text:
    ARCHER v. LAIDLAW.
    Attachment — Nonresidents—Fraudulent Conveyances — Jurisdiction.
    Under 3 Comp. Laws, §§ 10556,10559, authorizing an attachment where the debtor has disposed of any of his property with intent to defraud creditors, and the levy of the writ on any property of defendant not exempt from execution; and section 9167, providing that lands fraudulently conveyed may be levied on and sold under execution, — jurisdiction in attachment against a nonresident debtor may be acquired by levy of the writ on lands alleged to have been fraudulently conveyed by him.
    Appeal from Wayne; Frazer, J.
    Submitted November 19, 1901.
    Decided December 30, 1901.

      Bill by John Archer and John C. McDonald against Thomas Laidlaw, James R. Laidlaw, Ada G. Strachan, and the Springfield Savings Bank in aid of execution. From an order overruling her demurrer to the bill, defendant Strachan appeals.
    Affirmed.

      Floivers & Moloney, for complainants.

      William Stacey, for appellant.
   Moore, J.

This is a bill in aid of execution. The substance of it is that November 29, 1899, the complainants commenced a suit by attachment against the defendants Thomas and James R. Laidlaw; that a levy was made upon certain real estate described in the bill; that no personal service was had upon the Laidlaws, for the reason that the sheriff could not find them; that afterwards personal service was had upon one of them in Canada, and upon the other in New York; that in April, 1900, a. judgment was rendered in favor of complainants against the Laidlaws for upwards of $700; that an execution was issued upon said judgment, and levied upon the same property upon which the attachment levy was made; that this attachment suit was begun to recover the amount of a judgment they had been compelled to pay as sureties upon a bond they had signed with said Laidlaws, dated July 10, 1897. The bill alleges that, when the suit was started against the complainants and the Laidlaws, James R. Laidlaw was the owner of certain real estate;—

“That on the 15th day of April, 1899, the said defendant James R. Laidlaw conveyed said property by deed to the defendant Ada G. Strachan, which deed was recorded in the office of the register of deeds for the county of Wayne on the 10th day of July, 1899, in Liber 527 of Deeds, on page 40.
“Your orators further show unto the court that said deed so made and executed by said James R. Laidlaw to said Ada G. Strachan was made, executed, and delivered without consideration, and in fraud of the rights of your orators, and for the purpose of preventing the plaintiffs in said suit upon the bond, and your orators as sureties, from levying on said property for the purpose of satisfying said judgment, and that said deed was executed under a conspiracy between the said, defendant James R. Laid-law and the said defendant Ada G. Strachan for the purpose of defrauding your orators.
“Your orators further show that they áre entitled to have said deed so made to Ada G. Strachan set aside and held for naught, and said property subjected to the levy of your orators on said property.
“Your orators further show that said James R. Laid-law has no other property or effects in Wayne county out of which said judgment can be satisfied.”

The bill prays that the deed to defendant Strachan may be held for naught as against the levy, and also has a general prayer for relief. The Springfield Savings Bank is made a party because it holds a mortgage upon the land.

The defendant Strachan demurred to the bill, which demurrer was overruled. There are several grounds of demurrer stated, but only one of them calls for discussion. It is as follows:

“ The bill shows affirmatively that the judgment debtors are nonresidents of this State, and were at the time the complainants commenced their action at law; that said action was commenced by writ of attachment; that personal service of said writ was not had on any of the defendants therein; that said writ was not levied'on any property within the jurisdiction of the court belonging to any of the defendants in said writ, but was in fact levied on property belonging to this defendant; that the writ of execution subsequently issued was levied on the same property, and while it still belonged to this defendant; that because of the foregoing facts the court acquired no jurisdiction to render judgment against any of the defendants in the attachment suit; that neither the attachment nor the execution was effective to create any lien upon the property mentioned in the bill of complaint; and that, therefore, the entire proceedings stated in the bill, and upon which the claim for relief is based, are void. ”

It is the claim of the solicitor that:

“ The judgment upon which the bill is founded is absolutely void, for want of jurisdiction. That suit was commenced by writ of attachment against the two Laidlaws, and neither was personally served with process within the State of Michigan, or appeared in the case, nor was any levy made upon property belonging to either of them. Under these circumstances, the court had no jurisdiction to render a judgment.”

It is said that as the real estate had been conveyed to defendant Strachan, and stood in her name upon the record, a levy upon it was not a levy upon property belonging to either of the defendants in the attachment suit,' and therefore the court obtained no jurisdiction in the attachment suit; citing Van Norman v. Jackson Circuit Judge, 45 Mich. 204 (7 N. W. 796).

We think counsel has misapprehended the scope of that decision. It holds that, at the common law, shares of stock in a corporation are not liable to levy, and the right to levy upon shares of stock is conferred only by statute, and that the right to levy conferred by the statute is only when the status of the debtor is that of a stockholder.

Section 10556, 3 Comp. Laws, provides when an attachment may issue. It provides the writ may issue when “the defendant has assigned, disposed of, or concealed any of his property with intent to defraud his creditors.” Section 10559 provides that “such writ shall command the sheriff, or other officer to whom it may be directed, to attach so much of the lands, tenements, goods, chattels, moneys, and effects of the defendant, not exempt from execution,” etc. This statute was construed in Avery v. Stephens, 48 Mich. 246 (12 N. W. 211), where it was held that as the land, when the attachment levy was made, was subject to levy under an execution, by levying the attachment the lien against the land was preserved until the levy under the execution was made, and that the levy under the execution relates back to the time of the attachment, and holds the interest which the debtor had.

Section 9533, 3 Comp. Laws, provides, among other things:

“Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, * * * made with the intent to hinder, delay, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands, * * * as against the persons so hindered, delayed, or defrauded, shall be void.”

Section 9167 provides:

“ All the real estate of any debtor, * * * including lands fraudulently conveyed with intent to defeat, delay, or defraud his creditors, * * * may be levied upon and sold on execution as hereinafter provided. * * * Provided, * * * that, in case of a levy upon the equitable interest of a judgment debtor, the judgment creditor may, before sale, institute proceedings in aid of said execution to ascertain and determine the rights and equities of said judgment debtor in the premises so levied upon. * * *”

In Trask v. Green, 9 Mich., at page 368, it is said:

“Where the title before the conveyance has been vested in the debtor himself, and he has conveyed for the purpose of defrauding his creditors, the right of creditors to levy and sell rests upon the ground that, the deed being void as to creditors, the legal title,- as to them, still remains in the debtor, as if no conveyance had been made.”

As section 9167 provides that real estate fraudulently conveyed may be levied upon and sold upon execution, and as section 10559 provides that the writ of attachment may be executed by attaching property not exempt from execution, we think the complainants are following the remedy plainly given them by the statute. See note to section 9533, 3 Comp. Laws.

The decree overruling the demurrer is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    JONES v. GREEN.
    1. Corporations — Control of Stock — Validity of Transfer.
    It is competent for a stockholder in a corporation to obtain control of a majority of the stock by purchase, and the validity of the transfer to him will not depend on his motive or purpose in acquiring it.
    2. Same — Stock Held by Administrator — Voting Power.
    Shares of stock standing in the name of an administrator may be voted by him, as against those beneficially interested therein.
    3. Same — Contracts—Personal Interest of Director — Fraud.
    A contract between a corporation and one of its stockholders, entered into through directors to whom such stockholder has assigned part of his stock in nominal amounts in order to make them eligible as directors, is, in effect, a contract by the stockholder with himself, and, if designed to produce a profit for the stockholder, is a fraud on the corporation.
    4. Same — Setting Aside Contract — Equity — Restoration of Benefits.
    Where the board of directors of a mining corporation, with the full concurrence of the majority stockholders, agree that one stockholder shall expend certain money in the development of the mine, and in return therefor shall receive a certain amount of treasury stock, and such contract is declared to be void, and the transfer of the stock set aside, equity will require that the stockholder be reimbursed for all money expended by him in good faith, and pursuant to the contract, in developing the mine.
    5. Same — Lien—Extent.
    But the lien of such stockholder for the money so expended by him should be limited to the stock delivered to him pursuant to the contract, and it is improper to give him a lien on the mine itself.
    6. Same — Equity Practice — Estates of Decedents.
    Decedent, with others, purchased a mining claim, and after his death a patent issued to the parties interested, including his widow and heirs. Thereafter the grantees incorporated, and the widow, as administratrix, assumed to convey the interest of the estate to the corporation, and certain stock was allotted to her as administratrix in payment therefor. After-wards the estate was settled, and the administratrix was discharged. Held, in a suit by certain of decedent’s children to set aside as fraudulent a transfer of other corporate stock by the corporation to a third person, and to determine complainants’ rights in the stock, and for other relief, all the parties being before the court, that the court could enter a decree requiring the widow to convey to each of the heirs his proper share in the stock allotted to her as administratrix.
    Cross-appeals from Cass; Coolidge, J.
    Submitted November 20, 1901.
    Decided December 30, 1901.
    Bill by George W. Jones and another against Eli Green and others to set aside a transfer of mining stock, and for other relief. From a decree setting aside the transfer, but giving Green a lien on the mine for moneys advanced, complainants, and defendants Green and the mining company, appeal.
    Modified.

      Marshall L, Howell, for complainants.

      Harsen D. Smith, for defendant Green.

      Lyle & Eby, for defendant mining company.
   Hooker, J.

