text:
    RICHTER v. KABAT.
    1. Church Property — Possession—Exclusion op Officers — Injunction.
    Injunction is the proper remedy to secure to the officers of a church the peaceable possession of its property as against members of the parish who have assumed to exclude them therefrom without right; the proceeding by ejectment being impracticable in such case.
    2. Contempt of Court — Due Proof — Evasive Testimony.
    Under 2 Hów. Stat. § 7259, requiring “due proof” of the facts charged as contempt of court where the alleged misconduct is not committed in the immediate view and presence of the court, one is improperly adjudged guilty of contempt for violation of an injunction, where the case against him rests entirely upon his own testimony, and such testimony, though in some respects evasive, fails, when taken as a whole, to make out the alleged violation.

      Certiorari to Bay; Maxwell, J.
    Submitted June 10, 1897.
    Decided October 25, 1897.
    George W. Kabat brings certiorari from an order adjudging him guilty of contempt for violation of a preliminary injunction issued in suit by Henry Joseph Richter and others against said George W. Kabat and others.
    Reversed.

      Van Kleeck & Anneke (E. A. Cooley, of counsel), for appellant.

      McDonell & Hall (D. Mangan, of counsel), for complainants.
   Montgomery, J.

This is certiorari to review an order adjudging defendant Kabat guilty of contempt for disobedience to a preliminary injunction. The original bill was filed by complainant Richter, bishop of the diocese of Grand Rapids of the Roman Catholic Church, Marian Matkowski, who was the priest in charge of St. Stanislaus parish of Bay City, and the other complainants, who are trustees or committeemen of the parish. The bill alleges title to the church property of St. Stanislaus to be in the bishop; that, under the rules and discipline of the church, the control and possession of the church property is in the resident parochial priest, in conjunction with the board of trustees or church committee appointed by the bishop, over whom the bishop has at all times a supervisory control; that the bishop has at all times the sole power to appoint and place a priest in charge of each parish; that Matkowski had been chosen as priest in charge of the parish in question, and that one Turski had been selected as an assistant priest; and that, in the preceding February, Turski began to exhibit a disposition of discontent, and to circulate an impression among a number of parishioners, including the defendants, that he was not properly treated by Matkowski.

The bill proceeds to charge, in substance, that defendants took sides with Turski; that a committee was appointed to represent the Turski faction; that they called upon Matkowski at his parochial residence, and asked him to quit his residence, and quit his charge as priest of the parish, and threatened, if he did not leave, that a large number of his parishioners would gather together, and forcibly oust him from the premises; that later, in April, they called at the residence of Matkowski, and proceeded to take an inventory of the personal property; that Matkowski left the residence, being in fear of personal violence, and has not since occupied the same; that defendants caused the gates leading into said premises to be fastened with chains and locks, and now assume to have charge of said premises, for the. sole purpose of preventing complainant Matkowski from going upon the same, and that a guard was appointed to remain on said premises, and prevent said complainant from going upon the same. The bill further alleges that Matkowski still retains the key of said church and said parochial residence; that, on the 10th of May preceding the filing of the bill, the bishop went to the church with Matkowski for the purpose of holding the usual morning religious services; that certain of the defendants openly interposed and objected to the said bishop and the said Matkowski entering said church together, or holding service there, and, on account of the said interference of the defendants, the said bishop and said Matkowski were compelled to retire from said church, and were restrained from holding services there on that day, and have been so prevented ever since.

The bill alleges that, although entitled to institute proceedings against defendants for trespass, yet, inasmuch as it would be necessary to bring repeated actions of trespass against defendants, such an action would be inadequate to afford óomplainants their rights in the property, and that the bill is filed to prevent a multiplicity of suits. The bill further alleges that several of the defendants have threatened and intend to destroy the buildings on the premises in question rather than permit the complainants to occupy the same and continue their possession therein. The bill prays that complainants be allowed to exercise their lawful control and jurisdiction over the premises, undisturbed and unmolested by defendants, and prays an injunction, which injunction was granted, enjoining the defendants from any of the acts following:

“(a) From illegally and unlawfully, and in defiance of the authority of said church, combining and conspiring to supplant and remove the said Matkowski from his position as priest of said church and parish, or in any manner interfering with him in'the discharge of his duties as such priest therein.
(b) From in any manner interfering with said Richter and Matkowski, or either of them, in their right to take and enjoy possession of said church building, parochial residence, or school buildings, situate on and occupying block 22, above described, or any part or portion thereof, or of said premises, and all appurtenances thereto.
“(c) From in any manner, either by force, threats, intimidation, menace, or violence, exercising any acts of ownership or possession over or to, or of attempting to exercise any right of control over orto, said church building, parochial residence, or school buildings, situate on said described premises, or any part or parcel thereof, or from securing the gates or entrances to said premises with chains, locks, or fastenings, or from maintaining any guard or watch over said premises, or from interfering with complainants, or either of them, in the right of ingress and egress thereto and therefrom, or in the right of possession thereof.
“(d) From in any manner interfering with said Richter or Matkowski in their right to hold continued possession of said church building and premises, and conduct services, religious or otherwise, connected with the discharge of their several duties as bishop and priest therein, at any and all times, or from in any manner interfering with or interrupting the conduct of such services, or of the school conducted and carried on in connection with such parish.
“(e) From in any manner entering upon said premises, or any part or parcel thereof, at any time, or from offering to do or doing any violence or injury thereto, or despoiling or destroying the same, or the said several buildings situate thereon, or any part thereof, or from in any manner, either by threats, menace, force, solicitation, or persuasion, inducing any other person to commit any trespass thereon, or to offer or to cause any injury thereto.
“(/) From unlawfully gathering or collecting in assemblages, crowds, or groups of persons at, near, or on said premises, or in the streets or alleys adjoining or contiguous thereto, or from holding meetings intended, designed, or purposed to inflame the minds and prejudices of said defendants, and induce them, or any of them, to commit acts of violence against complainants, or any of them, or the said premises and property so described as aforesaid.”

This bill was answered by defendants, and some time thereafter Matkowski left the parish, and assumed charge of the parish at Cheboygan, and one Bogacki was appointed by the bishop as priest of the parish, and took possession of the church property, and commenced to minister to the congregation. Shortly after this, the old controversy broke out again. A riotous assembly gathered in front of the parochial residence. A breach of the peace was committed, and the personal property in the residence was injured, and the building itself damaged. It was for complicity with this offense that respondent was convicted of contempt. Two questions are discussed in the brief of counsel:

It is contended that the court, was without jurisdiction to issue the injunction which was violated, for the reason that defendants were at the time in actual possession of the premises, and the injunction seeks to divest them, and vest it in complainants. Counsel rely upon People v. Simonson, 10 Mich. 335; Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479; Arnold v. Bright, 41 Mich. 207; Toledo, etc., R. Co. v. Detroit, etc., R. Co., 61 Mich. 9,-which cases establish the rule that, as a general pi'oposition, the preliminary proceedings of injunction will not be used for the purpose of turning one in possession out of possession, and turning the possession over to complainant. But we think the issue of the injunction in this case not inconsistent with the ruling in the cases referred to. The bill does not show the defendants in possession of the property referred to, or in any other capacity than as members of the parish of St. Stanislaus. The complainants were really entitled to the management of the church property. As was said by Taft, J., in Brundage v. Deardorf, 55 Fed. 839:

“The peculiar character of the possession by the church trustees, and of the use by the pastor and congregation, makes it clear that a mere action in ejectment would be quite inadequate as a remedy to secure the complainant trustees, and those whom they represent, the same peculiar possession and use for them. The writ of injunction is well adapted to prevent an unlawful intrusion in the pulpit by the pastor, and an unlawful use by the congregation, against all of whom it would be obviously impracticable to institute proceedings in ejectment.”

See, also, 2 Beach, Inj. § 917; Trustees, etc., of New Elm v. Hoessli, 13 Wis. 348; 1 High, Inj. § 714.

It is contended that the record fails to show a violation of the injunction by defendant Rabat. The statute (section 7259, 2 How. Stat.) provides that, when the misconduct charged was not committed in the presence of the court, “the court shall be satisfied by due proof, by affidavit, of the facts charged, and shall cause a copy of such affidavit to be served on the party accused, a reasonable time to enable him to make his defense, except in cases of disobedience to any rule or order requiring the payment of money, and of disobedience to any subpoena.’’ This practice was not followed in this case-. No point is made upon a failure to observe the practice by respondent’s counsel, and we need not consider whether the failure to require an affidavit would be fatal to the proceedings; but it is evident that the intention is that the respondent shall have opportunity to meet the charge of contempt. The testimony of Rabat was the main case. From this it appears that a meeting was held immediately before the riot; that respondent was present at this time. Respondent denies that he counseled any destruction of property, or that he voted in favor of the action taken at the meeting, or that he took any part in the riot until he was sent for by the officers to come upon the premises, and aid in protecting property. While there might be room for questioning whether respondent’s testimony is not evasive if affirmative acts were shown by other testimony, yet, when the case rests entirely upon statements of respondent, such statements, taken as a whole, should make out the act of contempt. It is not contended that respondent was guilty of contempt in going upon the premises at the solicitation of the officers for the purpose of protecting property. We think the charge of contempt was not made out, and that the order adjudging respondent guilty should be reversed, and respondent discharged.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    LEWIS v. WEIDENFELD.
    1. Appeal — Federal Courts — Remanding oe Causes — Review.
    The action of a Federal court in remanding a cause to a State court is not reviewable on appeal from a final decree thereafter rendered in the State court.
    3. Nonresident Dependants — Order oe Publioation — Sufficiency.
    An order of publication requiring a nonresident defendant to “appear and answer the bill of complaint within four months from the date of this order” is sufficient, under 8 How. Stat. § 6671, which provides that, if the defendant is a resident of some other of the United States, the order shall require.him to “appear and answer in not less than four months;” it being unnecessary that the order should fix a specific day for the appearance.
    3. Contracts — Execution—Agent Acting as Principal — Parol Evidence.
    One who, in his individual capacity, executes a contract of purchase, and gives back a purchase-money mortgage containing no reference to representative capacity, cannot show by parol evidence, to avoid liability for a deficiency on foreclosure of the mortgage, that he was acting, to the knowledge of the mortgagee, as agent of others interested with him, with the intention of conveying to them the property purchased.
    4. Mortgages — Additions and Improvements — Extent of Lien.
    The lien of a mortgage covering all the property and franchises of a gas company, together with “ all improvements and additions, of every name and nature,” extends to a new municipal franchise obtained in place of that belonging to the mortgagor at the time of the execution of the mortgage.
    5. Same — Defenses to Foreclosure — Misrepresentation—Evidence.
    Upon a review of the evidence adduced in foreclosure proceedings, held, that the mortgagees were not guilty of misrepresentation as to the extent of corporate assets for the purchase price of which the mortgage in suit was given.

