text:
    SCOUGALE v. SWEET.
    Breach of the Peace — Sunday Baseball — Duty of Sheriff— Libel — Evidf.nce—Damages.

      1. Games of baseball upon Sunday are prohibited by section 5912, Comp. Laws 1897, and are breaches of the peace under section 11334.
    2. It is the duty of the sheriff, as the chief police officer of the county, to suppress them, as unlawful assemblies, and to arrest the offenders.
    3. To charge a sheriff with an intentional neglect of duty is libelous per se.

    4. An instruction that it was not the duty of the sheriff to prevent such a game is erroneous.
    5. A statement made by the defendant, during the trial, to plaintiff’s attorney, that he would make the plaintiff smart if this persecution (meaning the suit) continues, is not evidence of malice in publishing the article.
    6. Where there is no proof of actual damages to the plaintiff in his office, only nominal damages can be recovered.

      Error to Shiawassee; Daboll, J., presiding.
    Submitted April 5, 1900.
    Decided May 29, 1900.
    Case by Monroe L. Scougale against John Sweet for libel. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff was sheriff of Shiawassee county, and resided in the city of Corunna. Defendant was a clergyman of the Methodist Episcopal Church, and resided in the city of Owosso. These two cities are about 2f miles apart, and connected by a street railway. About midway between the two is Caledonia Park. The main street in Corunna is about If miles from the park, and the principal street in Owosso is about 1 mile from it. In three local newspapers (two dailies and one a weekly), on Saturday, appeared the following notices:
    “It is expected that the Owosso Grays and the Bay City team will play ball on the new grounds near Caledonia Park on Sunday. ”
    “There will be a game of baseball tomorrow at the new ball grounds, near Caledonia Park.”
    “The baseball ground near the park is ready for the game Sunday,. A grand-stand has been erected, and the diamond put in first-class shape. A large crowd is expected to witness Owosso administer a defeat to Bay City.”
    Two of these papers were taken by plaintiff.
    The defendant on Saturday night, about 7 o’clock, called up the plaintiff by telephone, and conversed with him in regard to the game. The parties differ somewhat as to the conversation had between them. Defendant’s version is as follows:
    ‘ ‘ On Saturday evening I called up the sheriff by ’phone, and asked him if the ball game, ‘as advertised to be played tomorrow,’ was going to be allowed to come off. He asked me, ‘ What baseball game ? ’ I said, ‘A baseball game is advertised to be played between this city and Corunna tomorrow; ’ and he asked me who was the manager of it. I told him I did not know, but would find out. I said, ‘The people of Owosso — a large number of the citizens of Owosso — are indignant over such an outrage/ and I thought that we ought to have the protection that the law afforded us. And he said he would see the prosecuting attorney, and find out what he ought to do. I said, ‘The law makes it very clear what you ought to do; you ought to prevent the commission of a crime, when it is advertised beforehand.’ About five minutes later I called him up, and informed him who the manager of the Owosso team was.”
    Plaintiff’s version of the conversation is as follows:
    “I remember the circumstances of Mr. Sweet calling me up by ’phone to notify me that he understood there was to be a ball game on the following day, which was Sunday. He asked me if I was aware it was publicly announced that there was going to be a ball game Sunday. I told him I was not. He said, ‘Such is the case/ and he thought it ought not to occur. I said I thought so, too. I said I did not uphold any such work, and asked him who the manager of the game was. He informed me he did not know, but would try and find out. In a short time he called me up again, and informed me Mr. Parshall was manager of the game. I informed him I would call Mr. Parshall up at once. That was all the conversation between us.”
    The ball ground had been arranged, seats prepared, and canvas stretched around the park. One Van Houten called up the sheriff on Saturday night, and told him he understood they were going to play ball there Sunday, and that he saw the canvas was up all around the park. Two or three days before the Sunday in question, Mr. Parshall, the manager of the Owosso ball club, saw plaintiff and the prosecuting attorney, and asked them about playing games on Sunday. Chandler said to Mr. Par-shall, “You better, be careful.” Mr. Parshall, who was called as a witness for the plaintiff, testified: “I told the sheriff and Mr. Chandler that we intended to play a game of ball the next Sunday, and Mr. Chandler said, ‘You had better be careful.’” Plaintiff testified that Parshall did not tell him that the game was to he played. After receiving the notification from’ defendant and from Van Houten, plaintiff testified that lie went some time that evening to Mr. Chandler’s office, and did not find him. He did not go to his house, or make any further effort to see him and ask his opinion and advice in the matter. Plaintiff testified that he had not seen these notices in the papers, and that, after Mr. Sweet had notified him, he called up Mr. Parshall and told him that he had been notified that he (Parshall) was manager of the ball game, and was going to play a game on Sunday; that Parshall said, ■“There was no such thing advertised, and he didn’t know as they were going to play; ” that he told him if he did play he did it at his own risk, — that he (plaintiff) would have to do his duty in the matter; that Parshall said, “If there is a game to be played, I will let you know;” and that he (plaintiff) relied on the information furnished him by Par-shall. On cross-examination plaintiff testified:
    “I did not know from what Mr. Sweet and -Mr. Van Houten told me that there was a ball game advertised; I simply had their words for it. I did not prefer to take Mr. Parshall’s word, in preference to Mr. Van Houten’s and Mr. Sweet’s, that there was not going to be a ball game; but I took Mr. Parshall’s statement, and acted on it. I relied upon it. I relied more on his than upon Mr. Sweet’s, because they said it was hearsay; they said they heard it was going to be played. Mr. Parshall did not tell me, when I called him up, that he expected to play a game there; but, when I asked him if a game was going to be played, .he said there wasn’t any such thing advertised, and he didn’t know as they were going to play ball. That is the answer he gave me, and all that I know about it. He asked me what the consequences would be, from which I inferred that he wanted to know whether I was going to do my duty or not. ”
    Plaintiff further testified that he lived a mile and three-quarters from the park; did not remember where he was on Sunday afternoon; was not in Owosso; that he did not see the canvas fence before the game was played; did not notify any of his deputies; that he had two in Corunna, and an undersheriff and a deputy in Owosso; that all the measures he took to prevent the game was “calling up the manager, and notifying him not to play.”
    Parshall’s version of the conversation between him and plaintiff is substantially as follows:
    “Plaintiff asked me if there was going to be a game of ball played on Sunday. He said he understood there was. I asked him who was his authority. He wouldn’t tell me. He said he understood there was going to be a game of ball played, and asked me if it was so, and I told him we had intended to play.
    “Q. Detail the conversation as briefly as possible.

      “A. I had to ask him some questions before I could answer him. I don’t know how to answer your questions.

      “Q. When he said he had been informed there was going to be a ball game played, he asked you, did he not, if you intended to play a game of ball on Sunday ?

      “A. He did. * * * After we talked a little, I told him there wouldn’t be any game. ”
    Parshall further testified, on cross-examination: “I understood that the sheriff, as conservator of the peace, would be the man to prevent the violation of the law.” It was in view of this knowledge that Parshall asked the sheriff and Chandler what they thought about playing on Sunday. On redirect examination he gave the following testimony:
    “ I said the sheriff, when I talked with him by ’phone, gave me some information what would happen if the game was played. When I asked him what would be the trouble if we played, he said he would have to serve any warrants if any were issued. I asked him, if there were no warrants issued, if the game would be allowed to go on. He replied that would depend on what advice he had from Mr. Chandler. I think I told him, the last thing I said, that we would not play without letting him know. He said he would have to do his duty; that, if warrants were put into his hands, he would have to serve them, but, if no warrants were issued, it would depend on what the prosecuting attorney told him. He did not tell me he would interfere or not, but said, if he was in my place, he wouldn’t play. He did not say he Would do anything unless a warrant was placed in his hands to serve.”