At some time earlier than June, 1887, one Jesse G. Jones and a number of other persons purchased a mining claim in Colorado. Jesse G. Jones died subsequently, leaving a widow, Elizabeth H. Jones, and four minor children. On June 20, 1887, a patent for the land issued from the federal government to the parties interested, including Elizabeth H. Jones and “the heirs of Jesse G. Jones.” On April 3, 1888, the grantees incorporated the Roscoe Conkling Gold Mining Company under the laws of Colorado, with a capital stock of 10,-000 shares, of the par value of $10 per share, defendant Eli Green being employed to take the necessary steps to organize the company. Six thousand shares were distributed among the shareholders in consideration of a deed of the mine, which the shareholders joined in making. Elizabeth H. Jones attempted to convey the interest of the estate of Jesse G. Jones as his administratrix, and shares of stock were allotted to her, as such administratrix, in payment for the deed. Four thousand shares of stock were withheld from sale as a working capital for the new company, and apparently there were no other means provided for the development of the prospective mine. A contract was made between the corporation and Eli Green, wherein he undertook to sell 500 shares of stock at par within a prescribed period, for which service he was to receive 2,000 shares of the stock. Thus the company provided for the sale of 2,500 shares for $5,000, or $2 per share.

The affairs of the corporation did not prosper, and it ran along until 1891, when a difference of opinion as to the policy to be pursued seems to have arisen. As stated, Eli Green, who was an uncle to Elizabeth H. Jones, had been employed to organize the company and negotiate stock, and perhaps to render some service at the mine; and Mrs. Jones, who, in her own right, and as administratrix, had possession of a large quantity of the stock, was desirous that the company should enter into a contract with said Eli Green to develop the mine. Negotiations followed between Green and the board of directors, but they could not agree upon terms, and some of the members of the board had negotiations with others. The matter culminated in a strife for the control of the company’s board of directors in 1891, when, by a majority of votes as cast, Mrs. Jones was elected president, and directors friendly to her policy were chosen, and immediately thereafter a board meeting was held, and a written contract was made with Eli Green, by which it was agreed, in substance, that he should expend money in developing the mine to the amount of $4,000, and that in return therefor 2,400 shares of the stock should be delivered to him from the treasury or working stock, the same being deposited with a local banker in Cass county for that purpose. Subsequently, upon an alleged showing that the expenditure had been made, the board caused the shares to be delivered to Eli Green.

The bill in the cause is filed by two of the children of Jesse G. and Elizabeth H. Jones. Eli Green ¿nd his wife, Esther, the other two heirs of Jesse G. Jones, the Roscoe Conkling Gold Mining Company, and one George Gard (who was elected secretary of the company in 1891) were made parties defendant. The bill is filed to set aside the transfer of stock to Eli Green, and from him to his wife, Esther, as fraudulent, and for a determination of complainants’ rights in the stock, and for other relief. Elizabeth H. Jones and Eli and Esther Green join in an answer, denying generally the claims of the bill. An answer purporting to be filed by the company through its alleged secretary and treasurer was filed. These alleged officers were stockholders who were in sympathy with, and claim to have been elected by, the opposition to Mrs. Jones, at the annual meeting in 1891, and they are apparently in sympathy with the complainants, as their answer indicates.

Upon the hearing it was made to appear that Eli Green and Elizabeth H. Jones colluded to secure control of the board, in order that they might carry out the proposed policy of making the contract mentioned. To accomplish this, she, at the suggestion of Green, pushed a claim in behalf of her husband’s estate against one Finney Jones, and finally secured a block of stock held by him in settlement of it, which gave her the necessary majority. Under the advice of Eli Green she was careful to conceal her motive, lest those opposed to her should prevent her from acquiring the stock. He was at the time the president of the concern, and would not sign the new certificate, which Elizabeth, as vice-president, then signed, at Eli Green’s suggestion. The letters written by Green to her, of which there are many, show plainly the concert of action between, him and her to make the proposed éontract. To obtain the necessary stockholders for officers and directors, Green assigned stock in nominal amounts, and the program was fully carried out. The learned circuit judge found this transfer of stock fraudulent, and made a decree setting aside the transfer to Green, but giving him a lien on all of the property of the company for the sum of $4,000, with interest at 5 per cent, from July 1, 1899, which amount was found to be due to Green. The complainants, Green, and the mining company have appealed.

The record shows that the directors who made the contract were elected by a majority of the stock. It was competent for Mrs. Jones to obtain control of a majority of the stock by purchase, and the validity of the transfer does not depend on her motive or purpose, and, having obtained it, she was entitled to vote it. The stock that complainants claim, was in her name, and, as between herself and other stockholders, she had the right to vote it. Complainants, who were not stockholders, had no power in the premises. The election of the directors was valid.

It appears that the holders of a majority of the stock approved the proposed contract with Eli Green, as the minority stockholders well knew. The directors were elected with the understanding on the part of all that they would carry out the wishes of the majority. The court found that a fraud was attempted upon the part of Green, and he may have taken the view that a contract made through directors who held Green’s stock was a contract made by Green with himself, and, if designed to produce a profit, was a fraud upon the company; and we think this is the rule. He was to receive $24,000 worth of stock on a basis of the par value for $4,000 in money. We do not feel confident that this stock was worth $4,000, but it is not important here. All of the stockholders wanted the mine developed. The minority attempted to elect a board, and an attempt was made to make a contract with another; but this was unauthorized, and not binding upon the company. The only lawful board assumed to make a contract for the company. This was with full concurrence of the holders of a majority of the stock. If, under that contract, Green in good faith expended $4,000 for the benefit of the company, in accordance with the contract, in the development of the mine, there would seem to be no reason why equity does not require that he be reimbursed. It is impossible to determine satisfactorily whether this amount was so expended. He testified that it was, and there is no tangible and convincing proof to the contrary. We might perhaps infer that the money could have been spent more judiciously, but that is not clear. The trial judge, who saw the witnesses, seems to have believed that such expenditure was made, and we do not feel justified in holding otherwise.

It is contended that the court erred in making the sum found due Green a lien upon the mine, and providing for a sale of the same in case his claim should not be paid. We are of the opinion that the defendant Green should be limited in his lien to the 2,400 shares. They have already .been delivered to him. A majority of the stockholders, who have been willing to contract on the basis of 2,400 shares, are willing that he should have them, and, as against them, he is not equitably entitled to more; while, as to the minority, he has been limited to a recovery of the amount expended, which they assert to be less than the value of 2,400 shares. We see no reason for his being entitled to more than his contract price, even if the 2,400 shares are worth less, and even against those who question the validity of his contract.

The stock which Mrs. Jones received for and on behalf of her husband’s estate, whether received in payment for his interest in the land or from Finney Jones in satisfaction of the debt due the estate, should be treated as property held in trust for herself and the heirs. The record shows that the estate has been settled, and that she has been discharged as administratrix, so that it may be assumed that creditors have no interest in this stock. As all the parties are before the court, the only minor being represented by guardian ad litem, this court may properly adjust the rights of all in this decree by requiring that Elizabeth H. Jones convey to each his proper share of the stock. * ■

A decree may be taken adjudging that the stock issued in pursuance of the contract be surrendered for cancellation upon payment by the company, or upon its behalf, of the sum of $4,000, with interest thereon at 5 per cent, from July 1,1899, to the said Eli Green, within the period of six months after settlement and notice of the decree herein provided for, otherwise the same to be and remain the property of said Eli Green; that the stock issued to said Elizabeth H. J ones, as administratrix, is held by her in trust for herself and the four children of herself and Jesse G. Jones, and that she assign by apt and proper writing to each his or her proportionate share; the same to be settled at the time of settling the decree in this cause, or by a reference, if the same shall then be found necessary, unless the parties can agree thereto. The complainants will recover costs of both courts against Eli Green, Esther Green, and Elizabeth H. Jones.

Montgomery, C. J., Moore and Grant, JJ., concurred. Long, J., took no part in the decision.


author: Montgomery, C. J.

text:
    H. W. WILLIAMS TRANSPORTATION LINE v. DARIUS COLE TRANSPORTATION CO.
    I. Sale — Written Contract — Warranty — Parol Representations.
    Where, at the request of a purchaser of chattels, the representations made by the seller in the course of the negotiations are incorporated in the written contract in the form of a warranty, such warranty, in the absence of fraud, becomes the measure of the purchaser’s rights, and the alleged falsity of the parol representations can afford him no ground for relief.
    2. Same — Rescission for Breach of Warranty.
    An executed contract of sale cannot be rescinded for a mere breach of warranty as to the quality of the article sold.

      Appeal from Van Burén; Carr, J.
    Submitted November 20, 1901.
    Decided December 30, 1901.
    Bill by the H. W. Williams Transportation Line against the Darius Cole Transportation Company to rescind a contract for the purchase of a steamer. From a decree for complainant, defendant appeals.
    Reversed.

      T. J. O'Brien, O. IS. Kremer, and J. H. Campbell, for complainant.

      F. C. Harvey (John J. Speed, of counsel), for defendant.
   Montgomery, C. J.

The defendant was the owner of the steamer Darius Cole. Its office was in the city of Detroit. The complainant is engaged in the business of transporting passengers and freight between South Haven, in this State, and Chicago. In September, 1899, the complainant purchased of the defendant the steamer Darius Cole for the agreed price of $125,000, a portion of which was paid down, and the balance secured by a mortgage on the vessel. A preliminary contract was entered into on the 13th day of September, in which the defendant agreed that the Darius Cole was capable of running 15 miles per hour, under suitable conditions; and the bill of sale, executed a few days later, contained' a guaranty that the hull, machinery, and boiler of the boat were in sound and perfect condition, and that, “under suitable conditions, she is capable of running, and will run, 15 miles per hour.” The vessel was delivered to the complainant at South Haven in September, 1899. A defect was discovered in the boiler in March, 1900, when the boat was being fitted out for the season. The attention of the defendant was called to it, and the repairs were made at defendant’s expense; and the warranty, so far as it related to the condition of the boiler, was satisfied.

