text:
    FLITCRAFT v. SYLVAN BEACH RESORT CO.
    1. Easements — Sewers—Right oe Way — Necessity.
    A landowner cannot extend sewer and water pipes across adjoining lands where the necessity therefor is not sustained by the evidence.
    2. Injunction — Trespass—Easements.
    Equity will restrain the use of such sewer and water pipes, as prayed in the cross-bill, instead of limiting the defendant to his remedy for damages.
    Appeal from Muskegon; Sessions, J.
    Submitted April 24, 1909.
    (Docket No. 80.)
    Decided May 26, 1909.
    Bill by Allen J. Flitcraft to enjoin the Sylvan Beach Resort Company and others from interfering with certain sewers. Defendants filed an answer in the nature of a cross-bill to enjoin the use of said sewers or the laying of others. From a decree for defendants, complainant appeals. •
    Affirmed.

      Cross, Lovelace & Boss, for appellant.

      Nims, Hoyt, Erwin, Vanderwerp & Foote, for appellees.
   Hooker, J.

The defendant is a corporation organized for the purpose of owning and operating a summer resort known as the “Sylvan Beach Resort,” consisting of platted lands which lie between Lake Michigan on the west, and White Lake on the east. The defendant owns these lands in fee. The rear ends of lots abut on a strip of land called “ Coveil Park.” It consists of about seven acres covered by trees and shrubs. Lot 4 was leased to the complainant for the term of the life of the association, subject to its by-laws, at an annual rental of $20. Lessees are supplied with water from the company’s water pipes, laid in said park. Cesspools are used for sewerage. The complainant is owner of a plat of land called “A. J. Flitcraft’s subdivision of Sylvan Beach, White Lake, Michigan,” containing 52 lots. It comprises land between the two lakes named, adjoins defendant’s resort which lies south of it, and extends northward to the government channel connecting said lakes. Complainant’s property is equipped with water and sewer systems. Complainant’s premises on lot 4 of the defendant’s plat were provided with a cesspool, but, claiming that it was inadequate, he proceeded to connect his cottage on lot 4 with his own sewer system, by laying tile across Coveil Park. While digging the trench, he was forbidden to make such extension by the officers of the association, and, as he persisted, his tile were broken. Subsequently he extended both his sewer and water pipes, taking advantage of the absence of the officers of the Sylvan Beach Company. He then filed the bill in this cause for an injunction to restrain interference with his pipes. Defendants filed a cross-bill asking that complainant be restrained from using said pipes or sewer, and from digging for or laying others. From a decree for defendant, complainant has appealed.

Complainant’s counsel contend:

1. That he is entitled to a right of way for laying said pipes, on the ground of necessity.
2. That, in any event, defendants are entitled only in damages.

We are of the opinion that the complainant’s claim to a right of way for water and sewer, or either of them, is not sustained by the proof.

His other contention is within the principle of Ives v. Edison, 124 Mich. 402 (83 N. W. 120, 50 L. R. A. 134, 83 Am. St. Rep. 329).

The decree is affirmed, with costs.

Montgomery, Ostrander, Moore, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PUBLIC SCHOOLS OF WYANDOTTE v. HARDING.
    1. Res Adjudicata — Judgments—Reformation of Contraot.
    The bill of complaint does not require the reformation of a contract, which charged the making of an agreement with defendant to prepare plans and specifications for a school building, at a fixed price, avers the preparation of such plans and payment therefor, and further states that defendant instituted an action to recover on an alleged contract for a larger sum, that the testimony relating to the contract as claimed in the bill was excluded by the trial court in such action and a judgment recovered by defendant for the additional amount claimed, where counsel for complainant admit that the evidence relating to the alleged contract was submitted to the jury and the inference is plain that the question of fact was determined in the action at law.
    2. Equity Praotioe — Hearing.
    A bill should not be dismissed without taking proofs when the suit is brought on for hearing on pleadings and proofs to be taken in open court.
    3. Appeal and Error — Sufficiency of Bill of Complaint — Practice in Supreme Court.
    The bill of complaint and statement of counsel indicating that the complainant is not entitled to relief, it is unnecessary to remand the case for the taking of proofs.
    Appeal from Wayne; Donovan, J.
    Submitted April 28, 1909.
    (Docket No. 18.)
    Decided May 26, 1909.
    Bill by the Public Schools of Wyandotte against Edward J. Harding to restrain the collection of a judgment, and to reform a contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Thomas A. E. Weadock, for complainant.

      James H. Pound, for defendant.
   Hooker, J.

The complainant’s bill prays an injunction restraining the collection of a judgment against it, and the reformation of the contract between the parties upon which said judgment was rendered, upon the ground of being a mistake. Answer and replication were filed, and, the cause being brought on for hearing on proofs to be taken in open court, it came to the attention of the court that, on the trial of the case in which the judgment had been rendered, the facts relied on in the present case were shown, and the verdict of a jury taken upon them. The trial court was of the opinion that, the question having been tried at law, it could not be retried in chancery, and dismissed the bill. On the hearing of this cause in this court, we understood counsel for complainant to admit that he was allowed to make the proofs upon which this cause depends in his action at law, and that a verdict was there rendered against the complainant in this case..

