author: Fellows, J.

text:
    DAVIS v. NEIHARDT.
    1. Homesteads — Exemptions.
    One may not have homestead rights in two houses at the same time.
    2. Same — Abandonment—Temporary Absence — Intent.
    A temporary absence from the home does not render it liable to levy and sale on execution, where there has been a continuing good-faith intent to return and occeupy it as a homestead.
    3. Same — Abandonment—Intent—Facts to Be Established.
    On a bill by plaintiffs to set aside an execution levy and sale on their homestead, where plaintiffs had left their farm home and moved to the city for the avowed purpose of earning money to pay up their debts, whether they had abandoned their homestead, whether they had a continuing good-faith intent to return, and whether their absence was temporary, held, to be questions of fact to be established as any other facts.
    4. Same — Purchase of Another Home — Evidence—Intent.
    While the fact that plaintiffs had bought and were living in another home in the city, standing alone and unexplained, might be strong evidence of abandonment of their farm home, held, not controlling in view of their explanation that they could not rent a house on account of the scarcity, that they are buying on a contract, paying monthly about the same as rent, and that they are accomplishing their purpose in moving, viz., improving their financial condition.
    5. Same — Evidence—Sufficiency.
    Evidence held, to justify the decree of the court below for plaintiffs.
    Appeal from Kalkaska; Lamb (Fred S.), J.
    Submitted January 6, 1921.
    (Docket No. 57.)
    Decided February 10, 1921.
    On right to testify as to intent with reference to residence, occupation or use of homestead, see note in 23 L. R. A. (N. S.) 397.

      Bill by William H. Davis and wife against S. Neihardt to set aside an execution levy on a homestead. From a decree for plaintiffs, defendant appeals.
    Affirmed.

      Ernest C. Smith, for plaintiffs.

      J. L. Boyd, for defendant.
   Fellows, J.

Plaintiffs, husband and wife, file this bill to set aside an execution levy on and a sale of 40 acres of land located in Kalkaska county, worth not to exceed $1,500, which they claim as a homestead. Plaintiff William H. Davis had lived on the farm, which consisted of 80 acres, before and after his marriage, for a period of 40 years. It had belonged to his father and in 1906, after his father’s death, he bought out the other heirs and at that time placed a mortgage on the 80 for $625 and sold $500 worth of timber from the farm. He does not appear to have fared well financially and in January of 1917, attracted by the high wage paid in the cities, went to Pontiac to earn enough money to pay the taxes on the farm. He was at this time considerably involved. The following spring his wife and five children went to Pontiac and plaintiffs have since lived there. It is their claim that their going to Pontiac was a temporary matter; that the move was made for the sole purpose of earning money to pay their debts and fix up the farm, and that they had a continuing intent to return to the farm to live when their temporary purpose had been accomplished. They first lived in a rented house at Pontiac, but this was sold and they testify, and their testimony is not disputed, that housing conditions in Pontiac were such that they could not find another place to rent and'were obliged to buy a place on contract in order to have shelter. They occupied this place awhile when they sold it and bought another place on contract and are now living in it, and paying $30 a month on the contract. They have never, so far as this record discloses, claimed this place as a homestead and say it is for sale. Mr. Davis has never registered or voted at Pontiac and it is undisputed that he has been paying off his old debts, .although that of defendant is still unpaid. When they moved from the farm they left some few things in the house and the farming tools were left with neighbors. It is pointed out by defendant that both the things left in the house and the farming tools were of little value. But we are persuaded that this fact is not controlling. Doubtless plaintiffs at that time had but little valuable property they could either move or leave behind. The fact that some of their household furniture was left in the house and the farming tools with their neighbors has some tendency to support their claim that they intended to return. That it was not as valuable or useful as some that was taken with them goes to the weight to be given this fact, but it does not eliminate it from our consideration.

Defendant’s counsel is correct in his contention that one may not have homestead rights in two houses at the same time. This court has so held. LaPlant v. Lester, 150 Mich. 336; McMonegal v. Wilson, 103 Mich. 264; Stotts v. Stotts, 198 Mich. 605; Ritter v. Seestedt, 212 Mich. 208. But this court has likewise held that a temporary absence from the home does not render it liable to levy and sale on execution, where there has been a continuing good-faith intent to return and occupy it as a homestead. Bunker v. Paquette, 37 Mich. 79; Karn v. Hanson, 59 Mich. 380; Kaeding v. Joachimsthal, 98 Mich. 78; Hitchcock v. Misner, 111 Mich. 180; Steel v. Blanchette, 193 Mich. 167. In Bunker v. Paquette, supra, Justice Makston, speaking for the court, said:

“The fact that Bunker had temporarily gone away from this house, leaving a part of his furniture therein, and had been living in a rented house at some distance therefrom for a period of some two years previous to the levy, would not render it subject to be sold upon execution, unless it farther appeared that he had abandoned it as his homestead. Temporary absence therefrom would not destroy the owner’s homestead rights therein. Neither in the stipulation nor in the facts as found by the court does it appear that Bunker’s absence was anything more than temporary, nor can any other conclusion be arrived at from the facts found. If the intention of the party as gathered from all the facts and circumstances is to govern, as we think it should, then the length of time the party is absent, although a circumstance to be taken into consideration, yet standing alone, cannot be considered as conclusive. If time alone was to be the guide it would be very difficult to draw the line, which should stand as an unerring guide in all cases.”

Hitchcock v. Misner, supra, is upon principle analogous. In that case complainant had vacated the home a year and a half before the levy; he had gone to his father’s home with his family and had received a deed to the premises of his father. But he explained the conveyance to him by his father and claimed to have had a continuing intent of returning to his own home. This court affirmed a decree sustaining his homestead rights.

In Kaeding v. Joachimsthal, supra, an absence of six years was held not to bar homestead rights where there was a continuing intent to return and occupy the homestead. And in Steel v. Blanchette, supra, Justice Bird, speaking for the. court, said:

“The mere absence from the premises four or five years would not be conclusive that she had abandoned it as a homestead if she had, during all that time, intended to return.”

Whether plaintiffs had abandoned the farm as a homestead, whether they had a continuing intent in good faith of returning to it after their purpose in going to Pontiac had been accomplished, whether their absence was but temporary, are all questions of fact to be established like any other facts. Hoffman v. Buschman, 95 Mich. 538; Kaeding v. Joachimsthal, supra; Hitchcock v. Misner, supra; Stotts v. Stotts, supra. Plaintiffs’ testimony sustains their claim, as does the testimony of a neighbor with whom they left farming tools. The fact that they had bought and were living in another home in Pontiac, standing alone and unexplained, would be strongly evidential of abandonment of the farm. But the explanation of that purchase does not appear unnatural or improbable. They are paying on the purchase price about what they would pay for rent and are improving their financial condition which was the declared purpose of the move. The trial judge believed this testimony. He had the advantage we do not possess of seeing the witnesses and hearing their testimony. We find no occasion to disturb his conclusions.

The decree will be affirmed, with costs of this court.

Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    RANDOLPH v. DETROIT UNITED RAILWAY.
    1. Carriers — Negligence—Personal Injuries — Street Railways —Evidence—Sufficiency—Question for Jury.
    In an action against street railway companies for injuries claimed to have been negligently caused to plaintiff’s wife while she was in the act of alighting from defendants’ car, resulting later in her death, where the defense was that decedent’s death was due to typhoid fever, and not to said injuries, evidence, held, to present a question of fact for the jury.
    2. Appeal and Error — Directed Verdict — Evidence Construed Most Favorably for Appellant.
    On a motion by defendant for a directed verdict in its favor, the evidence must be considered in the light most favorable to plaintiff’s claim.
    3. Same — Directed Verdict — Weight of Evidence Not Considered.
    In determining whether a motion for a directed verdict was properly denied, it is not for the Supreme Court to weigh the evidence submitted by the parties.
    4. Same — New Trial — Weight of Evidence Considered.
    In reviewing the denial of a motion for a new trial because the verdict is alleged to be against the weight of the evidence, the Supreme Court is called upon to exercise judicial discretion and determine the weight of the evidence.
    5. Same — Directed Verdict Distinguished from Setting Aside Verdict.
    The right to a directed verdict rests on a strict legal right; the setting aside a verdict because against the great weight of the evidence rests upon the exercise of judicial discretion.
    6. Street Railways — Not Liable for Acts of Lessee.
    A railroad company which has leased its property is not liable for the negligent acts of the lessee in its operation.