Complainant placed the boat on the line between South Haven and Chicago, and ran her during the season of 1900, up to the 30th of August. In the meantime, and as early as the 2d of July, the complainant, after making 11 trips with the boat, wrote the defendant that they were not able to get the speed out of her that vras guaranteed, and asked that the defendant undertake tó do so. The reply of the defendant was to the effect that a test had been made of the boat after the original contract of sale, and before the final delivery, and that she had made more than 15 miles an hour, and that the fault must be with the engineer; that defendant did not consider itself responsible any further in the matter; and expressing the hope that, after the engineer had become more familiar with the vessel, it might be found that she could make the guaranteed speed. After the receipt of this letter, complainant’s officers visited Detroit, and some suggestions were made by the former engineer of the boat. They returned, and continued its use, as before stated, until the 30th of August, in their business; the delay being excused, as is stated, by the fact that it was difficult to get expert engineers to make a test of the speed of the boat at that season of the year, they all being busy at the time. It appears, however, that one reason for continuing to use the boat was that it was the busy season, — “the harvest time of the complainant,” as its witnesses expressed it,— and that complainant was making money with her. Directly after this date further tests were made in the presence of expert engineers, and the guaranteed speed was not shown, and complainant tendered the boat back to defendant, and filed this bill to have the contract declared rescinded, the mortgage canceled, and to recover the money paid.

There was evidence of statements made by defendant’s officers as to the speed of this boat, in which the opinion was expressed that she would make 15 miles an hour, and in which the statement was made by one of the officers ( Mr. Lee) that his understanding was that she had made somewhat better than 16 miles an hour. There is no justification, upon this record, for any claim that the representations were fraudulent. It is very clear, too, that they were not relied upon as an inducement to the purchase. The complainant’s testimony shows with great clearness that its officers were unwilling to rely upon Mr. Lee’s mere belief in the matter, but insisted upon having a guaranty of the speed of the boat. Whatever may have been the rights of the parties before the contract was entered into, we think it is clear that, having insisted upon and relied upon the.warranty being embodied in the contract, the complainant’s reliance must be upon the written warranty. See Zimmerman Manfg. Co. v. Dolph, 104 Mich. 281 (62 N. W. 339); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401 (43 N. W. 875, 6 L. R. A. 412); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954).

The case presents the question, therefore (which is for the first time presented to this court squarely for decision), whether a contract of sale, accompanied by a warranty of quality, gives the purchaser the right to rescind for a breach of the warranty." Complainant’s counsel cite a large number of cases from this court where rescission has been permitted in case of false representations, and this though there was an absence of the scienter. But these cases rest upon the view which was expressed by the court in Webster v. Bailey, 31 Mich. 36, — that such representations, even though made without knowledge of their falsity, are tantamount, in legal effect, to a fraud. Such cannot be said of the representations in this case, for no fraud was perpetrated upon the complainant by means of these representations. They were not relied upon as a basis for the contract. We do not mean to be understood that, if there was an active fraud, it would be merged in the writing. But that is not this case. The most that can be claimed is that there were representations which proved to be untrue in fact, even if it be said that they amounted to more than an expression of an opinion. But complainant, so far from relying upon the representations, insisted upon a contract of warranty covering the identical ground.

The question of the right to rescind upon breach of a warranty has been before this court in two cases. The first is Kimball & Austin Manfg. Co. v. Vroman, 35 Mich. 310 (24 Am. Rep. 558), in which there was a contract of sale of an engine, with a warranty that the engine was in good condition, and that, if not, it should be made so by the seller. The court held that the effect of this contract was to give the purchaser a right to a future trial of the engine, and future work upon it, if needed, and' placed it on the same footing as if the seller had been a contractor to furnish an engine of its own building, which the purchaser would have a right to return if not such as he had bargained for; and that, under such a contract, the acceptance is necessarily conditional, and does not bind the purchaser to keep what is not made to answer the agreement. In the course of the opinion, Mr. Justice Campbell stated the rule as follows:

“ Where a party gives no warranty, but is guilty of such fraud as vitiates the contract, it is clear enough that the effect of the fraud is to authorize its entire repudiation. The grievance is that the agreement as it turns out' is not the agreement which the party supposed he was making. But where a warranty is given, the legal effect is usually, if not universally, to make the stipulation stand as security for performance; and the injured party prosecutes his remedy upon it to enforce, and not to avoid, the agreement. While a right to return property which does not answer the assurance is not always or generally expressed or implied in the warranty, yet, if agreed upon, it is in no way inconsistent with a warranty.”

The next case in Michigan is that of Murphy v. McGraw, 74 Mich. 318 (41 N. W. 917). In that case the plaintiff was permitted to recover upon the breach of a warranty, upon the ground of total failure of consideration. The court, by Mr. Justice Long, said:

“Counsel for defendant have devoted much space in their brief to the consideration of the question that when there is a warranty as to quality on the sale of goods, but no fraud, and no stipulation that the goods may be returned, though the warranty be broken, the vendee cannot rescind the contract without the consent of the vendor; that a breach of warranty alone will not justify a return. This may be conceded as well settled as a general proposition, but there may be cases where a purchaser, without returning an article, may yet be allowed to recover its cost.”

And in Murphy v. McGraw a recovery was permitted upon the ground that the property purchased was absolutely without value.

The text-books upon this subject state the rule in accordance with the contention of defendant. 3 Mechem, Sales, § 816, states:

“It is the general rule, as will be more fully seen hereafter, that, in the absence of fraud, or an agreement to rescind, an executed and completed sale, as distinguished from the merely executory one, cannot be rescinded for a mere breach of warranty.”

The author states that in a few States, however, the right to rescind is asserted.

In Story, Sales (4th Ed.), § 431, the rule is stated as follows:

■ “In cases of warranty, where the whole of the goods bargained for are delivered, if there be neither a special agreement entitling the vendee to return the goods, nor an actual return and acceptance by the vendor, nor fraud, the right of the vendee to rescind the contract depends upon whether the contract has been executed, and the goods actually accepted by the vendee, or whether it is executory, and the goods have not been accepted by him. If the contract be executed, and the goods be completely accepted, so as to pass the property therein to the vendee, it is very generally held that he cannot elect to rescind the contract and return the goods, after actually receiving them, so as to entitle him to bring an action for money had and received, but he must declare specially on his warranty.”

So, in Benj. Sales (7th Ed.), § 887, it is stated:

“After the property in the specific chattel has passed to the buyer, it may happen that he discovers the goods bought to be different in kind or quality from that which he had a right to expect, according to the agreement. In such case it is necessary to distinguish whether the defect be one in the performance of a condition or of a warranty. In the former case, he may refuse to accept the goods, and reject the contract, but not in the latter. The reason for this difference is that in the one case the contract itself depends on the performance of the condition precedent incumbent on the vendor, while in the other the principal contract has been performed, and the breach is only of the collateral undertaking of warranty.”

If we trace the origin of this doctrine, it is demonstrable that the few States which are said -to follow the Massachusetts rule, and permit rescission for a mere breach of warranty, are out of line. The English cases begin with two cases decided in 1778, — Power v. Wells, 2 Cowp. 818, and Weston v. Downes, 1 Doug. 23. In the first case it was held that an action for money had and received could not be maintained to recover the price paid for a horse warranted sound, and tendered back. This remained the unquestioned law until 1800, when, in Curtis v. Hannay, 3 Esp. 82, Lord Eldon held that if, upon the sale of a horse, it was warranted, and it afterwards turns out that the horse is unsound, the buyer may return the horse, and bring an action for the price. This case is approved by some of the cases cited by complainant’s counsel. But in 1831, in Street v. Blay, 2 Barn. & Adol. 456, which may be said to have become a leading case upon the subject, it was said by Lord Tenterden, C. J.:

“ It is, however, extremely difficult — indeed, impossible —to reconcile this doctrine with those cases in which it has been held that where the property in the specific chattel has passed to the vendee, and the price has been paid, he has no right, upon the breach of the warranty, to return the article and revest the property in the vendor, and recover the price as money paid on a consideration which has failed, but must sue upon the warranty, unless there has been a condition in the contract authorizing the return, or the vendor has received back the chattel, and has thereby consented to rescind the contract, or has been guilty of a fraud which destroys the contract altogether,” — citing Weston v. Downes and Power v. Wells, and saying: If these cases are rightly decided, — and we think they are, and they certainly have been always acted upon, — it is clear that the purchaser cannot, by his own act alone, unless in the excepted cases above mentioned, revest the property in the seller, and recover the price, when paid, on the ground of the total failure of consideration; and it seems to follow that he cannot, by the same means, protect himself from the payment of the price on the same ground.”

See, also, Gompertz v. Denton, 1 Cromp. & M. 207.