      The game was played, and an admission fee charged; was attended by about 300 people; lasted 1 hour and 38 minutes; and was accompanied by the usual shouts and noise, which could be heard a long distance away. Par-shall attended the game, and took charge of the proceeds. He did not notify the sheriff that the game would be played. The following week defendant published an open letter to the plaintiff in two local newspapers, reading as follows:
    “ When you assumed your present office, you took oath to enforce the laws of the State. To violate an oath is always shameful,— particularly so when it relates to official duties. Yet this thing you have done. In legal terms, the violation of an oath is called ‘perjury.’ You have allowed two gangs of criminals to commit crime after due notification had been given you of such intention, first by the criminals themselves, and subsequently by more than one law-abiding citizen. Your absence from the scene of this crime (the baseball game on Sunday last) is itself criminal, and you ought to have self-respect enough left to resign your office. When openly-avowed criminals have no fear of the sheriff before their own eyes, the sheriff is no good. It has not been left to you to determine who shall obey the law; the State has determined that all shall do so. In choosing to exempt certain lawless persons from the obligation which the law imposes on all citizens, you have arrogantly usurped the functions of the State. ' Yours truly,
    “John Sweet.”
    Plaintiff thereupon brought this action for libel, and recovered verdict and judgment for $1,000, — $50 damage to his office, and $950 for damage to his feelings. Plaintiff made his case by introducing an admission that he was sheriff of the county, and proof of the publication of the articles. There was no testimony as to damages.

      Kilpatrick & Pierpont ( Cahill & Wood, of counsel), for appellant.

      John T. McCurdy and Edwin H. Lyon, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). What is the legal character of the game of baseball played upon the Sunday in question? It is conceded to have been prohibited by section 5912, Comp. Laws 1897, which imposes a penalty of not to exceed $10 for such offense. It is an offense against the public peace, under section 11334, which provides:

“ If any persons to the number of thirty or more, whether armed or not, shall be unlawfully, riotously, or tumultuously assembled in any city, township, or village, it shall be the duty of * * * the sheriff of the county and his deputies to go among the persons so assembled, * * * and, in the name of 'the people of this State, to command all the persons so assembled immediately and peaceably to disperse.”

That this was an unlawful assembly is conceded. Was it a breach of the peace ? The right of the State to enact laws for the observance of the Sabbath is beyond the domain of discussion. Nearly every law that has been passed upon the subject has been contested in the courts. Upon no subject is there a greater unanimity in judicial opinions. I find but one decision which has held such a law unconstitutional. Ex parte Newman, 9 Cal. 502. The opinion in that case was by a bare majority of the court, Justice Field dissenting. That decision was overruled by a unanimous opinion of the court in Ex parte Andrews, 18 Cal. 678. These laws do not infringe upon the religious freedom guaranteed by the constitutions of the United States and of the various States. The statute carefully exempts those who conscientiously believe in the observance of the seventh day of the week, and who actually refrain from secular business and labor on that day. Whether they are enacted because of the necessity of a day of rest, or out of regard to the religious practices and beliefs of the people, or from both considerations, we need not consider. In view, however, of the notorious disregard of some of the provisions of these laws, and the notorious neglect of some sheriffs and other police officers to enforce them, a reference to some of the decisions may be pertinent.

The State of Georgia enacted a law prohibiting the running of freight trains in that State on Sunday. It was attacked as conflicting with interstate commerce. The law was held valid; the court, speaking through Mr. Justice Harlan, saying:

“The statute of Georgia is not directed against interstate commerce. It establishes a, rule of civil conduct-applicable alike to all freight trains, — domestic as well as interstate. It applies to the transportation of interstate freight the same rule precisely that it applies to the transportation of domestic freight. And it places the business of transporting freight in the same category as all other secular business. It simply declares that, on and during the day fixed by law as a day of rest for all the people within the limits of the State from toil and labor incident to their callings, the transportation of freight shall be suspended.” Hennington v. Georgia, 163 U. S. 299 (16 Sup. Ct. 1086).

Chief Justice Kent, in 1811, in an indictment for blasphemy, said:

“And why should not the language contained in the indictment be still an offense with us ? There is nothing in our manners or institutions which has prevented the application or the necessity of this part of the common law. We stand equally in need now as formerly of all that moral discipline and of those principles of virtue which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could” be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful.” People v. Ruggles, 8 Johns. 290 (5 Am. Dec. 335).

If the utterance of blasphemy is offensive to the virtuous part of the community, and injurious to the morals of the young, is not an open, boisterous, and flagrant violation of these laws equally offensive and dangerous? When citizens become a part of that civil compact known as the “State,” and surrender certain of their natural rights, in consideration for which the State promises to protect their persons, property, health, and morals, are they not entitled to have these laws enforced ? Is it not demoralizing in the extreme when they are permitted to be openly defied with impunity? A leading case upon the subject is Lindenmuller v. People, 33 Barb. 548, which involved a. statute prohibiting theatrical exhibitions on Sunday. In that opinion appears the following:

“It is exclusively for the legislature to determine what acts should be prohibited as dangerous to the community. The laws of every civilized State* embrace a long list of offenses which are such merely as mala prohibita, as distinguished from those which are mala in se. If the argument in behalf of the plaintiff in error is sound, I see no way of saving the class of mala prohibita. Give every one his natural rights, or what are claimed as natural rights, and the list of civil offenses will be confined to those acts which are mala in se, and a man may go naked through the streets, establish houses of prostitution ad libitum, and keep a faro bank on every corner. This would be repugnant to every idea of a civilized government. It is the right of the citizen to be protected from offenses against decency, and against acts which tend to corrupt the morals and debase the moral sense of the community. Regarding the Sabbath as a civil institution, well established, it is the right of the citizen that it should be kept and observed in a way not inconsistent with its purpose and the necessity out of which it grew, — as a day of rest, rather than as a day of riot and disorder, which would be effectually to overthrow it, and render it a curse rather than a blessing.”

Under a statute which prohibited sporting, etc., on Sunday, baseball games were held to come within the definition of “sporting.” State v. O’Rourk, 35 Neb. 614 (53 N. W. 591, 17 L. R. A. 830). The learned chief justice in that case used the following language:

“ The law, both human and Divine, being thus in favor of abstaining from sporting, etc., on Sunday, is a reasonable requirement, and should be enforced. The deliberate violation of such a law, there is reason to believe, in many cases, is but the commencement of a series of offenses that lead to infamy and ruin; and, in any event, the influence upon the participants themselves has a tendency to break down the moral sense and make them less worthy citizens. The State has an interest in their welfare, and may prevent their violation of the law. The State, in order to prevent vice and immorality, may punish licentiousness, gambling of all kinds, the keeping of lotteries, enticing minors to gamble, or to permit one under 18 years of age to remain in a billiard-room; to punish publishing, keeping, selling, or giving away any obscene, indecent, or lascivious paper, book, or picture; and also punish any person who shall lend or show to any minor child any such paper, publication, or picture, etc. The law also punishes the disturber of a religious meeting, school meeting, election, etc. These cases show the importance felt by the legislature of evils of the kind named, and others, by means of which, in addition to wrongs inflicted on the persons injured, a spirit of insubordination is created and fostered, which incites to evil, and tends .to subvert the just and equal rights of some or all. In addition to this, every person has a right to the quiet and peace of a day of rest. He has also a right to the enforcement of the law, so that the evil example of a defiance of the law shall not be set before his children. The State has an interest in their welfare, also, in order that they may become useful citizens, and worthy and honorable members of society. The fact that the defendants were some distance away from the residence of any person can make no difference. It did not change the nature of the offense, nor excuse the act. It was a violation of the law, just the same.”

See, also, State v. Hogreiver, 152 Ind. 652 (53 N. E. 921, 45 L. R. A. 504); State v. Powell, 58 Ohio St. 324 (50 N. E. 900, 41 L. R. A. 854); People v. Havnor, 149 N. Y. 195 (43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707); People v. Bellet, 99 Mich. 151, 155 (57 N. W. 1094, 22 L. R. A. 696, 41 Am. St. Rep. 589).