      7. Carriers — Street Railways — Personal Injuries — Negligence —Absence of Proof — Directed Verdict.
    Where the declaration in an action for personal injuries against two street railway companies alleged that one defendant was operating the railway for and as agent of the other defendant, but the lease or other agreement under which the operation was had was not put in evidence, and there was no proof submitted that either defendant owned, operated, or had anything to do with the operation of the road or the car which caused, decedent’s injuries, the request of each defendant for a directed verdict in its favor should have been granted.
    8. Appeal and Error — Charge of Court — Exceptions—Review— Statutes.
    Under 3 Comp. Laws 1915, § 14576, upon errors committed by the court in charging the jury, or in refusing requests to charge, a party aggrieved thereby may assign error without excepting thereto or bringing the matter to the attention of the trial judge.
    Error to St. Clair; Law (Eugene F.), J.
    Submitted October 6, 1920.
    (Docket Nos. 33, 34.)
    Decided February 3, 1921.
    Rehearing denied March 31, 1921.
    Case by William Randolph, individually and as administrator of the estate of Margaret Randolph, deceased, against the Detroit United Railway and the Port Huron, St. Clair & Marine City Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgments for plaintiff. Defendants bring error.
    Reversed.

      Walsh & Walsh, for appellant Detroit United Railway.

      P. H. Phillips, for appellant Port Huron, St. Clair & Marine City Railway Company.
    J. B. Mellwain, for appellee.
   Sharpe, J.

On March 15, 1919, Margaret Randolph, plaintiff’s decedent, his then wife, while alighting from an interurban car at the village of Algonac, was thrown to the ground and 'injured. She died on the second day of April following. Plaintiff claims that her death was due to the injury, while the defendants contend that a few days after the accident she became ill with typhoid fever, from which she did not recover. Plaintiff sued individually for expenses of medical attendance, burial and loss of services, °etc., and also as administrator of her estate for the loss occasioned thereto by her demise. By stipulation, the cases were tried together, the jury rendering a verdict of $4,000 in plaintiff’s individual case and $1,000 in that brought by him as administrator. From the judgments entered on such verdicts, defendants appeal. At the close of the proofs, each defendant preferred a request asking for a directed verdict for the reason that no negligence on the part of the several defendants was shown, and also because the undisputed evidence showed that the deceased died of typhoid fever. Separate briefs have been filed on behalf of the defendants discussing and relying on the same allegations of error.

Was there sufficient evidence that deceased died as a result of the injury to justify its submission to the jury? The testimony offered by plaintiff tended to establish the following facts: That deceased, a woman 46 years of age and weighing about 200 pounds prior to the accident, was in ordinary good health, doing her usual household work; that after her fall she complained to the woman who accompanied her of being hurt in her right side; that with assistance she walked to her home about a block distant; that she went to bed soon thereafter, and the next morning complained that her back and stomach hurt her; that her bowels were then loose and continued so; that she was up and about part of the time Sunday and Monday, the accident having occurred on Saturday, but on Tuesday remained in bed and did not afterwards arise therefrom; that Dr. Lang was called in to see her on Monday and that Dr. DeGurse, the surgeon for defendants, who made, arrangements for Dr. Lang to continue in charge, called on the day following; that Dr. Lang on Tuesday told her daughter, who was attending her, that she had fever; that she then complained of soreness “across her stomach”; that she suffered when they moved her in bed; that she began to have passages of blood on Friday or Saturday and frequently at later times; that at times she would not recognize those in attendance on her; that at the time of her death “there was a great discharge of strong odorous stuff from her mouth and nose, it was dark yellow, tinged with blood and very offensive. Immediately after her death, her skin grew purple.” It further appears that on March 26th, 11 days after the accident, Dr. MacLaren of Port Huron was sent by plaintiff and his attorney to examine the deceased. He was requested to ascertain whether she was at that time afflicted with typhoid fever. He testified:

“I found that she had no sordes on the teeth, that she had no mucus covering her tongue, it was dry and clean; there was no indentations on the margins of the teeth; that there was no epistaxis and no tympanitis. That is a distention of the bowel, inflatus and gas. I found no rose spots on her which are usually found in typhoid fever, and I found no ileocsecal gurgling. Gurgling is that which is found between the ileum and cseeum and is almost universally present in typhoid fever. I found no enlargement of the spleen and from that I was satisfied that she had not typhoid fever. All of those symptoms which I have mentioned are symptoms of typhoid fever, and they are always present.”

In answer to a hypothetical question which fairly embodied the testimony relating to the accident, he answered that, in his opinion, her condition, when he examined her, was due to the injury then received. Opposed to this testimony is that of Dr. Lang and Dr. De-Gurse, both of whom testified that the deceased had symptoms of typhoid fever on the 18th; that the disease developed and caused her death. Their diagnosis was confirmed by the Widal blood test, made by a laboratory technician of the State department of health.

To justify the trial court in directing a verdict against the plaintiff, there must be, as a matter of law, a lack of competent proof to establish the claim as made. Upon this record we feel constrained to hold that no error was committed in denying defendants’ motion to direct a verdict for the reason stated. The rule that on such a motion the evidence must be considered in the light most favorable to plaintiff’s claim is so well established that we need not cite authority to support it. The test to here apply is, Had the plaintiff, at the conclusion of his proofs, presented sufficient evidence to justify a verdict in his favor? It is not for this court in determining this question to weigh such evidence as against that submitted by the defendants. This we are required to do when error is assigned on the denial of a motion for a new trial based on the claim that the verdict is against the great weight and preponderance of the evidence. We are then called upon to exercise a judicial discretion, as is the trial judge in deciding such a motion. The result of directing a verdict and setting one aside is widely different and not to be controlled by the same considerations. When a verdict is directed, the judgment entered is final; when one is set aside, a new trial is granted. The former rests on a strict legal right, the latter upon the exercise of judicial discretion. This discretion should never be exercised in directing a verdict under the law which confides to juries, and not to courts, the determination of the facts.

Error is assigned upon the following portion of the charge to the jury:

“If you find that the defendants, both or either of them, were guilty of injuring Margaret Randolph by negligent act in starting the car in question while she was in the act of alighting therefrom, and you further find that the injuries she then received were the proximate cause of her death, you will then proceed to determine the amount of damages the plaintiff is entitled to -receive at your hands in each case and return two verdicts as to damages.”

Before giving this instruction, the court had said:

“In both suits it is the claim of the plaintiff that on the afternoon of March 15th last, his said wife, Margaret Randolph, took passage at Algonac, Michigan, for Marine City, Michigan, on an electric car on the road of the defendant the Port Huron, St. Clair & Marine City Railway Company, the said car being under the management and control of the other defendant, the Detroit United Railway, as agent for the Port Huron, St. Clair & Marine City Railway Company. Plaintiff claims that his wife paid the regular fare to Marine City as a passenger.”

The defendants severally preferred the following request:

“There is no proof in this case tending to show that the defendant is liable for any injuries that may have occurred to deceased, as no showing of any negligence on the part of this defendant was made.”

The declaration alleges that the defendant Port Huron, St. Clair & Marine City Railway Company was the owner of the railway and the defendant Detroit United Railway was operating it for and as agent of the owner. It was held in Ackerman v. Railroad Co., 143 Mich. 58 (8 Ann. Cas. 118), and in Peacock v. Railway Co., 208 Mich. 403, that a railroad which has leased its property to another is not liable for the negligent acts of the lessee in its operation. The lease or other agreement under which such operation was had was not put in evidence. We, therefore, express no opinion on the liability of the owner but content ourselves with calling attention to these decisions.

