text:
    BROWN v. BOLT.
    Mortgage op Crops — Validity—Title op Mortgagor — Parol Lease.
    A mortgage of an undivided, half interest in a growing crop of peppermint, made by one in possession of the land on which the crop is growing, under á verbal contract good for only one year, cannot, as against the owner of the land, be held valid as to the crop grown by the mortgagor the following year, although the owner knew of the mortgage, and permitted the mortgagor to continue in possession the second year.
    Error to Muskegon; Russell, J.
    Submitted January 5, 1898.
    Decided March 1, 1898.
    Trover by Frank E. Brown and John Sehler against Thomas J. G. Bolt. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Wolcott & Ward, for appellants.

      Stephen H. Clink, for appellee.
   Long, J.

This action is in trover,' brought in justice’s court, for the conversion of one-half of the crop of mint grown on the farm of defendant in the season of 1896 by one Sherman Dow, under contract with defendant, by which it is claimed by plaintiffs that Dow was to become the owner of one-half of said crop. The interest of plaintiffs was under a chattel mortgage given by Dow to them. The cause was appealed to the circuit court, there tried before a jury, and verdict directed in favor of defendant. Plaintiffs bring error.

It appears that this contract was made in the spring of 1895, and was to continue three years. The crop of 1895 was gathered, and turned over to defendant for an indebtedness due him from Dow. August 13, 1895, Dow bought some horses and other property from the plaintiffs, to be used in working the farm, and gave them a chattel mortgage of $180, due October 1, 1896, with interest at 7 per cent., on certain property, and on “also four acres, being the undivided one-half of eight acres, of peppermint in the township of Moorland, the peppermint growing on Thomas J. G. Bolt’s farm, said farm occupied by Sherman Dow.” None of this debt has been paid.

It is contended by plaintiffs that this mortgage was not intended by the parties to operate upon the crop of 1895, which was then about ready to cut, but upon the crop of 1896, and was made to mature at a time not long after the crop of 1896 would mature; that, shortly after giving this mortgage, Dow informed Bolt that he had mortgaged the crop of 1896; that Bolt had full knowledge of the purchase of the horses by Dow, and of the giving of the mortgage, and made no objection. Bolt kept a distillery, and was to distill the mint at 20 cents per pound. The crop of 1896 was harvested, and taken to the distillery, and distilled by Bolt, who kept his share, and also the share of Dow, claiming to hold it to make himself good for advances to Dow to enable him to carry on the business, and also claiming to hold it for. the cost of distilling. The defense was that the mortgage covered the crop growing on the land in 1895, and not in 1896; that the contract for the cropping of the'farm was not in writing, and could not extend beyond one year; that it was extended only by the agreement of the parties thereafter made, or by Dow’s holding over another year, with the acquiescence of defendant; that Dow had therefore no interest in the land or crop for the year 1896 at the time the mortgage was given, and hence had nothing to mortgage; that the testimony shows that the defendant retained the ownership of all the crops until his advances were paid by Dow, and then, and not till then, was he to turn the balance, over and above such advances, over to Dow. Again, it is contended that defendant had a lien upon the crop for the cost of distilling. The court below must have taken the view of the case as claimed by defendant's counsel, as a verdict was directed in defendant’s favor, on the ground that, from the undisputed evidence, the plaintiffs had not made a case.

It appears that mint grows from roots planted. This planting was done in 1895, and two or three crops could be raised from one planting, and in fact the crop of 18 96 was raised in that way. We are satisfied that the mortgage did not cover the crop of 1896. It was given before the crop of 1895 was harvested, and during the first year’s occupancy by Dow. At that time Dow had no more interest in the crop of 1896 than a stranger. His contract was not in writing, and was valid for only one year. It expired before the crop of 1896 was grown, and could not be renewed except by the acquiescence or agreement of defendant. It happened that he remained over by the acquiescence of the defendant, but that did not give validity to the mortgage. The fact that defendant was informed of this mortgage would not estop him from setting up his right to the crop as against the mortgage.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    KNEELAND v. HULL.
    1. Taxes — Description op Lands — Lots Assessed Together.
    Act No. 206, Pub. Acts 1893, § 25, subd. 4, provides that platted lands may be described in the assessment roll by reference t'o the plat, and by the number of the lots and blocks thereof. Subdivision 5 provides that when two or more parcels adjoin, and are used and occupied together, they may be assessed by one valuation. Section 53 provides that a part owner of property assessed as one description may pay on the part owned by him. Section 66 empowers the court, before decreeing the sale of lands of different owners which have been assessed together, to separate the same, and apportion to each parcel its just proportion of the taxes. Section 70 provides that each parcel described in the decree shall be separately exposed to sale for the total taxes, interest, and charges. Held, that where several platted lots have been properly assessed as one description, and the tax extended against that description as a whole, it is proper to treat it as one parcel in subsequent proceedings.
    2. Same — Validity of Assessment — Effect of Decree.
    When a decree is entered against such a description as one parcel, it is a determination of the legality of the assessment.
    3. Same — Conflict Between Tax Record and Treasurer’s Certificate.
    In case of conflict between the tax record and the county treasurer’s certificate of sale as to the interest in the land sold, the former will control.
    4. Same — Tax Deed — Error in Description — Correction.
    A tax deed issued under the law of 1893 will not be held absolutely void, in a suit to quiet title based thereon, because it purports to convey the entire land, when in fact only an undivided interest was sold, but the error may be corrected by the decree in such suit.
    Appeal from Grand Traverse; Corbett, J.
    Submitted January 5, 1898.
    Decided March 1, 1898.
    Bill by Fred A. Kneeland and John H. Cole against Francis H. Hull and George E. Sprang to quiet title. Defendants filed an answer in the nature of a cross-bill. From a decree for defendants,' complainants appeal.
    Reversed.

      Twedclle & Cross, for complainants.

      B. T. Halstead and Charles F. Hull, for defendants.
   Montgomery, J.

Complainants filed a bill in the circuit court of Grand Traverse county, in chancery, to quiet title to lots 71, 72, 73, 74, and 75 of block 3 of Oak Park addition to the village of Traverse City, relying upon a deéd made by the auditor general on a sale made on decree entered in December, 1895, for the taxes of 1893. Defendants filed an answer in the nature of a cross-bill, asking to have the deed to complainants declared a cloud on defendants’ title, and set aside. The objections taken to the proceeding were two: First, that the deed to complainants covered ■ the whole of the lands, whereas the record of sale shows that but five-sixths of the lands were sold; and, second, that the sales were not made in parcels, but the five lots were offered in a body. The decree below was in favor of defendants. The complainants appeal. The case turns upon the validity of the two objections to the tax proceedings above stated.

1. Subdivisions-4 and 5, § 25, Act No. 206, Pub. Acts 1893, provide that “in case of land platted or laid out as a town, city, or village, or as an addition to a town, city, or village, the same may be described by reference to such plat, and by the number of the lots and blocks thereof. * * * When two or more parcels of land adjoin and are used and occupied together, they may be assessed by one valuation.” Section 53 provides that any person owning an undivided share or any other part or parcel of property assessed as one description may pay on the part thus owned. Section 66, regulating proceedings on nearing of the petition before the court, provides that, “If the lands of two or more persons have been assessed together, the court may, if practicable, separate the same, and apportion to each parcel its just proportion of the taxes, interest, and charges.” By the same section it is provided that the court,shall determine the amount chargeable against each parcel of land, and shall order and decree that such several parcels of land, or so much of each as is necessary to satisfy the amount fixed, shall severally'be sold as the law directs. Section 70 provides that each parcel described in the decree shall be separately exposed to sale for the total taxes, interest, and charges. "We think it is manifest from these provisions that, under certain conditions, it is permissible to assess several platted lots as one description, and that in such case the tax is extended against this description as a whole, and that, when this is done, this description, although consisting of more than one platted lot, is treated as one parcel in the subsequent proceedings. We also think that, when a decree is entered against such a description as one parcel, this is a determination of the legality of the assessment.

2. It is contended by the complainants’ counsel that the record shows that the complainants really purchased at the tax sale the whole of these lots; but we do not agree with the contention. The record of the county treasurer shows a sale of five-sixths. Section 70 provides for this entry, and the certificate should be based upon it. When the two conflict, we think the entry of the sale should be treated as the original entry.

Should the deed be treated void as a whole ? No good reason occurs to us for so holding. True, we are cited to cases and text writers holding that statutory provisions should be construed strictly, and that strict construction is necessary in order to divest the original owner of his title; but these authorities have little force when sought to be applied to the present case. In this case we have a chancery sale of land on a valid decree, and, by mistake, the entire land was conveyed, instead of a five-sixths interest. It would seem clear that exact equity requires that this error be corrected.

The decree below will be reversed, and decree entered here declaring the complainants entitled to a five-sixths interest in the lands. Neither party will recover costs below. Complainants will recover costs of this court.