      6. Corporations — Sale op Franchise — Limited Privilege — No-. tice to Purchaser — Failure to Examine Records — Estoppel.
    It is incumbent upon a purchaser of the franchise of a gas company organized to supply gas to a given city, which franchise, by its terms, is notice that certain of its essential • features are limited to a period of time which has elapsed at the time of the purchase, to examine the records at hand for the purpose of discovering what new arrangements were made with the city at the expiration of such period, and if he fails, through no misrepresentation of the seller, to make such examination, he is estopped from complaining that certain corporate privileges, which he believed to be perpetual, were limited by subsequent agreements.
    Appeal from Wayne; Carpenter, J.
    Submitted October 1, 1897.
    Decided October 25, 1897.
    Bill by Alexander Lewis and Jerome Croul, trustees, against Camille Weidenfeld, the Detroit Gas Company, and the New York Guaranty & Indemnity Company, to foreclose a mortgage. From a decree for complainants, defendants appeal.
    Affirmed.
    July 5, 1892, the following instrument was executed between the Detroit Gaslight Company, of Detroit, Mich., and Camille Weidenfeld, of the city of New York:
    “ Whereas, said second party is desirous of purchasing so much of the property of said first party as is used for the purpose of making and distributing gas, and is also desirous of acquiring all of the capital stock of said first party, and has offered the said first party the price and terms therefor hereinafter named, and the directors of said first party deem it wise and best for the interests of the stockholders of said first party that such sale be made; and—
    “ Whereas, in order to consummate such transaction it will be necessary to obtain the assent of all the stockholders of said first party:
    “Now, therefore, said first party agrees that it will, as soon as practicable, present the said proposition to its stockholders, and use reasonable efforts to obtain the authority of all of them to the sale of said property and stock, and, if successful in such efforts, to notify the said second party, within 90 days from the date hereof, of its readiness to carry out the sale aforesaid. And, upon receiving such power and authority from its stockholders, said first party agrees to sell, by good and sufficient conveyance, to said second party and his associates, or to such person or corporation as he may designate:

      “First. All its property, rights, privileges, and franchises which pertain to and are used in the manufacture, distribution, and sale of illuminating gas (a portion of the property of said first party, commonly known as its ‘surplus,’ consisting of all bonds, mortgages, stock, cash, and all evidences of debt held by said first party, and two parcels of real estate, one being in Sanilac county, and the other being on the corner of Sixth and Congress streets, in Detroit, and which property has no direct connection with the making or distributing of such gas, not being included in this sale).
    ‘ ‘ Second. All of the capital stock of said first party,- — all for the price, and on the terms, and in-the manner hereinafter stated: All of the said property is to be free and clear from all liens and incumbrances, of every name and nature, except as follows: Tfie upper floor of the office on Congress street is under lease to Allan Sheldon, and the said second party is to assume and carry out a certain contract now in force made by said first party, providing for the sale of its ammoniacal liquor, as well as all contracts existing at the time of the transfer for the purchase of coal or other supplies: Provided, that the sale of such property shall be on the express condition that the purchasers shall continue to supply illuminating gas to the city of Detroit and its inhabitants in the same manner as the said first party is now required to do: Provided, further, that if such assent, ratification, and authority from such stockholders be not obtained within 90 days from the date hereof, this agreement becomes void and of no effect, at the option of the party of the second part, to be declared within 30 days after the expiration of said period of 90 days, and he shall have the right to purchase the holdings of the stockholders so assenting for a pro rata proportion of said purchase money; and in any event the party of the second part shall have no cause of action against the party of the first part for its failure to obtain the assent, ratification, and authority of all of said stockholders.
    “And, in consideration of the premises, the said second party agrees to purchase the said property and stock, and to pay therefor the sum of one million four hundred and fifty thousand ($1,450,000) dollars, -in manner following: Four hundred and fifty thousand ($450,000) dollars within 10 months after receipt of notice of the authority given by said stockholders as aforesaid, five hundred thousand dollars on or before one year from the date of such first payment, and five hundred thousand dollars on or before two years from the date of such first payment; such deferred payments to bear interest at the rate of 6 per cent, per annum, payable semi-annually until paid, and to be secured by a purchase-money mortgage upon the property so transferred, executed by said second party to such persons as said first party shall designate to hold the same as trustees for the stockholders of said first party. Such mortgage shall contain the usual interest clause contained in the long-form real-estate mortgage in common use in this State. :
    “Concurrently with the payment by the party of the second part of said first payment of four hundred and fifty thousand dollars, and the execution and delivery of said purchase-money mortgage, the said party of the second part shall be entitled to, and shall be put into, possession of said property and stock; and the board of directors of said party of the first part shall at once hold a meeting of the said board of directors, and severally resign as such directors, and, as each resignation shall be accepted, the remaining members of said board shall elect such person to fill the vacancy as shall be named by the party of the second part, and continue so to do until all of said directors shall be persons designated by said party of the second part. The party of the second part shall have the right to make or cause to be made, at any time, additions, betterments, or improvements to the plant or other property of said party of the first part, the party of the second part forfeiting all claim thereto in case he shall not finally conclude the purchase herein provided for.
    “As the said first party, at the time of such transfer, may have on hand coal, coke, tar, ammonia, and other supplies and residuals, which are not to pass by such transfer, it is understood that the second party may take the same at the cost of the coal and the market price of the residuals.
    “All money on hand and accounts due to said first party at the time of the transfer shall be retained by the said first party, and transferred by it to trustees for the benefit of its stockholders.
    “ It is intended and understood that the property of said first party not expressly transferred hereby, and the purchase money aforesaid, shall be by said first party, prior to the transfer of its capital stock to said second party, transferred to certain persons, to be designated by said first party (presumably, the persons named in said mortgage as trustees), to hold the same for division and distribution among the stockholders of said first party authorizing the sale of such stock; and, whenever the word ‘stockholders’ is used herein, the stockholders authorizing such sale of stock to said second party are the ones meant, and not such as may be stockholders after such transfer.”
    The board of directors authorized the execution of this instrument. Immediately thereafter the proposition was communicated to the stockholders, a majority of whom were nonresidents of this State. The number of shares was 20,000. All but 89 shares assented to the contract and the sale of their stock. These shares were held by two persons who were absent from this country at the time, and could not be reached. The situation was communicated to Mr. Weidenfeld, and October 27, 1892, he sent to the Detroit Gaslight Company the following communication :