In this country the doctrine of Street v. Blay has been generally followed. See Gillespie v. Torrance, 25 N. Y. 310 (82 Am. Dec. 355), and cases cited; Freyman v. Knecht, 78 Pa. St. 144; Allen v. Anderson, 3 Humph. 583 (39 Am. Dec. 197); Lyon v. Bertram, 20 How. 154, citing with approval Thornton v. Wynn, 12 Wheat. 183; Trumbull v. O’Hara, 71 Conn. 180 (41 Atl. 546); Matteson v. Holt, 45 Vt. 341, and cases cited; Wright v. Davenport, 44 Tex. 164; Lynch v. Curfman, 65 Minn. 174 (68 N. W. 5); Hoover v. Sidener, 98 Ind. 293; Woodruff v. Graddy, 91 Ga. 335 (17 S. E. 264, 44 Am. St. Rep. 33); Owens v. Sturges, 67 Ill. 367, 368; Lightburn v. Cooper, 1 Dana, 273; Woodward v. Emmons, 61 N. J. Law, 285 (39 Atl. 703).

The cases are collated and reviewed in 1 Smith, Lead. Cas., under the case of Chandelor v. Lopus, at page 353 (*275), in which it is stated:

“A failure to perform an executory contract on one side may invalidate the obligation on the other; but a warranty is essentially a collateral and independent stipulation, attending on the agreement, and surviving its execution. It is accordingly well settled that a mere breach of warranty, unattended by fraud, does not entitle the vendee to rescind the contract or return the goods.”

And at page 326 (*257), after treating of the sale of goods by sample, the authors say:

‘ ‘ But there is this difference between such a warranty and an express warranty of a specific chattel in esse, which the buyer has had an opportunity to inspect before receiving it: In the latter case he cannot effectually tender back or return the goods, so as to obtain a defense in an action for the price, unless there be a condition in the contract authorizing the return, or the' seller has been guilty of a fraud which destroys the contract altogether,” —citing Street v. Blay and other cases.

We think that Street v. Blay states the logical rule. We find ourselves at liberty to follow it, and therefore hold that this complainant had not the right to rescind the contract when the attempt to do so was made. We need not, therefore, discuss another question, which impresses us as at least very doubtful, namely, whether, if complainant had that right, it has not waived it, after discovering that the vessel did not answer the terms of the warranty.

The decree will be reversed and the bill dismissed, without prejudice, with costs of both courts to defendant.

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


author: Moore, J.

text:
    PEOPLE, ex rel. De JONGE, v. KAMPS.
    u 1. Contested Elections — Qualifications of Electors — Determination — Separate Issue.
    1 Comp. Laws, § 3723, provides that, after issue joined in anjease of contested election, either party may file a petition alleging that voters named therein were not qualified, and asking a determination of that question, when the court shall direct an issue to be formed, to stand for trial as in other cases. After a quo warranto proceeding to oust a public officer had come on for trial, and witnesses had been sworn and examined, a petition was presented asking the court to decide whether certain voters were qualified. Issue was joined, but, before entering on the hearing, the judge offered counsel as much time as they might desire to prepare for its trial, and was informed that they did not desire any extension of time; whereupon a trial was had, and the matter left to the judge, the main case being held in abeyance. Held, that the court was justified in entering on the hearing in such manner.
    2. Same — Marking Ballots.
    Election ballots which appeared as though the voter had first made a cross in the circle, and, thinking he had not marked it plainly enough, repeated the marking substantially over the first, and others which appeared as though the cross might have been made with a pencil the lead of which was so broken that it had two points, or on which the voter may have made the cross with a down and up stroke in making each mark, were properly counted.
    Error to Ottawa; Padgham, J.
    Submitted November 21, 1901.
    Decided December 30, 1901.

      Quo warranto by the People of the State of Michigan, on the relation of Christiaan De Jonge, against Berend Kamps, to determine the title to the office of president of the village of Zeeland. From a judgment for relator, respondent brings error.
    Affirmed.

      Henry J. Felker (William Wisner Taylor, of counsel), for appellant.

      Diekema & Kollen, for appellee.
   Moore, J.

The case is brought here by writ of error. At a village election held in the village of Zeeland on March 11, 1901, there were two tickets in the field. The respondent, Berend Kamps, then president of said village, was a candidate for re-election, and the relator, Christiaan De Jonge, was also a candidate for said office. At the close of the election the result, as publicly announced, was that the total number of votes cast for said office was 334, of which Kamps received 167, and_De Jonge 167. March 14, 1901, the village council met as a board of canvassers. De Jonge, relator, filed with the village clerk a petition for a recount. A recount was had, and it was determined that Mr. Kamps had 107 votes and Mr. De Jonge 167 of the 334 votes for said office of president. Thereupon, and in accordance with the statute under which the village existed and said election was held, the matter of the election of village president was determined by lot, and in such test by lot the respondent, Kamps, was successful. Mr. Kamps, on March 14th, filed his acceptance, and took his oath of office, and entered upon the duties thereof.

On March 22d the relator, De Jonge, instituted this proceeding through the prosecuting attorney of said Ottawa county. To the information the respondent interposed a plea. To this plea relator filed a replication, dated April 10, 1901, andonAprilll, 1901, relator gave notice that on April 15, 1901, he would move the court to place the cause upon the calendar of the then term of the circuit court for the county of Ottawa. On April 15, 1901, respondent filed a rejoinder. To this rejoinder the relator interposed a surrejoinder. The proceedings came on for hearing before said circuit court without a jury on April 25, 1901. After the hearing had been commenced, and witnesses sworn and examined, notwithstanding objection duly taken, the court suspended said hearing, and entered upon a trial of the issue of fact as to whether or not two persons who had voted at the election — one Hartwick and one Van Eyck — • were qualified electors, and entitled to vote. The court, after taking testimony, determined that the ballot cast by the said Van Eyck was a legal ballot, the ballot cast by Hartwick was an illegal one, and that Hartwick was not justified in voting as an elector at said election. Thereupon the court caused the ballot-box to be opened, and the vote cast by said Hartwick, having been identified, was found to have been cast for respondent. The court rejected said vote, and proceeded to have the ballots contained in the ballot-box recounted, and it was found that the relator had received 162 votes, besides respondent’s Exhibits A, B, C, D, and E. Thereupon the court counted said exhibits as having been cast in favor of relator. Judgment was entered May 13, 1901, in favor of relator, and ousting respondent from the office.

There are 10 assignments of error, but they are so grouped by counsel in the brie’fs and arguments they may be discussed under two heads: First. Did the court err, after it had entered upon the hearing in the quo warranto proceeding, in suspending that proceeding, and entering upon the hearing of the question whether Hartwick and Yan Eyck were entitled to vote ? . Counsel say this is error under section 3723, 1 Comp. Laws. They say this matter of the qualifications of the voter or voters must be determined in a separate proceeding, either by a jury trial or a trial before the court, and that the issue raised could properly be removed to the Supreme Court for review. Counsel may be right in this contention if the proper steps had been taken. But what was done? After the issue was joined in the quo warranto proceeding, a petition asking the court to decide whether Hartwick and Yan Eyck were qualified to vote was presented to the court. The respondent joined issue upon that petition, witnesses were examined, and arguments were made upon both sides, and the matter was left to the judge without a jury for his decision. ■ Before entering upon this hearing, the judge informed counsel he would give them as much time as they might desire to prepare for the trial of that issue, and the court was informed by counsel they did not desire an extension of time. Under the facts shown by the record, we think the court was fully justified in entering upon the hearing in the manner he did. Sections 3722-3724, 1 Comp. Laws.

We now come to the other question in the case: Did the court err in counting respondent’s Exhibits A, B, and C for the relator? Counsel say that under “/” and “g” in Attorney General v. Glaser, 102 Mich. 405 (61 N. W. 648), and Christopherson v. Common Council of Manistee, 117 Mich. 125 (75 N. W. 445), these ballots ought not to have been counted. We have the original ballots before us. They are all marked in the circle at the head of the ticket. A blue pencil was used to make the marks. Exhibit A is marked with a cross. It looks as though the voter first made a cross, and, thinking he had not marked it plainly enough, repeated the marking substantially over the first marking. The other two tickets are marked with a cross in the Circle. The markings look as though they might have been made with a blue pencil the lead of which was so broken that two points projected so as to make marks upon the ballot; or the voter may have made the cross with a down and up stroke in making each mark. There is nothing in the marking to distinguish the ballot from other ballots. If these ballots are to be rejected, the ballots of a large number of voters who do not have occasion to use pen and pencil very often would have to be rejected.

The judgment is affirmed.

The other Justices concurred.


text:
    STATE v. DICKINSON.
    1. Public Lands — Grant—Presumption as Against State.
    A grant of lands of which there is no direct evidence may be presumed from facts and circumstances, even as against the State.
    2. Same — Evidence—Sufficiency.
    In ejectment by the State, it appeared that defendant or his grantors had occupied the land for over 100 years under claim of title, and had paid the taxes thereon; that the land was situated on the Canadian frontier; and that records relating to such lands, including government grants, and recognitions of the imperfect titles of settlers equivalent thereto, were lost. There was also evidence showing that an Indian deed of the land to one of defendant’s grantors was recorded in the British records in 1780; and it was further shown that at that time it was the policy of the British government to oust settlers whose claims of title were based merely on conveyances from the Indians, and that, while other settlers were ousted, defendant’s grantors were never disturbed. Held, sufficient to raise a presumption of a grant from the government.

      Error to St. Clair; Eldredge, J., presiding.
    Submitted November 22, 1901.
    Decided December 30, 1901.
    Ejectment by the State of Michigan against Don M. Dickinson and another. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Horace M. Oren, Attorney General (Avery Bros. & Walsh and Geer & Williams, of counsel), for appellant.

      Elliott G. Stevenson and Benjamin S. Warren, for appellees.
   Moore, J.