The other Justices concurred.


text:
    PARKER v. BARKENOWITZ.
    Fraudulent Conveyances — Husband and Wipe — Secret Trust —Valid Consideration
    A husband’s parol agreement that lands purchased in his name shall eventually be exchanged for a homestead, which shall be taken in the name of his wife, does not operate to discharge a deb't that he is owing her, so as to prevent him from thereafter conveying such lands to her in payment of the debt as against other creditors, who set up the invalidity of the secret trust.
    Appeal from Wayne; Donovan, J.
    Submitted January 5, 1898.
    Decided March 1, 1898.
    Bill by Thomas A. Parker against Oscar Barkenowitz and wife, in aid of execution._ From the decree rendered, complainant appeals.
    Affirmed.

      Edward McNamara, for complainant.

      John A. Mattheios, for defendants.
   Montgomery, J.

Complainant, as a judgment creditor of Oscar Barkenowitz, caused a levy to be made on three lots in the city of Detroit, which had been on the 16th of December, 1896, conveyed by defendant Oscar to his wife, the co-defendant, Susie. The bill in this case was filed in aid of execution. One of these lots, viz., lot 60 of the Pulford subdivision, was purchased in the name of the defendant Oscar on the 16th day of July, 1887. The other two lots, being 300 and 301 of the Harrah subdivision, were purchased, and a deed executed to the defendant Oscar, in 1892. The circuit judge held that the lot in the Pulford subdivision should be subjected to complainant’s execution, and sustained the bill to this extent, but sustained the title of the defendant Susie to the Harrah lots. Complainant appeals. Defendants do not appeal.

The rights of the parties as to the Pulford addition lot are not open on this record, and the transactions relating to this lot need not be considered, except as they may bear on the rights of the parties in the two remaining lots. The evidence shows that before the marriage of the defendants, in 1884, defendant Oscar had been in business, and was indebted in some small amounts; that after his marriage, in 1885, his wife engaged in the confectionery business at Chatham, Ontario, under the following circumstances: Both, it seems, were skilled in the business. Neither had any capital. A friend made a loan to Mrs. Barkenowitz, with which a business was opened in her name, she devoting her time to the work, defendant Oscar assisting her. Both testify that the business was done in her name, the bank account kept in her name, and the husband paid six dollars a week for his services. In 1888 the business was sold out, and about $1,100 realized. The parties then removed to Detroit, and the husband engaged in business for himself. In the meantime the lot in the Pulford addition had been purchased and the title taken in the name of the defendant Oscar, apparently with the consent of his wife. The agreement as to this was that lots should be purchased, and, when sufficient in value should be acquired, they should be exchanged for a homestead, which should be taken in the name of Mrs. Barkenowitz. The circuit judge was of the opinion that as to this lot the transaction amounted to a secret trust, which established no equity in Mrs. Barkenowitz superior to or equal to the creditors; and on the authority of Township of Maple Valley v. Foley, 113 Mich. 622, and Iseminger v. Criswell, 98 Iowa, 382, held complainant’s equities superior to those of defendant Susie as to this lot. Complainant’s counsel contends that the same consideration should rule the case in complainant’s favor as to the Harrah lots.

It appears, however, by the undisputed testimony, that the business at Chatham was conducted in the name of Mrs. Barkenowitz; that the bank account was kept in her name; and that, when the business was closed, the avails were paid to her, and by her loaned to her husband. There can be little doubt on this record that both defendants, up to the time of the sale, understood that the avails of the Chatham business belonged to Mrs. Barkenowitz. It does not appear that his prior creditors attempted to reach the property, and it is clear that subsequent creditors could not have done so. Hedstrom v. Kingsbury, 40 Mich. 636. Defendant Oscar, when he commenced business 'in Detroit, became indebted to his wife for the amount of the proceeds of the Chatham property. There is no evidence that it was a gift. On the contrary, both testify that it was a loan. These facts distinguish the case from Iseminger v. Criswell, relied upon by complainant’s counsel. Assuming the existence of this indebtedness, does the fact that the two Harrah lots were bought in the name of Oscar, with the purpose of turning them into a homestead to be taken in the name of his wife, discharge the debt ? It is true the attempt to create a trust was ineffectual, but, this being so, it would be a severe penalty to treat the transaction as a discharge of the debt.

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

The other Justices concurred.


author: Montgomery, J. Montgomery, J.

text:
    FAIRBAIRN v. MOODY.
    1. Mechanics’ Liens — Payments to Contractor — Estoppel.
    A subcontractor is estopped to assert a mechanic's lien as to payments that have been made by the owner to the contractor in reliance upon the subcontractor’s expressed desire that they be so made.
    2. Same — Owner’s Risk — Distribution op Fund.
    Under section 1 of the mechanic’s lien law (Act No. 179, ' Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893), providing that the owner shall not be liable to any subcontractors, material men, or laborers for any greater amount than he contracted to pay the original contractor, but that the . risk of all payments made to the original contractor before the expiration of the period within which claims for liens may be filed, without the latter’s having furnished a sworn statement as to the number and names of subcontractors, etc., shall be upon the owner, and that such payments shall not defeat any lien unless distributed among the subcontractors, material men, or laborers, “or, if distributed in part only, then to the extent of such distribution,” the owner is not protected in such payments, though they equal the full contract price, and are distributed for labor and materials, if the distribution is not made pro rata among all those entitled to the fund.
    3. Same — Claim op Lien — Variance.
    The lapse of a day between the date and the filing of an affidavit and claim of lien, under section 5 of the act, will not invalidate the lien.
    4. Same — Service Upon Owner — Substantial Compliance.
    Service of a copy of a claim of lien upon the owner on the day of its date, being the day before it is filed, is a substantial compliance with the provision of the statute requiring such service to be made within 10 days after filing.
    5. Same — Excessive Claim — Mistake.
    A mechanic’s lien is not invalidated because the claim of lien, through an honest mistake, was for an excessive amount.

      ON rehearing.
    1. Mechanics’ Liens — Contract Price — Pro Rata Distribution Among Claimants.
    Where the claims of subcontractors, material men., and laborers exceed the contract price, the amount for which a lien may be enforced by one who has received payments upon his claim, and who has estopped himself from claiming a portion of the balance, is limited to the amount in which his pro rata share of the whole exceeds the aggregate of the payments made and the sum he is estopped from claiming.
    3. Rehearing — Costs.
    Where the court, in determining the amount for which the complainant in lien proceedings was entitled to a decree, overlooked the fact that certain payments had been made upon the claim in question, making an application for rehearing necessary, no costs of the rehearing were allowed. ■
    Appeal from Wayne; Donovan, J.
    Submitted January 6, 1898;
    original opinion, for reversal, March 1, 1898.
    Rehearing granted May 4, 1898;
    final opinion, modifying the earlier one, May 24, 1898.
    Bill by Thomas Fairbairn against George T. Moody, John J. Warren, and the Kalamazoo College, to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James PL. Pound, for complainant.

      T. T. Leete, Jr., for defendant Moody.
   Montgomery, J.

Complainant filed a bill to enforce a mechanic’s lien. The bill was taken as confessed by the defendants Warren and the Kalamazoo College. The defendant Moody answered, setting up a claim of estoppel. The circuit judge dismissed the bill, and the complainant appeals.

The evidence to show an estoppel was in substance as follows: The complainant was a subcontractor. After the work was completed, he stated to the architect, Mr. Mills, that he was anxious to get the matter closed up, and that he wished that Mr. Moody would hurry up and pay Mr. Warren, so that he (complainant) could get his money out of Warren. Subsequently the architect gave Mr. Warren the usual certificate, and Mr. Moody paid him the full amount remaining due. The architect testifies that he stated to Mr. Moody that complainant stated that he was anxious to have him give the certificate, so that Warren could get his money, and Mr. Moody testifies that Mr. Mills told him this, and that it was because of this conversation that he did pay Mr. Warren. It is true there are other portions of Mr. Moody’s testimony which tend to show that he did not pay the money in reliance upon the statement made to Mr. Mills and reported to him; but he subsequently corrects such statements, and affirms that they were made because of a failure to comprehend the questions of counsel. We think the evidence fully shows that the last payment was made in reliance upon this request of complainant, and the circuit judge’s finding to that effect should be affirmed. This payment was $204.92, and complainant’s claimed lien amounted to $300, leaving a balance of $95.-08 as to which the defense of estoppel does not apply. It therefore becomes necessary to inquire whether there are defects in the proceedings.

It is claimed that, as the full contract price was paid, and all distributed for labor and materials, there can be no further lien; but under section 1 of the mechanic’s lien law, Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893, the owner is not protected in payments made to the principal contractor, in the absence of a statement on oath by the contractor, showing the names of the subcontractors, etc., and such payments are made at the risk of such owner, and do not discharge the lien, unless distributed by the contractor among the subcontractors, material men, and laborers, “or, if distributed in part only, then to the extent of such distribution.”

It is also claimed that no preliminary notice of the intention to furnish material was served. It is true no notice was served prior to the furnishing of material, but section 1 provides that such notice shall be sufficient if served at any time after the 10 days, but before the original contractor furnishes the statement under oath required by the same section. Such a notice was served later in the present case.