There was no proof submitted that either defendant owned, operated or had anything to do with the operation of the road or the car which caused decedent’s injuries. The request of each defendant should have been given and a verdict directed in its favor.’ Counsel for the plaintiff, however, insists that “No such question was raised on the trial below or on the motion for a new trial.”

Section 14576, 3 Comp. Laws 1915, provides:

■“It shall not be necessary in any suit, action or proceeding, civil or criminal, in any circuit court, to except to the charge given to the jury, or to the refusal to give any charge requested by either of the parties to such suit, action or proceeding, but any party aggrieved by any such charge, or refusal to charge, may assign errors upon such charge, or refusal to charge, in his assignments of error, the same as if exception' had been made to such charge or refusal to charge.”

This section, which was section 10247, 3 Comp. Laws 1897, as amended by Act No. 52, Public Acts 1901, has been several times considered by this court. McCullough v. Railway Co., 101 Mich. 234; Howell v. Railway Co., 136 Mich. 432; Totten v. Totten, 172 Mich. 565. In the latter case, Mr. Justice Steere, speaking for the court, said:

“If manifestly an inadvertence, as indicated to those listening to the charge, it would seem to be the duty of plaintiff’s counsel, rather than defendant’s, to call the attention of the court to it. Under the practice which formerly prevailed, it would have been the duty of counsel for defendant to then take exceptions, thereby calling the attention of the court to the matter and thus give opportunity to make correction; but latterly, for reasons which we do not seek to fathom, the legislature provided that it is not necessary in such cases to except to the charge given to the jury, but the party deeming himself aggrieved by any portion of the charge may remain silent, and subsequently, when removing the case to this court for review, assign his errors upon the charge.”

While we are impressed that the charge of the court as to the claims of the parties was probably founded on the admissions and statements of counsel in their arguments to the jury, these are not included in the bill of exceptions. We feel constrained to hold that on the record as made the plaintiff’s proofs were not sufficient to entitle him to a judgment against either defendant.

The judgments are therefore reversed and a new trial ordered. The costs of this appeal will abide the result of the final judgment which may be entered

Steere, C. J., and Moore, Fellows, Stone, Clark, and BíPJ), JJ., concurred.

The late Justice Brooke took no part in this decision.


author: Wiest, J.

text:
      In re GRABINSKI.
    1. Criminal Law — Intoxicating Liquors — Statutes—Construction — Sentence—Imprisonment in County Jail or Penal Institution.
    Under Act No. 3, Pub. Acts 1919, extra session, amending section 51, Act No. 53, Pub. Acts 1919, prohibiting the sale, etc., of intoxicating liquors, and providing that one convicted of a violation thereof should be sentenced to a fine or imprisonment in a penal institution or in the county jail, or to both fine and imprisonment in the discretion of the court, a discretion is vested in the trial judge to sentence to a penal institution as for a felony, or to the county jail as for a misdemeanor, but not to both.
    2. Same — Discretion oe Court — Sentence to County Jail .Exhausts Power.
    Where the trial judge sentenced one convicted of a violation ofi said act to pay a fine and to be confined in the county jail for 60 days, and, in default of the payment of the fine, to be confined in the Michigan reformatory for the period of six months after the expiration of the 60 days’ confinement, that part of the sentence providing for imprisonment in the Michigan reformatory, held, void, since sentence may not be imposed to be served piecemeal, a part in the county jail and another part in a penal institution, and in sentencing to the county jail the judge exhausted his power as to place of confinement.
    Habeas corpus proceedings. by John Grabinski to obtain his release from imprisonment in the Michigan reformatory at Ionia.
    Submitted February 21, 1921.
    (Calendar No. 29,594.)
    Prisoner discharged March 9, 1921.

      Richard L. Newnham, for plaintiff.

      Merlin Wiley, Attorney General, James A. Greene, Assistant Attorney General, and Cornelius Hoffius,
      Prosecuting Attorney of Kent county, for defendant warden.
   Wiest, J.

On the 19th day of November, 1920, John Grabinski was convicted, in the circuit court for the county of Kent, of a violation of the liquor law, and on the same day sentenced by the court to pay a fine of $1,000 and to be confined in the common jail for the county of Kent for the period of 60 days, and in default of the payment of the fine to be confined in the Michigan reformatory, at Ionia, for the period of 6 months after the expiration of the 60 days’ confinement in the common jail. The sentence also contains a commitment of John Grabinski to the common jail for Kent county for the period of 60 days from and including the day of sentence. Under such sentence and commitment he was imprisoned in the Kent county jail for 60 days. On January 17, 1921, the clerk of the Kent circuit court, without any further court order, so far as the record discloses, issued a warrant under the seal of the court, directed to the sheriff of the county of Kent, reciting the fact of plaintiff’s conviction and sentence thereon to the Michigan reformatory for the period of 6 months from the date of sentence, commanding the sheriff to remove plaintiff from the county jail and convey him to the Michigan reformatory. With this warrant of removal went a certified abstract of the sentence. • The sheriff removed plaintiff from the county jail to the Michigan reformatory where he is now imprisoned under the sentence of November 19, 1920. Upon plaintiff’s application a writ of habeas corpus issued, directed to the warden of the Michigan reformatory, to inquire into the cause of his detention in that institution; and a writ of certiorari was issued to the clerk of Kent county to bring before this court the record of the conviction and sentence. Plaintiff claims that he is illegally confined in the Michigan reformatory, for the reason. that the court having sentenced him to imprisonment in the county jail could not also sentence him to imprisonment in the Michigan reformatory.

The statute under which plaintiff was convicted and sentenced, Act No. 53, Public Acts 1919, as amended by Act No. 3, Public Acts 1919, extra session, provides that:

“Any person, who, himself or by his clerk, agent or employee, shall violate any of the provisions of this act, * * * shan he deemed guilty of a felony, and upon conviction thereof be sentenced to pay a fine of not more than one thousand dollars and the costs of prosecution, or to imprisonment in the State prison, Michigan reformatory, or the Detroit house of correction, for a period of not less than six months nor more than one year, or by imprisonment in the county jail for not less than thirty days, nor more than one year, or by both fine and imprisonment in the discretion of the court.” * * * .

This statute vests a discretion in the court as to the place of imprisonment, to be exercised at the time of sentence. The court had a right to sentence plaintiff to be imprisoned in the county jail, and did so, and such sentence has been served. The question is, therefore, whether the court, under this statute, could also sentence him to be imprisoned in the Michigan reformatory for an additional period or term of 6 months. The industry of counsel for the people has furnished us with no reference to any precedent for such sentence.

In the case of People, ex rel. Gately, v. Sage, 13 App. Div. 135 (43 N. Y. Supp. 372), the respondent was sentenced to imprisonment in the State prison for the term of 5 years and to pay a fine of $730, and in default of the payment of the fine to be further imprisoned in the State prison until the fine be paid, not exceeding 730 days in addition to the term of 5 years. It was there urged that the imprisonment for the default in payment of the fine could only be directed in the county jail. This raised the converse of the question here presented. Under the New York statute imprisonment was authorized to be in the State prison. The court stated:

“I can find no provision of law, before the code of criminal procedure, prescribing where imprisonment for default in the payment of fines, either in the case of felonies or misdemeanors, should be ordered. As far as I have been able to ascertain, the practice has been uniform, where there has been imposed both imprisonment and fine, to direct the imprisonment, in default of the payment of the fine, to continue in the same prison, — that is to say, where the imprisonment was in the State prison, the defendant was directed to stand committed in that prison. There is no provision to be found in the code of criminal procedure directing the return of a prisoner convicted of a felony, and sentenced to both fine and imprisonment, from the State prison to the county jail, for default in the payment of his fine, — a provision which, I think, would not be wanting had such a course been contemplated by the codifiers.”