The case made by the bill is that the complainant corporation contemplated remodeling a school building, and asked the defendant (an architect) upon what terms he would prepare plans for remodeling the building, and he informed complainant that he would prepare such plans and specifications for $100, and would submit a proposition to the board. Soon after he submitted the following:

“Wyandotte, June 4, 1904.
“To B. & P. Committee of Board of Education.
‘ ‘ In regard to my charges for preparing plans and specifications for your high school building, I would respectfully make you the following proposition: I will make all the drawings and specifications required for remodeling the present building and the additions to the same, and superintend the construction of the work, making a daily inspection while the work is in progress, for five per cent, of the cost of the building when complete and ready for occupancy. One hundred dollars to be paid me when the drawings and specifications are complete and three hundred dollars when contract is let and the balance of commission to be paid me as the work pro-grosses. Also, should the board after receiving bids find that the cost is more than they can expend, and should require changes to be made in the plans and specifications or it be decided to have new plans made, I will make such changes or furnish new plans without extra cost to the board. The five per cent, will be on the cost of the construction of the building, but not on the seating or furnishing. Should you not accept the above proposition, then I would ask the privilege to submit drawings in competition with other architects upon the same terms.
“ Yours truly,
“E. J. Harding,
“ Architect.”

At the time that the proposition was submitted, defendant was asked orally how much his charges would be for the plans in case the building was not reconstructed according to said plan, whereupon he replied orally that his charge for the plans and specifications would be $100, and afterwards the board, acting and relying upon said statement of defendant that said plans and specifications were to be furnished for $100, recommended that said plans and specifications be adopted, and they were adopted, but said Harding’s proposition was not accepted, and he was after-wards paid the sum of $100. Complainant advertised for bids under said plans and specifications, but the bids exceeded the amount that the board was authorized to expend, and consequently bids were again advertised for and submitted in accordance with changes made in said plans by defendant. Subsequently competitive plans for a new building were asked; it having been determined not to remodel the old building, and a new building was constructed after plans submitted by another architect. Defendant afterwards presented a bill against complainant for $770 for his plans and specifications for remodeling the schoolhouse, and this claim was disallowed. He thereupon began an action at law to recover the same, and upon the trial all testimony relating to the agreement that $100 was to pay in full for said plans and specifications was excluded by the court for the reason that the contract in relation thereto was in writing, and any oral testimony prior to, and contemporaneous with, said contract should be excluded, and a verdict was rendered in defendant’s (i. e. Harding’s) favor for $804.34. The bill avers that the contract made between complainant and Harding was a contract to furnish plans and specifications for $100, and that the same has been paid, and prays a reformation of the contract accordingly.

Ordinarily a bill should not be dismissed without giving complainant an opportunity to take proofs, where it is brought on for hearing on pleadings and proofs to be taken in open court. Zabel v. Harshman, 68 Mich. 270 (36 N. W. 71); Culy v. Upham, 135 Mich. 135 (97 N. W. 405, 106 Am. St. Rep. 388).

It does not follow, however, that, upon appeal, this court must reverse the decree of dismissal, and remand the case for the taking of proofs, where the bill fails to state a cause for relief, and the opening and statements of counsel show that complainant is not entitled to relief. Culy v. Upham, supra. In this cause the bill shows that the parties made a valid contract for the furnishing of plans and specifications for a price agreed upon; i. e., $100. It also shows that defendant sued upon another and different claim of contract, which complainant alleges was not made, and that he recovered a verdict of a jury that such contract was made, after a trial. Counsel stated on the argument before us that he was allowed to make proof of his alleged $100 arrangement in the action at law, and take the verdict of the jury upon it, although the bill states , that this testimony was excluded upon the ground that oral testimony tending to contradict the terms of a written contract was not admissible. The bill does not state a case for the reformation of a contract on the ground of mistake, and the record conclusively shows that complainant is not entitled to such relief. The inference is irresistible that these parties do not agree as to what the contract was. That involves a question of fact, and it was competent to try it in the action at law, and apparently it was so tried.

We are of the opinion, therefore, that the decree dismissing complainant’s bill should be, and it is, affirmed, with costs.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    PEOPLE v. DROLET.
    Witnesses — Evidence—Cross-Examination—Bias and Interest of Complaining Witness.
    The fact that the complaining witness in a prosecution for assault with intent to do great bodily harm, etc., has a civil action pending against respondent, is admissible on cross-examination to show the extent of the witness’ bias or interest and is subject to comment in the argument.
    Exceptions before judgment from the recorder’s court of Detroit; Phelan, J.
    Submitted April 29, 1909.
    ( Docket No. 114.)
    Decided May 26, 1909.
    Charles Drolet was convicted of an assault with intent to do great bodily harm less than the crime of murder.
    Reversed.

      Richard I. Lawson and William G. Fitzpatrick, for appellant.

      Philip T. Van Zile, Prosecuting Attorney, Fred H. Aldrich, Assistant Prosecuting Attorney, for the people,,
   Moore, J.

The respondent was convicted of a charge of assault with a deadly weapon with intent to do great bodily harm less than the crime of murder. The case is brought here by writ of error before sentence.

It is claimed the assault was made upon one Calvin. The theory of the people was that the respondent, smarting under a defeat in a wrestling match with the complaining witness, left his barroom, went to the living apartments over the saloon, armed himself with a revolver, came down, and deliberately shot the complaining witness, who was unarmed, and who at the time he was shot was standing with his hands above his head. The theory of the defense is that Calvin, who had a reputation as a fighter and a quarrelsome man, after having thrown the respondent and his brother to the floor twice, and after having thrown or forced the respondent against the back bar, and after having struck respondent’s brother on the head, and forcing his hat down over his ears, and after having been requested by the wife of respondent’s brother to leave the place, and after having been ordered to leave by the respondent, in a fit of anger and rage, having been warned that he would be shot if he persisted, attempted to assault the respondent, who, in fear of his life and after his life had been threatened, shot in self-defense.