The affidavit and claim of lien referred to by section 5 was sworn to on the 20th of October, and appears to have been filed on the 21st. It is claimed that this difference in dates invalidates the lien. Counsel relies on the analogy between these proceedings and attachment cases, and cites Drew v. Dequindre, 2 Doug. (Mich.) 93, and McPherson v. McGillis, 93 Mich. 525. We think these cases ought not to rule this. The purpose of this filing is to furnish notice. The owner is not deprived of the possession of property on the strength of this affidavit, and we do not think the lapse of a day between the date and the filing should invalidate the notice.

It is also said that the service of the notice of filing this lien was premature, as it was served on the day of its date, and before filing, whereas the statute provides that the notice must be served within 10 days after filing; but we think this a too technical construction of the statute. The purpose of the notice was subserved in this case.

It is also urged that the claim of the lien was excessive, as it was stated at $331. We are satisfied of the good faith of complainant in this regard, and the mistake does not invalidate the lien.

It appears that the total cost of the work to the principal contractor was substantially $3,500. The contract price was $2,700, which has all been paid. Had this been distributed pro rata to the subcontractors, material men, and laborers, complainant would have received substantially 27-35, or $73.31, for which amount he is entitled to a decree. Complainant will recover costs.

The other Justices concurred.

ON REHEARING.

Montgomery, J.

A rehearing was granted in this case, and briefs have been filed by both counsel. The defendant’s counsel says:

“Every dollar of the contract price has been distributed for labor and materials furnished in making the improvements. Under the statute, this would appear to be a complete defense; but the court has practically read into the statute the condition that the distribution must be pro rata.”

We have the misfortune to have been misunderstood by counsel. The court has read nothing into the statute. We have construed the language employed in the statute itself. By the plain provisions of the statute, payments made by the owner “before the contractor shall have furnished him with a statement as hereinbefore provided” shall be at the owner’s risk. “ And no payment made to any contractor before the expiration of 60 days shall defeat any lien of any subcontractor, material man, or laborer unless such payment has been distributed among the subcontractors, material men, or laborers, or, if distributed in part only, then to the extent of such distribution.” What is meant by “ distribution ? ” The definition given by Webster is: “The act of distributing or dispensing; the act of dividing or apportioning among several or many; apportionment; as the distribution of an estate among heirs or children.” It cannot be said that the payment to one of the entire contract price would amount to “distribution,” nor is it doubtful that the term as here employed means a distribution among all entitled to take; otherwise the provision is meaningless, and affords no protection to the laborer or subcontractor.

But it is contended that an error occurred in applying the principle to the former decision. It appears that the actual cost of the building was $3,535; the contract price $2,704. Complainant’s pro rata share would be $576.13. Four hundred dollars-had been paid on this contract, and complainant would have been equitably entitled to receive $176.13 more. There was in the hands of the owner the sum of $204, which the court below held was paid to the contractor under such circumstances as to estop the complainant. We think defendant’s contention in this respect must be allowed. It was an error to consider the balance of complainant’s claim only, and this is the manner in which the mistake in computation, occurred.

The decree of the court below dismissing the bill will be affirmed, with costs. As this rehearing was made necessary by our own error, no costs will be awarded for the rehearing.

The other Justices concurred.

       See Blitz v. Fields, 115 Mich. 675.


author: Hooker, J.

text:
    WILLIAMS v. BAKER.
    Fraudulent Conveyances — Consideration—Partnership.
    Where a partner executed and filed a mortgage upon the firm stock in favor of one -whose money he had been handling as agent, and in the capacity of agent accepted the same for the mortgagee, justif ying the transaction by the claim that he had applied certain of the mortgagee’s funds to the use of the firm, such mortgage was held fraudulent at the suit of a creditor who was at the time of its execution pressing the firm for security, and who immediately afterwards accepted a mortgage upon the same stock, it appearing that the only evidence, aside from the testimony of the mortgaging partner, which was not convincing, to show that the claimed consideration ever passed to the firm, was a statement in a book wherein he kept his accounts as agent that his principal had received a firm note for the amount, and, on the date of the mortgage, an entry of interest therein.
    Appeal from Lenawee; Lane, J.
    Submitted January 6, 1898.
    Decided March 1, 1898.

      Bill by William C. Williams and others against Horace Baker, Daniel T. Hall, Abbie Fisher, Minor Davidson, W¡ F. Baker, and H. H. Baker, to foreclose a chattel mortgage, and to set aside other chattel mortgages as fraudulent. From a decree for complainants, defendant Abbie Fisher appeals.
    Affirmed.

      William F. MeOorkle (Watts, Bean & Smith, of counsel), for complainants.

      James W. Wightman (Morgan & Priddy, of counsel), for appellant.
   Hooker, J.

The defendants Hall and Horace Baker were copartners, doing a retail drug business, and were indebted to the complainants for goods sold by the latter to the former. A representative of the complainants called upon defendant Hall, in the early morning of the 20th day of November, 1S96, and asked for security; and, after some discussion, the subject was finally deferred until afternoon, the defendant Hall finding an opportunity meantime to execute upon behalf of his firm, and file with the proper officer, Three chattel mortgages upon the stock of his firm. On meeting complainants’ agent in the afternoon, Hall informed him that he had executed and filed, these three mortgages, and, upon request, executed and delivered to him, for the complainants, a mortgage upon the same property, for their claim, and this was filed. Subsequently, the bill in this cause was filed to foreclose this mortgage; and the three earlier mortgagees defended, but were defeated in the circuit court, relief being granted to the complainants in accordance with the prayer of the bill. The defendant Fisher only has appealed, and no questions arise in relation to the other mortgages, except as the circumstances surrounding them throw light upon the transaction in which the Fisher mortgage was executed.

The three mortgages were given to Abbie Fisher, Minor Davidson, and W. F. and H. H. Baker. It was claimed. that the Davidson mortgage was given to indemnify him for signing a note of $1,000 for Baker & Hall; while that to the Bakers was to secure them upon an agreement to support their father, Horace Baker, who was, and for a year or two had been, paralytic. The mortgage to Mrs. Fisher was for $1,342. Hall was the agent for Mrs. Fisher, whose husband had confided his business matters to his care; and, after his death, Hall was the trusted adviser of Mrs. Fisher, and had possession of her property, with full authority to invest it. It is claimed that the amount had been applied to the uses of Baker & Hall. Hall so testified, and Baker admitted that he knew of such a claim, though he did not personally know of the fact. This is denied by complainants, and though, of necessity, they are unable to produce witnesses wdio can dispute the fact, they assert that the testimony does not clearly show it, and that it is more probable that Hall used Mrs. Fisher’s money for his own purposes, and never loaned it to or used it for the firm. Each party accuses the other of suppressing the cash-book, upon which they agree that the payment of this money to the firm should appear.

Counsel for the defendant say that the court should not determine whether Mrs. Fisher’s money went into the business of Baker & Hall, and that it will be sufficient to find that Hall, as agent, had authority to loan the money to the firm, and to accept for her a mortgage, and the further fact that complainants’ mortgage was taken with knowledge of Mrs. Fisher’s prior mortgage. We are of the opinion that, if Baker & Hall did not receive or use any of Mrs. Fisher’s money, this mortgage was a fraud upon their creditors, and that this is an important question in the case. It is clearly shown that Hall, by subterfuge, gained time and opportunity to make and file the three mortgages before giving the mortgage to Complainants. If these three mortgages were given to secure honest obligations, his conduct may have amounted to no more than preferring certain creditors, which might, perhaps, be sustained, though his conduct was not ingenuous. Hall’s testimony as to the loan is not convincing. He is unable to say just when the money was loaned. He had a book upon which Mrs. Fisher’s loans and business transactions were kept, but there are no such items upon it, except the státement that in February, 1896, she received Baker & Hall’s note for the amount, and, on the date of the mortgage, an entry of interest. Hall testified that the money was paid at different times, and the only written evidence of these that he mentions is a cash-book kept by the firm, and that cannot be found.

We think that the conclusion reached by the circuit judge, upon testimony given in his presence, was a just one, and it is therefore affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    MELOCHE v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO.
    1. Carriers- — Acceptance of Goods for Transportation — Liability.
    A railroad company becomes immediately liable as a common carrier, where goods properly marked for shipment are placed inside its freight depot for immediate transportation, with the agreement by its agent that they will be shipped the following morning, although no shipping bill or written contract is given.
    2. Same — Express Contract — Custom.
    Where plaintiff in an action against a carrier of freight relies upon an express contract for the transportation of goo'ds, a custom cannot change its terms.
    .3. New Trial — Excessive Yerdict — Appeal.
    The action of the circuit judge in denying a motion for a new trial, based upon the alleged excessive character of the verdict, will not be disturbed on appeal, where some of the ■evidence, which is very conflicting on the question of dam- ' .ages, fairly tends to support the verdict.

      Error to Marquette; Stone, J.
    Submitted January 7, 1898.
    Decided March 1, 1898.
    Case by Hercules N. Meloche against the Chicago, Milwaukee & St. Paul Railway Company to recover the value of goods destroyed by fire while in defendant’s depot. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. S. Hill and Gad Smith (H. H. Field, of counsel), for appellant.