The amendment made at the extra session of the legislature in 1919 was intended to vest a discretion in the court and permit sentence to a penal institution or the county jail, but not to both. When the circuit judge sentenced plaintiff to the county jail, he exercised the discretion reposed in him by law to consider the case as one demanding imprisonment as for a misdemeanor rather than a felony, and he could not make the sentence, one part as for a misdemeanor and another part as for a felony. We think the governing rule to be that, when a crime punishable by fine and imprisonment in a penal institution of the State is also made punishable by fine and imprisonment in a county jail, in the discretion of the court, the discretion exercised must adopt the one method or the other of punishment and the court cannot sentence that a part of the imprisonment be in the county jail and another part thereof in a penal institution; and that the exercise of discretion by adoption of the county jail as the place of imprisonment in the first instance makes that place the only place of imprisonment for all parts of the sentence. Having exercised the discretion by^ way of sentence to the county jail the action of the court makes the matter of punishment stand for all intents and purposes as imprisonment for a misdemeanor.

When a prisoner is sentenced to a designated prison, and is there confined under sentence, power of the court has been exercised and is exhausted so far as place of confinement is concerned. There is no statute or precedent so far as we can find allowing the court to sentence a prisoner to imprisonment in a designated jail or prison for a part of the punishment and to another jail or prison for another part.

We must hold that the circuit court had a right to sentence plaintiff to imprisonment in the county jail and there imprison him in default of the payment of the fine imposed, but not to sentence him to the county jail for imprisonment and from there to the Michigan reformatory for imprisonment in default of the payment of the fine. Sentence must not be imposed to be served piecemeal, a part thereof in a county jail and another part in a penal institution. See People v. Felker, 61 Mich. 110; In re Lamphere, 61 Mich. 105.

The sentence to the Michigan reformatory is void and plaintiff is discharged.

Steere, C. J., and Moore, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Bird, J., did not sit.


text:
    HUMPHREY v. DETROIT, MONROE & TOLEDO SHORT LINE RAILWAY.
    Carriers — Street Railways — Rates—Powers of State Railroad Commission to Change — Statutes—Filing Schedule.
    In view of section 3, subd. c, Act No. 300, Pub. Acts 1909, creating the railroad commission, which provides that no authority is thereby given the commission “to interfere with, lessen or impair, or to authorize the impairment of any franchise provision, contract or agreement as to rate of fare * * * now existing between any municipality * * * and any tram railway, street railway, interurban or suburban railway company, or to increase or lessen the rate of fare fixed by such franchise, contract, or agreement,” the mere filing of a schedule of rates proposed to be charged by defendant railroad company with the Michigan railroad commission in no way authorized the increase of rates in excess of those fixed in defendant’s franchise.
    Error to Monroe; Root (Jesse H.), J.
    Submitted April 7, 1920.
    (Docket No. 2.)
    Decided December 21, 1920.
    Motion for rehearing submitted February 8, 1921.
    Denied March 30, 1921.
    Assumpsit in justice’s court by Ira G. Humphrey against the Detroit, Monroe & Toledo Short Line Railway for the statutory penalty for collecting an excessive fare. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Bernard F. Weadock (Thornton Dixon and Donnelly, Hally, Lyster& Munro, of counsel), for appellant.

      Willis Baldwin, for appellee.
   On Motion for Rehearing.

Sharpe, J.

In the opinion filed in this case (212 Mich. 91) it was stated that the record did not show that Exhibit D was included therein. It was not in the printed record, but by stipulation of counsel it was agreed that Exhibit C, which was filed with the clerk to be used at the hearing, was identical therewith. Thus, in effect, Exhibit D was before us for consideration. It consisted of a pamphlet containing the schedule of rates proposed to be charged by the defendant for transportation between Detroit and Toledo, a duplicate of which had been filed with the Michigan railroad commission.

This commission was created by Act No. 300, Public Acts of 1909 (2 Comp. Laws 1915, § 8109 et seq.). Subdivision c of section 3 provides:

“Nothing in this act contained shall be construed to authorize the commission to interfere with, lessen or impair or to authorize the impairment of any franchise provision, contract or agreement as to rate of fare now existing between any municipality, city, village, or township and any tram railway, street railway, interurban or suburban railway company, or to increase or lessen the rate of fare fixed by such franchise, contract or agreement.” * * *

In view of this provision, the mere filing of Exhibit D with the Michigan railroad commission in no way authorized the increase of rates in excess of those fixed in the franchise. At the time of such filing, Act No. 382 of the Public Acts of 1919 had not been enacted. The decision in Attorney General v. Railway, 210 Mich. 227, in which that act was construed, has no application to the question here presented.

The application for a rehearing is denied.

Steere, C. J., and Moore, Fellows, Stone, Clark, and Bird, JJ., concurred.

The late Justice Brooke took no part in this decision.


text:
    PEOPLE v. KEELEY.
    1. Commerce — Regulation — Interstate Commerce — Constitutional Law — States.
    Under the Federal Constitution (art. I, § 8,. subd. 3) congress is vested with the power to regulate commerce among the several States.
    2. Same — Intoxicating Liquors — Transportation.
    Intoxicating liquor, being an article of commerce, its transportation from State to State is subject to such regulations as congress provides.
    3. Same — Reed Amendment — Webb-Kenyon Act — Federal Statutes.
    By the Reed amendment to the postal service appropriation act for the fiscal year 1918 (chap. 162, § 5, Act March 3, 1917, 39 U. S. Stat. p. 1069, U. S. Comp. Stat. 1916, § 8739a), congress restored t.o intoxicating liquors its interstate commerce character, of which it was divested by the Webb-Kenyon act (chap. 90, 37 U. S. Stat. p. 699, U. S. Comp. Stat. 1916, § 8739).
    4. Intoxicating Liquors — Criminal Law — Federal Statutes— Commerce — State Statutes — Jurisdiction.
    The illegal transportation of intoxicating liquors from the State of Ohio into the State of Michigan, being in violation of the Reed amendment, is punishable thereunder, and a conviction of defendant of said offense under the State law (section 57, Act No. 53, Pub. Acts 1919) is void.
    Exceptions before judgment from Jackson; Williams (Benjamin), J.
    Submitted October 14, 1920.
    (Docket No. 110.)
    Decided March 30, 1921.
    James J. Keeley w.as convicted of violating the liquor law.
    Reversed, and defendant discharged.
    On Constitutionality, construction and effect of Webb-Kenyon Act, see notes in L. R. A. 1916C, 299; L. R. A. 1917B, 1229.

      John F. Henigan, for appellant.

      Alex. J. Groesbeck, Attorney General, M. Grove Hatch, Prosecuting Attorney, and Arthur W. Wiggins, Assistant Prosecuting Attorney, for the people.
   Sharpe, J.

The defendant was convicted under an information charging in the first count that on the 6th day of October, 1919, he did “unlawfully import” 15 gallons of whisky into the city of Jackson from Newark, in the State of Ohio, and in the second count that he did “unlawfully transport” said liquors into Jackson from said city of Newark. The charge was laid under Act No. 338 of the Public Acts of 1917, known as the Wiley act, as amended by Act No. 53 of the Public Acts of 1919. Section 57 of the amended act reads:

“It shall be unlawful for any person to import, ship, sell, transport, deliver, receive or have in his possession any intoxicating liquors except as in. this act provided.”

Defendant’s counsel moved for his discharge for the reason, among others, that the shipment, if made, was an act of interstate commerce and punishable under the Federal statute commonly known as the Reed amendment.

Under the Federal Constitution (art. 1, § 8, subd. 3), congress is vested with the power to regulate commerce among the several States. Intoxicating liquor is an article of commerce. Its transportation from State to State, therefore, became subject to such regulations as congress might provide. Bowman v. Railway, 125 U. S. 465 (8 Sup. Ct. 689, 1062); Leisy v. Hardin, 135 U. S. 100 (10 Sup. Ct. 681). Many laws were enacted by the States in which prohibitory laws were in force, seeking to prevent its importation. These proved unavailing. Efforts to secure congressional action to relieve from the protection afforded by such Federal control culminated in the enactment on March 1, 1913, of what is known as the Webb-Kenyon act (chap. 90, 37 U. S. Stat. p. 699, U. S. Comp. Stat. 1916, § 8739). The purpose and effect of this act are well expressed in its title:

“An act divesting intoxicating liquors of their interstate character in certain cases.”