Mr. Calvin was a witness on the part of the people. On his cross-examination the following occurred:

“By Mr. O’Connor: Q. Mr. Calvin, is it not a fact that you have a suit now pending in the circuit court against Mr. Charles Drolet for $25,000 ?
“ Mr. Hanley: Just a moment; I object to that.
“ The Court: I will sustain the objection. I desire to say, in connection with that, that I cannot see how the answer to that question will in any way throw any light on the question whether or not this defendant, this respondent, shot this witness on the night in question, with the intent to do him great bodily harm. That is the question we are engaged here in trying, and not whether or not he has been actuated in suing the defendant for $25,000.
“Mr. O’Connor: I take an exception.”

In his charge the judge used the following language:

, “ You have no right to permit your verdict, to permit your judgment, to be swayed by the reference in the argument of counsel for the defendant that the complaining witness has brought an action against this defendant in the sum of many thousand dollars, for that has nothing to do whatever with this case. That is a matter for another court to determine.”

It is said this ruling and this statement to the jury constitute reversible error.

We think this conclusion is correct. The bias or interest of a witness is always a proper subject of inquiry, and, if shown, a proper subject of argument by counsel. It is true that enough appeared in the case to show that Mr. Calvin was the person upon whom the assault was made, from which the inference might fairly be drawn that he was a biased and interested witness; but the extent of the bias and the present interest of the witness were proper subjects of inquiry. We think the case is within Crippen v. People, 8 Mich. 117, Patten v. People, 18 Mich. 314 (100 Am. Dec. 173), Geary v. People, 22 Mich. 220, Threadgool v. Litogot, 22 Mich. 272, Hamilton v. People, 29 Mich. 197, Tolbert v. Burke, 89 Mich. 132 (50 N. W. 803), Swift Electric Light Co. v. Grant, 90 Mich. 469 (51 N. W. 539), and People v. Row, 135 Mich. 508 (98 N. W. 13).

As a new trial must be ordered for the reason stated above, we deem it unnecessary to discuss the other assignments of error, as the same questions are not likely to arise.

The verdict is set aside, and a new trial ordered.

Montgomery, Ostrander, Hooker, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. MEERT.
    1. Criminal Law — Evidence—Reputation.
    Although the reputation of the complaining witness for peaceful conduct is not directly attacked, in a prosecution for assault with intent to kill and murder, evidence of his reputation therefor is admissible to rebut the claim that respondent had heard the complaining witness was a dangerous man and respondent was afraid of him.
    3. Same.
    An ambiguous answer is properly received in evidence, on the subject of reputation, as against a motion to strike out, when the witness is unacquainted with English, is examined by an interpreter, and defendant’s attorney fails to cross-examine as to his meaning pursuant to a suggestion of the trial court.
    3. Same — Conclusion—Appearance.
    An answer of respondent’s witness, in response to the question how he looked and acted, that the complaining witness was not very well pleased and was angry, is incompetent.
    4. Trial — Conduct op Prosecuting Attorney.
    Remarks of the prosecuting attorney that a witness betrayed an animus against the complaining witness, made in the presence of the jury, on a motion to strike out a conclusion of the witness, were not prejudicial error.
    5. Criminal Law — Self-Defense.
    The respondent was not entitled to have the jury instructed that if respondent, under all the circumstances to which he testified, honestly believed that he was in jeopardy and his
    ' act was necessary, he was not guilty; but a charge that if he shot the complaining witness to save his life, or to save himself from great bodily harm, he is not guilty, is sufficiently favorable.
    6. Weight of Evidence — New Trial.
    The respondent is held to be guilty, by the clear weight of evidence, and his conviction affirmed.
    Exceptions before judgment from the recorder’s court of Detroit; Phelan, J.
    Submitted April 39, 1909.
    (Docket No. 115.)
    Decided May 26, 1909.

      Gustave Meert was convicted of an assault with intent to kill.
    Affirmed.

      John H. Dohrman, for appellant.

      Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

On the evening of December 31, 1907, the respondent, a Belgian by birth, who had lived in the United States since about the year 1903, committed an assault upon one Van Houtten in Tack’s saloon in the city of Detroit. The respondent in making said assault used a revolver, shooting Van Houtten in the left temple, through both eyes and through the roof of the nose. The bullet was cut out from the orbit of the right eye, and the sight of Van Houtten permanently destroyed. Respondent was charged with assault with intent to kill and murder. Respondent’s plea was not guilty. He admitted making the assault substantially as testified to by the witnesses for the people, but claimed that he acted in self-defense therein. After conviction and before sentence, the case was removed to this court upon exceptions from the recorder’s court of the city of Detroit. It seems that the complaining witness, Van Houtten, was the keeper of a boarding house, where several of his fellow countrymen, among them the respondent, boarded. The respondent had lived with the complaining witness for about a year, but had been requested to leave some weeks before the night of the assault. There is some testimony in the record tending to show that Van Houtten disliked the respondent, and perhaps was jealous of him. There is testimony likewise tending to show that Van Houtten, the complaining witness, had purchased a revolver eight or nine weeks prior to the evening of the assault. His explanation of the reason why he bought the revolver, which he said he purchased before Meert left his house, was that several people had been assaulted and robbed in Franklin street; that he was in business, had money belonging to other people in his possession, and he was afraid he would be robbed; that he was carrying the money of these people for whom he was buying tickets to go to the old country; that he sometimes had from $140 to $150 at one time. It was claimed by the respondent that on the night of the 28th of December, three nights before the assault was made, the complaining witness had chased him on Jefferson avenue for several blocks with the intention, as he believed, of attempting to take his life. He claims to have been advised that Yan Houtten told his (Yan Houtten’s) wife that he intended to shoot him (Meert). Yan Houtten denied the making of the threats. On the night in question, Meert arrived at Tack’s saloon in advance of Yan Houtten. Yan Houtten came in with his wife and one or two companions; his wife making her way to the kitchen in the rear of the saloon, and Yan Houtten and his friends taking position at the end of the bar nearest the door. The respondent was standing at the other end of the bar six to eight feet away. Yan Houtten ordered a drink, and testifies that he was in the act of paying for it, when, without provocation, respondent made the assault upon him.