This action is ejectment, brought by the State of Michigan against Don M. Dickinson and another, to recover certain lands situate on Stromness or Dickinson Island, being a part of St. Clair Flats, in St. Clair county. There are two cases. While the title to only the lands described in the declaration can be settled in this case, the decision of the court will control as to the entire island, except the private claim, in all amounting to about 3,500 acres. From a judgment in favor of the defendants, the case is brought here by the plaintiff by writ of error.

The cases were tried before the late Judge Eldredge. A large mass of testimony was taken. The learned judge filed carefully prepared and voluminous findings of fact and conclusions of law. It will not be necessary to state them all. He found that Stromness Island is the island mentioned in a deed from the chiefs of the Chippewa nation of Indians to James Thompson of the 22d of September, 1780.

“That the earliest settlements were made in the last century, as early as 1783, for farming purposes, upon Stromness Island, and were four in number, between which there were, on and before 1850, recognized boundaries, to wit: First, the portion occupied by James Thompson; second, the portion occupied and improved by John Lawton; third, a settlement under one Eddy, who claimed under James Thompson, under whom subsequently one Cartwright claimed (the same Thompson to whom the Chippewa Indian deed of the whole island ran, as the same is in evidence), and which is also known as the Gage and Davenport tract, and on which was also settled at one time Angus. McDonald; the fourth and last settlement was next below the Cartwright or Gage and Davenport tract, and was a settlement under the same John Lawton. These settlements embraced the whole island within their claimed boundaries.”

The judge then discusses a controversy which arose between parties each of whom claimed under Cartwright, which was passed upon by a board of land commissioners created by act of Congress. The findings then continue as follows:

‘ ‘ That previous land boards having jurisdiction in Michigan territory under acts of Congress had declined to entertain applications for confirmation of titles or possessory rights, under the acts of Congress which created them, for lands on this island, because of the doubts existing as to whether the island was within the dominion of his Britannic majesty or within the United States, as expressed in article sixth of the treaty of 1814.” 8 Stat. 218.
“ That some of the records of the land commissions, covering the time when the settlers on Stromness Island might have entered their claims with the register in the time and manner provided by law (Act March 3, 1807; 2 Stat. 437), have been lost, and cannot be found; that the records of the land board under the act of 1820-1823 (3 Stat. 572, 724) show that claims were entered and presented on behalf of settlers on Stromness Island, or their grantees or heirs, before earlier land boards, and that some of the records of the proceedings of said earlier land boards, and as well the original papers and documentary evidence relative to claims entered, had passed into the hands of the enemy during the war of 1812-1814, and were reclaimed only partially and in fragments, and had not escaped mutilation. Therefore, because of these facts, and the long-continued and undisturbed possession of the settlers on Stromness Island, under the circumstances and conditions hereinafter stated, as a matter of fact, under a presumption in favor of such possession, the proper entries with the register in the time and manner provided by law were made by the several settlers on this island.”

He found that the policy of the British government, which was especially enforced by the king’s lawfully authorized officers along this boundary both before and after the War of Independence, was to give notice to all persons contemplating settlement that they were strictly forbidden from settling under grants to individuals from the Indians or Indian tribes without permission or authority from the crown, or until the Indian title to the lands was merged in the crown, and the confirmation granted to bona fide settlers.

“That, during the enforcement of this policy, there was recorded in the registry of conveyances of lands in Canadian territory, and kept under the authority of the officials of the British government, the deed beai'ing date September 22, 1780, from the chiefs of the Chippewa Indians of the whole of Stromness Island to James Thompson, as shown by said records, now transferred to and a part of the records of Wayne county, Michigan ; * * * that there was a similar record kept of transfers and evidence of titles to lands from the British government, and that a record was kept of land titles of the character included in the proceedings of the land board for the district of Hesse, from the year 1784 to the month of May, 1790, which has been lost, and of which no trace exists at the time of this hearing.
“That records affecting Indian titles, or the action of the British government in respect to claims of settlers upon lands claimed under Indian titles, * * * including Stromness Island, * * * are mixed, scattering, and incomplete, some probably having been lost; that of said records containing land grants for7 the same territory embraced in the province of Hesse, and confirmations of In - dian grants by the government, some are in the crown land department at Toronto, others at Ottawa, Quebec, and Montreal, and some Indian documents have been taken to England; that such records in Montreal, Quebec, and Ottawa are unclassified, unindexed, and in such masses and confusion with other documents that such records as aforesaid of Indian titles are inaccessible to search.
“That the island in question was embraced in the district of Hesse, a division of territory established by the British government through Lord Dorchester, captain general and commander in chief of the province of Quebec, by proclamation under and in the name of the crown, on July 34, 1788, and before this was embraced in the province of Quebec, in North America, by the imperial act 14 Geo. III. chap. 83, in 1774.
“That the possession of the said settlers, Dickinson’s original grantors, was never disputed or disturbed by the British government, nor their title called in question by it, from before the close of the war, 1783, until the claim of jurisdiction of Great Britain ended by surrender of possession or evacuation in July, 1796.”
“ That by the treaty of the United States with the Chippewas, known as the ‘Treaty of Detroit,’ the Indian title to all lands not vested in settlers within the boundary stated in the treaty, which embraced Stromness Island, was extinguished and vested in the United States, and that by act of Congress approved April 35, 1808 (3 Stat. 503), it was provided that the lands to which the Indian titles were extinguished by the said treaty of Detroit should be made a part of the district of Detroit, and be offered for sale at that place; and the unsurveyed lands on Stromness or Dickinson Island were never offered for sale by the United States, either before 1833 or afterwards.”
“That from the acquirement of the possession and jurisdiction of the territory including this island in July, 1796, by the United States, to the present time, the possession of the Lawtons and Thompson, and of those under them and their grantees, has never been disturbed by the United States government, or any of its authorities.” “That Brown, who conveyed to Morrison in 1830, and Morrison, who conveyed to Abram Smith in 1843, both of whom held possession under and through grants from John Lawton, made in 1817, and Angus McDonald, who lived and died upon the island, were all British subjects, and supposed they held possession under the British government.
“That at the time of the passage of the ‘swamp-land act’ (9 Stat. 519), so called, in 1850, the said defendant Dickinson, his ancestors and grantors, had been in continuous, undisputed, undisturbed, and unquestioned possession of the lands in suit for a period of nearly 70 years.”

The judge also found that from 1847 to 1885 these lands were regularly assessed against the persons who claimed to be the owners thereof, and the taxes were paid thereon. He also reviews the correspondence which was had, commencing about 1885, between the officers of the State land office and the officers in charge of the Federal land office, which shows that the Federal authorities declined to recognize any right upon the part of the State or of individuals to have these lands surveyed, because of the claim made by Mr. Dickinson to be the owner. He also reviews at length the proceedings had before congressional committees in relation to these and similar lands. He then found as a conclusion of law that:

“In view of the provisions of article 2 of the treaty of 1794 (8 Stat. 117), the presumption arises as against the State, and as against the United States, of a valid grant by the British or Canadian government to the defendant’s grantors, through whom he claims title, or a recognition by the said governments of their right of property in and right of possession to the then settlements on the mainland of Stromness Island, now claimed by defendant, and permission by said governments so to possess and occupy the -same, equivalent to a grant made subsequent to their possession and settlement in or near 1780.
“From the evidence in this case, the presumption arises of a recognition or confirmation of the title of the defendant’s grantors, or a right of possession and property in their settlements and the lands on the mainland of said island, which is equivalent to a grant by the United States made subsequent to the treaty of 1783.” 8 Stat. 80.
“I find as a matter of law, under the evidence, that by mesne conveyances there is an unbroken chain of title to the lands in this suit from the earliest settlers or original claimants of the title to the mainland on said island, in or near 1780, down to the defendant.
“That the right and title of the owners of the main body of the island extends to the middle or thread of the channels of the St. Clair river, where such channels are the boundaries thereof, and, where the boundary is the shallow inlet of Goose Bay, extended to the middle of said inlet, including the margin or border thereof of low or marshy lands.”

A great many interesting and important questions are presented by the record. We deem it unnecessary to discuss many of them, as we think the determination of whether the record fairly gives rise to the presumption of an ancient grant will dispose of the important question in the case. The case is ably briefed, and the court has been greatly aided by counsel in investigating the questions involved in the case. Counsel on the part of the State say:

“The finding of a presumption of ancient grant against either the United States or the British government is erroneous, because: (a) The evidence shows there was no grant; (b) there can be no presumption of ancient grant against government; (c) the doctrine of prescription is not applicable to this case.”

They then quote voluminously from the record to show that there was no ancient grant, and that defendant’s father knew there was none when he made his purchase; and then say:

1 ‘ There is no way for titles to land to be devested out of the United States except in strict pursuance of some law of the United States. Occupancy and possession alone, even for a great length of time, cannot ripen into title as against the United States. Drew v. Valentine, 18 Fed. 712. There can be no use or enjoyment which will avail the person so using as a foundation for title by prescription, while the title remains in the United States. Union Mining Co. v. Ferris, 2 Sawy. 176 (Fed. Cas. No. 14,371). Prescription or adverse user will not mature into title as against the United States. Mathews v. Ferrea, 45 Cal. 53. There can be no presumption against government. Wilkins v. McCue, 46 Cal. 661; French v. Commonwealth, 5 Leigh, 512 (27 Am. Dec. 613). Occupation of the public land can never be adverse to the government, so as to defeat or affect in any way the title subsequently conferred by its grant or patent. Morrow v. Whitney, 95 U. S. 551, 557. That Indian titles are void, see Johnson v. McIntosh, 8 Wheat. 543; Buttz v. Northern Pacific Railroad, 119 U. S. 55 (7 Sup. Ct. 100). The Indian title being a nullity, those holding under it had simply bare possession. The case of Crane v. Reeder, 21 Mich. 77 (4 Am. Rep. 430), settles the law in Michigan that there can be no presumption of ancient grant against government on bare possession.”