Omitting extraneous words, it reads as follows:

“The shipment or transportation * * * of intoxicating liquor * * * from one State * * * into any State * * * which * * * intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, * * * is hereby prohibited.”

Its validity was soon assailed. A note of the many decisions construing it will be found appended to the section as it appears in the Compiled Statutes of 1916. It came before the Supreme Court of the United States in Clark Distilling Co. v. Railway Co., 242 U. S. 311 (37 Sup, Ct. 180, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845), where in an elaborate opinion written by the Chief Justice its constitutionality was upheld and its provisions as affecting State statutes construed. In answer to the contention that congress did not intend thereby to permit the States to regulate such interstate commerce, the court said:

“The movement of liquor in interstate commerce and the receipt and possession and right to sell prohibited by the State law having been in express terms divested by the Webb-Kenyon act of their interstate commerce character, it follows that if that act was within the power of congress to adopt, there is no possible reason for holding that to enforce the prohibitions of the State law would conflict with the commerce clause of the Constitution.”

See, also, Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298 (38 Sup. Ct. 96), and Wagman v. United States, decided by the circuit court of appeals, sixth circuit, on December 10, 1920 (269 Fed. 568), certiorari to review which was denied by the Supreme Court on March 7, 1921 (U. S. Adv. Ops. 1920-21, 583, 41 Sup. Ct. 376).

As thus construed, the power of a State to prohibit the transportation of intoxicants into it from another State was seemingly well settled. In an amendment to the postal service appropriation act for the fiscal year 1918 (chap. 162, § 5, act March 3, 1917, 39 U. S. Stat. p. 1069, U. S. Comp. Stat. 1916, § 8739a.), known as the Reed amendment, it was provided:

“Whoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal, and mechanical purposes, into any State or Territory the laws of which State or Territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes shall be punished as aforesaid: Provided, That nothing herein shall authorize the shipment of liquor into any State contrary to the laws of such State.”

Did congress thereby again assume jurisdiction to regulate the transportation of intoxicants between the States? By the Webb-Kenyon act the shipment of such liquors from State to State was divested of its interstate commerce character. Under the Reed amendment congress forbids such transportation in certain cases and imposes punishment for a violation thereof.

The effect of this amendment was before the Supreme Court of the United States in United States v. Hill, 248 U. S. 420 (39 Sup. Ct. 143), decided on January 13, 1919. The indictment there charged that Hill by means of a common carrier was engaged in transporting intoxicating liquor in interstate commerce from the State of Kentucky into the State, of West Virginia. In the majority opinion, written by Mr. Justice Day, wherein a demurrer to the indictment was overruled,' it is said:

“The Constitution confers upon congress the power to regulate commerce among the States. From an early day such commerce has been held to include the transportation of persons and property no less than the purchase, sale and exchange of commodities. Gibbons v. Ogden, 9 Wheat. 1, 188; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203 (5 Sup. Ct. 826). ‘Importation into one State from another is the indispensable element, the test, of interstate commerce.’ International Textbook Co. v. Pigg, 217 U. S. 91, 107 (30 Sup. Ct. 481, 27 L. R. A. [N. S.] 493, 18 Ann. Cas. 1103); Lottery Case, 188 U. S. 321, 345 (23 Sup. Ct. 321). The transportation of one’s own goods from State to State is interstate commerce, and, as such, subject to the regulatory power of congress. Pipe Line Cases, 234 U. S. 548, 560 (34 Sup. Ct. 956). The transportation of liquor upon the person of one being carried in interstate commerce is within the well-established meaning of the words ‘interstate commerce.’ United States v. Chavez, 228 U. S. 525, 532 (33 Sup. Ct. 595).
“Congress in the passage of the Reed amendment must be presumed to have had, and in our opinion undoubtedly did have, in mind this well-known and often declared meaning of interstate commerce. It had already provided in the Wilson act for State control over liquor after its delivery to the consignee in interstate commerce. In the Webb-Kenyon act it had prohibited the shipment of liquor in interstate commerce where the same was to be used in violation of the law of the State into which it was transported. In the passage of the Reed amendment it was intended to take another step in legislation under the authority of the commerce clause. The meaning of the act must be found in the language in which it is expressed, when, as here, there is no ambiguity in the terms of the law. The order, purchase, or transportation in interstate commerce, save for certain excepted purposes, is forbidden. The exceptions are specific and are those for scientific, sacramental, medicinal, or mechanical purposes; and in the proviso it is set forth that nothing contained in the act shall authorize interstate commerce shipments into a State contrary to its laws.
“West Virginia is a State in which the manufacture and sale of intoxicating liquors for beverage purposes is prohibited. If the act is within the constitutional authority of congress, it follows that the indictment charged an offense within the terms of the law. That congress possesses supreme authority to regulate interstate commerce subject only to the limitations of the Constitution, is toó well established to require the citation of the numerous cases in this court which have so held. Congress may exercise this authority in aid of the policy of the State, if it sees fit to do so. It is equally clear that the policy of congress acting independently of the States may induce legislation without reference to the particular policy or law of any given State. Acting within the authority conferred by the Constitution it is for congress to determine what legislation will attain its purposes. The control of congress over interstate commerce is not to be limited by State laws. Congress, and not the States, is given the authority to regulate interstate commerce. When congress acts, keeping within the authority committed to it, its laws become by the terms of the Constitution itself the supreme laws of the land. * * * It may exert its authority, as in the Wilson and Webb-Kenyon acts, having in view the laws of the State, but it has a power of its own, which in this instance it has exerted in accordance with its view of public policy.
“When congress exerts its authority in a matter within its control, State laws must give way in view of the regulation of the subject-matter by the superior power conferred by the Constitution. Seaboard Air Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475); St. Louis, etc., R. Co. v. Hesterly, 228 U. S. 702 (33 Sup. Ct. 703); St. Louis, etc., R. Co. v. Seale, 229 U. S. 156 (33 Sup. Ct. 651, Ann. Cas. 1914C, 156); Minnesota Rate Cases, 230 U. S. 352 (33 Sup. Ct. 729, 48 L. R. A. [N. S.] 1151, Ann. Cas. 1916A, 18).”

We think this case decisive of the question here presented. The charge against the defendant is clearly a violation of the Reed amendment and punishable thereunder. In view of the conclusion thus reached, it is not necessary to discuss the other errors assigned.

The verdict of conviction .in the circuit court is reversed and set aside and the defendant ordered discharged.

Steere, C. J., and Moore, Fellows, Stone, Clark, and Bird, JJ., concurred.

The late Justice Brooke took no part in this decision.


author: Steere, C. J.

text:
    BRANDT v. VANDERVEEN.
    J. Guaranty — Acceptance — Liability—Evidence—Sufficiency.
    Upon a suit for an adjudication of the liability of certain of the defendants upon an instrument of guaranty, the conclusion of the court below that the evidence that said instrument was never accepted by plaintiff hank is practically undisputed, held, not sustained by the record.
    2. Same — Consideration.
    Defendants’ contention that said instrument was given to secure a future loan which was not made, and that it was therefore void for want of consideration, held, not sustained by the record, the evidence sustaining plaintiffs’ contention that it was given to cover any indebtedness already existing as well as future loans.
    3. Evidence — Parol Evidence — Written Instruments.
    Parol evidence is not admissible to contradict or vary the terms of a written instrument.