In 1820 the territorial legislature of Michigan passed an act entitled “An act to enforce the observation of the Sabbath.” Its preamble is as follows:

“Considering that in every community some portion of the time ought to be set apart for relaxation from worldly labors & employments, & devoted to the social worship of Almighty God and the attainment of religious and moral instruction, which are in the highest degree promotive of. the peace, happiness, and prosperity of a people; and whereas, the first day of the week, commonly denominated the Sabbath, has at all times, among Christians in general, been devoted to these important purposes: To the end, therefore, that the good people of this Territory may be enabled, as well on that day as on all proper occasions, freely and without disturbance to perform those great and necessary duties with that decency and solemnity which is suitable to their importance, therefore,” etc. 1 Terr. Laws, p. 643.

The law then enacted is substantially the same as that now upon the statute book.

A breach of the peace is “a violation of public order; the offense of disturbing the public peace. * * * An act of public indecorum is also a breach of the peace.” Bouv. Law Diet. The term is generic, “and includes unlawful assemblies.” 4 Am. & Eng. Enc. Law (2d Ed.), 903. Where the statute prohibited the arrest of any person on Sunday, except in cases of treason, felony, and breaches of the peace, a ball game upon Sunday was held to be a breach of the peace. In re Carroll, 12 Wkly. Law Bul. 9. Under our statute, and under the authorities referred to, this game of baseball was a breach of the peace.

What was the duty of the sheriff? Upon this point we need say but little. The law is not disputed. It was his duty to prevent the game, and, if the players persisted in proceeding with it, it was his duty to promptly arrest them all. Mr. Parshall knew this, and so, in substance, testified. Plaintiff was presumed to know his duty and to perform it. He did not require the advice of the prosecuting attorney that it was his duty to prevent a breach of the peace, and to be present at any place when he received information that one was to be committed. In South v. Maryland, 18 How. 396, it was sought to hold the sheriff’s bond liable for damage resulting to an individual from his neglect to preserve the public peace. Such an action was held not maintainable. In regard to the duty of a sheriff as a conservator of the peace, the supreme court in that case said:

“The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial, but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.”

By statute in New York a sheriff is now made liable for damages to property destroyed by a mob or riot, where notice has been given him of the intended mob or riot, and he fails to take steps to prevent it. That statute fixes the liability, which did not exist at the common law, but his duty as conservator of the peace was the same. Schiellein v. Board of Sup’rs of Kings Co., 43 Barb. 490.

The inquiry is pertinent whether a sheriff, upon notification that a breach of the peace has been planned and is ready for execution, can perform his duty by inquiry of one of the leaders in the proposed breach of the peace, and receiving an assurance from him that he and his fellows would not accomplish the offense without notifying him of their intention. If this can be interposed as a defense, in what classes of crimes or misdemeanors would it not be a defense? In case of a mob, would he be justified in taking the assurance of a supposed leader that they would not accomplish the act without notifying him ? If an attack is 'threatened upon A.’s house at night, and A. notifies the sheriff, has he performed his duty when he has seen the supposed leader of the attack, and received his assurance that he will desist ? Perpetrators of these breaches of the peace will always take steps to put the officers off guard, as they evidently did in this case. Section 11337, 3 Comp. Laws 1897, expressly makes it the duty of the sheriff to suppress every unlawful assembly, and to arrest and secure the offenders; and any neglect upon his part so to do is made a misdemeanor, punishable by fine not exceeding $300. Mr. Parshall testified that he asked plaintiff, “ Whát would be the trouble if we played?” and that' plaintiff replied, “He would have to serve any warrants if any were issued.” We cannot shut our eyes to the fact that this has been a common excuse of sheriffs and other police officers for not enforcing this and other laws. It is the duty of the sheriff and police officers generally to enforce those laws which the people have enacted for the protection of their lives, persons, property, health, and morals, including the laws for the observance of the Sabbath.

Was the article libelous per sef The acts and conduct of a public officer are open to criticism. The law holds the critic to substantial accuracy in stating the facts upon which his criticism is based. The letter charged plaintiff with an intentional neglect of duty. Such a charge is libelous per se. Plaintiff’s oath of office was to perform faithfully the duties of sheriff. What that duty was, the violation of which was charged, has already been shown. The statement that “a violation of an oath is always shameful, — particularly so when it relates to official duties,” is true. The facts stated do not constitute perjury. The statement based upon them, that, “in legal terms, the violation of an oath is called ‘perjury,’” does not, therefore, charge that crime against plaintiff. The three important facts asserted are (1) notification, (2) absence from the scene, and (3) that he had allowed the game to be played. Proof of these would have been a complete justification. Two are conceded, namely, notification and absence. Whether the third was proven depends upon the determination of two questions: JTirst. Was plaintiff notified by Parshall that the game would not be played without notifying him ? And, second, had plaintiff the right' to rely upon such a statement of Par-shall, in view of all the circumstances and facts of the case ?

The court instructed the jury that the mere fact “ that a game of ball was to be played at Caledonia Park upon Sunday does not impose upon the sheriff the duty of going there and stopping it or preventing it.” It follows from what has been said that this is not the law. Neither the sheriffs, police officers, nor courts can close their-eyes to the fact that these games are accompanied with loud and boisterous conduct. They are therefore, per se, against that peace and quiet guaranteed to all citizens by the law on the Sabbath day, and the court should have so instructed the jury.

The court also said to the jury: “A mere rumor that an offense was to be committed somewhere away from his place would not necessarily take him there.” That instruction was not applicable to this case. The information conveyed to plaintiff by these parties was not “mere rumor,” either as to time or place. He was notified by them that the game was publicly announced, and that the grounds were in readiness for it. He chose to rely upon the statement of one member of one of the clubs that the game would not be played without notice to him.

After defendant had been upon the stand and cross-examined, the following occurred:

“Q. Mr. Sweet, did you slide your chair this way and enter into a conversation with Mr. McCurdy at recess ?

“A. I did.

“Q. Did you in that conversation say to him, if we had let you gone into that north-country matter, you would have told something of interest; that you had made the sheriff up there smart, and you would make this man smart before you got done with it ? (Objected to as improper.)

“Mr. Lyon: I offer it for the purpose of showing malice.

“Court: You can answer. (To which ruling the defendant then and there excepted.)

“A. May I ask a question?

“Q. That is a question I want answered by ‘Yes’ or ‘No.’

“Court: He asks me if he may ask me a question. I will allow him to.

Witness: If I have to answer that question, may I not relate the whole conversation ?

“Court: That you had with Mr. McCurdy?

“Witness: Yes, sir.

“Court: That will be determined later. I couldn’t rule in advance. I don’t know what it is. Whatever your rights are, they will be protected in one way or another.

“Witness: Let me have the question again. (Question read.)

“A. ‘If this persecution continues.’

“Q. Please answer my question.

“Court (to witness): Did you say that?

“A. I did; yes.”

Redirect examination:

“Mr. Kilpatrick: Q. Now you may explain.

“A. I said, ‘If this persecution continues.’”

We think this testimony was objectionable. It had no reference to the feeling of the defendant at the time of the publication. It related solely to the conduct of the plaintiff in the prosecution of this suit, which the defendant saw fit to call “ persecution.” • It did not tend to show that, at the time of the publication, defendant entertained actual malice towards the plaintiff. It should have been excluded. In view of a new trial, it may be well to state that if defendant was asked on cross-examination about a difficulty with a police officer in Houghton county, for the purpose of attacking his credibility, he should have been permitted to state to the jury the full particulars of that trouble.