      Potter & Sedgwick (A. B. Fldreclge, of counsel), for appellee.
   Long, J.

Plaintiff is the survivor of the firm of Meloche Bros., who, prior to August 25, 1896, carried on a drug business in the village of Ontonagon, this State. Some days before that time, the firm had closed its drug store, and packed the goods for shipment to Ishpeming, and in the forenoon of that day had them carted to the defendant’s freight depot for shipment over its road to Ishpeming. In the afternoon of the same day, a fire occurred in Ontonagon, destroying almost the entire village, and burning defendant’s freight depot, together with the goods of Meloche Bros. This action is brought to recover the value of the goods so destroyed. The principal defense was that the goods had not been delivered to or accepted by the defendant at the time of the fire. The plaintiff testified that he delivered them at the depot on the morning of the day of the fire; that the packages were directed to “Meloche Bros., Ishpeming, Mich.,” and that he requested immediate shipment; that the agent of the defendant agreed to ship them, and send a shipping bill next day to him, at Ishpeming. The defendant introduced testimony tending to show that the goods were not marked, and that, when plaintiff requested shipment, it absolutely refused to ship them until the same were marked. The court instructed the jury that the first question for them to determine was:

“Were those goods, after being marked, as claimed by plaintiff, delivered to and accepted by the defendant, to be transported to Ishpeming? If you say, ‘No,’ that is the end of the case. * * * If you say, ‘Yes,’ then the only other question for you to decide is, What was the value of the goods then and there ? ”

The court further charged:

‘ ‘ If there is a recovery at all, it must be because those goods were fully and fairly delivered" into the possession of the defendant as common carrier, and accepted by it as such, under the promise that it would forward them to Ishpeming. That would constitute an acceptance by it as common carrier. Common carriers of freight are liable, whether careful or not, for any act or damage not caused by the act of God or the public enemy. Their liability does not arise from negligence, or want of care simply. It arises from their failure to make an absolute, safe carriage and delivery, which they insure by their undertaking. * * * The fire was not such an act of God as would excuse the defendant.”

Counsel for the defendant contend that the court was in error in refusing to direct a verdict for the defendant, and in the charge as given. It appears from the testimony of the plaintiff that, the day before the goods were left at the depot, he went there, and had a talk with Mr. Mathews and Mr. Jones about the shipment, and ascertained the rate. After the goods were in the depot, he again went there, and saw these parties, Mathews and Jones, from whom he had ascertained the rate the day before. They then told him they could not ship the goods that day, as they had no cars. This was between 10 and 11 o’clock, and the train was to lea.ve at 11 on which the plaintiff was going to Ishpeming. While at the depot, he found that the goods had been attached. He went to the justice’s office, paid that claim, and returned to the depot. He claimed to have been gone but about 20 minutes. On his return, he again saw Mathews and Jones. As to what then took place, the plaintiff testified as follows:

“I then had a further conversation with Mr. Jones and Mr. Mathews. I said, ‘ Can you ship these goods ? ’ They said they hadn’t any car. ‘We cannot ship them this morning.’ * * * I asked them for a shipping bill or receipt. He says, ‘I will send it to you by mail in the morning.’ I had made no shipping bill.
Q. You asked him for a receipt, and he told you he had no time ?
A. He had no time. He would send it to me by mail in the morning. * * * I asked him if I could depend on it, and he said, ‘Yes.’”

The plaintiff further testified that this was about 20 minutes before the train left, and that his brother and himself left on the train. This testimony is contradicted by the defendant, evidence being given that no contract was ever made; and considerable testimony was further given tending to show that the plaintiff, immediately after the attachment case with the justice was settled, took the train, and left Ontonagon, without further talk about the shipment of the goods, and that, in fact, the plaintiff had no time after he had settled the attachment suit to see about the shipment, as the train was about leaving when the plaintiff returned to the depot. But whether the contract was or was not made as claimed by the plaintiff was a question of fact for the jury. If the jury believed the plaintiff and his witnesses, they very properly found a verdict in his favor. Under these circumstances, the court was not in error in refusing to direct the verdict in favor of the defendant.

Under the plaintiff’s claim, — and we must regard that claim as settled by the verdict of the jury, — the goods were properly marked for shipment, placed inside the de,fendant’s freight depot for immediate shipment, with the agreement on the part of defendant’s agents that they would be shipped on the following morning. They were only held till then for the accommodation of the defendant, because it had no car by which to ship on the day of delivery. It is well settled that under such circumstances the company was liable as a common carrier, as the liability as a carrier commences at the time of the delivery of the goods for immediate transportation. 5 Am. & Eng. Enc. Law (2d Ed.), 180, and cases there cited in note. The exclusive possession was in the defendant. The plaintiff had deposited the goods in the freight depot, with the agreement that they should be shipped. It was not necessary to have a shipping bill or a contract in writing to make the liability of the defendant complete. Detroit, etc., R. Co. v. Adams, 15 Mich. 458; Cleveland, etc., R. Co. v. Perkins, 17 Mich. 296.

But counsel for defendant contend that testimony was introduced on its part, which was uncontradicted, that the general custom of the defendant at Ontonagon was and had long been for shippers to mark goods intended for shipment; that it was the custom and duty of shippers to make out a shipping bill, giving a description of the property, the number of packages, and the name of the consignee; that no property was ever received for shipment, or receipted for, except upon compliance with these conditions; that the rules of the company, which were introduced in evidence, required this; that plaintiff did not claim he was not familiar with this custom; that he conceded that he had made out no shipping bill; and that he had previously shipped goods, and had marked them. The court admitted this testimony as bearing upon the question whether the goods were marked or not, and no exception was taken to this ruling. The defendant certainly has no reason to complain of this ruling. The plaintiff was claiming under an express contract of shipment. The custom which defendant was permitted to show could not change this contract. Lamb v. Henderson, 63 Mich. 302.

Exception is also taken to certain portions of the charge. We have examined those matters, and find nothing therein which calls for discussion; nor do we think it important to discuss the questions relative to the rulings of the court upon the admission and rejection of certain evidence.

A motion for new trial was made and overruled. Exception is taken to that ruling upon various grounds. The only one we need discuss is that there was no sufficient evidence to support a verdict for $2,500. We have examined this testimony with some care. One of the witnesses called by the plaintiff testified that the value of the stock was $4,000. The plaintiff himself placed it much higher. Other witnesses stated that he had a large stock. The defendant’s witnesses, upon estimates made, placed the value at from $350 to $500. The testimony as to value is very conflicting, and we are not prepared to say that the jury placed too high a value upon it. Plaintiff described the different goods in the store, giving them in detail, with values. The court below saw the witnesses, heard the testimony, and, upon a full consideration of the motion for new trial, denied it. We find nothing in the case which should disturb this finding.

The judgment must be affirmed.

The other Justices concurred.


text:
    CORNING v. CITY OF SAGINAW.
    Municipal Corporations — Liability for Negligence — Bridges— Defective Draw.
    A city is not liable, in the absence of statute, for an injury to a vessel resulting from its failure to maintain a draw in a bridge in such condition that it may be properly operated, where the city does not derive any benefit from the bridge but simply maintains it for the public good.
    Error to Saginaw; Wilber, J.
    Submitted January 25, 1898.
    Decided March 1, 1898.
    Case by Gurdon Corning and others against the city of Saginaw to recover damages for an injury to plaintiffs’ barge caused by a defective draw-bridge. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      E. L. Beach, for appellant.

      Weadock & Bnrcell and James H. Davitt, for appellees.
   Long, J.

Plaintiffs are the owners of the barge King, and recovered a judgment for damages resulting from the colliding of their barge with the pier which supports the draw of what is known as the “Johnson-Street Bridge,” in the defendant city. The collision occurred on April 13, 1895, while the barge was being towed down stream by a tug; .and it is claimed that the immediate cause of it was the failure of the bridge tender to seasonably open the draw in response to properly-given signals; that the inability to so open the draw in time was attributable to the sticking or binding of the ends of the draw against the adjoining ends of the bridge. While the declaration contained four counts, the case was submitted to the jury upon the fourth count solely, which charged, substantially, that it was the“ duty of the defendant to keep the ends of the swing and the adjoining portions of the bridge in repair, so that the draw could not stick or become caught or fastened when it became necessary to open it for the passage of vessels, and that defendant had neglected to perform its duty in that regard. The court charged that the burden was upon the plaintiffs to show either that the city had actual notice that the bridge was out of repair in the manner charged in this fourth count, or that it was so out of repair for such a length of time before the accident that the city, in the exercise of ordinary care, ought to have known it; and, further, that, whether the city received actual notide of its defective condition or only constructive notice, a sufficient length of time must have elapsed after the notice was received in which, in the exercise of ordinary care, the necessary repairs could have been made. Before any witnesses were sworn in the case, the following facts were agreed to:

“That, when the collision in question occurred, the city was the owner and in control of the Johnson-street bridge; that, a number of years ago, it was built by the city, by permission of the general government and the board of supervisors of Saginaw county; that the bridge tender was in the employ of the city, having been appointed as such bridge tender under the ordinance of the city, and was placed there by the city; that the plaintiffs presented a claim for damages to the council before this suit was brought, and the same was disallowed; that the Saginaw river, at the point where the bridge crosses it, is a navigable stream, and tributary to the Great Lakes.”