The respondent’s testimony, upon cross-examination touching the assault, is, in effect, as follows:

“ I bought that revolver four years ago in Cincinnati. I never carried the revolver in Detroit, but I stuck it in my pocket the night when I shot him, after supper, because that I thought that he would not come down there, and that I was scared of him. I was expecting that he would come down there that night. I put the revolver in my pocket to be ready for him. Yes, sir; I loaded it with bullets. I left my house about a little after 9 that night, something like that. I first saw him in Tack’s saloon. That is the first time I saw him that night. That is the only time, I am sure of that. When he came in there he walked up to the bar, I did not see his wife. Heyman was with him, and Julius De Busscbere was with him; in fact, I do not know who Julius De Busschere is. There were other people. Men and women were coming in and going out right along. I don’t know whether Mrs. Herman came in with Yan Houtten or not. I saw him just as he came in the door, and I believe that he saw me. He stopped first in front of the doorway before he went to the bar and ordered some drink. He did not say a word to me when he was standing at the bar. There are three doors in the barroom — one goes out to the street, the other into the kitchen, and the third goes into the toilet, out to the toilet. I was about six or eight feet away from him. I then began to get nervous, so that my feet began to shake and my hands to tremble. I was afraid something was going to happen to me. I could have gotten out of there, but do you think I am going to turn around when a man stays there to shoot me; that I know he would so sure as I am setting in this chair; that I am going to turn around and let him shoot ? Do you think I am going to do that ? I was standing there facing him about four or five minutes. I could not have time to get out of there. I was too scared to move or to turn away from him that he would shoot me when I turned around. I was not looking for trouble. I never looked for trouble in my life. I was not going to settle him that night, and end our differences. I did want to get away from him. Didn’t I leave my house for him ? I did not back up because I was scared of him, I did not move. I got scared that he was going to shoot. Up at Yan Hollebeck’s three nights before he was not watching me so particular, and I got more chance there to get away, because he was not near me. When he came into the saloon later on, I was able to get away from him. I could not get away from him at Tack’s because I saw that he was not going to give me a chance to get away. I began to read his face. I have read people’s faces before. I can remember a good many kinds of men, what they are when I see their faces. I can tell by their faces whether they are going to shoot me or not. That is the reason I got scared of him. I was scared that he was going to shoot me right down. I had the nerve and ability to walk up to him and to grab him, grab hold of him, because I saw he was going to shoot me down, that he grabbing for his gun. When a man is going to shoot you down, you have to do something. I could go forward because I got more strength, because I saw he was going to shoot me. I had to do something because I was up against my life. I was sure that he had a revolver in. his pocket because that man was willing to shoot me on the 28th day of December. No; he did not shoot at me on that day because a policeman was too near. If he did not have the gun in his pocket, he did not have to run from the policeman any more than I did. I think there were more than 15 people in Tack’s saloon on the 31st. He was going to shoot me then because he missed me the first time, and he was not going to give me the same chance to run away again. I believe he was going to shoot me on the 31st because he missed me on the 28th. I was not willing to shoot him. I am not willing to shoot nobody, but I want to save my own life. That is what I shot at him for. When I shot, he was going to shoot me, and that I was sure of. It was not only the first time. It was the second time. I never grabbed him by the neck. I grabbed him by the coat, pointed my revolver up to his head when he made a move to strike me. I came up six or eight feet for him. I grabbed him by the coat that night, before he did anything. He was making motions. Did you think that I did not see what he was going to do; after he came in he had a drink, after he came in he was watching me, and after when he had the drink, staying on the bar, with his elbows on the bar, that he watching me ? Not only because he looked at me, but he followed me out too. Yes; I did walk up to him this distance, and grab him by the coat, and pulled my revolver, and shot him.”

On direct examination the respondent testified:

“ He slips his right elbow from the side of the bar, and grabbed for his gun, and I jumped up to him, grabbed him on the heart, and asked him: ‘You going to shoot again will you?’ ‘Yes,’ he says,® ‘I fix you right now.’ And I shot him.”

Witnesses who were present, with practical unanimity, state that Yan Houtten made no threat by word or action against the respondent prior to or during the assault.

The first assignment of error we notice is that the circuit judge erred in permitting the witness Phil Tack to give testimony, upon rebuttal, as to the reputation of the complaining witness in the community in which he resided for being a peaceful, law-abiding citizen. The objection to this testimony is two-fold: First, that the respondent had not attacked his reputation; and, secondly, that the answer is incompetent. With reference to the first objection, it is sufficient to say that the respondent himself had testified, upon his direct examination:

“ I was afraid of him because I heard something about his being a dangerous man, and quite a few times I had heard that, the time he is in the United States. I never knew him in the old country, and I heard him say several stories about hitting men in the old country and about fighting.”

Touching the second objection, the answer of the witness Tack to the question, “ Is his reputation good or bad?” is: “I never heard nothing from him. For me it is good.” Counsel for respondent moved to strike this out, upon the ground that it is not legal knowledge of the general reputation.

The Court: I know, Mr. Collier, but you understand the class of people who have been testifying — they are not familiar with the English language, and you have a right of cross-examination to establish whether or not the opinion that he has of the defendant’s reputation is one that comes to him in the legal way.
“Mr. Collier: That is all, your honor. Give me an exception.” *•

The witness was giving his testimony through an interpreter, as, indeed, did nearly all the witnesses. We think that, under the intimation of the court, it was the duty of respondent’s counsel, if not satisfied with the form in which the testimony came through the interpreter, to have interrogated the witness in his client’s interests. His failure to do so should not now be permitted to prejudice the rights of the people.