Counsel on the part of the defendants contend that the testimony disclosing the loss of records relating to land titles along the frontier, including government grants, and recognitions of the imperfect titles of settlers in possession equivalent to grants, of a period when such governmental acts affecting the title of Thompson and those claiming under him, if any, might appear, together with the fact, as shown, that the policy pursued by the British and American governments of the period in question was to oust settlers whose claims of title were based on bare purchases or conveyances from the Indians; the further evidence that the Indian deed to Thompson of September, 1780, is found recorded in the British record coming from the final custody of the British government at Quebec, Detroit (when British), and Sandwich; all taken in connection with the admitted fact that said Thompson and the grantees had been in open, notorious, continuous, and actual physical possession of the whole of the mainland of Stromness Island, as claimed by the defendant, during that period and since, for more than 100 years, — constitute evidence tending to show a grant, or a confirmation or recognition of title equivalent to a grant, from the government to Thompson, or those claiming under him; that the defendants do not rest their claim simply upon the deed from the Indians, but insist the record shows such recognition of title upon the part of the government as gives rise to the presumption that a grant from the government did in fact exist.

The first question calling for consideration is, May a grant be presumed against the State from facts and circumstances where the original grant cannot be produced, and where there is no record thereof? This question is answered in the affirmative in the following cases: Archer v. Saddler, 2 Hen. & M. 370; People v. Rector, etc., of Trinity Church, 22 N. Y. 44, and cases cited therein; Fletcher v. Fuller, 120 U. S. 534 (7 Sup. Ct. 667), and cases cited therein; Fuller v. Fletcher, 44 Fed. 34, and cases cited therein; Roe v. Ireland, 11 East, 280; Stevenson's Heirs v. McReary, 12 Smedes & M. 9 (51 Am. Dec. 102); Grimes v. Corporation of Bastrop, 26 Tex. 310. In Tyler, Ej. 568, it is said:

‘ ‘ Presumptions of grants of land often arise, but never unless tbe lapse of time be so great as to create a belief that such grants were actually made, or unless the' case made shows that the party claiming the presumption was legally or equitably entitled to it. A conveyance will not, in general, be presumed where the original enjoyment was consistent with the fact of there having been none. Doe v. Reed, 5 Barn. & Ald. 232. But where the plaintiff produced an original lease of the premises for a long term, and proved possession for 70 years, the mesne assignments were presumed. Earl v. Baxter, 2 W. Bl. 1228. And the jury were directed to presume that a grant regularly issued where a certificate of survey had been returned, and there were sundry conveyances of the land, and possession by persons claiming thereunder. Thornton’s Lessee v. Edwards, 1 Har. & McH. 158. Presumptions of grants are founded upon the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They may be encountered by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant. Jackson v. Mancius, 2 Wend. 357. And, in general, the presumption of a grant is limited to periods analogous to those of the statute of limitations, in cases where the statute does not apply. Where the statute applies, the presumption is not generally resorted to; but, if the circumstances of the case are very cogent, and require it, a grant may be presumed within a period short of the statute. Ricard v. Williams, 7 Wheat. 59.”

In the case of Crane v. Reeder, 21 Mich. 24 (4 Am. Rep. 430), the court discuss the question of whether the title in that case was affected by the lapse of time, and say:

“The doctrine of presumption of title from ancient grant is quite as inadmissible. If such a presumption can ever be allowed to dispute the accuracy of the public acts and records, it cannot be permitted when there is in the case positive and unquestioned evidence showing that no title existed, or was ever set up, on behalf of Eeeder, beyond his assumption of possession. ”

This statement indicates a decided difference between that case and the one at bar. It would also indicate that title from ancient grant might, in a proper case, be presumed.

In Steinhauser v. Kuhn, 50 Mich. 367 (15 N. W. 513), in an opinion by Justice Campbell, it is held that, where one holds title under a series of deeds from persons in possession claiming title running back for a considerable period of time, the presumption of title .from the government arises, subject to be rebutted. This decision was cited with approval in Drake v. Happ, 92 Mich. 580 (52 N. W. 1023).

The next question which presents itself is, Does the evidence fairly give rise to the presumption of an ancient grant? It has already appeared that defendants, their grantors, and those through whom they claim title, had .been in the continuous, open, and notorious possession of these lands, claiming to be the owners thereof, for more than a century, before any question was raised as to their title. For a long series of years these lands were assessed and taxes paid thereon. This possession began before the United States exercised any control over the lands in controversy, and while the government of Great Britain did exercise control over them. We will not attempt to recite all the testimony, but, in addition to what has been stated, the record discloses that Great Britain, at the time of the Indian deed to Thompson and afterwards, was especially. enforcing by active means its policy against Indian titles, purchases from Indians, or Indian deeds “not obtained by the king’s permission and authority,” and that this policy was especially commanded to be enforced in the territory in which these lands were situated, in the following words: “That you do not suffer any settlements to be made with the above titles, or any new settlements to be begun, on any pretense whatever, and that you pull down as fast as any person shall presume to build up;” that after the establishment of land boards, and while the British government was still exercising jurisdiction, the report was made to the British government that practically all the lands in the district from Long Point, in Labe Erie, to ' Lake Huron (which would include this island), had actually been parceled out, and were in possession of individuals under deeds from the Indians; and these were not to be recognized unless sanctioned or permitted, as aforesaid, by the crown. It also appears as late as October 26, 1789, that all persons having claims by gift or purchase from Indians or others to any part of the land situated between Long Point, on Lake Erie, and Lake Huron, should communicate their titles and pretenses forthwith to the land board of the district' of Hesse. Yet it appears at this very period, and pending the enforcement of the vigorous policy before this, the Indian deed to James Thompson was on record in the official record of conveyances for the province of Quebec prior to the organization of the district of Hesse, and after the organization of the district of Hesse, apd that, on the appointment of the land board, this record was in the hands of the secretary of that land board, and yet that at all times from 1780 the possession of the lands in the three settlements thereon of the defendant’s grantors was undisturbed and unquestioned, and not interfered with in any manner by the officers of the crown appointed to vigorously enforce the policy against Indian deeds “without permission of the crown,” and possession under them, within the territory between a point in Lake Erie and a point in Lake Huron; that, in these conditions, it appears by positive evidence, and not by inference, a record similar to the one in which the record of that Indian deed appeared, existed from the year 1784 until the year 1790, which might explain this immunity of the island settlers; and, further, it appears by positive evidence, and not by inference, that that record is wholly lost. The possibility that the government officials were ignorant of these island settlements under claim of title by the Indian deed is negatived by the fact that the original Indian deed to Thompson was in the official records, giving notice to the authorities at Quebec before the organization of the district of Hesse, and after that was in the hands of the land board charged to enforce the policy.

It also appears that, before the organization, of any land board, certain purchases from Indians in this district were validated “by the king’s permission and authority” by the method of special instructions of the direct representative of the king in Canada, the commander in chief, who was the governor in chief, issued to his subordinate in command at the post of Detroit; and presumably that policy was followed before and after that date. It is also shown that records existed which covered such actions of the commander in chief in relation to Indian titles, which have been practically lost.

Testimony was also offered tending to show that, if titles were not confirmed resting on Indian deeds, it was still the policy of Great Britain, as to actual occupants or settlers under Indian purchases made without “permission of the crown,” to confirm the title after taking the title of all such lands to the crown. Afterwards, on May 21, 1190, it appears that all these lands so settled upon under Indian purchases without permission were acquired by the crown, and it appears that the territory so acquired, on which such instructions were to be carried out, was that between Long Point, in Lake Erie, and a point in Lake Huron.

The presumption from the testimony is irresistible that there was a valid recognition and ‘ ‘ permission from the crown ” and confirmation from the British government of the title. The fact that the Indian deed appears recorded in the official records of the province of Quebec, and in the books of records containing the official proceedings of the land board of this territory, would of itself be strong evidence of a confirmation or valid recognition of the crown equivalent to a grant, when the government was repudiating any grant by Indians .not sanctioned or permitted by the crown; and when the other records of the period are lost.

The judgment is affirmed.

Montgomery, O. «L, Hooker and Long, JJ., concurred. Grant, J., did not sit.


text:
    TAYLOR v. WEEKS.
    Bills and Notes —Consideration — Forbearance — Promise to Pay Invalid Claim.
    'Where plaintiff refrained from filing a claim against an estate x on. a promise by the decedent’s widow that he should be compensated out of her own estate, in pursuance of which she executed a note payable after her death, but it appeared that the claim, if ever existing, was barred by the statute of limitations when the promise was made, the note was without sufficient consideration.
    Error to Calhoun; Smith, J;
    Submitted December 13, 1901.
    Decided December 30, 1901.
    William Taylor presented a claim against the estate of Lydia A. Rice, deceased, on a promissory note. The claim was allowed in the probate court, and Monfort D. Weeks, administrator with the will annexed, appealed to .the circuit. From a judgment there for claimant, defendant brings error.
    Reversed.

      John C. Patterson and M. D. Weeks, for appellant.

      Herbert E. Winsor and L. B. Tompkins, for appellee.
   Montgomery, C. J.

Claimant filed a claim against the estate of Lydia A. Rice, based upon the following writing:

“Albion, Mich., March 19, 1898.
“ For value received, I promise to pay William Taylor $600, with use, for labor performed when living with myself and husband, Edward Rice. This must not be transferred nor collected until after my death.
“Lydia A. Rice.”