      “Gentlemen: I beg to acknowledge the receipt by me of your notice bearing date October 3, 1892, pursuant to a certain agreement, dated July 5, 1892, between the Detroit Gaslight Company and Camille Weidenfeld, which notice is to the effect that stockholders representing all of the stock of said Detroit Gaslight Company,except 89 shares, have assented to the transfer of the stock and property of the company under said contract, and that said 89 shares are held by two stockholders -who have been absent from the country, and whom the company has not been able to consult: Now, therefore, this is to notify you that I, the undersigned, hereby declare the option given to me in and by the provisions of said contract, and hereby elect to purchase the holdings of the stockholders of said Detroit Gaslight Company assenting to the terms of said contract for the pro rata proportion of the purchase money therein named.”
    After this the contract was completed by the proper conveyances, $450,000 paid, and a mortgage executed for $1,000,000, the balance of the purchase price, to complainants, Croul and Lewis, and Mr. Charles B. Lothrop. The parts of the mortgage material to this controversy are those describing the property mortgaged, and are as follows:
    “(3) All the property which was used by the Detroit Gaslight Co., a corporation, in the manufacture of illuminating gas, and situated at the gasworks on the parcel of land numbered 1 above. All office fixtures, furniture, and other property in the office or shop of the said Detroit Gas Company upon said parcel of land above described, numbered 2.
    “(4) All gas mains, pipes, meters, and other appliances which were lately owned by said Detroit Gaslight Company, and used by it in and about its business of distribution and sale of gas.
    “(5) All the rights, franchises, contracts, ordinances, and privileges which belong to said gaslight company to make, distribute, and sell illuminating gas within the city of Detroit, Wayne county, Michigan. All of the above being the same property this day, and concurrently herewith, sold by the said Detroit Gaslight Company to said first party, and this mortgage being given to the said second parties to secure a portion of the purchase price of such sale.
    “(6) Also, all improvements and additions, of every name and nature, made by said first party, his heirs and assigns, to the aforesaid plant and apparatus for making and distributing gas, while any part of the money secured ¿hereby remains unpaid.”
    Defendant Weidenfeld conveyed the property to the defendant the Detroit Gas Company, which about the same, time purchased all the property, rights, and franchises of the Mutual Gas Company, thus effecting a consolidation of all the gas companies of the city, and giving the Detroit Gas Company a monopoly of the business. Subsequently the city commenced suit against the Detroit Gas Company, attacking the validity of the consolidation, denying the right to lay pipes across Woodward avenue to connect the lines of the Detroit Gaslight Company and the Mutual Gas Company, and praying for an injunction.
    The defendant gas company paid the installments of interest as they became due, till and including March 1, 1895; accompanying the payments with letters asserting what it now urges as a defense, and that the payments were made without any intention to waive any rights which it possessed. When the principal became due, the defendant gas company refused to pay, and complainants filed this bill to foreclose. Wpidenfeld was made a party because he was the original contractor, and is claimed to be liable for any deficiency that may exist upon the sale of foreclosure. The New York Guaranty & Indemnity Company is made a party as a subsequent mortgagee.
    The main defense is that complainants and Charles B. Lothrop, their co-trustee, who is now deceased, made certain representations as to the rights of the Detroit Gaslight Company in the streets which were material, were false, were relied upon, and entailed damage. The position of the defendant gas company, stated in the language of its counsel, is as follows:
    “The Detroit Gas Company declined to pay the mortgage held by complainants in trlist, and resists foreclosure, because the Detroit Gaslight Company failed to deliver, and the Detroit Gas Compapy has never received, the street rights which the Detroit Gaslight Company represented it possessed, and which were to be part of the property sold, and were a large part of the- consideration which fixed the amount agreed to be paid. For the loss by reason of the part failure in consideration the defendant Detroit Gas Company prays by cross-bill that the mortgage be canceled, or reduced so that, with the $450,000 cash payment, it will equal the true value at the time of the sale of the property actually conveyed.”
    The case was duly put at issue, heard on pleadings and proofs, and decree entered for the full amount of the mortgage and interest.
    The Detroit Gaslight Company was incorporated by a special act of the legislature March 14, 1849, and its corporate existence limited to 50 years. The preamble and first section of the act are as follows:
    “ Whereas, certain persons have, associated themselves under the style of ‘The City of Detroit Gas Company,’ for the purpose of carrying on and establishing in said city of Detroit a gas manufactory of the kind now generally used, or any improved gas or inflammable substance, and of supplying the citizens with gas who desire the same, at rates to be agreed upon; the following being the names of the persons who have signed the articles of association and taken shares of stock: * * * and Whereas, the common council of said city have given the necessary permit to said association to locate said establishment in said city, and to run their pipes through the streets of the same, and have given them the exclusive privilege so to do for the period of 10 years, on certain conditions and under certain restrictions, as appears by an agreement in writing signed by a committee of said council, dated September 29, 1848, and approved by said common council, and to which reference is hereby had; and Whereas, said persons have applied to this legislature to be incorporated, the more effectually to enable them to accomplish the said objects of their organization:
    . “Section 1. Be it enacted by the senate and house of representatives 'of the State of Michigan, as follows, to wit: That said persons above named, who have signed said articles of association, and all such other persons as shall become stockholders and associated with them for said purpose, and their successors and assigns, shall be and hereby are constituted and declared to be a body politic and corporate, under the name and style of £ The City of Detroit Gas Company,’ for the objects and purposes contemplated and stated in the above preamble, for the period of 50 years from and after the passage of this act: Provided always, that within the period of one year they commence operations, and continue the same with all reasonable despatch.” Act No. 82, Laws 1849.
    Subsequently the charter was amended by the legislature by changing the name of the corporation, and extending the time for the construction of the plant.
    In 1851 the city and the City of Detroit Gas Company entered into an agreement by which the right was granted to the company to run its pipes through and to such portions of the city as it might desire, or as might be necessary 'to supply gas to its citizens. It then gave an exclusive grant to the company, for 10 years, to manufacture and vend gas in the city. In 1861 another agreement was made by which the privilege and right to lay underground pipes in the streets, etc., was granted to the gas company, and the gas company agreed to extend its pipes through the streets of the city to the House of Correction, to put down pipes, and furnish gas to citizens and residents at $2.50 per 1,000 cubic feet. The city also agreed to take gas for its use at a certain price named. It was also expressly therein agreed that the gas company should have, hold, use, and enjoy the right and privilege granted for its use by the city from the 1st day of June, 1861, to the 1st day of June, 1866. No other agreements were entered into,' although negotiations were had to that end, but the gas company continued to extend its mains in the streets and to supply gas to residents until it sold out to Weidenfeld. At this time it had laid in the streets 63 miles of mains, while in 1861 it bad laid only 27 miles.
    During the pendency of the suit above mentioned, brought by the city, attacking the rights of the Detroit Gas Company, the city and that company effected a settlement, and a new franchise was granted to the company, extending over a period of 30 years, and reducing the price of gas to one dollar. No notice was given either to the complainants or to the Detroit Gaslight Company to defend that” suit. It was not a party to it; neither did the Detroit Gas Company consult with complainants or the Detroit Gaslight Company in regard to its new franchise and agreement with the city. Other facts, so far as they are essential, will be stated in connection with the points raised.

      Cuteheon, Stellwagen & Fleming (Edwin F. Gonely and G. A. Kent, of counsel), for complainants.

      Brennan, Donnelly & Van De Mark, for defendant Weidenfeld.

      Wells, Angelí, Boynton & McMillan, for defendant Gas Company.

      Miller, Beckham & Dixon, for defendant Guaranty Company.
   Grant, J.

(after stating the facts). Defendant Weidenfeld appeared specially, and moved to remove the case to the United States court. The State court granted the order. The United States court, upon motion, remanded the case to the State court. It is now insisted that this order of the United States court was erroneous, and that the State court has no jurisdiction in the cause. This question is settled by the Supreme Court of the United States in Missouri Pacific R. Co. v. Fitzgerald, 160 U. S. 556. The court in that case say, “If the circuit court remands a cause, and the State court thereupon proceeds to final judgment, the action of the circuit court is not reviewable on writ of error to such judgment.”

Defendant Weidenfeld was a resident of the State of New York. Personal service could not, therefore, be had. Complainants made an affidavit setting forth the necessary facts, and an order of publication was made under the statute. The order required Weidenfeld and the New York Guaranty & Indemnity Company, also a nonresident, to “appear and answer the bill of complaint within four months from the date of this order.” After the case had been remanded, Weidenfeld appeared specially, and moved to set aside this order as insufficient and void. 3 How. Stat. § 6671, provides that, if the defendant is a resident of some other of the United States, the order shall require him “to appear and answer in not less than four months.” The order pro confesso was not entered until after the expiration of the four months. The point raised is that the order should fix a day for the appearance of the defendant, and that that day must be four months or more from the date of the order. The order gave the defendants the benefit of the entire four months, and the order pro confesso could not be entered, under its terms, until the expiration of the entire time. It could mislead no one. It furnished all the notice that it could by fixing a day certain. It is not indefinite. It is not necessary that the order should fix a specific day. It is in the usual form prescribed by the authorities. Jenn. Ch. Prac. 743, 744. The consequence of disturbing old and settled forms of practice is well stated in Pettiford v. Zoellner, 45 Mich. 358.

Defendant Weidenfeld, after the above motion was overruled, appeared and answered, and it is now urged that he is not personally liable for any deficiency which may arise after the foreclosure sale. The contention of his counsel is that complainants, knew that he was acting as agent for others, and not for himself personally. The obvious reply to this is that he chose, by the express terms of his contract, to make himself personally liable. It is of no consequence that complainants knew that others were interested with him, or that he was acting with the intention of conveying the property to others. The law does not permit him to escape an express personal liability by showing that he was acting for others. The stockholders were parties to this agreement. If they did not consent to sell their stock under the terms of the agreement which was submitted to them, the contract failed and became inoperative. There is no evidence that the stockholders were informed that Weidenfeld was acting as agent, and not as principal. The injustice, therefore, of relieving him from personal liability, is apparent. This is a case where parol evidence is inadmissible to change the plain and express terms of a written contract. Mechem, Ag. § 443. Defendant Weidenfeld is therefore personally liable.