Plaintiffs introduced testimony tending to sustain the claim that the bridge was out of repair in the manner alleged, and that the barge was injured by reason thereof, and that the plaintiffs were in the exercise of due care. The defendant introduced testimony tending to show that the bridge was not out of repair, and that on the day in question the bridge did bind, and that there was a short delay in opening it; that the city had no notice of any such defect. The court instructed the jury that if they found the bridge was out of repair in the manner alleged in the declaration, and that the barge was injured by reason of its being so out of repair, and that the plaintiffs, in handling the tug, were without fault, the plaintiffs were entitled to recover. The jury found a verdict in favor of plaintiffs; and, judgment having been entered thereon, defendant brings, error.

The defendant requested the court to charge the jury that, there being no statute providing for any action against the city for the negligence complained of, the verdict must be in favor of defendant. This was refused. The plaintiffs contend that the city is liable without any statute expressly creating such liability. The argument in support of this contention is that our State Constitution (article 18, § 4) forbids the bridging of a navigable stream without authority obtained from the board of supervisors under the provisions of law, and provides that “no such law shall prejudice the right of individuals to the free navigation of such streams;” that a law was passed in 1851 authorizing the bridging of such streams, but requiring persons or corporations wishing to construct a bridge over a stream which is navigable, like the present, for vessels of 15 tons burden or more, to petition the board of supervisors for authority to do so, and also to give due notice by publication of the application for such authority. The statute of 1851, among other .things, provides:

“Every such petition shall set forth the kind and description of the bridge proposed to be constructed, and whether the same is to be constructed with a draw, or whether any, and what, provision is to be made for the passage of vessels or boats; and such board shall have the power to grant or refuse the prayer of such petition, upon such terms as they may deem just and reasonable, and to prescribe what description of bridge may be constructed, or to prohibit the construction of any bridge on the proposed location, as in their judgment the public interest shall require.” 1 How. Stat. § 495.

It is therefore contended that, inasmuch as it is admitted that the city built the bridge under the authority obtained from the board of supervisors, it must be presumed that, in obtaining that authority, the requirements of the statute were complied with both by the city and board; that on this assumption the petition must have contained provisions for a suitable draw to permit the passage of boats and vessels, and the authority given must have included a like provision, as a draw was actually constructed, which was adequate while in repair. It is further contended that the city, after so obtaining authority to construct such a bridge, and after actually constructing and operating it for years, could not permit the draw, through negligence, to become dangerous or useless, without liability to persons navigating the stream who might be injured thereby; that is, that when authority to construct the bridge with a suitable draw was obtained, and acted upon, the duty was thereby imposed upon the city to keep it in substantially the same condition as proposed, or, at least, to use ordinary care to prevent it from becoming dangerous to navigation through neglect to repair.

This contention cannot be maintained. It is undoubtedly true that, without the action of the board of supervisors, the bridge could not have been erected, and it would probably never have been permitted without the erection of a draw or swing therein for the purpose of the passage of boats, as the Saginaw river is navigable for craft of the burden mentioned in the act. If not erected in accordance with the requirements of the board of supervisors as provided in the act, or if it impeded the navigation of the river, it could undoubtedly have been abated as a nuisance. 4 Am. & Eng. Enc. Law (2d Ed.), 926, and cases cited in note; Hill v. City of Boston, 122 Mass. 344 (23 Am. Rep. 332). There is nothing in those statutes, however, creating a liability upon the part of the municipality to private persons for injuries occasioned through the failure of the municipality to either construct or maintain a draw, or for failure to keep the draw in repair. Neither has the general statute creating liabilities against municipalities for failure to keep their highways, etc., in repair, any application here. The only question, therefore, is whether there is any common-law liability for the damages occasioned. Judge Dillon, in his work on Municipal Corporations, says:

“According to the prevailing rule, counties are under no liability in respect of torts, except as imposed (expressly or by necessary implication) by statute. They are political divisions of the State, created for convenience, and are usually regarded not to be impliedly liable for damages suffered in consequence of neglect to repair a county road or bridge. Such a liability, unless declared by statute, is generally, but not quite universally, denied to exist.” 2 Dill. Mun. Corp. (4th Ed.) § 963.

In this State it is the settled rule that it requires legislative action to create any liability to private suit for non-repair of public ways. City of Detroit v. Blackeby, 21 Mich. 84(4 Am. Rep. 450). The rule in the above case has been followed since it was announced, in 1870. The statute creating liability for nonrepair of highways has since been passed. But, as we have said, it has no application to the present case, and in fact it is not contended by counsel that it is applicable. Although the English books contain numerous cases of indictments or informations for neglect to repair highways and bridges, in no instance referred to have the English courts sustained a private action against a municipal corporation for such neglect, except under a statute expressly or by necessary implication giving such remedy. Hill v. City of Boston, supra, and cases there cited. In French v. City of Boston, 129 Mass. 592 (37 Am. Rep. 393), it appeared that the statute imposed upon the city the duty of maintaining Warren bridge as.a public highway “at its own •expense, and in accordance with such ordinances as the city council of said city may establish.” The duty thus imposed upon the city was a public duty, from the performance of which it received no profit or advantage. It was said by the court: ■

“ It is well settled in this Commonwealth that no private action can be maintained against a city for the neglect to perform such a duty, unless it is expressly authorized by statute. Hitt v. City of Boston, 122 Mass. 344 (23 Am. Rep. 332), and cases cited. By statute, the city is liable to a traveler thereon for any defect in the highway of which the bridge is a part; but there is no statute which makes it liable to a private action for a failure to provide a draw of proper width, or for the carelessness of the superintendent of the bridge in delaying vessels which seek to pass through the draw. It follows that the plaintiff cannot maintain this action.”

In the present case it does not appear that the city derives any benefit from the bridge. It is maintained for the public good by the city in its governmental or public ■character, and not in its proprietary or private character, and the city is therefore not liable in this action, as the statute fixes no such liability. 1 Dill. Mun. Corp. (4th Ed.) § 66.

The court below was in error in refusing the defendant’s request to charge. Judgment is reversed, and no new trial ordered.

The other Justices concurred.


author: Grant, O. J.

text:
    PEOPLE v. HUGHES.
    1. Assault — Evidence—Res Gestj®.
    In a prosecution for an assault and Dattery alleged to have been committed by the proprietor of a house where a spiritualistic seance was being held, upon one who had been invited there to investigate, evidence that prior to the assault, which was provoked by the investigator’s striking a match, the medium had been tied to a chair, and a “dark circle ” formed, was admissible as part of the res gestee.

    2. Same — Witnesses to Affray — Examination—Duty of Prosecutor.
    Upon a trial for assault and battery, the prosecuting attorney does all that is required of him when he calls the witnesses who were present at the time the offense is claimed to have been committed, swears them on behalf of the people, and tenders them to the defense for cross-examination. <

    3. Same — Religious Meetings — Disturbance.
    An assault upon one who had been invited to attend a spiritualistic seance for the purpose of investigating the same cannot be justified upon the ground that he was disturbing a religious meeting, if he was doing nothing not reasonably calculated to carry out the purpose for which he was invited.
    4. Trial — Instructions—Requests to Charge.
    Respondent cannot complain of the 'court’s'failure to give a specific request to charge if the subject-matter of the request was sufficiently covered in the general charge.
    Exceptions before judgment from Hillsdale; Lane, J.
    Submitted January 28, 1898.
    Decided March 1, 1898.
    Fred Hughes was convicted of assault and battery.
    Conviction affirmed.
    Respondent was convicted of assault and battery in the justice’s and circuit courts. The assault was committed at respondent’s house, at a spiritualistic seance. The complaining witness, Gordon, testified that he had been invited by respondent to come to his house to see and investigate these seances. The lights had been turned out, and what is called the “dark circle” formed. The medium had been tied to the chair, and Mr. Gordon sat at his back. Gordon’s feet came in contact with the medium’s chair, which was moving a little. Gordon struck some matches, when, as he testified, respondent attacked him, threw him to the floor, and choked him. Respondent denied the assault.

      John F. Steward and Grant Fellows, for appellant.

      W. H. Frankhauser, Prosecuting Attorney, for the people.
   Grant, O. J.

(after stating the facts.) 1. Error is assigned upon the refusal of the court to strike out certain testimony, of the witness Gordon relating what occurred just previous to the assault, — the tying of the medium, etc., — and also what was said immediately after the assault. This was admissible as part of the res gestee.,

%. The prosecuting attorney called certain witnesses who were present, asked them a few questions, but not as to the alleged assault, and then turned them over to the respondent’s attorney for cross-examination, who demanded that the prosecuting attorney be compelled to examine them as to the affray. The court refused the demand, and respondent’s attorney then examined them, and elicited from them some testimony favorable to the respondent. Having produced the witnesses, and had them sworn in behalf of the people, and tendered them to the respondent for cross-examination, the prosecutor did all that the law required. People v. Deitz, 86 Mich. 430.