The defense claimed on the trial of the issue that the instrument in question was a forgery; but upon this question the circuit judge, upon sufficient testimony, found against the defendant’s contention, and the estate is concluded by that finding.

A question which presents more difficulty is that of whether there was any sufficient consideration to support the promise contained in this writing. It appears by the finding of facts that, in 1855, the claimant, William Taylor, was apprenticed to Edward Rice, the husband of deceased, by the superintendents of The poor of Ontario county, N. T.; that he continued to live with X Mr. Rice and perform services under this apprenticeship agreement until he was about the age of 19 years, when, according to the finding, Edward Rice sold his farm, and the apprenticeship was mutually canceled by said Edward Rice and William Taylor, but upon what terms does not appear. Edward Rice died on the 19th day of March, 1895, leaving a will, which was duly probated. A life estate in his property was given to Lydia A. Rice, and certain legacies were named, — among them, a legacy of $100 to claimant. An opportunity was given for presenting claims against the estate of Edward Rice, and the hearing of claims closed November 2?, 1895. At the time the will of Edward Rice was read, it appears from the findings that the claimant was dissatisfied with its terms, and talked to Lydia A. Rice about contesting the will, or that he would file a claim against the estate of Edward Rice. It is further found that the widow said to claimant that if he would not file a claim against the estate, or make her any trouble, she would see that he was compensated out of her own estate; and that he did refrain from presenting any claim against said estate, and did not oppose the probate of the will. As will be seen, the instrument in writing was not executed until some three years later.

Neither the finding nor the evidence shows that Lydia A. Rice was in any way responsible to William Taylor for any services that he may have rendered Edward Rice, nor is there any finding that Edward Rice was liable to the claimant for such services. A naked promise by A. to pay an existing debt owing by B. is not supported by a sufficient consideration. See Anson, Cont. p. 89; 1 Beach, Mod. Cont. § 505; Kulenkamp v. Groff, 71 Mich. 675 (40 N. W. 57, 1 L. R. A. 594, 15 Am. St. Rep. 283). The contention of the claimant’s counsel, however, is that the forbearance to present a claim-against the estate of Edward Rice constituted a sufficient consideration for the promise. The finding, as well as the testimony, shows that any claim that William Taylor may have had against Edward Rice for services rendered was prima facie outlawed, for the services mentioned in the agreement had been performed 20 years or more prior to the death of Edward Rice. And not only this, but the circumstances under which they were performed showed prima facie that there was no valid claim in the first instance against Edward Rice. So we take it that, upon this finding, the only inference open is that, if there was any promise to, forbear (which the finding does not show, but simply states that claimant did refrain from presenting any claim against the estate), it was a promise to forbear presenting a claim which had no foundation in fact. The question presented is whether this is a valid consideration to support a promise. This question must be answered in the negative. See Anson, Cont. p. 74; 1 Pars. Cont. p. 440; Rood v. Jones, 1 Doug. 192. In the case last cited the subject is discussed by Eelch, J., and the rule stated as follows:

“The consideration of defendant’s promise, as before stated, was his forbearing to obtain this attachment and take the property thereon, as he legally might have done. It is the damage he has sustained, or may sustain, by thus yielding his power over the debtor’s property, that constitutes the validity of the consideration. Certain things, however, are necessary to the sufficiency of such a consideration. There must be, for instance, a valid debt due to the creditor. If no suit could be maintained, and this were clearly shown on the trial, the consideration for the defendant’s promise would be insufficient.”

The claimant cites Van Buskirk v. Hoy, 114 Mich. 425 (72 N. W. 246). In that case the court held that the recital in the note, “For value received,” furnished evidence sufficient to create a liability prima facie. It was said, however, that if the claim depended entirely upon the proof, as shown by the record, that the property was furnished under such circumstances as to create a liability, it might well be said that the case made by the plaintiff must fail for want of proof. In the present case the finding clearly excludes any other consideration for this note than the asserted claim against the estate of Edward Rice; and the circumstances under which these services were rendered, as well as the time of the rendition of the services, establish prima facie that there was no validity to. the claim, and that it could not be enforced against the estate. We think that the estate finds, in the testimony offered by claimant himself, and in the facts as found by the circuit judge, the evidence which overcomes the presumption of consideration, and that this claim is of no validity.

The judgment will be reversed, and judgment entered here, with costs of both courts, against the claimant.

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

       See, on this point, Union Trust Co. v. Conus, ante, 156.


author: Montgomery, J.

text:
    SPAULDING v. STEEL.
    1. Domicile — Husband and Wife.
    Though, in general, the domicile of a wife is fixed by that of her husband, it is his domicile in fact, and not necessarily that which he proclaims to be such, that is controlling.
    2. Same — Evidence.
    In a suit by a receiver to recover, on the ground of her nonresidence, the consideration received by the insolvent’s wife for her dower right in lands conveyed in 1895, complainant’s evidence showed that the insolvent had voted at three successive general biennial elections in Oregon, beginning in 1892, and had from time to time, in various conveyances, described himself as a resident of that State. The wife’s testimony tended to show that his sojourn in Oregon was for a temporary purpose ; that he had, during his absence, kept up a house, occupied by members of his family, in St. Johns, this State, and had spent a part of the time there during the period; that, at the time of the conveyance, the parties were at their house in St. Johns; and that he thereafter returned to Oregon to wind up his business, and dispose of his household goods not previously sold. Held, to warrant a finding that the husband never intended to take up his permanent residence in Oregon, and give up his residence in this State.
    Appeal from Clinton; Stone, J.
    Submitted October 11, 1901.
    Decided January 7, 1902.
    Bill by Frank M. Spaulding, receiver of the estate of Robert M. Steel, insolvent, against Carrie A. Steel, the St. Johns Land Company, Limited, and Carrie A. Steel, administratrix of the estate of Robert M. Steel, deceased, to reach property alleged to belong to the insolvent estate. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Spaulding, Norton & Dooling, for complainant.

      H. E. Walbridge, for defendants.
   Montgomery, J.

Complainant is the receiver of the estate of Robert M. Steel, insolvent. On the 27th day of September, 1895, Robert M. Steel was the owner of lands of very great value in Michigan. On that date there was organized the St. Johns Land Company, Limited, and the lands previously.held by Robert M. Steel were conveyed to the St. Johns Land Company, Limited, the defendant Carrie A. Steel joining in the conveyance for the purpose of releasing her dower right in the property conveyed. In consideration of her release of the dower right, she received 100 shares of the preferred stock and 123 shares of the common stock of said company, which appears to have been a reasonable price for her inchoate dower interest, if she was entitled to dower in her husband’s lands. Whether she was entitled to dower depends upon the residence of the parties at that date. The theory of the bill is that Robert M. Steel and his wife were, at that date, residents of Hilgard, Or., and that, therefore, defendant Carrie A. Steel had no inchoate dower interest in the lands owned in this State, and that there was no consideration for the issuing of the stock mentioned to her.

The question is very largely a question of fact. There are some circumstances which tend to support the complainant’s contention, and circumstances w;hich are entitled to considerable weight. Perhaps the most important facts, if unexplained, are that in June, 1892, June, 1894, and June, 1896, Robert M. Steel voted at Hilgard, Or., and in certain conveyances, made from time to time, described himself as a resident of Hilgard, Or. If he were himself a party to [this litigation, and, particularly, if there were circumstances which in any way' tended to support an estoppel, it might be said that he would not be in a position to complain of a finding that his domicile was at Hilgard. But in this proceeding, if we assume what, under ordinary circumstances, we deem the law to be, that the domicile of the wife is the domicile of the husband, that domicile of the husband which fixes that of the wife is his domicile in fact, and not that which he proclaims to be his domicile. There is no element of estoppel involved.

. In justice to Mr. Steel’s memory, it should be stated that it is not an unfair inference from the record that he may have cast his votes upon the supposition that a sojourn of six months in Oregon entitled him to vote there, even if his stay there was expected to be but temporary, and although he may have regarded St. Johns as his actual, permanent home. Indeed, we may take notice that this is not an uncommon understanding among people unlearned in the law. Mrs. Steel herself evidently had that impression, as evidenced by testimony which she gave in another case, when examined by counsel for the complainant.' She also testified that she supposed that where a man votes is where his residence is. This testimony was given in response to questions ingeniously framed, with the evident purpose of fixing her residence at Hilgard. To the question finally put to her, “Then you understood that his residence was Hilgard, Oregon, and that you resided there with him at that time, October 1st, 1895?” she answered, “I resided there most of the time for four or five years; I presume that is the time.”

As a matter of fact, at this very date — September 27, 1895 — the parties were in St. Johns, and, in this trial, Mrs. Steel testifies that even previous to this time they had sold off some of their household goods at Hilgard, and that Mr. Steel’s purpose in going back after September, 1895, was to close out his business and dispose of the household goods. The purpose of Mr. Steel’s sojourn in Oregon was the conduct of a business necessarily but temporary in its nature, and, during all the years that he was engaged in this business, it appears that he and his wife spent a portion of the time at their home in St. Johns, which was kept up during all these years at Mr. Steel’s expense, and occupied by members of the family.

As to what constitutes a domicile, this court has expressed itself in Beecher v. Common Council of Detroit, 114 Mich. 228 (72 N. W. 206), at some length. The question of intent is in most cases controlling, and, without enlarging upon all the circumstances of the present case, we feel satisfied that Mr. and Mrs. Steel never intended to take up their permanent abode at Hilgard, and, although he was guilty of an indiscretion in casting a vote there, and may not have understood what, in a legal sense, was his residence, the facts, show that his residence was in fact St. Johns. The circuit judge, who saw all the witnesses, evidently placed credit upon the testimony given by defendant and other members of the family, as well as by a large number of the neighbors and friends.