It is urged that the complainants have only a lien upon the property actually transferred by the Detroit Gaslight Company to Weidenfeld, and that it does not cover the additions which have since been made, and the new franchise which the defendant Detroit Gas Company obtained from the city. To uphold this contention would be to fly in the face of the explicit and express terms of the mortgage, viz., that it covered “ all improvements and additions, of every name and nature.” This covers the entire property, — as well that to be added as that conveyed. . It might as well be contended that when A. buys land, and gives back a mortgage for the purchase price, with .the express stipulation that it shall cover all improvements, a house erected thereon, and a part of the realty, is not covered by the mortgage. We may fairly conclude that a reasonable and prudent man foresaw what has happened, and provided against it. It was contemplated that the property of the three companies should be 'united into one. The defendant gas company asserts in its answer that such a consolidation was understood and intended. The property of the three companies was to be mingled, their pipes united, and their plants consolidated. The difficulty in separating the property after years of use -by the new company is apparent. Furthermore, the charter of the old company had but between six and seven years to run. Naturally, the new company would be seeking, and might at any time obtain, a new franchise. The new company did, in fact, without any notice to or consent of the old company, wipe out all the rights in the streets and the franchises which the old company had, by entering into a nev agreement with the city, and accepting a new ordinance for 30 years. The new company, therefore, has not the franchise which it purchased and mortgaged, to be reconveyed on the foreclosure sale. Further argument on this point is unnecessary. The mortgage covers all additions of every kind, and also the new franchise obtained by the defendant gas company in. place of the old franchise.

Were material representations of fact made by Croul, Lewis, and Lothrop, which were false, and upon which Weidenfeld relied in making the contract ? This question presents the only controversy of fact in the case. Briefly stated, the representations, as Claimed by the defendants, are that the Detroit Gaslight Company was operating under the contract of 1851, and that under it the rights of the company in the streets were perpetual. Owing to the importance of the case, on account of the large amount involved, we will refer to the testimony somewhat in detail. The negotiations which resulted in the sale were commenced in an informal way, in Detroit, in conversations between Messrs. Croul and Lewis and Mr. Frank P. Byrne. These conversations are unimportant. They resulted in an interview in New York city, at the office of Mr. Weidenfeld, between Messrs. Lewis and Croul and Messrs. Weidenfeld, John Byrne, and Frank S. Smith, on April 7, 1892. Mr. Weidenfeld testified:

“My recollection is that Mr. Croul based the negotiations on the contract of 1851. He said that the rights claimed to be granted by that agreement certainly endured until 1899. I don’t think he said anything as to the perpetual character of the franchise.”

On cross-examination he testified that he did not know when or where that statement was made, or whether it was in Detroit or New York. He also testified that his recollection was that the contract of 1851 was sent to him as the franchise of the company. If this was so, it was evidently after a copy of it was obtained from Mr. Lothrop, as hereinafter*referred to.

Mr. John Byrne testified:

“Mr. Lewis stated that they had valuable rights in the streets, and that they considered them perpetual. Either Weidenfeld or I asked, ‘Well, what" are those rights?’ Mr. Croul said, laughing, he believed he had the only copy of the contract of 1851, and considered it very valuable.”

It appears from his cross-examination that no copy of this contract was then produced by Lewis or Croul, and that witness did not see one till subsequently, when it was sent by Mr. Donnelly, of Detroit, to Mr. Smith, one of the attorneys for defendants, at New York, and was the copy he had obtained from Mr. Lothrop.

Mr. Smith testified that he had no conversation with Mr. Lewi's on the subject, but that Mr. Croul, after stating to him the price which they were entitled to charge, and in reply to the question for how long a time they would enjoy that right, said:

“They had it absolutely for seven years, which was the time within the unexpired duration of their right to be a corporation, and that, if the street-railway company succeeded in its litigation with the city, that right could be passed on to the new company, and was perpetual, because it was based upon a perpetual contract which had been given to the company about the year 1851.”

Mr. Frank P. Byrne testified to a conversation with Mr. Croul, in Detroit, early in the negotiations. His version of that conversation is as follows:

“I asked him as to the franchise of their company, and I remember his reply: It was all right; that they had practically — -What was the expression now? Well, unlimited rights in the streets. And then he told me, laughingly, that the city was really at the mercy, or in a hole, as he expressed it, on that subject, as it had no copy of the franchise or contract, whatever it might be, with their company; and he explained to me that the secretary of the gaslight company at or about the time the franchise was granted was a methodical sort of a fellow, and had copied the whole thing into the record book of the gaslight company, and that was the only copy in existence.”

This witness made the arrangement for the meeting in New York. He testified to a subsequent conversation in Detroit with Mr. Lewis, in which he stated to Mr. Lewis that they considered the price too high, to which Mr? Lewis replied:

“Your brother don’t give sufficient importance to the value of our rights or franchise from the city, which are perpetual. ”

The above is the substance of the representations upon which the defendants claim to have relied. Mr. Lothrop made no representations, except to state to Messrs. Donnelly and Wells, who were acting as attorneys for the proposed purchasers, that the contract of 1851 was the only contract which he knew anything about. This was in reply to an application from them to Mr. Lothrop for such information as he (Lothrop) could give with reference to the street rights, or the arrangement with the city.

These representations were absolutely and positively denied by Messrs. Croul and Lewis. They also testified that, at the time of these interviews, they did not know of the existence of the contract of 1851 or that of 1861. No claim is made that either Croul, Lewis, or Lothrop had any knowledge of the existence of the contract of 1861. That was not discovered by any one until after the institution of the suit by the city against the defendant gas. company. If any such representations were made, they were not communicated to the attorneys in Detroit acting for Weidenfeld and his associates, for on May 31, 1892, their attorneys, Brennan, Donnelly & Van De Mark, write to Attorney Smith, in New York, and inclose the copy of the contract of 1851 which they had obtained from Mr. Lothrop, and say:

“We think there are possibilities In this franchise not yet developed or understood by the present owners, as, notice, it nowhere limits the rights to use the streets, etc., to any particular period, and, in the absence of the same, the grant is perpetual, unless the limit is implied from the fact that the guaranty ceases to exist after 50 years." It is substantially the same question which we have in our street-railway litigation, in which we are going to win.”

Messrs. Croul and Lewis did not have a copy of this contract when they went to New'York city. They took with them only the charter of the company, and a statement showing the profits of the company for several years prior to that time.

Mr. Lothrop is dead, but left, in a letter of August 29, 1893, an emphatic denial of the charge. This letter was written in reply to one from Brennan, Donnelly & Van De Mark setting up these representations. Mr. Lothrop wrote:

“We know that no such representations were ever made.”

One Baxter, a gas engineer and superintendent of the Detroit Gas Company, testified to a conversation between Messrs. Croul and Lewis and Mr. John Byrne in regard’ to the purchase of this property during the latter part of May, 1892. He heard the conversation, and testified as follows:

“The conversation was in regard to the length of time the charter had to rim. Major Byrne stated that we had no charter, and Mr. Lewis said, ‘Oh, yes, we have.’ ‘Well,’ Major Byrne said, ‘you have only about seven years to run.’ Mr. Lewis then made the remark that it would not be much trouble in getting a new charter when the other would expire. There was nothing at all said in regard to the rights in the streets. They spoke about the price of the plant, and Mr. Byrne said they had an. option on a piece of property, and had a charter that would run 26 years, and could build a plant much cheaper than the $1,800,000 which was asked for the plant by Mr. Lewis.”

Several of the directors of the Detroit Gaslight Company testified that they had never heard of any claim made on behalf • of that company that it owned perpetual rights in the streets. After the contract'with Weidenfeld was made, Messrs. Croul and Lewis wrote letters to the stockholders, advising them to ratify it and sell their stock under its terms, because their charter had but a short time to run, and other parties had threatened to build another plant in competition with their company. This threat on the part of Weidenfeld and his associates is fully established. Messrs. Croul and Lewis did not become connected with the Detroit Gaslight Company until about 22 years after the date of the contract of 1851, and Mr. Lothrop not until 1885. There is nothing in this record to indicate that there was any occasion for them to examine the old records of the company or of the common council proceedings to ascertain what contracts had been made between the city and the company. We do not hesitate; under this record, therefore, to conclude that the representations claimed were not made, and that Lewis and Croul at that time had no knowledge of the contract of 1851.

We think it also fully established by the evidence that Weidenfeld and his associates did not rely upon the representations alleged to have been made by Croul and Lewis. Mr. John Byrne testified that, when Mr. Croul made his statement in regard to the rights of the company in the streets, Weidenfeld said:

‘ ‘ ‘Well, that is a question we don’t care to discuss here, because we always refer these things to our .lawyers. We will leave that question to the lawyers to determine,— about your rights.’ I said: ‘Very well. Now, gentlemen, what do you ask for this property ? ’ ”

They acted in accordance with the above statement, and referred the matter to their attorneys in Detroit. These attorneys applied to Mr. Lothrop “for such information as he had.” He replied by referring them to, and at their request giving them a copy of, the contract of 1851, with the guarded statement that that was all he knew anything about. It is conceded that Mr. Lothrop was an honest, upright, and careful man. He suppressed.no fact, and did not intend to. They had no right to assume that this contract was all there was, and Mr. Lothrop did not state or intimate that it was. They were notified by a perusal of that document that certain features of it existed for 10 years only, and that it .was entirely probable that other arrangements were then made. The records of the common council were in a building close by, and open to their inspection. So, also, the records'of the Detroit Gaslight Company were undoubtedly at their disposal for examination, had they seen fit to ask it. A brief examination of these would have discovered the contract of 1861 and other documents. If they chose to rely upon that contract, it was at their own risk. They had neither received any misinformation, nor had they been misled by any statement of Mr. Lothrop. ■ There was no suppression of any facts which Mr. Lothrop was bound to know and inform them of. If it were a fact that these parties relied upon representations of the extraordinary claim that this company had rights perpetual, and which would exist beyond the chartered life of the corporation, certainly common prudence would have warned them to examine the records at their command to determine whether those alleged rights had been affected by any other action between the city and the corporation.