3. Error is assigned upon the refusal of the court to give the following request:

“If this was a religious meeting, and Gordon created any disturbance according to the ceremonies of that society or sect, Hughes would have had the right to suppress that disturbance, and any reasonable force to that end would not be assault and battery; and, under such, circumstances, your verdict must be ‘ not guilty.’ ”

Upon his oral charge the court instructed the jury that, if Gordon was invited there to investigate, he had a right to use reasonable means for that purpose, and any assault upon him while so doing would be unlawful. After instructing the jury fully on this theory, he then instructed them as follows:

“ But if he [Gordon] was not asked there to investigate, but was simply asked to come to the house there to attend a meeting of that kind, and it was a meeting, so far as this respondent, Mr. Hughes, was concerned, which was fair and honorable in its character, it would be the duty of a person who came there under such circumstances to observe proper decorum, not to rudely interfere with the proceedings and religious rite, which, so far as this respondent was concerned, was being held in good faith. * * * He would not have a right to do those things which would interfere with the comfort and peace and enjoyment of other persons who might be there for honest purposes. And if he did do things of that character, whether it was a religious meeting or whether it was not, I think this respondent would have a right to use reasonable means to restrain such conduct. * * * If he only went so far as seemed to him at the time to be reasonably necessary to preserve decorum there in his own house, and protect the comfort and peace of those whom he had invited to his house there, then I think he would be justified in what he did. ”

The oral charge sufficiently covered the request and the respondent’s theory.

4. Error is assigned upon certain remarks of the prosecuting attorney. We find nothing in them to justify a reversal of the case.

Conviction affirmed.

The other Justices concurred.


author: Peb Cubiam.

text:
    BROUSO v. GENTLE.
    Appeal — Malicious Prosecution.
    The record disclosing no prejudicial error, a judgment for plaintiff in an action for malicious prosecution was affirmed.
    Error to Wayne; Hosmer, J.
    Submitted February 1, 1898.
    Decided March 1, 1898.
    Case 'by Hattie Brouso against John R. Gentle for malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Thomas Hislop, for appellant.

      Casper C. Weber and John Considine, Jr., for appellee.
   Peb Cubiam.

Defendant made a criminal complaint for assault and battery against plaintiff. She was tried ■and acquitted. She then brought this suit for malicious prosecution, and recovered a verdict of $150. Errors are assigned upon the admission of testimony and the charge of the court. We find no prejudicial error in admitting the testimony. The charge of the court was fair, fully stated the claim of each party, and correctly instructed the jury upon the law. There is nothing in the case to justify an extended discussion.

Judgment affirmed.


text:
    SMITH v. BYE.
    1. Evidence — Sunday Conversations.
    The fact that a conversation, relied upon by plaintiff in an action of trover to show that defendant had knowledge .that a third person, from whom defendant bought the goods, was not authorized to dispose of plaintiff’s interest in them, was held upon Sunday, does not render evidence of such conversation inadmissible.
    2. Same — Order oe Proof — Discretion oe Court.
    The court, under its authority to direct the order of proof, may refuse to take proposed testimony until other facts material to the case are shown.
    Error to Benzie; Aldrich, J.
    Submitted February 1, 1898.
    Decided March 1, 1898.
    Trover by Henry Smith against Neis Bye. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dodge & Covell, for appellant.

      M. M. Larmonth, for appellee.
   Long, J.

This action in trover originated in justice’s court, was tried before a jury, and resulted in verdict for defendant. The plaintiff appealed, and obtained a judgment in the circuit court for $46.10.

It appears that in December, 1896, the plaintiff and one John Johnson together called on the defendant, who owned and operated a shingle mill at Wallin, in Benzie county, and bargained with him to cut into shingles for them certain pine logs, which they afterwards delivered at defendant’s mill. At the same time they talked with the defendant about selling the shingles to him, and also after-wards. In hauling the timber, loading it on the cars, and delivering it at the mill, Smith and Johnson worked together, and the understanding with defendant was that he was to cut it for both of them. After the shingles were cut, Johnson went to Wallin, and sold them to the defendant, receiving therefor his check in the sum of $76.14, payable to Smith & Johnson. The check was paid by a merchant in Thompsonville, who deducted a merchandise account he had on his books against Smith & Johnson, and the balance was paid to Johnson in cash. Smith received no part thereof. Thereupon Smith brought this action in trover.

The defendant claims that there were such representations and such a holding out on the part of Smith and Johnson in regard to the transaction, that, as to him, constituted them partners; that he was led to believe, and did believe, that said Smith and Johnson owned said timber and shingles in common, and that they were engaged in the business of manufacturing and selling them for their mutual profit; and that he bought and paid for the same in good faith. The testimony on the part of the plaintiff tended to show that he and Johnson got out logs to be cut into shingles, each party getting his out on his own land, but exchanged work in doing so. The logs were shipped to Wallin, to the defendant’s mill, to be cut into shingles. After two car loads had been shipped, the parties went to Wallin, saw the defendant, and then had a talk about selling them to him. Plaintiff testified:

“ I was dissatisfied with the price offered by Bye, so far as I was concerned, so I told Johnson he could do just as he had a mind to, but, so far as I was concerned, I was not going to let my shingles go. * * * At the time we were up to Bye’s the second time, we had the conversation with him on Sunday. I told Johnson he could use his own judgment; * * * but I was dissatisfied with the price, and was going to keep mine. This was in the presence of Bye.”

This conversation the defendant asked to have stricken out, for the reason that it was had on Sunday. This was refused. This ruling constitutes the first assignment of error. Counsel cite, in support of their contention, section 2015, 1 How. Stat.j and claim that, where valuable and material knowledge is gained in the course of a transaction that is expressly prohibited by statute, no use can be made of such knowledge by either party in the matter in which they are mutually interested. We should hardly treat this matter seriously, were it not that counsel in their brief still insist and urge that the court erred in refusing to strike out this testimony. While contracts of sale made on Sunday are void by reason of the provisions of this statute (Tucker v. Mowrey, 12 Mich. 378), yet we know of no case or rule of law which holds what is contended for here. The plaintiff was not claiming that any contract of sale was made with the defendant, but, on the contrary, his claim was that he absolutely refused to put his shingles in with Johnson’s in any sale made to Bye at the price proposed, and so stated in presence of Bye. While this was stated to Bye on Sunday, he cannot be heard to say, “Yes, that was said by the plaintiff, but it was Sunday, and therefore I could buy all of the shingles from Johnson the same as though plaintiff had not refused to sanction the bargain.” He did not buy on Sunday. No sale was made on Sunday, but on Sunday he was told that plaintiff- would not sell. This testimony was competent for the purpose for which it was offered. The defendant denied that any such talk was had, but claimed that the shingles pui’chased were owned by the -parties as partners, and that they so held themselves out.

While the defendant was on the stand, he was asked by his counsel: “When was it you settled with Johnson or with these parties for the shingles?” This was objected to, on the ground that any settlement with Johnson, unless in Smith’s presence, would not bind Smith. The court held this testimony incompetent at that stage of the proceedings, on the ground that the plaintiff had denied that a partnership existed between himself and Johnson, and that the defendant had not introduced at that time any testimony tending to show such partnership. The court finally remarked:

“I think you had better proceed in the proper order. First introduce some proof that there was some partnership between these parties. I do not think there is any proof to that effect. It is denied by the only person who has testified on that point. The only proof that would tend in that way at all would be the proof that they made a contract for the manufacture.”

Counsel now complain of the remarks of the court in sustaining the objection, and contend that the conversations between Smith, Johnson, and Bye, which had already been shown, left the impression on Bye’s mind that the timber and shingles were to be handled on their joint and mutual account; that Smith had already testified that it was understood that Bye was to cut the timber for Smith and Johnson, and that it was a joint affair, — a mutual undertaking. We think the court was not in error in his ruling. It appears from the record that up to that time defendant had introduced no testimony tending to show a partnership, and the testimony of the plaintiff had no such tendency. In fact, he had denied that any partnership existed between himself and Johnson in the shingles, and had stated that he told the defendant he would not sell his shingles to him. If this was so, the defendant must have had notice that the parties were not claiming as partners, but each claiming the shingles cut from his own logs. But the court had also the right to direct the order of proof, and it was not error to refuse to take that testimony at that time.

Some question is raised over the refusal of the court to receive in evidence the check which the defendant gave to Johnson in payment for the shingles. The first time the check was offered in evidence the court refused to receive it at that time on the same ground that has been stated in reference to the settlement with Johnson, but before the trial was concluded the check was again offered and received.