      4. Guaranty — Defenses—Evidence—Sufficiency.
    Where defendants’ evidence, the admissibility of some of which was questionable, was insufficient to establish the defense relied upon, the decree of the court below in their favor will be reversed, and decree entered in this court for plaintiffs.
    Appeal from Kent; McDonald (John S.), J.
    Submitted October 21, 1920.
    (Docket No. 15.)
    Decided March 30, 1921.
    Bill by Adolph H. Brandt, trustee, and the Grand Rapids Savings Bánk against Harry Vanderveen and others to foreclose a trust deed as a mortgage and for an adjudication of the liability of certain of the defendants to plaintiff bank upon an instrument of guaranty. From a decree for plaintiffs, but dismissing the bill as to defendants Peter Vanderveen and Thomas Newhof, plaintiffs appeal.
    Reversed, and decree entered for plaintiffs against all defendants.

      Butterfield, Keeney & Amberg, for plaintiffs.

      Bartel J. Jonkman, for defendants.
   Steere, C. J.

This suit was commenced in the circuit court of Kent county, in chancery, on September 25, 1918, to recover an indebtedness which defendant Harry Vanderveen owed the Grand Rapids Savings Bank, to foreclose a trust deed held in that connection by plaintiff Brandt, trustee, as a mortgage in behalf of said bank, and for an adjudication of the liability of defendants Peter Vanderveen and Thomas Newhof upon an instrument of guaranty in the sum of $25,000 signed by them, purporting to secure in that amount the indebtedness of Harry Vanderveen to said bank.

Defendants Harry Vanderveen and Anna Vanderveen, his wife, made no defense and allowed the bill to be taken as confessed against them. Peter Vanderveen and Thomas Newhof answered and asked affirmative relief by cross-bill from the instrument of guaranty they had given, claiming that it had never been accepted by said bank and was void for want of consideration. The case was heard upon pleadings and proofs taken in' open court, resulting in a decree in favor of plaintiffs for foreclosure of the trust deed, conceded to be in its nature a mortgage, and adjudicating a past due personal indebtedness owing by Harry Vanderveen to said bank in the sum of $78,544.78 on January 7, 1920, the date of the decree, but dismissing the bill of complaint as to defendants Peter Vanderveen and Thomas Newhof because “not liable as guarantors of the said indebtedness set up in said bill of complaint to the said the Grand Rapids Savings Bank.” Plaintiffs have appealed from dismissal of the bill as to those defendants, and the only controversy involved here is the liability of defendants Newhof and Peter Vanderveen upon the instrument of guaranty undisputedly signed by them and delivered by Harry Vanderveen to plaintiff Adolph H. Brandt, then vice-president and an executive officer of the bank. It is as follows:

“The Grand Rapids Savings Bank of Grand Rapids, Michigan, is hereby requested to give and continue to Harry Vanderveen Credit as he may desire from time to time, and in consideration thereof, I hereby guarantee payment of any indebtedness, whether direct or contingent, now or hereafter owing to said bank by said Harry Vanderveen, and agree to indemnify said bank against any loss thereon; provided, however, said bank shall in no event collect from the undersigned a greater sum than $25,000.
“Notice of the acceptance of this guaranty and of any indebtedness at any time covered by the same is hereby waived. This guaranty shall continue until written notice^ of the discontinuance thereof shall be received by said bank. In case of insolvency, bankruptcy or death of one or more signers thereof, it shall continue as- to the others, and the bank may give and continue credit hereunder by making loans, renewing notes or otherwise, unless and until written notice of discontinuance is given by the other signers.
“Grand Rapids, Michigan. Dated January 22, 1917.
“Peter Vanderveen, “Thomas Newhof.”

Defendant Harry Vanderveen was a resident of Grand Rapids, engaged chiefly in the business of highway construction and improvement under contract. For several years he had been a customer and borrower from the Grand Rapids Savings Bank, usually transacting his business there with Brandt, whom he had known for over 15 years. Earlier he had done his banking business with the Kent State Bank where Brandt was then employed, and says “when he came over to the Grand Rapids Savings Bank I went with him.” He was a liberal borrower, had apparently been a fáirly successful contractor and had acquired property, both real and personal, of considerable proportions above his liabilities. A financial statement made by him on March 17, 1914, showed his net worth above liabilities to be about $105,000. Another statement made February 1, 1916, showed over $150,000. Brandt, who appears to have been a friend and sponsor for him, testified that he had a $35,000 line of credit at the Kent State Bank when Brandt was there, “and he said if I would give him the same line he would come here with his business, so I gave him that .same line.” He continued thereafter a customer of the bank for some seven years, during which time Brandt was its vice-president.

The $35,000 line of credit Brandt gave him was maintained at the Grand Rapids Savings Bank for a considerable period, with indicated satisfactory results to both parties while not exceeded, but later his expanded undertakings and financial needs seem to have grown beyond his reasonable resources and credits. In the spring of 1916 he owed the bank the full amount of his $35,000 line of credit unsecured, $18,000 of notes with collateral security and $15,000 secured by mortgage, while his unsecured indebtedness to the bank on September 9th of that year had increased to $48,000.

In 1916 he was carrying on contract operations in Benton Harbor, Ypsilanti and Pontiac, the amount of which is not shown, and during the first six months of the year entered into contracts for work in Monroe county amounting to over $530,000 for the faithful performance of which he gave bonds obtained from a surety company. These large obligations, comprehending operations on a larger scale than he had ever before undertaken, as he admitted, affected his financial standing with the bank as viewed by its directors. Some time during that summer, in August as he testified, Brandt told him “I had to have security for any further advances, * * * told me he couldn’t let me have any more money until I gave him collateral of some kind or security.” Upon this they substantially agree, although at variance in certain other particulars. He then promised to give whatever security was desired and states that Brandt asked for security upon the so-called “Robinson road property,” as to which they agreed. The Robinson road property is that involved in the trust deed agreement before mentioned, foreclosure of which as a mortgage was asked and granted in this suit. In telling of that transaction Vanderveen testified in part as follows:

“If my recollection is right, Mr. Brandt loaned me another ten thousand dollars before the papers were finally completed.
“Q. And that was because you had to have it for the needs of your business, a larger amount than you had been accustomed to borrowing?
“A._ No, I don’t know; you might let me say here, at any time I never was turned down and I don’t know how much I did owe the bank at any one time in the past, so there wasn’t any custom about it; it was the amount I required and I was never turned down any time; I wanted money; I got it.”

The Robinson road property was valued by Vanderveen in his statement of February 1, 1916, at $35,000. He held it under a land contract from a man named Hanna. There yet remained unpaid upon said contract $4,000. Arrangements were made between the interested parties by which Hanna deeded the property to. Brandt to hold as trustee for the bank, and the bank paid Hanna the $4,000 yet owing him under the contract. Vanderveen then gave the bank his note for that amount. A trust agreement embodying the details and terms of the transaction was thereafter executed between Vanderveen and Brandt. The deed from Hanna to Brandt is dated September 9, 1916. The trust agreement was drawn up by Roger W. Butterfield, an attorney and one of the bank’s directors, and executed by the parties October 28, 1916.

This instrument makes mention in its introductory recitals of Vanderveen’s indebtedness to the bank upon notes given it by him aggregating $35,000, which as before noted had been the limit of his line of unsecured credit, of the $8,000 more secured by collateral and $10,000, so secured, states that he desires the bank to advance him the $4,000 necessary to complete his payment for the land offered as security and to make him certain new loans not to exceed in the aggregate $25,000, and that the bank is willing to do this, “provided that the entire indebtedness of the said Harry Vanderveen, except the collateral loans above mentioned, are secured.” Passing from the recitals, the agreement then makes the deed held by Brandt in trust for the bank in effect a blanket mortgage to secure Vanderveen’s present and future indebtedness to it, with certain exceptions and within a fixed limit, as follows:

“The said second party (Harry Vanderveen) agrees to pay, in accordance with their terms, all notes now or hereafter held, during the life of this instrument, by the Grand Rapids Savings Bank, with the interest thereon, according to the terms thereof, and all indebtedness of the said Harry Vanderveen to said bank, irrespective of the character of the paper by which it is evidenced, and all new notes, new loans, or renewals thereof. Provided, however, that the sum or sums hereby secured shall in no case exceed the aggregate of sixty thousand dollars ($60,000), it being the intent hereof that said deed and this instrument shall be a continuing security for all and every part of the indebtedness of the said Harry Vanderveen to said bank, except the notes for eight thousand dollars ($8,000) and ten thousand dollars ($10,000) secured by collateral as aforesaid, until the same is fully paid and discharged, according to the terms thereof. It is expected that the notes evidencing said indebtedness or some of them, may be renewed from time to time, but such renewal shall not affect the security herein provided for, nor shall any agreement, to renew such notes be inferred from this instrument.”