There was no testimony upon which to base damages of $50 to plaintiff’s office. Under that head he could recover only the actual damages. It was not shown that he had lost the service of any papers, or had been damaged at all in the emoluments of his office. He could, therefore, recover only nominal damages.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    HILTON v. WOODMAN’S ESTATE.
    Mortgages — Assignment—Trust Fund.
    A mortgagee assigned mortgages to his daughter by a written assignment which merely described the mortgages, and provided that it was “for her individual use, to be hers over and above any part of the estate ” he might leave at his death. The mortgages and notes secured thereby were never given over to her, but remained in his hands until paid, when he applied the proceeds to purposes of his own, without reference to her interest. His will gave her a certain sum, and stated that it was “ in addition to the house and lot heretofore given her,” but did not mention the mortgages. Held, that the assignment carried the notes as well as the mortgages, and that the proceeds were received in trust for the assignee.
    Error to Ionia; Davis, J.
    Submitted April 5, 1900.
    Decided May 29, 1900.
    Eva L. Hilton presented a claim against the estate of Benjamin F. Woodman, deceased, for money had and received. The claim was allowed by the commissioners, and the estate appealed to the circuit court. From a' judgment for claimant, the estate brings error.
    Affirmed.

      J. H. Tatem (Adolphus A. Ellis, of counsel), for appellant.

      Walker & Fitzgerald (M. H. Walker, of counsel), for appellee.
   Long, J.

Claimant is the daughter of Benjamin F. Woodman, deceased. After his death she presented to the commissioners on claims in his estate the following items for allowance :

1. The amount of the proceeds of a mortgage given by Benjamin F. Nesbaum to the deceased, and dated February 19, 1887, for $1,400, which said mortgage was assigned to claimant on February 21, 1888, and the proceeds after-wards received by deceased, and held in trust for use of claimant, in the amount of $1,604, with interest to time of his death at 6 per cent.

2. The proceeds of a mortgage given by Arthur Eddy and wife, December 29, -1887, for $950, and assigned to claimant, and afterwards paid to deceased, and the.proceeds held in trust for claimant, in the amount of $950, with interest to time of his death, etc.

The proceeds of these two mortgages were claimed by claimant under the following assignment:

‘‘Saranac, Feb. 21st, 1888.

“This may certify that I, Benjamin F. Woodman, do assign and set over and give to my daughter, Eva L. Hilton, of Alpine, Kent county, Michigan, two assignments of mortgages, — one against Arthur. Eddy and wife, of the amount of nine hundred and fifty dollars ($950), and one against Benjamin Nesbaum, of the amount of one thousand and four hundred dollars, — for her individual use, to •be hers over and above any part of my estate I may leave at the time of my decease.

“Given under my hand at Saranac, this 21st day of February, in Ionia county, Michigan, 1888.

“Signed by me,

“Benjamin F. Woodman.”

On the back of this instrument appears the following:

“B. F. Woodman’s assignment of mortgages, or the amount of each.

“B. F. Woodman.”

The claims were allowed by the commissioners, and an appeal was taken to the circuit court, where the cause was tried before a jury. The court charged the jury, in reference to this paper of February 21st, above set forth, as follows:

“The instrument introduced by claimant dated February 21, 1888, of itself creates a valid trust in the two mortgages mentioned therein in favor of the claimant and against Benjamin F. Woodman, unless the testimony shows that such was not the intention of Mr. Woodman; and the burden is upon the estate to show, by a fair preponderance of evidence, that such was not his intention.”

Also:

‘ ‘ The instrument in question is, upon its face and in law, a valid declaration of trust, and, from the time of its delivery, Mr. Woodman held the mortgages, or the amounts thereof, in trust for the claimant, unless the testimony shows that such was not his intention.”

The jury returned a verdict in favor of claimant for the full amount of the two mortgages and interest, amounting to $2,350.

It appears that eaqh of these mortgages was given to secure the payment of a promissory note of even date and for a like amount. It also appears that the note in the Eddy case was made payable $50 on or before July 1, 1888, $300 on or before December 28, 1888, $300 on or before December 28, 1890, and $300 on or before December 28, 1892, with interest at 8 per cent., payable annually. It also appears that this mortgage was discharged by Mr. Woodman on the margin of the record, in the presence of the register of deeds, January 9, 1894. In the Nesbaum matter, the note was payable $350 February 19,1891, $350 February 19, 1892, $350 February 19, 1893, and $350 February 19, 1894. It also appears that this mortgage was assigned by Mr. Woodman to Alice Huhn, February 23, 1889.

There was testimony given on the trial showing that the mortgages and the notes accompanying them were never given over to claimant, but remained in the hands of Mr. Woodman until disposed of by him. The defense in the case offered some testimony tending to show that this paper of February 21, 1888, was made by Mr. Woodman, and delivered to claimant, for the purpose of enabling him to swear down the amount of his taxable property. It also appeared that the money received on the mortgages by Mr. Woodman was applied to purposes of his own, and without reference to any interest the claimant might have in it; and that he thereafter made his will giving claimant the sum of $300, and stating that this was “in addition to the house and lot which I have heretofore given her,” etc.; but nothing is said in the will of the gift of these two mortgages.

It is the claim of the defendant that the court was in error in the above charge to the jury, and that he should have directed the jury that the assignment of the mortgages by that paper, without the assignment of the notes, was an absolute nullity, or else, instead of making Mr. Woodman trustee for the claimant, it made her a trustee for him. Counsel cite, in support of this contention, the case of Bailey v. Gould, Walk. Ch. 484, and other cases, to the effect that the transfer of the debt secured by a mort. gage is essential to an effectual assignmen of the mortgage, and that the mere assignment of the mortgage, unaccompanied by the transfer of the debt, will have the effect of vesting only the legal title in the assignee, which he will hold in trust for the owner of the mortgage debt. There can be no question but that this is the general rule, but it has no application to the facts as shown by the assignment in the present case. These two mortgages were assigned by this paper to the claimant, and the assignment carried with it the assignment of the mortgage debts. It specifically provides that it is “for her individual use, to be hers over and above any part of my estate I may leave at the time of my decease.” There is no language used in the assignment by which it can be said that Mr. Woodman intended his daughter should hold these mortgages in trust for himself. No such trust is created by this assignment. He assigned the two mortgages to her for her individual use, and this language must be construed as conveying the notes accompanying the mortgages, as well as the mortgages, to her absolutely.

The judgment of the court below must be affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    SCHULTE v. KELLY.
    1. Justices of the Peace — Appeal—Voluntary Nonsuit.
    1 Comp. Laws 1897, § 902, which provides that a party aggrieved by a judgment of nonsuit rendered by a justice of the peace may appeal therefrom, is construed to exclude cases of voluntary nonsuit, as where a plaintiff fails to appear on the day to which an adjournment is taken.
    2. Appeal — Citation of Cases.
    The citation of adjudicated cases by the number and page of the report merely, without giving the names of the parties, is disapproved.
    Error to Wayne; Frazer, J.
    Submitted April 11, 1900.
    Decided May 29, 1900.

      Assumpsit by Anthony P. Schulte and another against Ronald Kelly for money paid to defendant’s use. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      jFranklin L. Lord, for appellant.

      Charles C. Stewart, for appellees.
   Hooker, J.

Schulte sued Kelly in justice’s court, summons being personally served. Declaration and plea were filed, and the cause was adjourned. Upon the day to which it was adjourned, the plaintiff did not appear, and the cause was dismissed. Plaintiff appealed to the circuit court, and, upon trial before the court, obtained judgment. The cause is before us on writ of error.

Counsel for defendant objected to the admission of any. testimony, on the ground that the court had no jurisdiction, for the reason that the statute does not authorize an appeal where a case is dismissed by a justice for want of prosecution by the plaintiff. The statute (1 Comp. Laws 189?, § 836) provides that judgment of nonsuit, with costs, shall be rendered:

1. If he discontinue or withdraw his action.

2. If he fail to appear on return of process within one hour after the same is returnable.

3. If he fail to appear within one hour after the time to which an adjournment is taken.

4. If he become nonsuited upon the trial.

Section 902 provides that any party to a judgment rendered by a justice of the peace, conceiving himself aggrieved thereby, may appeal:

1 and 2. Where a final judgment was rendered upon issue joined, either of law or fact.