In conclusion, we may add that the defendants are without equities. They purchased the property of the Detroit Gaslight Company at a figure at which it had been, and then was, exceedingly profitable. The stock of the Michigan Gas Company was exceedingly low. That company was threatened with a failure of the supply of natural gas, and desired and needed a plant for the manufacture of artificial gas to supply its customers and make it profitable. Mr. "Weidenfeld had purchased and procured the assignment to himself of all the stock of the Detroit Gaslight Company. Its directors had resigned, and, as they resigned, others, in the interests of Weidenfeld and his associates, were elected to take their places. They then organized the new company, the defendant gas company. The three old companies were then sold and transferred to the new company upon the basis of the following figures: The Detroit Gaslight Company, $1,450,-000; the Mutual Gas Company, $1,250,000; the Michigan Gas Company, $3,500,000, the latter company having cost but $1,800,000. They then capitalized this new company at $4,000,000 and issued bonds to the amount of $4,000,000 more, $2,000,000 of which were sold, and the other $2,000,000 held in reserve. Almost immediately suit was commenced by the city, attacking the legality of this organization. As above stated, neither the complainants, nor the stockholders whom they represented, nor the Detroit Gaslight Company, were notified or asked to defend that suit. The defendant company settled it with the city without the knowledge or advice of the complainants or those whom they represented. They obtained a new franchise for 30 years, and agreed upon the price of gas at a rate at which it is furnished by several other cities; and one of those who negotiated this franchise on the part of the defendant company stated that the franchise was worth a million dollars. Under these circumstances, their cause fails to meet the approval of a court of equity. For anything that appears upon the record, the new company-may be able to manufacture gas under the new ordinance with as much profit as was done under the old. The-proposition to now recoup as damages the difference between the value of the plant as a dead property, with no rights in the streets, and the price agreed to be paid, is wholly unjust and inequitable.

Other important and interesting questions are presented by this record, but, inasmuch as the above conclusion disposes of the case, we refrain from discussing them.

The decree is affirmed, with costs.

The other Justices concurred.


author: Long, C. J.

text:
    HILL v. HILL.

    Writ or Error — Time or Bringing — New Trial — Statutes.
    The time within, which a writ of error must be sued out under 3 How. Stat. § 8686, requiring all such writs to be brought within one year after the rendition of final judgment, was not extended by Act No. 134, Pub. Acts 1893, authorizing the party appealing to assign error upon the action of the trial court in refusing a motion for a new trial.
    Error to Wayne; Simpson, J., presiding.
    Case by Bridget Hill against Matilda Hill for alienating the affections of plaintiff’s husband. There was a judgment for plaintiff, and defendant brought error.
    On motion to dismiss.
    Submitted October 5, 1897.
    Granted October 25, 1897.

      Charles Flowers and John E. Moloney (John J. Speed, of counsel), for the motion.

      George X. M. Collier and Charles W. Casgrain (.Elliott G. Stevenson, of counsel), contra.

       See Hill v. Hill, 112 Mich. 633.

   Long, C. J.

Judgment was entered in this cause in the Wayne circuit court February 6, 1896. On May 25, 1897, an order was made by this court extending the time for issuing writ of error six months from February 6, 1897. That time elapsed August 6, 1897. The writ of error was issued out of this court on August 17, 1897. Motion is now made to dismiss the writ of error, for the reason that it did not issue within the time fixed by 3 How. Stat. § 8686.

The defendant (appellant) contends that, inasmuch as a motion for new trial was made and entered in the cause, the time fixed by the above statute did not begin to run until the motion for new trial had been decided in the circuit court; that the statute must be read in connection with Act No. 134, Pub. Acts 1893. It appears that a motion was made for new trial July 26, 1896, and that the same was denied August 24, 1896.

Section 8686, 3 How. Stat., provides that:

“All writs of error upon any judgment or final determination rendered in any cause in any court of law and of record in this State shall be brought within one year after the rendering of such judgment or final determination made, and not after, except in cases specified in the next two sections: Provided, the time in which writs of error may be taken out may be extended, not exceeding six months, by the Supreme Court, or by one of the Supreme Court Justices at chambers, when any party has been prevented from taking out the same by circumstances not under his control,” etc.

This act was passed in 1889. Act No. 134, Pub. Acts 1893, provides that,:

“In all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.”

Counsel for appellant now contend that this last-mentioned act has enlarged the time in which a Writ of error may be sued out under the former statute where a motion for a new trial has been made, and that the time for taking out such writ of error under such circumstances does not begin to run until the motion is decided by the trial court. This contention is apparently based upon a supposed implication arising from this last act. The statute does not, by its terms, extend the time for suing out the writ; but counsel cite cases which they contend support this conclusion. Those cases are'of but little value as authority, as they arise in States where the code practice prevails. In Kentucky it was held that no appeal can be taken by either party without first making motion for new trial in the court where the error complained of occurred. Louisville Chemical Works v. Com., 8 Bush, 179. Counsel cite 2 Thomp. Trials, § 2730, where the doctrine is laid down that a pending motion for a new trial, seasonably filed, keeps the cause in the trial court, and, so long as it remains undisposed of, there can be no final judgment within the meaning of the statute regulating appeals. That is not the rule in this State. It was said in Buckley v. Sutton, 38 Mich. 1, under the old statute, that:

“A writ of error must be sued out within two years after judgment, and a party cannot prolong the time by moving to vacate the judgment, although considerable delay is made before the motion is decided. To hold otherwise would be to defeat the statute, and enable any one to gain time by sham proceedings. The terms of the statute are obligatory on the court.”

In Busch v. Wilcox, 106 Mich. 520, it was held that the right of action on a supersedeas bond accrued on the rendition of the judgment in the Supreme Court, and a motion for rehearing did not of itself operate to stay proceedings.

We think the statute of 1893 cannot be construed as extending the time to sue out the writ beyond the time fixed by the act of 1889, and that the time commences to run from the entry of the judgment. Any other construction would lead to great uncertainty; and, if the legislature intended that statute to so operate, it would undoubtedly have used some apt words to enlarge the time.

The motion must be granted.

The other Justices concurred.


text:
    AUDITOR GENERAL v. KANAAR.
    Taxes — Petition for Sale of Delinquent Lands — -Abandonment — Agency.
    Upon a rehearing, the circuit court set aside its decree declaring certain taxes invalid upon objections filed to the auditor general’s petition for the sale of the delinquent lands, and entered a decree sustaining their validity. During the interval, an employé in the office of the auditor general, without any direction from him, acting upon the assumption that the-first decree would stand, charged the taxes back to the county. The board of supervisors thereupon ordered them reassessed upon the same lands. Instead thereof, through some mistake, they were spread upon the entire property of the city. Meanwhile the auditor general had taken an appeal to the Supreme Court, and was pursuing the same in good faith. As soon as he learned of 'the erroneous action of his employé, he at once notified the county authorities that he had credited the taxes back. Held, that the employé’s action did not operate as a waiver of the auditor general’s right to a rehearing, or an abandonment of the original petition.

      Appeal from Muskegon; Russell, J.
    Submitted October 5, 1897.
    Decided October 25, 1897.
    Petition by Stanley W. Turner, auditor general, for the sale of certain lands delinquent for the taxes of 1893. Objections were filed by Roelof Kanaar. Prom a decree for petitioner, contestant appeals.
    Affirmed.

      Bunker & Carpenter, for petitioner.

      Arthur Jones, Smith, Nims, Hoyt & Envin, and P. W. Niskern, for contestant.
   Grant, J.

This case involves the same tax proceedings as those which were involved in Auditor General v. Hutchinson, 113 Mich. 245, and it is conceded that all the questions raised by the original answer of contestant are ruled by that decision. Contestant and several other taxpayers now seek to avoid the payment of their taxes, which were, by the former decision, adjudged valid, by showing that the auditor general, in June, 1896, caused all the taxes assessed upon their land for 1893 and other years involved in this proceeding to be rejected, and that under date of June 30, 1896, he caused a statement of taxes so rejected to be made out, and forwarded to the treasurer of Muskegon county, for the purpose of causing such taxes to be reassessed. A joint petition was filed by the contestants January 9, 1897, setting up this defense. The court entered a decree sustaining the validity of the tax.

The court below, on the first hearing, held the taxes invalid. Afterwards it granted a rehearing, set aside the first decree, and held the taxes valid. Between the dates of these two decrees, an employe in the office of the auditor general, without any direction from him, and acting upon the assumption that the first decree would stand, charged the taxes back to the county. The board of supervisors thereupon ordered them reassessed upon the same lands. Instead thereof, through some mistake, they were spread upon the entire property of the city. Meanwhile the auditor general had taken an appeal to this court, and was in good faith pursuing the appeal.' As soon as he learned of the erroneous action of his employé, he at once notified the county authorities, November 17, 1896, that he had credited the taxes back. The tax collector proceeded under his warrant, and has collected a portion of the tax thus reassessed. It is contended that the auditor general, by rejecting the taxes, and by the reassessment thereof, waived his right to a rehearing, and in fact abandoned his original petition. If this result must be reached, Mr. Kanaar, the appellant, and his co-contestants, will be relieved of the payment of their taxes for these years, while others have paid.

