      Assumpsit by George Hapeman against the Citizens’ Mutual Fire-Insurance Company of Kent, Allegan, and Ottawa Counties on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, a farmer, secured a policy of insurance in the defendant company, which contained the following provision :
    ‘ ‘ Live stock, carriages, harnesses, and farm implements, $200. Stock insured against lightning anywhere in Kent, Allegan, and Ottawa counties. Situated in Allegan county, Michigan, on section 5, in the township of Heath.”
    Plaintiff had driven away from his home on business, and stopped overnight at the house of one Burnip, a relative. During the night the barn was destroyed by fire, and the horses burned in it. The main issue of fact in the case was whether the barn was struck by lightning,, and thereby set oh fire. The jury found with the plaintiff on this issue. Defendant moved for a new trial, which was denied.

      Taggart & Taggart (F. H. Williams, of counsel), for appellant.

      WilTces & Hoffman, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). 1. It is first-urged that the insurance upon the property in question did not extend beyond the farm. Counsel for defendant say:

“It [the policy] does not describe any one article, animate or inanimate, that from the description could be-identified, other than by its location upon plaintiff’s farm.”

We find no reason in this contention. The term “livestock” includes horses, which are found on every farm in Michigan. To sustain defendant’s contention would result in negativing that provision of the policy expressly insuring such stock against lightning anywhere in the-three counties named.

3. It is urged that if the horses were destroyed by fire resulting from the lightning, and were not killed by a direct stroke.of lightning, defendant is not liable. An instruction to this effect was refused, the court holding that if the horses were destroyed by fire which was immediately caused by the lightning, or by the lightning itself, defendant was liable. The instruction was correct. The policy included loss from lightning, whether the-horses were killed by the lightning, or by a fire the immediate result of the lightning. This policy permitted and covered insurance upon the live stock when in legitimate use in any part of the territory covered by the • policy. It is common for parties driving in the public highway, when overtaken by a storm, to drive into sheds or barns for temporary protection. It is common for farmers to exchange work, and also for a farmer to hire out with his team to work for other farmers. The policy contemplates that stock thus situated is within its protection. In most cases, where such buildings are struck by lightning and a fire immediately follows, it would be impossible to tell whether the animals, were killed by the lightning or by the fire resulting. Neither the statute under which the defendant was organized, nor the terms of the policy, contemplate that, under such circumstances, a party injured must show that the animals were killed by lightning.

Judgment affirmed.

The other Justices concurred.)