3. Where defendant did not appear and plead, and final judgment was rendered for plaintiff on the merits of his claim.

4. Where a judgment of nonsuit has been rendered.

These two statutes, considered together, if literally construed, expressly allow appeals in cases of nonsuit, and declare that a judgment of nonsuit shall be entered where a plaintiff does not seasonably appear. Counsel for the defendant urges:

First. That this was a discontinuance by operation of law, without act of the parties, and does not amount to a judgment by the justice.

Second. That it is not an appealable judgment, because, being the result of the plaintiff’s nonappearance, it must be treated as a voluntary submission to nonsuit.

And it is said, with much force, that if ohe voluntarily submits to a nonsuit, or withdraws his suit, he must begin over, and cannot appeal. It is argued that, if these points are not good, a plaintiff may commence his suit, file his declaration, and refuse to take further steps, until of necessity a judgment has been rendered against him, when he may appeal, thereby avoiding a trial by the justice in a case which, like the present, is within the exclusive jurisdiction of a justice of the peace; or, if we apply the proposition to a case which accords with plaintiff’s statement of the facts shown in this case, after one jury has disagreed in justice’s court another trial can be avoided by allowing the hour to elapse without appearance, and taking an appeal. On the other hand, it may be said that if an appeal cannot be taken where one is, without fault on his part, prevented from seasonably appearing, it may result in the loss of a claim through the running of the statute of limitations. Such cases, however, would not be numerous, and it would be no more of a hardship than any other accident which prevents timely action, and perhaps ought not to be considered against the inconsistency of a rule which, after giving a court exclusive jurisdiction in a class of cases, should put it in the power of plaintiff to effectively avoid its jurisdiction in such cases, and thereby in effect confer an original jurisdiction upon other courts, which the law has not given, but, on the contrary, has forbidden. We are of the opinion, therefore, that the defendant’s contention should be sustained, unless the statute (section 902) forbids; and this conclusion can only he avoided by so construing the word “nonsuit” as to exclude such cases as this. If it can be said that the statute was intended to apply only to cases where a plaintiff suffered an involuntary nonsuit, the defendant’s position is tenable. The case of Bowne v. Johnson, 1 Doug. (Mich.) 185, was, upon its facts, substantially like the present case, and it was there held, upon the authority of Evans v. Phillips, 4 Wheat. 73, that an appeal would not lie. But the statute then in force (Act No. 49, Laws 1841, § 94) was unlike the present one. It was as follows:

“Sec. 94. Any party to a judgment rendered by a justice of the peace, conceiving himself injured or aggrieved by such judgment, may appeal therefrom to the circuit court for the county where the same was rendered, in the following cases:

“First. Where the final judgment was rendered upon an issue of law joined between the parties.

Second. Where the judgment was rendered upon an issue of fact joined between the parties, .whether the defendant was present at the trial or not, or any other final judgment of such justice: Provided, that no appeal shall lie where the sum claimed to be due by either'party shall not exceed ten dollars.” •

The question of the right to appeal from a nonsuit under the statute now in force has been before this court several times. In Pattridge v. Lott, 15 Mich. 251, the case was held appealable. There, however, the justice erroneously dismissed the case against plaintiff’s pnotest. It was treated as a judgment of nonsuit, appealable under the statute. In People, ex rel. Comstock, v. Wayne Circuit Judge, 30 Mich. 98, a case which was dismissed by a justice upon the ground that the summons was defective, against the consent of the plaintiff, was held appealable. In Stall v. Diamond, 37 Mich. 429, a replevin suit’was dismissed for an alleged defect in the affidavit, and it was held that an appeal would lie. These were all cases of involuntary nonsuit, and voluntary and involuntary non-suits have always been distinguished. 6 Enc. Pl. & Prac. 828. In the case of Chouteau v. Rowse, 90 Mo. 191 (2 S. W. 209), the difference is pointed out, and it is said that, while the former may not be appealed from, the latter may. See, also, Shaw v. Pershing, 57 Mo. 416.

It may be said that a plaintiff cannot be compelled to become nonsuit,—Cahill v. Insurance Co., 2 Doug. (Mich.) 124 (43 Am. Dec. 457); Merchants’ Bank of Canada v. Schulenberg, 54 Mich. 49 (19 N. W. 741),—and therefore that all nonsuits are voluntary. But this is certainly not true of a judgment of dismissal made against the protest of the plaintiff, which the defendant contends is equivalent to a judgment of nonsuit. We think that it may justly be said that the legislators did not have in mind voluntary nonsuits when the statute was passed, but that the popular idea of a nonsuit was in mind, which ordinarily was understood to be, in common parlance, the “throwing a plaintiff out of court” by a decision of the justice upon a technical point not going to the merits, and against the plaintiff’s consent. And we think, also, that, where a plaintiff fails to appear and prosecute • his suit, his nonappearance should be held to be voluntary. Neither the opposite party nor the justice is responsible for it, and he stays away with the full knowledge of the legal consequences. The merits of his case are in no way compromised. If he is unavoidably absent, the misfortune is his, rather than another’s, and usually his right to bring another action is ample protection.

Other authorities tending to support the views herein expressed are cited in the defendant’s brief, though without giving the names of parties, — a practice which is productive of confusion, and a nonobservance of our rules.

The learned circuit judge should have sustained the objection to the admission of proof, as the case was not appealable.

The judgment is reversed, and no new trial ordered.

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

       Among the authorities so cited, were: Ewing v. Glidwell, 3 How. (Miss.) 332 (34 Am. Dec. 96); Copeland v. Mears, 3 Smed. & M. 521; Thornton v. Demoss, 5 Smed. & M. 618; Greenlee v. M’Coy, 30 Miss. 588; Poe v. Dominic, 46 Mo. 113; Boggess v. Cox, 48 Mo. 278; Imley v. Beard, 6 Cal. 666; Sleeper v. Kelly, 22 Cal. 456; Boyd v. Kienzle, 46 Md. 301; State v. Bryan, 3 Gill, 397; Anderson v. Presbyterian Church, 13 Fla. 592; Tice v. Smith, 6 Yerg. 319.


author: Moore, J.

text:
    DANIEL v. PALMER.
    Fraudulent Conveyances — Bill in Aid op Execution — .limitations.
    Under 3 Comp. Laws 1897, § 9167, which provides that lands fraudulently conveyed by a debtor shall be subject to his debts, and that, in case of a levy upon an equitable interest, the judgment creditor may, before sale, institute proceedings to ascertain the rights of the judgment debtor in the premises levied on, and that, in case of a sale without having ascer- , tained such interest, he shall, within one year, institute proceedings to determine the same, an execution creditor who desires to attack a conveyance as fraudulent must file his bill before sale, and within one year after levy.
    Appeal from Jackson; Peck, J.
    Submitted April 12, 1900.
    Decided May 29, 1900.
    Bill by Thomas ■ I. Daniel against Mary M. Palmer,' surviving defendant of herself and William H. Palmer, in aid of execution. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Blair, Smith & Toiunsend (Wilson & Cobb, of counsel), for complainant.

      Richard Price, for defendant.
   Moore, J.

On the 14th day of January, 1895, complainant recovered judgment in justice’s court against defendant William H. Palmer for the sum of $80.35 damages and $7.89 costs of suit. February 6, 1895, complainant caused a transcript of this judgment to be'filed and docketed in the circuit court. February 20, 1895, execution was issued out of the circuit court on this transcript, which was upon the same day levied upon certain real estate for want of personal property, and the levy regularly recorded in the office of the register of deeds. At the time the indebtedness was contracted upon which the judgment was based, the real estate levied upon was the individual property of the defendant William H. Palmer. Over a year after the rendition of the last of the services for which judgment was rendered, the said William H. Palmer and Mary M. Palmer, his wife, made a voluntary conveyance of the premises in question to an intermediary, who conveyed them back to the Palmers jointly' as husband and wife. The bill of complaint charges that these conveyances were made for the express purpose of preventing complainant and other- creditors from collecting their just claims. The bill alleges that there was due on said judgment the sum of $91.61, with interest thereon from January 14, 1895. The bill was filed July 27, 1897. The interest amounted to $13.65, making the total amount due at the time the bill was filed $105.26. The bill prayed that the conveyances above referred to be set aside as against complainant’s execution, and the sheriff directed to proceed and sell the same under said execution. The bill is in the usual form of a bill in aid of execution. After the filing of the bill, and before the decree, Mr. Palmer died. The suit is defended by his survivor, Mrs. Palmer.