Again, it is urged that the court erred because he refused to permit witnesses for the respondent, in answer to the question, “ Tell the witness to describe how Mr. Van Houtten looked and how he acted?” to say: “It seemed that he was not very well pleased; that he was mad, angry.” This answer was clearly incompetent, and was properly stricken from the record by the court.

Respondent claims that reversible error was committed by the prosecuting attorney during the examination of Louis Schockart, a witness called for the respondent. The following transpired:

“Q. State, witness, how Meert left Yerstraete’s place, in what manner ?
“A. He was afraid of Yan Houtten, afraid Yan Houtten would shoot him.
“Mr. Hanley: Now, your honor, I ask that that be stricken out, and the jury cautioned to disregard that, because merely striking it out does not cure the injury.
“The Court: Just read the question.
“Mr. Hanley: Certainly the witness shows a very strong desire to do more than is necessary in that question.
“Mr. Dohrman: Just a moment. I think that is going too far for the prosecution, the comment.
“ Mr. Hanley: When he so far exceeds the proprieties of the matter, I think it should be commented upon.
“Mr. Dohrman: I desire at this time to take exception to the statement of the prosecuting attorney.
“The Court: You claim that to be a competent answer?
“Mr. Collier: I think it is not responsive. I am trying to say to your honor it is not responsive to it, but he may further state in what manner he left, his actions at that time he left. I do not think it is responsive.
“The Court: Mr. Prosecuting Attorney, when the question is asked by the counsel for defendant and before the interpreter asks it, if you object, I will rule.
“Mr. Hanley: Your honor, the question is one that can be answered in a proper manner if the witness has any desire to do so. The question itself is not objectionable, but witness shows such an animus.
“Mr. Dohrman: I desire to object to such comment again.
“Mr. Hanley: Then I think the question ought to be stricken out, and the jury cautioned not to regard it. * * *
“ Mr. Collier: I desire, may it please the court, to take an exception to the remarks of the prosecuting attorney, wherein he says the witness upon the stand is not attempting to answer fairly and honestly, and words to that effect. I submit that the difficulty of translation, that there is not any indication before the jury that this witness is trying to exaggerate or misrepresent the answer unfairly.”

We are unable to say that the foregoing constitutes error. It is entirely plain that the answer of the witness was not responsive to the question, and that in stating that Meert was afraid of Yan Houtten, afraid that he would shoot him, he was testifying to something of which he could know absolutely nothing. The prosecuting attorney, in moving that the answer be stricken out, could have used language less open to objection, but we do not see how the respondent’s rights were prejudiced by his remarks.

We next come to the consideration of the errors assigned upon the charge of the court. Some 17 requests to charge were preferred on behalf of the respondent. They were, so far as proper, governed by the general charge, in effect.

Particular error is assigned upon the refusal of the court to give the 13th request to charge, which is as follows:

“The question is whether the defendant, under all the circumstances to which he testified, honestly believed that he was in danger of his life or great bodily harm, and that it was necessary to do what he did in order to save himself from danger, and, if he so believed and acted, then your verdict must be not guilty.”

The trial judge did charge the jury as follows:

“If you believe, from the evidence, that the defendant shot Yan Houtten to save his own life, or to save himself from great bodily harm, then he is not guilty.”

And after the charge was concluded, counsel for respondent having called his attention to the 13th request, the court says:

“ I will call the attention of the jury to the fact that the defendant had a right to act as the matter presented itself to him.”

Under the facts disclosed in this case, we think the respondent’s claims were presented to the jury in a light quite as favorable as was just. The 13th request does not state the law under any circumstances. The respondent has not the right to act “under the circumstances to which he testifies,” but under the facts as they appear from all the testimony. The belief of the respondent which is the motive for his action must not only be honest, but must be reasonable and referable to the facts surrounding the action. See People v. Farrell, 137 Mich. 127 (100 N. W. 264); People v. Coughlin, 67 Mich. 466 (35 N. W. 72). We are of opinion, after a careful examination of the entire record, that the assault committed by the respondent upon the complaining witness was wholly without provocation, and at a time and under circumstances which wholly negative the theory of self-defense upon which the respondent relied. Ready means of escape were at hand if the respondent had desired to escape, and the great weight of testimony is that no danger was to be apprehended from the complaining witness, so far as said danger might be evidenced by word or deed.

It is unnecessary to consider the other errors assigned.

The conviction is affirmed.

. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    DAVIS COLLIERY CO. v. CHARLEVOIX SUGAR CO. In re MARTING.
    Receivers — Contempt Proceedings.
    The failure of a receiver to pay over funds in accordance with a decree of the Supreme Court is not excused by his having paid out all funds in his hands on the oral order of the circuit judge.
    Bill in aid of execution by the Davis Colliery Company against the Charlevoix Sugar Company, Samuel A. Marting, receiver, and others: On petition of complainant for an order adjudging defendant Marting guilty of contempt.
    Submitted April 13, 1909.
    (Calendar No. 23,009.)
    Petition granted May 26, 1909.

      Bobert W. Kane, for petitioner.

      Lisle Shanahan, for respondent.
   Brooke, J.