Some other questions are raised; but we do not consider it important to discuss them, in view of the fact that the court submitted the question to the jury to determine whether there was a partnership between the parties, and instructed them that, if they so found, their verdict should be in favor of defendant; and also that the jury should find in favor of the defendant if the plaintiff, either by his own representations, or by his standing by while Johnson made representations that they were partners, led the defendant to believe that they were partners. The charge was a very full and fair one to the defendant, setting forth the claims made by him. The jury found the facts in accordance with plaintiff’s claim.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, . C. J.

text:
    KUNST v. RINGOLD.
    Settlement — Evidence—Appeal.
    A judgment for defendant in an action to recover an alleged balance of a loan was affirmed; there being testimony in the case which, if believed, would sustain the jury’s finding that the claim in suit had been included in a settlement between the parties.
    Error to Kent; Adsit, J.
    Submitted February 1, 1898.
    Decided March 1, 1898.

      Assumpsit by Lewis Kunst against Joost Ringold for money had and received. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Rodgers, McDonald & Corwin, for appellant.

      Dunham & Thornton, for appellee.
   Grant, . C. J.

This is a contest between two brothers-, in-law over $50. Plaintiff loaned defendant $150. Defendant had paid $100. Two or three days after the loan was made, the parties purchased a greenhouse, and entered into a partnership in carrying it on. They afterwards sold out the business, equally divided the money received upon the sale, and it was claimed by defendant that the balance due for the money loaned was included in that settlement. Plaintiff proved the loan, defendant admitted it, and gave testimony tending to show a settlement. In reply to a specific question, the jury found that it was included in the settlement. This was the only question of fact to be determined. If the jury believed the testimony of the defendant, it sustains their verdict.

Several questions are raised upon the admissibility of evidence. We find no error in the rulings. The court stated the claims of each party, and called the attention of the jury to some of the salient facts in the case, and instructed them to consider all the testimony and circumstances bearing upon the question. He instructed them that the burden of proof was upon the defendant. Isolated sentences from the oral instructions are claimed to be erroneous, but, when the instructions are considered together, there was no error. The questions involved are not of importance to the profession.

' Judgment affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    McQUEEN v. COMMON COUNCIL OF DETROIT.
    Courts — Discretionary Writs — Removals from Office — Confessed Incompetence.
    Where one’s unfitness for an official x>osition from which he has been summarily removed is conceded, he cannot invoke the aid of the discretionary writ of mandamus to exact payment of salary for a period succeeding his discharge, even though his removal may have been illegal because without opportunity for hearing and defense.

      Certiorari to Wayne; Carpenter, J.
    Submitted March. 1, 1898.
    Decided March 1, 1898.

      Mandamus by James McQueen to compel the common council of the city of Detroit to pay to relator his salary as assistant boiler inspector. The writ was denied, and relator petitioned for the writ of certiorari.

    Petition denied.
    The relator was appointed assistant boiler inspector of the city of Detroit, duly qualified by filing his oath and bond, and held the position until July 21, 1897, when he was discharged by the inspector. He afterwards presented a petition for the writ of mandamus to the Wayne circuit court, to compel the city to pay him his salary for August, September, October, and the first half of November. The respondent answered this petition, issue was joined, and the following are the stipulated facts:
    “The position of assistant boiler inspector, to which the relator was appointed, is one of grave responsibility, and for a proper discharge of its duties requires a sober, temperate, and trustworthy man. Among other things, he is required to inspect and test boilers located in buildings and factories, where large numbers of workmen are employed, and the least carelessness, neglicence, or inattention to such work is liable to result in a great loss of life and destruction of property. Soon after the appointment as above, the relator inspected a boiler used by the Volksblatt Printing Company while he was very much intoxicated. Upon learning this, the boiler inspector warned the relator that, if he again got intoxicated while in the performance of his duties, he would be summarily discharged, and the relator fully knew and understood that, if he again became intoxicated while on duty, he would be discharged. Relator got in the habit of drinking heavily while off duty, and the boiler inspector, after the incident above related, again warned the relator against being intoxicated while on duty, and of the consequences which would follow, viz., a summary discharge. On or about July 21, 1897, the relator, while on duty, was very much intoxicated, and got into a violent altercation with the clerks in the office of the boiler inspector, and, when the boiler inspector came in, was using violent, allusive, and vile language. The boiler inspector attempted to quiet him, but, being unable to do so, summarily discharged him for being -drunk while on duty, and ordered the relator to leave the office, which he did, but subsequently returned, and was arrested by a police officer for being drunk and disorderly. No written charges were made against the relator by the boiler inspector, but the relator fully understood why he was discharged, but said he ought to be paid for a month. Subsequently he sought to have the boiler inspector reappoint him to his old position, and frequently importuned him to do so. This being refused, the relator then presented his claim to the common council for the time he remained unemployed, which claim was denied. The relator was given no trial or hearing other than is herein stated.”
    The court below denied the petition. Relator now petitions this court for the writ of certiorari to review the judgment of the lower court.

      John J. Speed-, for relator.
   Grant, C. J.

(after stating the facts). The relator insists that he could not be removed except upon the preferment of charges and an opportunity to be heard and defend himself. The agreed facts show that relator was unfit to hold the important position to which he was appointed, and that his removal was justified. He now demands payment from the city for services not rendered, because his removal was not in accordance with the strict rules of the law, and asks the court to issue the discretionary writ of mandamus to accomplish that purpose. Courts will not grant discretionary writs to accomplish an apparent injustice, and to enforce payment where clearly nothing is equitably or justly due. We therefore decline to issue the discretionary writ of certiorari to review this proceeding. We, of course, express no opinion upon the question of the power of removal. We only determine that, where one’s unfitness for the position is confessed, he cannot invoke discretionary writs to test the question. Merrill, Mand. § 74; Board of Sup’rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386.

Writ denied.

The other Justices concurred.


text:
    PULEZER v. KUCHARZYK.
    1. Equity — Adequate Remedy at Law.
    . A bill in equity will not lie to recover damages for the wrongful act of a depositary in suppressing a conveyance, there being an adequate remedy at law.
    2. Same — Parties.
    All of the heirs of a decedent are necessary parties to a bill to establish a deed alleged to have been executed by him in his lifetime.
    3. Same-?Right to Reliee.
    A bill in equity is properly dismissed where the complainant has by other means obtained all of the relief to which he is entitled, except damages for the wrongful act of the defendant, for which there is a complete remedy at law.
    Appeal from Huron; Beach, J.
    Submitted February 2, 1898.
    Decided March 1, 1898.

      Bill by Paul Pulezer against Ignace Kucharzyk and John Pulezer, Jr., to establish a deed and contract alleged to have been fraudulently withheld from record. Prom a decree dismissing the bill, complainant appeals.
    Affirmed.
    The bill of complaint alleges that on November 20; 1880, John Pulezer, Sr., the father of complainant and defendant John, executed .a deed of 80 acres of land to defendant John; that, at the same time, the father, his wife, and son John executed a contract by which it was agreed that, when Paul became of age, John should deed one-half of the land to Paul, and that Paul and John were to take care of their mother and a brother who was an imbecile; that the deed and contract were given to defendant Kucharzyk to take to the office of the register of deeds, and have recorded; and that he did not record them, but kept and secreted them. The prayer of the bill is that such deed and contract be established, and for damages for the wrongful act of the defendants. Defendants filed a joint and several answer, denying the material allegations of the bill, and assert that no contract or deed was made, but that John Pulezer, Sr., at that time, executed a will, which Kucharzyk, at his request, deposited with the judge of probate. Proofs were taken, and the bill dismissed.

      Charles H. McCinley, for complainant.

      John F. Murphy, for defendants.
   Grant, C. J.

(after stating the facts). John Pulezer, Sr., died November 28, 1880. Complainant, defendant John, their mother, and the imbecile son lived together upon the place after the father’s death until complainant became of age. It appears from the allegations of the bill, answer, and proofs that complainant, shortly after he became of age, and several years before this bill was filed, obtained from all the heirs except the imbecile brother quitclaim deeds of one-half the land, and that he also quitclaimed the other half to John. He therefore obtained all the relief to which he was entitled except the interest of his imbecile brother, who is living, and the damages he claims. He has a complete remedy at law for damages if he is entitled to any, and the brother is a necessary party when he seeks to establish the deed and contract. The bill was therefore properly dismissed.

Decree affirmed, with costs..

The other Justices concurred.


author: Grant, Cb J.

text:
    PARKER v. CANFIELD.
    Execution — Levy—Exemptions.
    It is the duty of an officer, who levies under an execution upon property which is exempt up to a certain value, to make an inventory, and allow the.defendant in execution to select his exemptions; and, not having done so, he is liable in trover for the part that he sells.
    Error to Washtenaw; Kinne, J.
    Submitted February 3, 1898.
    Decided March 1, 1898.
    Trover by Francis Parker against Lester Canfield. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    Defendant, a deputy sheriff, under an execution against plaintiff, levied upon certain property belonging to him. He was' a farmer. After the levy, defendant, of his own motion, released the levy as to part of the property, on the ground that it was exempt. He retained the levy on 106 bushels of barley situated in plaintiff’s barn. Plaintiff claimed this as exempt property. Defendant took it away, and sold it under his execution. Plaintiff thereupon brought this suit in trover. The court directed a verdict for the plaintiff for the value of the property.

      Lehman Bros., for appellant.