The defendants demurred to complainant’s bill upon three grounds. The first and second are substantially the same, viz., that complainant did not file his bill within one year after the date of the making of the levy. The third ground is that the matter in dispute does not, and did not at the time of the levy, exceed $100. The court held the first ground well taken, paying no attention to the last.

A solution of the questions involved requires an examination of the statutes in'relation to sales of real estate on execution. Prior to 1867 the statutory provision was as follows:

“All the real estate of a debtor, whether in possession, reversion, or remainder, including lands fraudulently conveyed with intent to defeat, delay, or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, and may be sold on execution as hereinafter provided.” Section 3119, 2 Comp. Laws 1857.

Act No. 95 of the Laws of 1867 amended this section so as to make it read as follows:

“All the real estate of any debtor, including legal and equitable interests in lands acquired by the parties to contracts for the sale and purchase of lands, whether in possession, reversion, or remainder, including lands fraudulently conveyed with intent to defeat, delay, or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, liabilities, and obligations, and may be levied upon and sold on execution as hereinafter provided. And when any sale by virtue of any execution shall become* absolute, as hereinafter provided, the purchaser at such sale shall acquire all the rights and interests that the debtor had in and to the lands so sold at the time of the levy by virtue of the execution; or, if the levy was made by virtue of an attachment, said purchaser shall acquire all the rights and interests that the debtor had in and to the lands so sold at the time of the levy by virtue of said attachment, including in either case the right to enforce specific performance of any contract hereinbefore mentioned, upon performing the conditions thereof as stipulated therein by said debtor: Provided, that this section shall not be construed so as to make liable to levy and sale on execution any amount of land not exceeding the amount now exempted by law from levy and sale on execution, and which would be exempt from levy and sale on execution if owned by the debtor occupying the same. 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; and that, in case of a sale of said premises without having ascertained and determined the interest of said judgment debtor in the premises so levied upon and sold, he shall, within one year, institute proceedings to ascertain and determine the same, and to settle the rights of the parties in interest therein.” 3 Comp. Laws 1897, § 9167.

The solicitors for complainant make a strong argument, in which they urge the limitation of one year does not apply to proceedings instituted before sale. They contend the purpose of the amendment was to subject to levy and sale upon execution legal and equitable interests in lands acquired by-the parties to contracts for the sale and purchase of lands, and that the provision relative to lands fraudulently conveyed is now as it was before the amendment. It is said the limitation as to time of filing the bill applies only when the equitable interest of a debtor is levied upon, and does not apply to a proceeding like this, to have a conveyance of land alleged to be in fraud of creditors set aside. It has been repeatedly held that a fraudulent conveyance is good as between the parties. Belcher v. Curtis, 119 Mich. 1 (77 N. W. 310), and cases there cited. Such a conveyance would be set aside only so far as was necessary to protect the creditor.

This statute, prior to and after the amendment of 1867, has been construed by this court upon several occasions. The circuit judge filed a written opinion, in which he cites the following cases: Cleland v. Taylor, 3 Mich. 201; Messmore v. Huggard, 46 Mich. 558 (9 N. W. 853); Cranson v. Smith, 47 Mich. 189, 647 (10 N. W. 194, 11 N. W. 186); Jenison v. Rankin, 57 Mich. 49 (23 N. W. 482); Edsell v. Nevins, 80 Mich. 146 (44 N. W. 1115); Wolf v. O’Conner, 88 Mich. 124 (50 N. W. 118, 13 L. R. A. 693). After reviewing these cases, he reached a conclusion which he expressed as follows:

“From an examination of these cases, the following propositions, appropriate to a determination of this part of the defendants’ demurrer, must be considered as clearly established: (1) A creditor having an execution against a debtor who has made a conveyance of his land which the creditor desires to attack as fraudulent must use the remedy provided by the amendment of 1867. No other is open'to him. (2) He must file his bill for that purpose before sale on the execution. It remains to bé determined whether he must institute the proceedings - within one year from the date of levy. Considering the amendment in the light of the decisions, it must be held that it was not the purpose of the legislature to provide for cases where the bill is filed after the execution sale, for there could be no such cases. The only cases there could be were those where the bill is filed before the sale, and such cases alone were contemplated and provided for. The one-year limitation must apply to such cases if it has any application at all. Unless it applies to such cases, it is a meaningless and useless provision. A construction of the statute which would have the effect to render it nugatory should be avoided, unless the conditions make that construction imperative. One of the general purposes of this amendment was to compel the creditor to have his debtor’s equity in the land levied upon speedily determined, and not allow him, after making his levy, to postpone the test indefinitely. The limit of one year from the date of levy was fixed by the legislature as a reasonable time within which he must file his bill. This wholesome purpose failed utterly unless the one-year limit applies to cases where the bill is filed before sale. Unless it is held to apply to such cases, the entire amendment is abortive.”

We think the court placed a right interpretation upon these decisions. If an illustration was wanted of the wisdom of the limitation of time, it is found in the fact that one of the defendants, who knew whether the conveyances were fraudulent or not, died after the period of limitation named in the statute had expired, and before the decree was made, and could not give his version of the transaction.

The decree of the court below is affirmed, with costs.

The other Justices concurred.


text:
    RAWLINSON v. SHAW.
    Arbitration and Award — Church Discipline.
    Where members of a church submit a business difference to a board of arbitrators chosen in accordance with the discipline of the church, without providing that the award shall be final, the one favored in the award will not be permitted, after a ruling by the church authorities that the award is appealable, to contest the ruling, and enforce the award in the courts.
    Error to Kent; Adsit, J.
    Submitted April 12, 1900.
    Decided May 29, 1900.

      Assumpsit by John W. Rawlinson against Solomon B. Shaw upon an award by arbitrators. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Outcheon & Swarthout, for appellant.

      Walker & Fitzgerald {Myron H. Walker of counsel), for appellee.
   Moore, J.

This case has been here once before. It is reported in 117 Mich. 5 (75 N. W. 138). A reference to the reported case will make it unnecessary to state some things here that would otherwise be necessary.

Upon the trial, testimony was given tending to show that the parties, in compliance with the provisions of the discipline of the church of which they were both members, submitted their differences to a board of arbitrators selected in accordance with the provisions of the discipline. An award was made as stated in 117 Mich. 5. It is claimed by defendant that the terms of this award were complied with by the parties to it, but that afterwards the plaintiff was dissatisfied with it, and appealed to the quarterly conference, where the defendant protested against setting the award aside. His protest was overruled, and a second award was made. This award was satisfactory to the plaintiff, but was not to the defendant, who appealed to the presiding elder, and through him to the quarterly conference. The presiding elder was of the opinion that not more than two awards could be had, but advised defendant that he had a right to appeal from his decision to the presiding bishop of the annual conference. This was done. Bishop Walden was of the opinion that an appeal would lie from the second award to the quarterly conference, and so notified the presiding elder, and both parties to this proceeding were so notified. A meeting of the quarterly conference was called, before whom both parties appeared. The plaintiff claimed that Bishop Walden was in error in ruling that a third arbitration could be had. After one or two adjournments, on the 13th of November, 1896, the quarterly conference decided to grant a new arbitration. The plaintiff was not satisfied with this conclusion, and soon thereafter brought this suit. A trial was had before a jury, who returned a verdict in favor of defendant.