Counsel rely upon People v. Auditor General, 9 Mich. 134. This question was not involved in that case, the sole question there being whether a mandamus should issue to compel the auditor general to reject taxes which were unlawfully assessed against certain military, bounty lands. The action of the employé of the auditor general in charging these taxes back was without authority. As soon as the mistake was discovered, it was corrected. If there be any infirmity in consequence of this action and the subsequent action of the board of supervisors and the assessing officers, — upon which we express no opinion, — it attaches to the tax of 1896, and not to those here in controversy. This is not a case where a complainant has assigned his interest in the subject-matter of the suit, as was the case in Brewer v. Dodge, 28 Mich. 359.

The decree is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    ETSON v. FORT WAYNE & BELLE ISLE RAILWAY CO.
    Street Railways — Electric Cars —Inexperienced Motorman— Applying Brakes — Negligence—Question for Jury.
    In an action against a street-railway company for injuries sustained by a passenger who was thrown from the platform of an electric car by a sudden jolt due to the motorman’s losing control of the brake, which he had released for the purpose of getting a new hold, relying upon the dog, which he erroneously supposed to be caught in the notches of the brake rod, to hold it in place, it was a question for the jury whether the occurrence was a pure accident, or was due to a lack of skill on the part of the motorman, who was without experience.
    Error to Wayne; Hosmer, J.
    Submitted October 5, 1897.
    Decided October 25, 1897.
    Case by Frank D. Etson against the Fort Wayne & Belle Isle Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Conely & Taylor, for appellant.

      William Stacey, for appellee.
   Montgomery, J.

This case was before the court at a former term, and the decision is reported in 110 Mich. 494. The plaintiff claimed to have been injured by being thrown from a car by an unnecessarily sudden jerk or starting. At the former hearing, it was held that there was no evidence to show that the jerk of the car was not occasioned by some cause for which the defendant was not to blame. The declaration was amended by charging negligence in employing a careless, reckless, and incompetent motorman, who left his post of duty, and allowed an inexperienced and incompetent man to operate the motor, who, by reason of his inexperience and incompetency, lost control of the car, etc. Upon this amended declaration, the plaintiff again recovered a verdict, and defendant brings error.

It is conceded that there is testimony tending to show that Lockwood, who was operating the motor at the time of the accident, was without experience; but it is justly said that, if Lockwood did in fact operate the motor in a skillful and proper manner in this instance, plaintiff is in no position to complain because of his incoinpetency. The converse of this is equally true in this case, as it appears that the rules of the company forbade the motorman intrusting the car to any one not authorized by the superintendent to run it, and it appears that the man Lockwook was not so authorized, and was without experience. Lockwood’s testimony was as follows:

“When I was stopping at Fourteenth street, I had difficulty in stopping the car. In turning up the brake, the brake slipped out of my hand. This caused the car to give a jerk, and go ahead again.”

He also says:

‘ ‘ I tried to turn the brake, and I turned — I was left-handed, and, after I had turned it all off, I saw it was not going to stop the car, and I was going to take hold with both hands, and in turning the ‘dog’ — I think that is what they call it, that catches the notches in the brake rod — in some way I did not get that turned, and I was relying on that to hold the brake until I got a new hold, but, instead of that, I lost it, — lost control of it.
“Q. That is what caused the brake to slip, then, because you didn’t set the dog?
“A. I didn’t set that dog, and I thought that it was.”

Counsel for defendant contend that this testimony shows that Lockwood was not guilty of any negligence at the time; that he did all that could be done to stop the car; that in setting the dog, in order to get a new hold with his hand, he did exactly as a competent and experienced man would do; that the reason of the slipping was that the dog was not in fact set, but Lockwood thought it was. He attempted to set it, and, if he had succeeded, no slipping would have occurred. Counsel say the case resolves itself into this proposition:' “Was it Lockwood’s duty to kncnv that the dog was set ? * * * No claim is made that the dog was not in good order. It happened that the dog did not catch in this instance. This would not be likely to happen frequently. It would be as likely to happen to a competent man as any other. It is one of the necessary incidents to the operation of the machinery. It is not the result of negligence, but pure accident.”

We are not prepared to hold, as matter of law, that what occurred was pure accident, or that it would have been as likely to happen to a competent man as any other. The jury might well have found that it was negligent to let go of the brake without knowing whether the dog was set, and they might well have found that a competent man, accustomed to the use of the brake, might readily have ascertained whether the dog was set or not, and would not have neglected this precaution. It would be strange, indeed, if those in charge of motors, who have had abundant experience, are unable to tell whether a brake is or is not set until after the result, which may be most serious to others, has demonstrated the fact. If this is true in fact, we do not take judicial notice of it.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    BLOCK v. CRAWFORD.
    Evidence — Settlement of Accounts — Question for Jury.
    In an action to recover a balance claimed to be due to the plaintiff, the testimony of defendant that a cash payment, and the giving of a note, which was thereafter paid, constituted a settlement of plaintiff’s account in full, entitled defendant to go to the jury.
    Error to Presque Isle; Kelley, J.
    Submitted October 5, 1897.
    Decided October 25, 1897.

      Assumpsit by Jacob Block and another against John Crawford and another for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Reversed.

      George B. Greening, for appellants.

      A. M. Marshall and W. E. Bice, for appellees.
   Moore, J.

Plaintiffs sued defendants to recover a balance claimed to be due, and recovered a judgment, from which defendants appeal.

John Crawford, one of the defendants, testified that defendants did not purchase or receive two barrels of whisky for which plaintiffs sought to recover. He also testified to a settlement of the accounts between the parties, and that “the settlement referred to, of the $50 in cash and the $200 note, due some four or five months after the goods were purchased, was in full settlement of everything owing to the plaintiffs by the defendants, and that said note had been paid, and was in settlement of the account in full.” After the testimony was all in, the trial court instructed the jury that the only question of fact for the jury was whether there was a shortage of two barrels of whisky, and refused to submit to the jury the question whether the accounts between the parties had been settled. We think this was error. It was a disputed question of fact whether the claim sued upon had been settled and paid, and it should have been submitted to the jury. Teipel v. Hilsendegen, 44 Mich. 461.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    BURNETT v. SWANEY.
    Highways — Proceedings to Establish — Review on Certiorari —Laches.
    Fifteen months after the laying out of a highway by the commissioner of highways, the proceedings were removed by certiorari to the circuit court. The person prosecuting the writ had notice of and was present at the proceedings, but . made no effort to prevent the improvement and use of the highway by the public until the time of the issuance of the writ. Held, that the writ was properly dismissed.
    Error to Grand Traverse; Corbett, J.
    Submitted October 6, 1897.
    Decided October 25, 1897.

      Certiorari by Dewitt A. Burnett to review the action of James Sw'aney, commissioner of highways of the township of Peninsula, Grand Traverse county, in laying out a highway. Prom an order dismissing the writ, plaintiff brings error.
    Affirmed.

      Underwood & Umlor, for appellant.

      Pratt & Davis, for appellee.
   Per Curiam.

The appellant removed proceedings to lay out a highway to the circuit court by certiorari. His grounds of complaint were that proof of service upon him of notice of the meeting to consider the application was not made or filed with the clerk, and that, at the time said proceedings were instituted, another highway, “substantially parallel” with the proposed highway, existed, within a distance of half a mile. The records show that said highway was laid out on the 37th of December, 1894, that the appellant was present and claimed damages, and that no evidence was offered showing the existence of another highway substantially or practically parallel, within such distance, and, further, that the public has expended large sums upon, and used, said highway since. No appeal was taken, and no efforts made to prevent the improvement and use of said highway by the public until March, 1896, when this writ was issued.

It being clear that the appellant had notice and was present at the proceedings, and that he delayed action for more than a year, we think that we should not hold the proceedings invalid under a discretionary writ. The case is within the rule of City of Detroit v. Murphy, 95 Mich. 531, and Baudistel v. Recorder, etc., of Jackson, 110 Mich. 357. See, also, Soller v. Township Board of Brown, 67 Mich. 422.

The judgment of the circuit court is affirmed.


author: Hooker, J.

text:
    SMITH v. WAKEMAN.
    Deeds — Reservation—Equitable Title — Injunction.
    One of two tenants in common, to whom the other has conveyed his one-half interest with the common intention and understanding that a reservation clause in the deed should invest the grantor with title to all of the timber on the land conveyed, will be restrained from asserting a claim to an interest in the timber as against a purchaser from the grantor, who has removed the same from the land, notwithstanding the legal effect of the deed was to reserve to the grantor only his one-half interest in the timber.
    Appeal from Kent; Grove, J.
    Submitted October 6, 1897.
    Decided October 25, 1897.
    Bill by Hiram Smith against Eliza O. Wakeman to reform a deed. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Charles L. Barden, for complainant.

      W. 8. Whittlesey (C. C. Ellsworth, of counsel), for defendant.
   Hooker, J.

Complainant and his wife’s mother were owners, as tenants in common, of an estate in fee simple in certain premises; and, dissension having arisen, he sold and conveyed to her for $1,200 his undivided half of the property, the deed containing the following provision, viz.: “Reserving all the timber and crops now on the said described land.” The complainant claims that the bargain was that he should have all the crops and timber then upon said land, and he removed the crops without objection, and sold the timber standing, and it was after-wards removed by the purchaser. Before its removal the defendant asserted title to one-half of the timber, claiming that the reservation in the deed covered only complainant’s undivided half; and after its removal she began an action against the purchaser for the value of her one-half. Thereupon this bill was filed “to reform the deed so that the same shall become and be a conveyance to complainant of defendant’s undivided one-half interest in the timber situated upon the land above described, and shall be declared to be a license to your orator to remove the said timber, and the whole thereof, without limitation, or that the title and ownership in said timber, and the whole thereof, may be declared to be in complainant,” and praying further relief.