On December 21, 1908, a decree in the above-entitled cause was entered in this court. Said decree provided, among other things, for the payment by the defendants above named to the complainant of the sum of $509.39, together with costs, to be taxed. Said, costs have since the entry of said decree been taxed by the complainant at the sum of $91 in the Supreme Court, and in the circuit court in the county of Charlevoix at the sum of $59.25. Said decree further provides:

“And it is further ordered, adjudged, and decreed that the said defendant Samuel A. Marting, out of the funds and property of the defendant the Charlevoix Sugar Company which have come into his hands by virtue of the aforesaid order made and filed December 3, 1904, in the case of Alva L. Coulter, as complainant, v. Charlevoix Sugar Company, as defendant, purporting and intending by its terms to appoint the said Samuel A. Marting receiver of the said Charlevoix Sugar Company, pay to the complainant’s solicitor the amount hereby decreed to be paid by the defendants in this cause to the complainant, and that such payment by the said defendant Samuel A. Marting, when made, shall be considered and held as and for full satisfaction of this decree as to all the above-named defendants.”

A certified copy of the decree of this court was presented to defendant Marting by complainant’s solicitor, and, after the costs were taxed, notice of the amount due under the decree was given said defendant, first on or about the 12th day of February, 1909, and again on or about the 23d day of February, 1909, and finally on the 3d day of March, 1909, when the complainant’s solicitor caused to be served upon said Samuel A. Marting a written demand for the payment of the amount specified in said decree, to which notice was attached a copy of said decree. Defendant Marting refused to comply with the decree of the court, and thereupon the complainant filed a petition in this court for an order to show cause why he should not be punished for contempt in consequence of his said refusal. The order to show cause was issued, and the return of said defendant is before us.

By that return we note that defendant Marting charges himself as receiver with thesum of $11,705.92. He avers that he has paid out upon the order of the court $6,100.21, leaving in his hands as receiver the sum of $5,605.71 not accounted for, except that he says in his return that the same “has been paid out and disbursed by him as receiver by order of the Honorable Frank Shepherd, presiding, and with his consent and approval, given verbally.” Attached to the petition for order to show cause is a paper purporting to be the final account of Marting as receiver, in which he seeks credit for the sum of $2,600 paid as solicitor’s fees and charges November 1, 1907, and the further sum of $3,005.71, as of the same date, for receiver’s fees and compensation and solicitor’s expenses. It is claimed by the petitioner, and not denied by Marting in his return, that this account has never been passed upon by the circuit judge. The claim made by the defendant Marting that he-has disbursed upwards of $5,000 upon the verbal order of the circuit judge is startling to a degree and scarcely credible. In any event such an order affords him no protection in the present proceedings. We are entirely satisfied, from a careful examination of the decree in the main case, the petition, and the return, that the defendant Marting, in refusing to comply with the terms of said decree, is guilty of a wilful contempt of the order of this court.

An order will be entered adjudging said Marting guilty of contempt, and committing him to the county jail for the county of Charlevoix, there to remain until purged.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    CRONIN v. PAYNE.
    1. Waters and Watercourses — Surface Waters — Plowing Lands.
    One proprietor cannot divert the natural flow of water so as to discharge it upon his neighbor’s property.
    2. Equity — Decree—Certainty.
    The decree of a court in equity may properly provide for the character of the drain to be used by a proprietor against whom complaint is made that he has diverted surface water from its natural course, upon complainant’s property.
    Appeal from Van Burén; Des Yoignes, J.
    Submitted April 26, 1909.
    (Docket No. 46.)
    Decided May 26, 1909.

      Bill by Will Cronin against Charles Payne and Anna Payne to restrain an unlawful diversion of surface water. From a decree for complainant, defendants appeal.
    Affirmed.

      Thomas J. Cavanaugh, for complainant.

      Banard & Lewis, for defendants.
   Brooke, J.

The complainant is the owner of the west 20 acres of the E. -J- of the S. E. i of section 34, township of Arlington, Van Burén county, Mich. The defendants Payne are the owners of the E. of the W. \ of the S. E. i of said section 34; the lands of the defendants adjoining and lying immediately to the west of those of the complainant.

It is the claim of the complainant that the land of the defendants slopes to the east to a point within about 20 feet of the line between the two properties; that at that distance from the line the natural course of the water from the high ground to the west is almost due north into a well-defined ditch running practically east and west across both properties. It is further complainant’s claim that about the year 1902 the defendants caused said watercourse, drain, or ditch to be filled up, so that the water could not longer pass into the same in a northerly direction to the Cronin ditch, and then and there cut and opened, or caused to be cut and opened, a ditch or drain from their land to the land of the complainant under the line fence, thereby diverting the water from its natural water-course and channel to the lands of •the complainant, unfitting for cultivation from two to five acres of complainant’s land and destroying the crops thereon. The defendants made the claim that the waters in dispute in their natural course would flow onto complainant’s land at the point in dispute. A very great deal of testimony was taken in the court below, a digest of which will serve no good purpose.

After listening to the testimony, the learned circuit judge reached the following conclusion:

“ It is quite impossible to read the evidence in this case without gaining the conviction that for many years prior to Payne’s purchase of this land the surface waters from draws and table lands passed over and along the natural depressions or drain way on the Payne side of the line fence, finally discharging into a drain or outlet now known as the ‘Cronin Drain.’ The weight of the evidence inclines me to the belief that within the past 4 or 5 years an attempt was made to divert the water at a point marked ‘Stakes and Stones,’ and that the water was so diverted by defendant, whereby gullies or washouts were made under the line fence through which a large column of surface water was discharged under said fence and over and upon the complainant’s land. In fact, the testimony of defendants hereinbefore set forth scarcely permits any other reasonable conclusion. This change, of course, has so altered the contour of the ground by filling and other unnatural causes that a personal view at this time of the disputed territory affords little, if any, aid as to conditions existing 8 years ago and for 20 years preceding that date.”