Upon the trial, in addition to the things above stated, several articles of the discipline of the church were introduced in evidence. A letter from Bishop Walden to the presiding elder, dated November 13, 1896, was also put in evidence, containing, among other things, the following language:

"The bishops have agreed that, when an award has been made in a case submitted to arbitration in a disciplinary way, the award is final, unless the parties themselves agree to have a second arbitration.. * * * I was misled by the reference made to an erroneous statement in Bishop Merrill’s Digest,— correct under former provisions of the discipline, but not now. If a third hearing has been had, and the result is satisfactory to Brothers Shaw and Rawlinson, the matter had better end there; but I presume that Brother Shaw can claim the first award, notwithstanding the subsequent irregularities.”

The circuit judge was of the opinion that, under the rules of the church, the defendant had a right to appeal from the second award; that he made his appeal, which was allowed by the bishop and the quarterly conference; and that plaintiff could not recover upon the second award. The court, however, submitted to the jury the questions raised by the proofs under the count in the declaration on the contract, and allowed them to pass upon the controverted questions of fact in relation thereto. It is the claim of the plaintiff that the second award was valid, that the attempt to appeal therefrom was irregular, and that he is entitled to recover thereon. Counsel in. the brief say:

“This court will not find it necessary to the proper determination of this case to go into the tortuosities of the church law touching the question of the validity of this award. As will be seen in later paragraphs of this brief, the church lawyers are themselves lost in this mazy labyrinth, and cannot agree either with each other or with themselves as to what the ecclesiastical law is upon the question of appeals from awards. The main fact is that here is an award that answers all the requirements of a common-law award. Here was a matter of business difference (not an ecclesiastical difference or question, be it noted), referred to named arbitrators pursuant to a submission signed by both parties. There were no reservations whatever in the submission. No provisions for a review or appeal are found in it. The only reference to the church was that the arbitrators were chosen in accordance with the discipline, viz., two by each party, the four choosing the fifth, the five being members of the church. Both parties were represented by counsel, witnesses testified for and on behalf of both parties, documents were offered in evidence, arguments were made, and the award was rendered in writing, signed by all five arbitrators. The award is final and certain. There is not a word in the record of any fraud, partiality, corruption, mistake, or misconduct on the part of any of the arbitrators. The court expressly charged that there was no duress. On these facts, we claim plaintiff is entitled to a judgment; for this court has nothing to do with appeals made from a business arbitration, such as this, to ecclesiastical judicatures. The decisions and awards of tribunals created by some other organization than the laws of the land are subject to be reviewed and examined, so far as the legal rights of the parties are concerned, by the judicial tribunals of the State,, in the same manner that the awards of other arbitrators are reviewed and examined. Savannah Cotton Exchange v. State, 54 Ga. 668.”

“An arbitration and award are none the less binding because made pursuant to the regulations of a church to which the parties belong. Payne v. Crawford, 97 Ala. 604 (11 South. 725).”

It is true, the law favors the- settlement of disputes by arbitration; but the arbitration must be final before it can be enforced. The record discloses that the parties did not undertake either a common-law or a statutory arbitration. It was entered into because required by the rules of the church of which they were both members. The submission was a very brief paper, reading:

“In the matter of a business difference between the parties hereunto subscribing, it is hereby submitted to the following persons, chosen in accordance with the discipline of the Methodist Episcopal Church, viz.: G. A. Buell, J. S. Valentine, W. G. Beckwith, O. R. Wilmarth, C. A. Shackleton.

[Signed] “J. W. Rawlinson.

“S. B. Shaw.”

Such a paper would not give very much authority to common-law arbitrators, or enlighten them as to what was submitted to them. It is evident that both the parties contemplated such an arbitration as the rules of the church required from its members in cases of differences between them. The articles of submission do not provide that the award shall be final and binding, and undoubtedly it was expected that it would be subject to the rules of the church. When the first award was made, the plaintiff did not treat it as final and acquiesce in it. He claimed an appeal, and, against the protest of the defendant, his appeal was granted. When the second award was made, the defendant did not .regard it as final and acquiesce in it, but appealed therefrom. The presiding elder did not think an appeal would lie from the second award, but the bishop and the quarterly conference held otherwise, and ordered that there should be another arbitration. Instead of acquiescing in this action of the church authorities, the plaintiff brings this suit. If Bishop Walden was right in the holding that an appeal from the second award would lie, then there is no final award which can be enforced. If, on the other hand, there could be but one award, as the letter of the bishop asserts, then the plaintiff has already got all he was entitled to. We think it very clear that the parties had in mind, not a statutory arbitration nor a common-law arbitration, but an arbitration subject to the rules and usages of the church, as interpreted by its officers. Those officers have ruled in such a way as not to satisfy the plaintiff. He now appeals to the .court, and, instead of submitting to the action of the church, he selects such portion of its action as is favorable to him, and asks the court to enforce it. We do not think he has an award which the courts can enforce.

The judgment is affirmed, with costs.

The other Justices concurred.


text:
    PUNGS v. AMERICAN BRAKE-BEAM CO.
    Contract op Employment — Breach — Discharge — Wages — Pleading — Question por Jury.
    Where a servant under contract of employment for one year was discharged fo'r violation thereof, and at the time a salary was owing him for one month and four days under his contract, and defendant in an action therefor, with its plea, gave no notice of recoupment or set-off because of the breach, it was error to direct a verdict for defendant, since such contract and jilaintiff’s retention in service were evidence of his right to wages, the amount thereof, corresjionding to the value of his services, to he determined by the jury.
    Error to Wayne; Waite, J.
    Submitted April 12, 1900.
    Decided May 29, 1900.

      Assumpsit by William A. Pungs against the American Brake-Beam Company for wages. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Barbour & Rexford, for appellant.

      Russel & Campbell, for appellee.
   Long, J.

Plaintiff brought suit to recover salary for the months of August, September, October, November, and December, 1897, claimed to be due under a.written contract of employment by the defendant for the year 1897. By the terms of the contract, plaintiff was employed to superintend the manufacture of brake beams; his compensation being $5,000, payable in monthly installments of $416.66. Among other things, he agreed “to cause the work to be doné efficiently, promptly, and to the satisfaction of the Brake-Beam Company, and at the least possible cost to it;” and, further, “to provide the necessary material on the best terms possible for the Brake-Beam Company.” His services as superintendent were not satisfactory to the defendant, and he was discharged September 4, 1897. He had been paid to August 1st. The declaration contains a special count, to which is appended the common counts. A bill of particulars was demanded and furnished, in which plaintiff states his claim as follows:

1897.

Sept. 1. Salary for month of Aug., 1897..... 8416 66

Oot. 1. “ “ “ “ Sept., 1897.......... 416 66

Nov. 1. “ “ “ Oet., 1897.......... 416 66

Deo. 1. “ “ “ “ Nov., 1897_____ 416 66

1898.

Jan. 1. Salary for month of Dec., 1897__________ 416 66

Interest at six per cent, per annum.

All under written agreement for employment made between plaintiff and defendant, dated January 1, 1897.

Upon the trial, plaintiff testified that he had performed the general services laid out to be performed under the contract up to the time of his discharge, and that he was ready and willing to perform after that time. On cross-examination he admitted that while acting under the contract, and prior to August 1st, he had, without the knowledge or consent of the defendant, and in violation of the requirements of the contract to provide material at the least possible cost, received rebates, or “commissions, ” as he termed them, upon purchases of steel, amounting in the aggregate to $1,000. His excuse for this conduct is that the defendant’s credit was not good, and that the money was paid to, him because he guaranteed the payment of the account; admitting, however, that he did not inform the defendant of these facts, because he thought it was none of the defendant’s business. At the close of plaintiff’s case, defendant requested the court to direct a verdict in its favor upon the ground that plaintiff’s own testimony showed that he had been guilty of a gross violation of the contract sued upon; and, upon the court’s intimating its intention to grant the request, plaintiff’s counsel, conceding the violation of the contract, claimed a right “to recover, according to the terms of the contract, for his services during the month of August, 1897, and during the first four days of the month of September, 1897.” A verdict was rendered for defendant, and no exception taken by plaintiff to the action of the court in holding that the defendant was justified in discharging the plaintiff September 4, 1897.