"We are convinced that the deed was executed and delivered upon the understanding by both parties that all of the timber upon the place was to become the property of the complainant, although it is conceded that the effect of the deed was to reserve but one-half. Upon the facts alleged, the complainant would be entitled to specific performance were the timber standing, and to a conveyance of the same. It having been removed, it is sufficient to declare that the equitable title to said timber is in the complainant and his vendee, and restrain the defendant from asserting further claim thereto.

The decree of the circuit, court is reversed, and a decree conforming to the views expressed above may be entered, with costs of both courts.

The other Justices concurred.


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    FLOOD v. BUTZBACH.
    Sale of Mortgaged Chattels — Recovery of Purchase Price —Action by Mortgagee — Common Counts.
    A mortgagee of chattels whose mortgage provides that any sales of the property shall be in the name of the mortgagee, and that the lien shall follow the property, may recover the purchase price of the chattels, under the common counts in assumpsit, of one who buys them from the mortgagor.
    Error to Berrien; Coolidge, J.
    Submitted October 6, 1897.
    Decided October 25, 1897.

      Assumpsit by James H. Flood and Thomas P. Flood against George Butzbach and Claus Schütz for goods sold and delivered. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Affirmed.

      George W. Bridgman, for appellants.

      James O’Hara, for appellees.
   Moore, J.

September 21, 1895,. Daniel Cook gave plaintiffs a chattel mortgage upon a quantity of staves and other property. This mortgage was duly filed. It contained, in addition to the usual conditions of a chattel mortgage, the following clause:

“With the understanding that the said heading and staves, as they are finished, shall be shipped and sold in the best market that can be procured by the said Daniel Cook; but all such shipping, sale, and returns shall be in the name of James H. and Thomas P. Flood, and this lien shall be on all such heading and staves in or as above described.”

Cook sold to defendants staves worth $34.50. After they were sold, and before payment was made, defendants were garnished. Plaintiffs asked defendants to pay them for the staves. Defendants declining to do so, plaintiffs sued defendants, declaring on all the common counts in assumpsit. . Defendants requested the trial judge to direct a verdict in their favor. He declined to do so, and directed a verdict in favor of plaintiffs. Defendants appeal, and insist plaintiffs could not recover under the declaration as framed; citing Randall v. Higbee, 37 Mich. 40; Carpenter v. Graham, 42 Mich. 191; Warner v. Beebe, 47 Mich. 435; Tate v. Torcoutt, 100 Mich. 308.

It is undoubtedly true that a mortgagee cannot recover, under the common counts in assumpsit, for mortgaged goods sold, where the chattel mortgage contains only the usual conditions; but this mortgage, while it authorized a sale of the goods by the mortgagor, expressly provided that the sale should be in the name of the mortgagees, and that their lien should follow the property. Under such circumstances, we think it can well be said that the mortgagor was acting as the agent of his principal, the mortgagees, in making the sale, and that they confirmed the sale, and were entitled to recover under the common counts in assumpsit. See Fuller v. Rhodes, 78 Mich. 36.

Judgment is affirmed.

The other Justices concurred.


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    DAVIS & EAGAN MACHINE TOOL CO. v. SOUVENIR WHEEL CO.
    Settlement — Warranty oe Machinery.
    Where the vendor of machinery, sold under a warranty that it would do a specified amount of work, which the purchaser claimed was not fulfilled, convinced the latter that the operative, and not the machine, was at fault, and thereafter, without any fraud or concealment, effected a settlement upon terms suggested by the purchaser, making certain concessions as to freight' charges and terms of credit, such settlement was held conclusive in an action on a note given by the purchaser pursuant thereto.
    Error to Kent; Adsit, J.
    Submitted October 6, 1897.
    Decided October 25, 1897.

      Assumpsit by the Davis & Eagan Machine Tool Company against the Souvenir Wheel Company and Willis J. Perkins upon a promissory note. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Wolcott & Ward, for appellants.

      Fletcher & Wanty, for appellee.
   Hooker, J.

The appellants, having purchased from the plaintiff a quantity- of machinery for the manufacture of bicycles, to the amount of $2,000 in value, defended an action brought for the unpaid portion of the purchase price, amounting to about $700, for which they had given their note, upon the claim that a hub machine and drill press (being a portion of said machinery) did not conform to the warranty upon which they were bought. The jury found a verdict for the plaintiff, and, as “the only errors assigned on the admission' or rejection of testimony relate to the question of damages,” it is obvious that the case must turn here upon the correctness of the charge.

The warranty upon the hub machine was that it would form 80 hubs in 10 hours. As to the drill press, there was no warranty, except the implied one that it should be suitable for the purposes for which it was made or purchased. The drill press first sent was not satisfactory, and the defendants were unable to make the specified number of hubs upon the hub machine. After some correspondence the plaintiff sent its representative to the defendants’ factory, upon complaint that the machines would not do the work expected, and the request that it should send a man at the plaintiff’s expense if defendants’ statement was correct, and, if not, the defendants should stand the expense. This man, Mr. Chard, succeeded in convincing the defendants that the hub machine would do the work represented, when supplied with sufficient power and a proper operative; and a new drill press was 'sent in place of the first one. The following correspondence shows the situation:

“Cincinnati, January 23, 1896.
“Messrs. Perkins & Co.,
“ Grand Rapids, Mich.
‘ ‘ Gentlemen: We are in receipt of your esteemed favor of the 20th, and are pleased to note that the hub machine is now working satisfactorily, and also that the drill press is working properly so far as the power feed is concerned. In regard to the noise of the gears, will say that we propose to get you out a new set of back gears, which we will get to you in a few days, with instructions as to how to fit them up.
“ Yours truly,
‘ ‘ Davis’-Eagan Machine Tool Co.
“B. B. Quillen, Sec’y.”
“Grand Rapids, Mich., 2-8, ’96.
“Lodge & Davis Machine Tool Co.,
“Cincinnati, O.
“Gentlemen: We have received the new drill press, and have ordered the old one returned to you. We have credited your account with the amount of Mr. Chard’s expenses, and inclose you herewith our debit memorandum for freight paid on various pieces of machinery purchased of you, which we believe you will find -correct. It is our ■understanding of the order that th,e various machines were to be delivered f. o. b. cars Chicago, and we instructed that they come forward in the car load of machinery which we had shipped from Chicago. If they had been included with the car load, we would not have had to pay any more for the car, as we had to pay for a car load anyway, even though we did not have sufficient machinery in the car to make the minimum weight charged for. It was no fault of ours that you were not enabled to make delivery of the machines in time to be included, in our car load, and we feel that you will have no hesitancy in passing to our credit the amount of freight charges we have been obliged to pay in consequence of your delay. We inclose you our check in settlement of balance due after crediting your various invoices, and charging you with payments made, freight, etc. We were obliged to do considerable work on the countershaft to the hub machine before it was in proper shape for work. However, inasmuch as you have treated us so nicely regarding the drill press, and in sending Mr. Chard here, we won’t make any charge for said work.
“ Trusting that the settlement inclosed herewith will be perfectly satisfactory to you, and that we may receive your acknowledgment of same in full settlement of all demands to date, we remain,
“Yours, respectfully,
“Perkins & Co., by Everhart.
“ P. S. We have a damage claim for delays, which we will withdraw, provided this settlement is accepted.

Letter dated February 10, 1896, to Perkins & Co., read:

“Cincinnati, 0., February 10, 1896.
“Messrs. Perkins & Co.,
“Grand Rapids, Mich.
Gentlemen: We are in receipt of yours of the 8th, inclosing check for $141.99, which we have placed to your credit in full of account. This is entirely satisfactory, and please accept our thanks for same.
“Yours truly,
“Davis-Eagan Machine Tool Co.
“B. B. Quillen, Sec’y.”

Mr. Chard left the defendants’ factory about January 20th, and defendant Perkins testified that:

“I cannot state what day I commenced to find fault after the 8th day of February, but that machinery acted badly from the time Mr. Chard left to the time we quit making hubs on it. I cannot tell you the day when I first notified anybody that it was commencing to act badly. The letters are the best evidence of the time and date. I know at the time the note came due I notified them by telegram.”

The notes were dated January 20, 1896, as shown by the statement accompanying defendants’ letter. The first. note, for $325, was paid at maturity. On April 24, 1896,-the defendants wrote the following letter:

“Grand Rapids, Mich., 4-24-96.
“Lodge & Davis Machine Tool Co.,
“Cincinnati, Ohio.
Gentlemen: The note of $325 due the 23d was paid ¡by us yesterday, but we are short of funds, and desire to ¡have an extension of $225. We therefore inclose you note ¡of $225, and desire that you send us check for the same. jWe trust that you will kindly accommodate us in the extension called for.
“There is a gentleman here in the city by the name of Burnett. We do not know his local address. He worked for some time for the Fox Machine Co. as. foreman. We met him on the street recently, and he stated that he was expecting to start a bicycle factory; that he had the capital enlisted, and proposed manufacturing a large number of wheels next year. We do not know whether his factory will be here or elsewhere. Rumor has it that he is going to open in Bay City. A letter addressed to the Fox Machine Co. should be forwarded by them to him, although we will not guarantee that they would accommodate you.
“Respectfully yours,
“Perkins & Co.
“Note inclosed.”