Harry Vanderveen’s Monroe county contracts resulted disastrously to him. He testified on cross-examination that his efforts to carry them out ceased in- July, 1917, when the county notified him it had taken over the work and would proceed to complete the contracts, and those of his men who remained on the job thereafter worked for the surety company; that when he ceased operations he owed the Grand Rapids Savings Bank about $90,000, excluding the two notes before mentioned of $8,000 and $10,000 secured by collateral and two mortgages of $15,000 and $25,000, respectively, which are not involved in this controversy, except as the trial court apparently refers to the latter mortgage, given May 14, 1917, as taken for a loan of $25,000, to secure which the guaranty was offered and rejected.

The trial court found the instrument of guaranty was delivered to Brandt by Harry Vanderveen to be held as security for a further loan to him of $25,000 and said in part:

“The guaranty was executed and delivered to Mr. Brandt, who took it before the board of directors at a meeting some time in January, 1917. The board refused the loan and referred the matter of future credit to Mr. Butterfield, and on Mr. Butterfield’s report the loan was made on the real estate security offered by Harry Vanderveen at the time the guaranty was suggested by Mr. Brandt. * * *
“It clearly appears from the evidence that the understanding and intention of all the parties was that the guaranty was given as an inducement for and in consideration of a further loan of $25,000 to Harry Vanderveen. * * *
“It is my conclusion from the testimony, which is practically undisputed, that the instrument of guaranty was never accepted in law or in fact by the bank and therefore no liability arises thereunder against the defendants Peter Vanderveen and Thomas Newhof.”

Finding that granting a further loan of $25,000 was “the first and main consideration” the court held, “the fact that some of the officials of the bank retained the guaranty and treated it as security for renewals and other past indebtedness” would not bind the guarantors.

We are unable to follow the court’s conclusion that the instrument of guaranty was never accepted by the bank is practically undisputed. Defendant’s claim of non-acceptance finds its support in the testimony of Harry Vanderveen that Brandt so told him, which is denied by the latter with other evidence, both oral and written, tending to show that it was accepted by the bank in good faith according to its terms. The instrument itself signed by the guarantors uninfluenced by any one connected with the bank negatives the proposition that it was given exclusively, or primarily, to secure a future loan of $25,000. The only mention of that amount is as a limit of the guarantors’ liability. To the amount they guarantee payment of “any indebtedness” of Harry Vanderveen, “whether direct or contingent, now or hereafter owing said bank” by him, and agree “to indemnify said bank against any loss thereon,” also agreeing that the guaranty “shall continue until written notice of the discontinuance thereof shall be received by the bank.” Peter Vanderveen is a brother of Harry, while Thomas Newhof is a compatriot and friend. Both were business men of mature years and recognized financial standing, presumptively possessed of the common knowledge as to indorsements and other obligations in' writing which business experience brings, including banking methods learned while customers at this bank and others. They did their banking at this bank and Newhof was himself a borrower there. The provisions of the guaranty are plainly expressed, within the scope of a business man of ordinary understanding. They executed it at the instance and for the accommodation of Harry Vanderveen, unsolicited by any officer of the bank and with the knowledge that he was a borrower there. No written qualification aa to its purpose or import, limiting it to a particular loan or otherwise, accompanied it or was later served upon the bank to which it ran. Vanderveen delivered it at the bank to Brandt. What passed between them was oral and is in dispute. It was in fact filed as bank security and entered in its records of guaranty bonds as its property under date of January 22, 1917, and later transferred to a new book of live guaranties. The following year, on February 13, 1918, notice that it was held and in full force was mailed to the guarantors according to the usages of the bank in such cases. Newhof denied receipt of this notice, while Peter Vanderveen testified he did not recall its receipt. Both admitted receipt of such notice the following year.

Upon the instrument’s acceptance by the controlling bodies and officers of the bank at its face value without knowledge of any qualification the following evidence is undisputed. Gilbert L. Daane, a member of the board of directors and also a vice-president, testified that at the first meeting of the board after he became an officer, held in January, 1917, various matters relating to the nature of securities held by the bank were brought up and gone over as was customary at such meetings, including this guaranty of Vanderveen’s, and “it was brought out at the meeting that we were not quite satisfied with the amount of money Harry Vanderveen had, with the security we had to protect it;” that a discussion came up. and one of the directors inquired as to the financial worth of Mr. Newhof, to which Brandt replied he had evidence Newhof was worth $100,000. Nothing was said at that meeting about a new loan. At a meeting of the bank’s credit, or discount, committee shortly after January 22d, Brandt called attention to the guaranty, given primarily, as he claimed, to secure what Harry already owed, as also for any other purpose covered by its provisions. The committee so accepted it, as it read, without knowledge of any claimed oral conditions as to additional loans. Brandt did ask the board to grant Vanderveen further loans to the extent of $25,000, claiming that with his existing loans thus amply secured he was good for further credit. The board was adverse to increasing his loans and declined to extend him further credit, but on Brandt’s insistence that he would pull through, was good and could give further security for what he borrowed, the matter was referred to Mr. Butterfield, resulting ultimately in an additional loan of $25,000 secured by the mortgage of May 14, 1917. William Alden Smith, president of the bank, testified that he was familiar with this guaranty held to secure Vanderveen’s indebtedness and in September, 1918, had occasion to refer to it when pressing Newhof for payment of his own past due indebtedness, as to which he was very neglectful; that he insisted on Newhof paying a past due $10,000 note, emphasizing that with his obligation on Harry Vanderveen’s bond for $25,000 his indebtedness to the bank was too large and must be reduced to the amount of that bond, in reply to which Newhof said “I am good for it”; that there was then no question about his liability on the guaranty, saying, “He made no dispute, in fact acknowledged his obligation on that bond to me. I think he told me he would pay his half. I am quite sure of it. I say I think so in order to be cautious.” Newhof, on cross-examination, testified he said something to Smith on that occasion, but when pressed as to details and what he said about them replied: “That is what I don’t know.”

In view of the foregoing and other testimony of like import we are not convinced it clearly appears from the evidence it was the “understanding and intention of all the parties” that the guaranty was given in consideration of a further loan of $25,000 to Harry Vanderveen, whose testimony that it was requested and delivered by him to Brandt exclusively for that purpose must be accepted as conclusive to sustain that view. Hist business at the bank was done mostly with and through Brandt, whose intercession with the board of directors and discount committee had succeeded in obtaining loans beyond what appears to have been his ability to pay. With his enlarged undertakings he was repeatedly importuning Brandt for further loans, while the latter as his then friend and sponsor was trying to help him out. The situation which runs through this story is conservatively stated by Mr. Butterfield as follows:

“Along in 1916, the bank understood that Mr. Vanderveen had entered into very large contracts, and from that time on his very large indebtedness to the bank (which is a fact, and it was continually increasing) was a matter of constant comment and there was a good deal— It came up before the board frequently.”