We have examined the record with care, and have reached the conclusion that the learned circuit judge was correct in his disposition of the case. It is apparent that but little filling of the natural way on Payne’s land was necessary to obstruct the flow of the surface water in its natural direction, and but little ditching to and under the line fence sufficient to divert it upon complainant’s land. We are satisfied from the record that sufficient was done by the defendant in both directions to accomplish the end sought. That‘‘one proprietor cannot divert a natural way, so that his water shall be discharged upon his neighbor,’’see O'Connor v. Hogan, 140 Mich. 613 (104 N. W. 29). See, also, Yerex v. Eineder, 86 Mich. 24 (48 N. W. 875, 24 Am. St. Rep. 113); Finkbinder v. Ernst, 126 Mich. 565 (85 N. W. 1127).

It is urged that in any event the decree should be modified, so as to restrain the defendants from diverting the water by artificial means upon the complainant’s land and compelling him to restore the land to its former condition. A decree of this character would only lead to further trouble between these parties. We are of opinion that the circuit judge was clearly right in determining with particularity in the decree the character of ditch to be maintained by the defendants upon their own property, in order that there might be no excuse for further contention.

The decree is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    LAWLER v. LAWLER.
    Divorcie — Alimony.
    An award of $800, to be received in lieu of dower by the complainant, who has property amounting to $1,300, while the defendant has $6,200, is too small and should be increased to $1,500.
    Appeal from Wayne; Donovan, J.
    Submitted April 28, 1909.
    (Docket No. 29.)
    Decided May 26, 1909.
    Bill by Mary Lawler against Timothy Lawler for a divorce. From the decree rendered, complainant appeals.
    Modified and affirmed.

      James H. Pound, for complainant.

      Dohqny & Dohany, for defendant.
   Moore, J.

Each of the parties to this litigation is more than 60 years old. The complainant was granted a decree of divorce. The decree provided the household furniture should be divided and for the sum of $800 as alimony to be paid to complainant in lieu of dower. The complainant claims the allowance for alimony is too small. We agree with her. It would profit no one to make a detailed statement of what the record contains. It shows that complainant has property worth upwards of $1,300, while defendant is worth upwards of $6,200. A decree may be entered here amending the decree, so as to give complainant $1,500, instead of $800. In all other respects the decree of the court below will stand.

Complainant is given costs of this court.

Montgomery, Ostrander, Hooker, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    PEOPLE v. BURKE.
    1. Criminal Law — Change of Venue — Discretion.
    The denial by the trial court of a motion for change of venue will not be reversed on error where the showing of local prejudice consisted of articles in a local newspaper connecting the respondents with the attempted robbery of a bank, and it does not appear that any difficulty was experienced in drawing an impartial jury.
    2. Former Conviction — Evidence—Parol Testimony — Intent.
    Parol proof of a prior conviction is inadmissible.
    3. Same.
    Evidence of a prior conviction of respondents who do- not testify is only relevant when the act is, in itself, innocent, or where accident, mistake, or inadvertence might be inferred.

      4. Criminal Law — Reasonable Doubt.
    An instruction to the jury that a reasonable doubt must be an insurmountable doubt is not approved. .
    Error to Mecosta; Palmer, J,
    Submitted April 29, 1909.
    (Docket No. 117.)
    Decided May 26, 1909.
    James Burke and Charles Thompson were convicted of destroying a bank safe with intent to commit the crime of larceny, and sentenced to imprisonment for not less than 15 nor more than 30 years in the State prison at Jackson.
    Reversed.

      Cogger & Broomfield, for appellants.

      Joseph Barton, Prosecuting Attorney, for the people.
   Ostrander, J.

Respondents were jointly informed against for a violation of 3 Comp. Laws, § 11506, entitled “An act relating to the punishment of bank, safe and vault robbery,” and reading:

“ That whoever, with the intent to commit the crime of larceny, or any felony, * * * shall attempt to break, burn, blow up, or otherwise injure or destroy any safe, vault, or other depository of money, * * * shall, whether he succeeds or fails in the perpetration of such larceny or felony, be punished by imprisonment in the State prison for life or any term of years.”

They were convicted and sentenced to hard labor at the prison at Jackson for not less than 15, and not more than 30 years. The alleged offense was committed in the village of Mecosta, in the county of Mecosta, on April 28, 1908. To the information respondents pleaded not guilty and afterwards moved the court to change the venue of the cause to some other county for the reason that because of local prejudice respondents could not have a fair and impartial trial in the county of Mecosta. The showing which accompanied the motion consists of excerpts from newspapers circulated in the county of Mecosta relating to the occurrence and also purporting to give in detail a history of the capture of the respondents, and a picture published in one of the dailies of a wrecked building and safe in connection with pictures of the respondents. The motion was overruled, and this ruling is the ground for the first assignment of error. We find nothing in the showing which was made sustaining the contention that the circuit judge abused his discretion in refusing to order the change of venue. It does not appear that any difficulty was experienced in securing an impartial jury. Indeed, the record does not disclose that the defense used any peremptory challenges.

The testimony offered on the part of the people (none was introduced for respondents) tended to prove that a private bank in the village of Mecosta was closed as usual about 5 o’clock on the 37th day of April, 1908. The bank building was detached, was furnished with ordinary counters and desks, and -had a private office in the rear. In one corner was a vault of brick construction, with iron doors, and inside of the vault a so-called “burglarproof safe,” which locked with a combination and time lock, and the time lock locked also the outside door of the vault. The cash of the bank, about $3,300 in amount, with securities, was before closing the bank placed in the safe. Two or three cigar boxes, partly filled with pennies and some silver, were inside the vault but outside the safe. At some time between 3 and 3 o’clock on the morning of April 38th, a noise as of an explosion was heard, and it was discovered that the vault had been opened, apparently by an explosive, the door lay on the floor, the office and furniture were badly wrecked, the door to the safe was partly blown off, and the front windows of the building were blown out on the sidewalk. The only things of value which appear to have been taken were some of the pennies and pieces of silver which have been referred to.