Compliance with this request being refused, the matter rested until the maturity of the |700 note, when the following letters passed between them:

“Cincinnati, 0., June 25, 1896.
“The Souvenir Wheel Co.,
“Grand Rapids, Mich.
Gentlemen: We wired you this morning that, if protested note was not paid immediately, we would place the account in the hands of our attorneys. We note your remarks to the National City Bank, giving reasons why you do not pay this note, but will say the reasons are only given for the purpose of avoiding payment of the note. Your machine is the same as has been furnished to all our customers, and, if it is not producing as many hubs as it should, it is the fault of the operator, and not of the machine. There is nothing stated in the order about a guaranteed number of hubs, and, if there was any verbal guaranty made, you, of course, are aware of the fact that it would have nothing to do with the case, as, where there is a written contract, the verbal agreement is not considered. We have had several deals with your company, all of which have caused us more or less trouble. We wish to state again that, if the note is not paid, we will enter suit immediately and take out the machines.
“Yours truly,
“Davis-Eagan Machine Tool Co.
“B. B. Quillen, Sec’y..”

Nowhere in the record" does it appear that complaint was made of the second drill press.

Error is assigned upon the failure of the court to give defendants’ fifth request, reading as follows, viz.:

“If you find that the so-called settlement of February 8th related to the delay in furnishing machines, and to other matters, and not to the failure of the hub machine to do the warranted amount of work, and if you find that at that time the defendants had not had reasonable time to test the capacity of the hub machine, then the so-called settlement would not affect the rights of defendants to claim damages for the failure of the hub machine, if, after fairly testing same, they found it had not complied with the warranty.”

The following instruction was given:

“If the hub machine furnished to the defendants by plaintiff would, with a proper operator and sufficient power, ‘form 80 hubs in 10 hours from bar,’ it satisfied this guaranty, and no deduction can be made in your verdict on account of the hub machine. If you find that after the machine had been received by the defendants, and they had a fair opportunity to test it, plaintiff sent an agent here, who put the machine in order, so that it was capable of doing the work warranted, and the de^ fendants thereafter accepted the machine, having had a fair opportunity to test it, and made no complaint until the note sued upon in this case became due, then your verdict should be for the plaintiff for the amount of the note, with interest. If you should find from the evidence that the hub machine was not capable of forming 80 hubs in 10 hours, and that when the witness Chard was here in January, 1896, he did not adjust it to the satisfaction of the defendants, and you find that the defendants did not accept the machine, and found no fault with it until after this note became due, and thereafter found that the machine did not comply with the warranty, and the defendants had not accepted it as complying with the warranty, the damages must be the difference between the contract price of the machine, which was $875, and the value of the machine as it was delivered to the defendants.”

The judge also instructed the jury that:

“There is one other point in this case. The evidence shows that a proposition of settlement was made by the defendants on the 8th day of February, 1896, in which, in place of giving half cash on delivery of the machine, and the balance in two notes of three and four months each, they sent three notes to the plaintiff, — the one in suit being one of them, — and a check for $141.99, with a letter in which they said that ‘ we have a damage claim for delays, which we will withdraw provided this settlement is accepted;’ and on the 10th of February the plaintiff wrote the defendants that it accepted the settlement, and said it was satisfactory. This settlement is conclusive, unless there was some fraud or concealment on the part of the plaintiff; and, if there was no fraud or concealment in this settlement, then it is binding oh the defendants, and your verdict must be for the amount of the note, with interest from its date at 6 per cent., as already stated. The defendants were entitled to a reasonable time to test the machinery after Mr. Chard had put it in order at the time of his visit here, in January, I think it was; and if they found after that, and after this settlement, that Chard had deceived them, and that this settlement was based upon what they believed then to be true, which was not true, in fact, by reason of some deception that Chard practiced upon them, or some other agent of the plaintiff, then, if such were the fact, and within a reasonable time they repudiated the settlement by reason of it, — notified the plaintiff of their claim, — they would not be bound; otherwise they are.
“Mr. Wolcott: Just one word, your honor. (Mr. Wolcott talks with the court.)
“The Court: Mr. Wolcott informs me, gentlemen, that the defendants make a claim for damages on account of the drill press. I had said that I did not understand that the defendants did make any such claim, because the drill press was not mentioned in these requests furnished me to charge the jury; but he informs me that he used the word ‘machinery ’ here, and did not name it as ‘drill press,’ and that he makes a claim for damages.
“Mr. Wanty: I think you charged the jury, though, that, under the undisputed facts in regard to that, they could not recover, did you not ?
“The Court: As I understand the facts to he, yes, if there was an exchange made.
‘ ‘ Mr. Wanty: There was an exchange, and you charged the jury, if the drill press was not satisfactory, it was the duty of the defendants to notify the plaintiff, and they did not.
‘ ‘ The Court: They made no claim ?
“Mr. Wanty: No.”

We are of the opinion that the defendants have no just cause for complaint. The settlement alluded to was made upon concessions by the plaintiff which it was not under obligation to make, in respect to freight charges and the terms of credit. There is nothing in the case from which the jury could justly find fraud or concealment by the plaintiff, and the judge might properly have directed a verdict for the plaintiff.

The judgment is affirmed.

The other Justices concurred.


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    CONVERSE v. BARNARD.
    1. Homestead — Land Contract — Advances by Vendor.
    The vendor in a land contract agreed by supplemental contract to advance to the vendee, to enable him to make improvements upon the land, 60 per cent, of the estimated value of such improvements, as the work progressed. The money so advanced was used by the vendee and his wife for the sole purpose of establishing a homestead. Nothing was paid upon the contract. Held, that the wife had no claim in equity to homestead rights as against either of the contracts.
    2. Bill of Review — Questions Once Passed Upon.
    In proceedings by a vendor against a vendee and his wife to foreclose a land contract, both defendants were served with process, and both appeared by solicitor, who interposed a demurrer in the name of both. The demurrer was overruled, an answer filed, a decree for complainant duly entered, and a sale made. The day before the order of confirmation became absolute, the wife made a petition for leave to file a bill of review, claiming that she had not authorized the employment of the solicitor who appeared for her of record, and raising the same questions passed upon by the court upon the demurrer and answer. Held, that the petition was properly denied.
    Appeal from Kent; Adsit, J.
    Submitted October 7, 1897.
    Decided October 25, 1897.

      Bill by Costello C. Converse, administrator of the estate of James W. Converse, deceased, against Bertram W. Barnard and Mary J. Barnard, to foreclose a land contract and a contract supplemental thereto. There was a decree for complainant, and a sale made, after which, before confirmation, Mary J. Barnard petitioned for leave to file a bill of review. From an order denying the petition, she appeals.
    Affirmed.
    The bill in this case was filed to foreclose a land contract executed by the deceased, James W. Converse, to the defendant Bertram W. Barnard, dated September 24, 1885, and another contract supplemental thereto, and made a part thereof, dated December 2, 1885. The first contract was the usual land contract. By the terms of the second, Mr. Converse agreed to advance to Mr. Barnard, to enable him to make improvements upon the land, 60 per cent, of the estimated value of such improvements as the work progressed. The improvement specified was a dwelling house. The two contracts amounted to $4,871.53. Defendants paid nothing, and at the date of sale the amount due was $7,148.84.
    The bill was filed December 9, 1895. Both defendants were served with process, and an order pro confesso was entered against both. The order as to defendant Bertram was set aside, having been prematurely entered. Both defendants appeared through a solicitor, Myron H. Walker, an attorney of good standing. He was served with a copy of the bill, and interposed a demurrer for both defendants. The demurrer was overruled, an answer filed, and a copy thereof served upon the complainant’s solicitors, purporting to be signed by both the defendants. Issue was duly joined, and the case heard in open court upon pleadings and proofs. Upon the hearing, defendants’ solicitor stated that Mr. Barnard was in- possession of the property, receiving a good amount of rent therefrom; that he was anxious to receive the rent as long as possible; and that the only controversy then was whether the decree should date from the 25th of March, 1896, the date of the service of the subpoena upon Mr. Barnard. The date was finally agreed upon, and decree entered. A sale was made April 19, 1897, and reported to the court. The day before the order of confirmation became absolute, Mrs. Barnard filed a petition attacking the regularity of the proceedings, asserting a homestead right as against the second contract, and praying that the sale and decree be set aside, and she be permitted to file a bill of review. The prayer of the petition was denied, and the sale confirmed. From this order the defendant Mary J. Barnard appeals.

      Maher & Salsbury, for petitioner.

      Fletcher & Wanty, for complainant.
   Grant, J.

(after stating the facts). The very questions which Mrs. Barnard now seeks to raise were raised in her behalf by her solicitor of record by her demurrer and answer, and were passed upon by the court. She cannot now be heard to say that she had no opportunity for defense, and that she did not authorize the employment of Mr. Walker. But, upon the merits, her claim is unconscionable; utterly devoid of either equity or justice. It is conceded that the money was advanced by Mr. Converse, and used for the sole purpose of establishing a homestead. Whether Mr. Converse so understood, it does not appear, but this is immaterial. She has, therefore, no claim in equity to a homestead right as against either of the contracts between her husband and Mr. Converse. Fournier v. Chisholm, 45 Mich. 417.

Decree affirmed, with costs. In addition to the regular costs, the defendant is decreed to pay as additional costs 6 per cent, interest on the amount of the sale from April 28, 1897, to the date of the entry of affirmance in this court.

The other Justices concurred.