The only error assigned is as follows:

“The court erred in charging the jury as follows: ‘I do not think the plaintiff is entitled to recover anything for his services under the agreement, either during the month of August or the first four days in September, 1897, because, as I have stated, the discharge of the plaintiff from the employment was justifiable.’”

It is claimed by counsel that plaintiff performed the contract to the date of his discharge, and as there was no notice, under the plea of the general issue, of recoupment or set-off, defendant was not entitled to any reduction from the contract price for the month of August and the four days in September; that therefore plaintiff was entitled, under the common counts in assumpsit, to recover for that time at the rate fixed by the contract. The plaintiff offered no evidence of the value of the services rendered, but relied upon the contract as fixing the value.

We think the court below was in error in directing the verdict for defendant. It was conceded that he worked one month and four days for which he was not paid. His retention in service for that time was some evidence of his right to wages. Bolt v. Friederick, 56 Mich. 20 (22 N. W. 187). And the fact that he had violated his contract could not be taken by the court as proof positive that such wages so earned had been offset by this breach of contract. It is true that the breach .of the contract estopped him from recovering wages after his discharge, for it gave the master the right to discharge him. But it was a question for the jury to determine the value of the services actually rendered, and the contract, with proof that services were actually rendered, was some evidence of his right to wages. Had the defendant given notice of recoupment, it could undoubtedly have set off its damage by reason of the breach against the value of the services.

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

The other Justices concurred.


text:
    BOYLE v. CITY OF SAGINAW.
    1. Municipal Corporations — Defective Sidewalks — Notice.
    Where injury was claimed from the negligence of a city in knowingly permitting a sidewalk to become and remain defective, it was not error to admit testimony showing the condition of the walk in close proximity to the place where the injury occurred, though the particular defect which caused the injury was pointed out; since such testimony was competent to charge the city with notice of the condition of the walk.
    2. Husband and Wife — Agreement as to Wife’s Earnings — Medical Services — Personal Injuries — Damages.
    A wife, in an action for personal injuries, may recover for her medical treatment and her loss of services, where it appears that she was supporting herself under an agreement with her husband that she should have her earnings, and that the credit for the medical services was extended to her individually and solely, on her promise to pay for the same out of her separate estate.
    Error to Saginaw; Snow, J.
    Submitted April 13, 1900.
    Decided May 29, 1900.
    Case by Catherine Boyle against the city of Saginaw for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry E. Naegely, for appellant.

      John E. O'Keefe, for appellee.
   Moore, J.

The statement of facts is taken largely from the brief of counsel for defendant. Catherine Boyle, the plaintiff, brought suit against the city of Saginaw, the defendant, to recover damages for injuries she sustained on a defective sidewalk on October 29, 1898. On the trial of the case she recovered a verdict of $1,000. She was a married woman, and at the time of her injuries, and previous thereto, she was a healthy woman, weighing 150 pounds, who always did her own housework, and, in addition, frequently did washing by the day for other people. She supported herself by her own earnings, her husband, for 15 years previous to this time, not having contributed to her support, though he did to the support of the children. She was the mother of 11 children, 7 of whom are alive, and the youngest of whom was 10 months old at the time of her injuries. The plaintiff lived on North Bond street, about three blocks southwest from the place where the injury occurred. She left home on the night in question, about 8 o’clock, to go to Stingel’s meat market, which is several blocks from where she lived. The night was dark,» and the condition of the walk was not familiar to the plaintiff. There were no artificial lights within a block or two to throw light on the walk on the west side of Stone street at the point where she fell. The plaintiff took the west side of Stone street, and went north to a point within five or six feet from the corner of Union street, when she stepped into a hole in the sidewalk, and fell. After remaining there a few minutes, she got up, and started to go, and took another step forward, when . her foot was caught by a broken board, and she again fell forward, and hurt her hip and ankle. She called for help, and Mrs. Doak, who lived in the house in front of which she fell, came out with a light, and removed the board which held Mrs. Boyle’s foot, and brought her to the stoop, where she sat a few minutes. Mrs. Boyle then went across the street to the store of Mr. Gager, and had him drive her home. She secured a doctor the Monday following the injury. She applied liniment and otherwise treated herself according to the doctor’s instructions. She became nervous, and was sick more or less from the time of the injury to the trial. Previous to the injury she was strong and healthy, and did her own work and work for others, and had never been sick. She was a married woman and it was agreed between herself and husband that she should have her earnings for herself. This agreement was made about 15 years ago, and whatever she earned she collected and used for herself. After her injury, Dr. J. W. Freeman made one visit to her, for which she paid him §1.25. Dr. F. W. Freeman made three or four visits, which were charged to her. Dr. J. W. McMeekin called a number of times. She does not know how much she owes him for these visits, which were 16 or 17. The plaintiff earned about five dollars a week at times working for different people in the city. She spoke to Dr. Mc-Meekin about his bill when he first came to visit her, and said she would pay him in a short time. He 'told her he could wait for his pay. She told him she would pay him herself, and the account was charged to <her. Some payments had been made by her to the doctor at the time of the trial.

The first question to be decided is, Did the court err in permitting plaintiff to show the condition of the sidewalk in front of the lot at other places than where the plaintiff’s testimony tended to show she was injured? It is claimed by defendant that, where the defect which caused the injury can be definitely pointed out, the evidence as to defects must be confined to the hole which caused the injury; citing Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Tice v. Bay City, 78 Mich. 209 (44 N. W. 52); Campbell v. City of Kalamazoo, 80 Mich. 655 (45 N. W. 652). It was the claim of the plaintiff that, at the place where she was injured, there was a plank out of the walk, and another broken in two, the broken ends resting on the ground between the stringers, and the planks and the stringers were rotten. The declaration, after describing the walk, alleged that the city—

“Knowingly and negligently permitted the same to become out of repair, and to continue out of repair, and to become and remain unsafe and unfit for public travel for a long space of time, to wit, six months, prior to said 29th day of October, and that during all of said time the boards, planks, and stringers of said sidewalk upon the west side of said Stone street, between Congress and Union avenues, were in a condition not reasonably safe and fit for public travel, in that the planks and boards of that portion of said sidewalk were decayed, rotten, loose, shaky, torn up, unfastened, broken, and displaced, and in an unsafe and dangerous condition for the public to travel upon.”

Under the repeated decisions of this court, we think the testimony was competent for the purpose of charging the defendant with notice of the condition of the. walk. Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616); Will v. Village of Mendon, 108 Mich. 251 (66 N. W. 58); Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444); Haynes v. City of Hillsdale, 113 Mich. 44 (71 N. W. 466); Rodda v. City of Detroit, 117 Mich. 412 (75 N. W. 939).

The next question calling for our attention is, Was the trial judge justified in submitting to the jury the question of fact whether the plaintiff was entitled to recover the medical expenses for treatment of her injuries? Upon this feature of the case the judge charged the jury as follows :

“Now, in addition to such damages, if you find any, you may consider in connection with the question of the loss of services and her doctors’ bills; and I will say to you if you find, by a preponderance of the evidence in the case, that the plaintiff has paid, or has agreed to pay, the charges for medical treatment for the injuries which she sustained by reason of the negligence of the defendant, out of her own personal estate, and that such expenses were charged to her individually, and she was given sole credit for the same, she would be entitled to recover such sum so expended or incurred for such medical treatment. * * * But before you can allow her anything for her medical treatment and for her loss of services, you must find that the agreement existed between her and her husband that she should have her earnings; and, on the question of her doctors’ bills, you must find first that the credit was given to her solely and individually, without any expectation of coupling somebody else with her in paying the doctors’ bills.”

The charge of the court was in harmony with the decisions of this court. Hirshfield v. Waldron, 83 Mich. 116 (47 N. W. 239); Meads v. Martin, 84 Mich. 306 (47 N. W. 583); Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153); Lempke v. Felcher, 115 Mich. 37 (73 N. W. 17).

There was testimony justifying the verdict. The other assignments of error do not call for discussion.

Judgment is affirmed.

The other Justices concurred.