The stories of Brandt and Vanderveen as to the purpose and occasion of giving the guaranty are in direct conflict. Vanderveen testified that on January 20, 1917, he was at the bank about money, that he wanted $25,000 more — “some right at that time and some in the near future,” that Brandt “said as to why they wanted this guaranty that the bank had advanced me all that they would advance me without security,” suggested an instrument of guaranty and who to get as signers, gave him a blank form which he put in his pocket and got the proposed sureties to sign two days later, January 22d, took it to the bank that day' and delivered it to Brandt, who said “he would have to take it up soon as possible and have it arranged,” that he got no money then or later when he saw Brandt about it, but that late in April he was in urgent need of money and talked with Brandt about it who “brought the guaranty bond, so-called, out of his desk and told me that the credit committee had refused it, that they wanted other security.” He did not take back the guaranty, — “thought it was immaterial— never gave it a thought,” for Brandt most always had some of his papers. On cross-examination he said:

“I have never gone to Brandt or any other officer of the bank and asked that the guaranty be given up * * * Yes, I have, too, I asked to have it given up in July, 1917; that was the first time that my attention was called to it that the bank held this paper. * * * I went to Mr. Brandt for it, or to see about it. I demanded back this paper from Mr. Brandt.”

This is absolutely denied by Brandt, who testified the guaranty was given and accepted to protect existing unsecured indebtedness, as Vanderveen well understood, and the first he ever heard him claim to the contrary was when they were discussing the matter just previous to commencement of this suit and “Harry said ‘That bond didn’t amount to anything and I will prove it. I got money to back it.’ ” That in the fall of 1916 he learned Vanderveen was having trouble with the supervisors of Monroe county over his work not being done according to contract, resulting in his estimates being held back and difficulties with the Monroe bank, that conditions assumed a more unfavorable aspect, and he was apparently “slipping,” the Robinson road property valued in his financial report at $35,000 and claimed by him as worth $40,000 was not deemed adequate security for more than he had already borrowed, and additional security was demanded before he could obtain further loans; to which he agreed, offering real estate security or a chattel mortgage on his contractor’s outfit, which Brandt suggested might impair his standing with his surety company more than would indorsers or a guaranty bond; that Vanderveen agreed with him and proposed the names of his brother Peter and Newhof, whom Brandt thought would be acceptable, and filled out a guaranty form accordingly, except the date, which Vanderveen took away, promising to have it executed by them and return it. That on the strength of such promise several times repeated he let him have loans of $10,000, $5,000 and $1,500, but he in the meantime neglected to return the guaranty until on January 20, 1917, he applied for more money, claiming he would eventually want $25,000. Brandt told him his application would not be considered until he produced the security for his past indebtedness as he had promised, and two days later, on January 22d, he delivered the guaranty with the distinct understanding and agreement that it was to secure past loans, to be taken exactly as it read, and it was so accepted by the discount committee; that he had told Vanderveen if this was done he would try to obtain the additional credit he wanted, and did make request to the board .for it which they declined unless security was given for such loan, and he so advised Vanderveen but never at any time told him the guaranty had been refused, as Vanderveen testified.

These two former friends were examined and cross-examined at length. Whatever may be the inconsistencies • in their testimony as emphasized by skilled counsel of the respective sides, in the particulars pointed out they consistently and directly contradict each other. They are not altogether satisfactory witnesses. An examination of their testimony in detail is convincing that neither ranks as a conservative, impartial and entirely consistent witness in all respects. The best and worst that need be said of their testimony as a whole is that we are unable to find from it that they are not of equal credibility.

In relation to the $25,000 mortgage given in May, 1917, Newhof testified that Brandt told him he would not give Harry any money “before I see you boys get security,” later telling him that he had let Harry “have $50,000 — $25,000 on that note and $25,000 on real estate security,” and the claim is made that this $25,000 mortgage was taken to secure the-signers of this guaranty. Brandt denies making any such statement, but if true it can only be upon the theory that the guaranty was accepted and in full force, while the principal defense in this case is based upon its nonacceptance. It is undisputed that Harry Vanderveen was in urgent need of money in the spring and appealed to Brandt to help him get. it from the bank and Brandt promised to do what he could for him, took it up with the discount committee and claimed that Vanderveen still had real estate which cpuld be safely taken as security. After some discussion and inquiry the matter was referred to Mr. Butterfield to investigate and report upon. Brandt with Vanderveen went to his office to present Vanderveen’s security. The latter at first denied any recollection of an interview with Mr. Butterfield, but on his memory being refreshed, recalled that they did go to Butterfield and he drew up the papers, was certain the mortgage was neither said to be nor intended as security for the guarantors; further than that he was not clear as to what occurred. Of this transaction Mr. Butterfield testified that he went over the whole matter with Vanderveen in detail, as to the character of his property and what it was worth, and it was finally concluded to make him the loan, which “had absolutely nothing to do with this guaranty so far as I ever heard”; that the mortgage “was given for the sole purpose of securing a fresh and distinct loan óf $25,000,” saying:

“So far as the other moneys that he was already owing was concerned the bank relied upon the securities it already had. As to this general line of $65,000 I know that the bank relied on the mortgage and on the guaranty and the collateral security which they had for two notes, and this $25,000 mortgage stood, so far as I ever heard, independently.”

It is also contended for defendants that the guaranty was without consideration because the loans emphasized as secured by it were made before it was given on the strength of the trust deed, and the $25,000 afterwards obtained was secured by a later mortgage. It is true that before the date and delivery of the guaranty Vanderveen had obtained from the bank through Brandt loans amounting to $65,000, secured only by the trust deed covering real estate appraised at $35,000 and never claimed by Vanderveen at more than $40,000. The trust instrument, while naming $60,000 as an amount which should “in no case” be exceeded, does not obligate the bank to loan him that amount. It imposes the express conditions that Vanderveen’s entire indebtedness, except the collateral loans mentioned, shall be secured and that he shall pay all his notes, renewals thereof, etc., past and future, according to their terms. Most of this indebtedness was evidenced by promissory notes, comparatively short-time bank paper, some were on demand while others were for 30 and 60 days, and some perhaps for a longer time, though not distinctly shown. Renewals were contemplated, but it was expressly provided no agreement to renew should be inferred from the instrument. When in October his indebtedness not otherwise secured than by a mortgage on property worth at most $40,000 had reached $46,000 and he applied to Brandt for further large loans, a demand for further security would not seem, under the circumstances shown, improbable or out of harmony with the requirement that Vanderveen’s entire indebtedness should be secured. But assuming he then made no such demand, when on January 20th Vanderveen’s loans not otherwise secured had grown to $65,000, or $5,000 in excess of the amount the instrument expressly provided should in no case be exceeded, and he asked for more large loans, Brandt’s testimony that he then demanded security for existing unsecured indebtedness as a condition precedent to negotiations for further extension of credit in any particular is made yet more probable by the situation shown at that time.

There is abundant evidence of consideration to sustain this guaranty, which covers “any indebtedness whether direct or contingent now or hereafter owing to said bank by said Vanderveen. In reliance on this guarantee he was granted further loans by certified checks which he afterwards paid, extension of credit by repeated renewal of his notes as they fell due covering this entire line of indebtedness, loans to other parties upon notes which he indorsed were granted; after January 22d renewals were granted of notes indorsed by him to the amount of $6,500, which had been given by a hardware concern in which he was interested, as late as September 8, 1917, his note extending time of payment of $1,727.25 was given and accepted for an overdraft and some interest.

The rule is elementary that parol proof is not admissible to contradict or vary the terms of a written instrument, and it is said in Coots v. Farnsworth, 61 Mich. 497, that this rule “should be rigidly enforced in case of bonds, if at all.” Under this rule it is urged for plaintiffs that much of Harry Vanderveen’s testimony relating to oral agreements and understandings between himself and Brandt is incompetent. Conceding the general rule, it is contended by defendants’ counsel that the evidence objected to was admissible to explain and construe uncertain and ambiguous features of the guaranty. We fail to fully recognize the ambiguities contended for, but taking into consideration all of Vanderveen’s testimony, we are unable to conclude from this record, considered in its entirety, that the defense urged against this written instrument is tenable.

That portion of the decree appealed from, dismissing the suit against defendants Newhof and Peter Vanderveen, is reversed, with costs against them to plaintiffs, and a decree may be) entered here granting relief as prayed for in the bill of complaint.

Mooee, Fellows, Stone, Claek, Bied, and Shaepe, JJ., concurred.

The late Justice Beooke took no part in this decision.