The decree dismissing the bill will be affirmed, with costs.

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


author: Grant, J.

text:
    ALDINE MANUFACTURING CO. v. PHILLIPS.
    1. Corporations — Double Agency — Validity op Contracts.
    Dealings between two corporations are not void because conducted on behalf of both by the same person, a stockholder and director in each, where the transactions were honest, and were known to the officials of both companies.

    2. Same — Evidence.
    Where, in a suit to set aside certain purchases of merchandise made by complainant’s managing director, on its behalf, from another corporation in which he was a heavy stockholder, and to recover an alleged excess over the reasonable value of the goods, it appeared that such manager’s connection with the latter corporation was known to complainant’s officers, as was the fact that the purchases were being made, and it was also shown that no more than a reasonable profit was made on the sales, the court properly refused to disturb the transactions.

      Appeal from Kent; Grove, J.
    Submitted October 23, 1901.
    Decided January 7, 1902.
    Bill by tbe Aldine Manufacturing Company against James T. Phillips and the Grand Rapids Clock & Mantel Company for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    The bill in this case alleges that complainant is a corporation engaged in the manufacture of what is known as the “Aldine Grate; ” that the defendant the Grand Rapids Clock & Mantel Company is a corporation engaged in the manufacture of mantels; that Phillips is, and has been for several years, a stockholder of complainant, owning 298 shares, of the par value of $7,450; that Phillips was elected secretary and treasurer and general manager of complainant; that while such manager he also, on November 10, 1894, purchased an interest in the defendant corporation, and became a stockholder, director, and manager of it; and that from that time until about 1898 the complainant, through Mr. Phillips, purchased mantels for sale in connection with its grates from the defendant corporation, through Mr. Phillips, its manager or agent. These allegations are admitted, except that he was the manager of the defendant corporation, which is denied. The further claim in the bill is briefly and accurately stated in one of the briefs for defendants, as follows:
    “1. That in November, 1894, the defendant Phillips conceived a plan to defraud complainant out of its profits by the purchase of the greater part of the capital stock of the Dryden-Annin-Rose Clock Company, by the amendment of such company’s articles so as to have power to manufacture and sell mantels, and by selling the same to the complainant thereafter at excessive prices.
    “2. That in May, 1895, defendant Phillips, with money drawn from complainant’s treasury, purchased the remaining stock of the insolvent Widdicomb Mantel Company for $995, and resold such stock, so far as mantels were finished, to the complainant, for the sum of $2,875; that the defendant Phillips took from the complainant more than $5,000 as the purchase price on the Widdicomb stock of mantels, and made a net profit thereon of $4,000.
    “3. That the defendant Phillips paid the Grand Rapids Clock & Mantel Company excessive prices for its mantels, and far in excess of the prices charged by the Widdicomb Company; and that such excessive prices amounted to more than $2,750.
    “4. That it has been the custom in the mantel trade to give 2 per cent, discount for cash, and also 15 per cent, discount on the sale of mantels, and that the defendant never gave complainant any discount, and that complainant is entitled to a cash discount of 2 per cent, on $54, - 374.67, amounting to the sum of $1,087.49.
    “5. That the defendant Phillips, as manager of both corporations, increased the prices of mantels sold to the complainant beyond the prices which the Widdicomb Mantel Company had sold to the complainant, and that the complainant is entitled to recover from defendants all increases in the prices of mantels, and the interest thereon.
    “6. That the defendant Phillips used the traveling men of complainant to sell goods for the .mantel company, although complainant paid their salaries and traveling expenses, and has never been reimbursed, and that complainant is entitled to be refunded ‘ an equitable proportion ’ of such salaries and expenses.
    “7. That the mantel company claims a balance against the complainant upon an account of $290.54, but owes complainant many thousands of dollars over and above that sum, and that the defendant should be enjoined until an account can be had..
    “8. That complainant has disputed claims against the Grote & Cheney Furniture Company, of Spokane, Wash., and the Art Furniture & Decorating Company, of New Orleans, which should be charged to the defendant Phillips.
    “ 9. That Through the devices and fraudulent practices of said Phillips,’ hereinbefore set forth, the gains and profits of complainant were diverted from complainant to the mantel company.
    “ 10. That the complainant’s officers and directors, other than Phillips, ‘ were wholly ignorant of the various frauds and dishonest and inequitable practices’ of the defendants.”
    These allegations are denied by the answer. The bill prays the following relief:

      “1. An account of all transactions between the complainant and defendant corporations.
    “2. That all bargains and sales between the two corporations be set aside.
    “3. That defendants pay to the complainant all sums in excess of $995 received from sales of Widdicomb mantels.
    “ 4. That all sums paid for mantels in excess of market value thereof be refunded.
    “5. That all increase in price over*Widdicomb mantel prices in the spring of 1895 be refunded.
    “6. That all sums paid out for salaries and expenses to traveling salesmen of complainant, while employed in selling goods of the mantel company, be refunded.”

      Butterfield & Keeney, for complainant.

      Taggart, Denison & Wilson (John E. More and Crane, Norris & Drew, of counsel), for defendants.

       As to contracts between corporations having common directors or officers, see note to San Diego, etc., R. Co. v. Pacific Beach Co., (Cal.) 33 L. R. A. 788.

   Grant, J.

(after stating the facts). The dealings between the Aldine Company and the mantel company ■are not void because Mr. Phillips was the agent or manager of both companies and negotiated the buying •and selling. Adams Mining Co. v. Senter, 26 Mich. 73. This is a leading case upon the subject, and has been quoted with approval by this and other courts. No other case need be cited in affirmance of the doctrine. It is sought to distinguish that case and others from this, in that the agent in that case was not shown to have been pecuniarily interested in either corporation, while in this case Mr. Phillips was a stockholder in both, corporations, his interest in the mantel company being greater than in the Aldine Company. This interest, however, does not render the contracts and dealings between the two absolutely void. When the transactions are open, honest, and fair, and known to the officials of both companies, they will be sustained. The courts view with jealousy the transactions of the man who stands in such a capacity, and will hold him to a strict account of his dealings. He must show that he has acted with clean hands, and, when this is-shown, the transactions will be sustained. Booth v. Robinson, 55 Md. 419; Twin Lick Oil Co. v. Marbury, 91 U. S. 587. Counsel for both sides cite many cases bearing upon this important branch of the law. The rule of law is well, settled, and a long citation of authorities is unnecessary.

Did Phillips deal honestly and. fairly in these transactions as the agent and manager of the complainant ? Did he buy his stock in the mantel company and purchase mantels from it for the complainant for the purpose of defrauding complainant ? The questions involved are purely those of fact. Proofs were taken in open court, and 34 days occupied in the hearing. Both parties were-represented by very able counsel. Various witnesses upon each side are attacked by the other as unworthy of belief. The circuit judge, who saw the witnesses, and listened to the exhaustive arguments of counsel, after mature deliberation, held that Mr. Phillips had committed •no fraud upon the complainant, but that his dealings with it were fair and honorable. We are satisfied with the-conclusion he reached. All the transactions with the two companies were entered upon the books of the complainant. There was no attempt on the part of Mr. Phillips to conceal his connection with the mantel company. Mr. Adams, a nephew of the president, the bookkeeper of .complainant, knew of Mr. Phillips’ connection with the mantel company from the outset, and testified that he saw no attempt on the part of Mr. Phillips to conceal anything. Soon after Mr. Phillips purchased his first stock in the mantel company, its place of manufacture was moved to a building adjoining that of the complainant. Monthly settlements were made between the twocompaniesi At or before Phillips bought one-t-hird of the stock of the mantel company, he had asked Mr. Rathbone, president of the Aldine Company, to take an interest in it. In July, 1895, Mr. Phillips bought 260 shares of Mr. Annin. The complainant’s directors knew that complainant was buying its mantels of the defendant. Annual reports were made showing these dealings, and the "books were open to their inspection. Both Mr. Rathbone .and Mr. Withey, vice-president and a director, knew of Mr. Phillips’ interest in the defendant company. Mr. Withey testified that Mr. Rathbone was always objecting to Mr. Phillips’ connection with the defendant company, and that the matter was discussed at the directors’ meeting in January, 1896. Complainant’s president testified that he supposed it was expected that complainant would get more or less of the mantels from the clock and mantel company. Ten per cent, was allowed the complainant on ■sales of mantels made by its agents. The record shows that only reasonable profits were made by the mantel company. The claim is made that mantels could have been bought cheaper from other manufacturers. This, however, is disputed, if the mantels of other companies were of the same quality and grade as those manufactured •by the mantel company for the complainant. The testimony on the part of the defendants is very strong that they insisted upon and obtained a better grade of mantels than those which the witnesses for complainant testified could have been bought at cheaper rates. On several occasions complainant was not credited upon the books with the 10 per cent, allowed on sales of mantels. This was a purely clerical error on the part of the bookkeeper. The entire amount is only about $?1, and is more than ■offset by mistakes made against the mantel company.

The briefs of counsel have of necessity been very long, containing 624 pages, and they have aided the court very materially in their method of discussion and the citations to the record. Were we to enter into a discussion of the facts, it would necessitate long and laborious work, which would be of no benefit to the profession as a precedent. We are satisfied with the conclusion reached by the circuit judge.

The decree is affirmed, with costs.

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