      J. W. Bennett, for appellee.
   Grant, Cb J.

(after stating the facts). The instruction was correct. When an officer levies under his execution upon exempt property, it is his duty to make an inventory, and allow the defendant in execution to select his exemptions. Stilson v. Gibbs, 53 Mich. 280; Hutchinson v. Whitmore, 90 Mich. 255, 262 (30 Am. St. Rep. 431); Ostrander v. Packer, 35 Mich. 430; Town v. Elmore, 38 Mich. 305.

Judgment affirmed.

The other Justices concurred.


text:
    STEVENSON v. KURTZ.
    Forgery — Evidence.
    The testimony of an aged man that he did not sign certain papers, which purport to have been executed by him 10 years previous as administrator, is insufficient to show a forgery, where it is so weakened on cross-examination that it amounts to little more than a statement that he has no'recollection of signing them, and that, if he did sign them, it must have been when his hands were cold, and it further appears that he had little to do with the business of administrator, and that advanced age has rendered his memory very poor; especially if the papers are such as he would undoubtedly have signed upon request, thus doing away with any motive for a forgery.
    Appeal from Wayne; Donovan, J.
    Submitted February 5, 1898.
    Decided March 1, 1898.

      Bill by Grirvin Stevenson and. others against Frances Kurtz to set aside an administrator’s sale of real estate. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Edioard S. Grece (Howard J. Hall, of counsel), for complainants.

      George Gartner, for defendant.
   Long, J.

Defendant, by assignment, became the owner of a note and mortgage executed by one James H. Stevenson. Proceedings were by her instituted to foreclose, in which a decree was entered.' Subsequently, and after the decree had been carried out by a sale of the mortgaged premises, the complainants in the present case, children and heirs of Stevenson, who had died, brought a bill of review to set aside the decreee and the sale made thereunder. The bill was on final hearing dismissed, and on appeal the dismissal was affirmed in this court. Stevenson v. Kurtz, 98 Mich. 493.

Pending the foreclosure proceedings, Stevenson died, and proceedings to administer his estate were had in the Wayne probate court. Josephine Stevenson, the widow, was appointed administratrix. Commissioners on claims were appointed, before whom the claim of Mrs. Kurtz' on the note, to which the mortgage in process of foreclosure was collateral, was proved, allowed by, and reported to the probate court. Upon a sale under the foreclosure decree, the sum realized failed to satisfy the amount due, a large deficiency remaining unsatisfied. The administratrix having neglected and refused to subject the property of the estate to the payment of the debts proved, proceedings were instituted by Mrs. Kurtz in the probate court for her removal; and, after a hearing, she was removed from such trust, and one Joseph Karrer was duly appointed administrator de bonis non of said Stevenson’s estate. The only remaining property of the estate out of which to pay the debts proved against the estate was the lot now brought in question in this suit. Mr. Karrer, as administrator cle bonis non, then petitioned the probate court for license to sell the same, which was granted; and the sale thereafter made was confirmed by the probate court,’ and a deed ordered executed to Mrs. Kurtz in pursuance of such sale. This deed was executed September 22,1885. The complainants are the five children and heirs of said James H. Stevenson, the youngest of whom arrived at the age of majority in June, 1888. The bill of complaint is brought to set aside the probate sale of the lot to Mrs. Kurtz, and was filed in June, 1893. The answer of Mrs. Kurtz, the defendant, meets and answers fully the allegations of the bill, and sets forth the proceedings of the probate court, showing the proceedings in all things regular, and in full and strict compliance with all statutory requirements. The hearing of the case on proofs taken in open court came on before the circuit court, in chancery, and a decree was entered in favor of defendant. Complainants appeal.

It is contended by counsel for complainants that the sale to defendant was void, for the reason that the bond on the sale, the oath before the sale, and the final account of the administrator cle bonis non were each and all of them forgeries. Unless this claim is sustained, the complainants have no standing in court. We have examined the testimony very carefully, and the circumstances under which these papers were executed, and agree with the court below that the complainants have not made out a case of forgery. The original papers have been submitted to us. It appears from the testimony of Mr. Karrer, the administrator cle bonis non, whose signature is claimed to have been forged to the bond, oath, and account, that he had been for many years a member of the firm of Karrer Bros., which carried on a tannery business in the suburbs of the city, where he spent most of his time. He was upwards of 70 years of age at the time of his examination. He remembered signing a paper in the office of Mr. Gartner, who was then acting as. attorney for the sale of this property, in 1885. This paper, which he admitted he signed, was the petition to the probate coui't for the sale of the property to pay debts. It is dated August 12,1884. The bond is dated March 28, 1885, and as sureties appear the names of Aaron Karrar, the brother of the administrator, and William Champ, a clerk to Karrer Bros, at that time. Their signatures are admitted to be genuine. The oath before sale was taken before the same William Champ as notary public. Mr. Champ’s signature thereto is admitted to be genuine. On the examination of Mr. Karrer, he was asked:

Q. Do you know anything about having been appointed administrator of the estate of James EL Stevenson by the probate court ?
“A. No; I do not.' I had to sign one paper. * * *
“ Q. Do you remember having anything to do with it? “A. No; I do not recollect. That was five years ago; but I could not recollect. * * *
Q. I show you a paper, Mr. Karrer, Which is entitled ‘Bond on Sale.’ See if you recognize your signature on that paper.
“A. Well, that is a question. I find out such a thing; you cannot write your name twice alike when you have cold hands'. I might put those signatures on, and not in ■the office. Sometimes Champ came up to the office or to the tannery, and I signed papers sometimes. I did not know exactly. * * * I say I cannot tell my signature. If I did it myself, I could not swear. * _ * *
_ ‘ ‘ Q. Now, look at that signature which is on the petition.
“A. See that? That is different. If he came up to the tannery in a hurry, and signed in a hurry, write that. I see now the difference when I receipt a bill. It is different. Sometimes alike and sometimes not. I cannot give you any more satisfaction than that. * * * It might
be; I could not say. How can I remember 15 years ago, when I am working hard? I do not pretend to; I told you that before. * * * I did not take time always when they wanted me to sign something. * * *
“Q, Look at this paper, — petition for license. Is that your signature? No question about that?
“A. No, sir. * * * Oh, I have seen it, and you see that is different. I might have signed it. I would not swear. I think I signed it.
“The Court: Do you think that is your handwriting?
“A. That is the way it looks. I cannot swear. Believe it is by the looks of it. Do not remember signing it. * * * It is so long ago. Do you suppose 15 years ago I can recollect everything? * * * I cannot swear either side. That is enough to state that is my name. * * * The first time I told yóu I could not swear. The others, I told you I could not say. I say I could not swear. I signed the papers in the tannery and at home. * * * I do not recollect so long. Am most 73. Speak German better than English. Write English slow and broken. My hands are hard and stiff. Deliver goods. * * *
“ Q. You did not have anything to do with the Stevenson estate ?
• “A.. No, sir. I did not really know anything before he came up to the house. [This is when Mr. Grece first went to see witness.] * * * I answered I did not know if I did or not; that is all. You cannot make me swear to any other answer. I know I have just got as far as I know. There is no use talking that way. I told you the first time. I always told you I could not swear, and I tell you that now. * * *
“Q. I suppose you have failed ? You have felt old age' coming on you, and a great many things happened you do not now remember ?
“A. Oh, yes!'Thousands and thousands. My memory not very good; memory goes backward. * * * Have noticed my writing not always the same. Cannot do it alike. Have no recollection of signing a deed or signing any paper at all. Unless you show me a paper with my name, I would not remember anything at all about it.”

It is true that on a former examination of this witness in this cause, before a notary public, he had testified that he did not sign these papers which are claimed as forgeries; but no cross-examination was then had. Complainants also called several experts in handwriting, who testified that the signatures to these papers were not in the handwriting of Mr. Karrer. It appears also that the name “Karrer” was misspelled, and in one instance the letter “h ” was left off the name of Joseph. But we think the whole explainable by the fact that Mr. Karrer had not much to do with the business of administrator. The papers were made out, and they were undoubtedly, as Mr. Karrer says, taken to the tannery for his signature. There, without much facility to write, and, as he says, while his hands were cold, he signed them.

There is nothing in the case showing, or tending to show, what motive any of the parties could have had in forging papers which Mr. Karrer would, without doubt, have signed if presented to him. He made the petition for the sale. The business was carried on by Mr. Gartner and Mr. Barlow, two of the most reputable attorneys of the Detroit bar. The papers, the bond and oath, were necessary papers in the proceedings. They were made at the time required, and filed in the probate office. Mr. Champ is dead. Mr. Karrer is an old man, and from his éxamination it can be seen that his memory is very poor. In fact, about all that can be said of the examination is that he had no recollection of signing those papers, and, his name being spelled differently, he thought it was not his signature. But his own explanation that, if he signed ' them, it was at the tannery, when his hands were cold, we think sufficient. It is not at all strange that, with his personal business, and what may have come before him as administrator, he could not remember the tenor and substance of every paper signed by him after the lapse of many years. It would be more strange if he could. There being no motive for the forgery shown, we cannot say that we are satisfied that the papers were forged.

The decree of the court below must be affirmed.

The other Justices concurred.