The only point not covered by direct and undisputed testimony was the one of the identity of the respondents and the persons who destroyed the vault. The people called as a witness Thomas E. Martin, who gave testimony tending to prove: That he was a deputy United States marshal, had been for several years, and was in 1904, with headquarters in Indianapolis, Ind.; that he came to know one Sam Jackson at Indianapolis in the year 1904, and he identified the respondent Burke as the man whom.he had known as Sam Jackson; that said Jackson was delivered over at Indianapolis with four other defendants by the United States marshal from Toledo, Ohio, on the 27th of May, 1904; that he had some business with him, which consisted of bringing him up from the jail to the courtroom during his trial; that he with others was tried for the alleged offense of blowing open the safe in the post office at Orleans, Orange county, Ind.; that the respondent Burke was convicted and sentenced to serve three years in prison at Ft. Leavenworth, and was delivered to the United States penitentiary at Ft. Leavenworth, Kan., on the 14th day of July, 1904. This testimony was received over repeated objections interposed by counsel for the respondents. Exceptions were duly taken to the rulings of the court. In his opening argument to the jury, the prosecuting attorney said:

“And if his name ever was Sam Jackson, he ought to stick to it. Now let us see whether it was Sam Jackson. In 1904 his name was Sam Jackson, according to the records in the United States court down here in Indianapolis, Ind. How do we know—
“Mr. Cogger: (interrupting): I object to that. Take an exception to the remarks of the prosecuting attorney as to what the records of the United States court at Indianapolis show.
Mr. Barton: It is in evidence in this case.
The Court: You may refer to the testimony of the man who testified on that subject.
Mr. Cogger: An exception to the ruling of the court.
“Mr. Barton: (continuing): How do we know that? The deputy United States marshal, Thomas E. Martin, went on the stand, and his statements are undisputed that Sam Jackson, or James Burke under the name of Sam Jackson, in 1904 was tried in the United States court, of Indianapolis, Ind., on the charge of having burglarized the safe in the post office in the village of Orleans, Orange county, Ind.”

There was more to the same effect, with various objections, rulings, and exceptions.

The testimony of this witness with respect to the accusation, trial, conviction, and sentence of the respondent Burke, was, admitted upon the theory that, because the statute offense involves a criminal intent on the part of the accused, it was proper, for the purpose of showing the intent with which this respondent had destroyed the vault at Mecosta, to prove that he had been convicted, in the year 1904, upon a charge that he blew open a safe in a post office in Indiana. The jury were instructed that:

“ It was proper, as bearing on the intent of one of these respondents, if the crime was shown to have been committed by him, either by positive or circumstantial evidence, to show that he had committed a crime previously of a like or similar character, as bearing on the intent.”

They were not otherwise instructed that the testimony could not be employed to affect the guilt or innocence of the respondent Thompson. The witness did not claim to have read the record, which presumably was made and is in existence, or to be testifying to the contents of the record. He did not claim that any particular intent of respondent was charged or was proved. It was, further, an attempt to prove by parol a former conviction of one of the respondents, a practice in support of which no authority is cited. It was, also, an attempt to prove a distinct and remote crime, in no way related to the one for which respondents were being tried. If the record of the former conviction had been produced, it should not have been admitted in evidence. In numerous cases this court has had occasion to state and apply what is sometimes said to be an exception to the general rule that proof of the commission of other crimes may not be given upon the trial of one accused of crime. They are for the most part cases where the act of the accused was, in itself, innocent, involving no necessary implication of crime, or cases where the circumstances permitted the inference of accident, mistake, or inadvertence to be drawn. Many of the cases are collected in the opinions in People v. Seaman, 107 Mich. 348 (65. N. W. 203, 61 Am. St. Rep. 326) (compare People v. Lonsdale, 122 Mich. 388 [81 N. W. 277]); People v. Hoffmann, 142 Mich. 531 (105 N. W. 838). See People v. Peck, 139 Mich. 680 (103 N. W. 178); People v. Henry, 129 Mich. 100 (88 N. W. 77). It is true the jury were required to find that the bank was destroyed with the intent to commit the crime of larceny, or some felony. The circumstances as they were made to appear supported no inference of accident, mistake, or inadvertence. There was no riot and nothing tending to prove that personal enmity provoked the destruction of property. That the admission of this testimony was calculated to influence the jury unfavorably to respondent Burke, there can be no doubt. The respondent Thompson was, when captured, in his company, and it is the theory of the prosecution that respondents were acting in concert. It cannot be imagined that, if they were acting in concert, they had different purposes or motives. We are obliged to say that for the errors pointed out the conviction of both respondents must be set aside.

In view of the fact that a new trial must be had, it is proper to notice another assignment of error. The court instructed the jury upon the subject of a reasonable doubt as follows:

4 ‘ It is a rule of law, also, that the side whereon the burden of proof rests has the onus cast upon them of proving beyond a reasonable doubt the truth of their assertion; that is, the guilt of the respondents. When I say ‘ reasonable doubt,’ I mean a doubt based on reason, that a reason can be given for, as distinguished from other doubts. Doubts may be imaginary doubts, may be captious, but reasonable doubts, if they exist, that are to be taken into consideration by this jury, are such substantial doubts as grow out of the evidence in the case, or is such by reason of a lack of evidence in the case so that the jury not only hesitates but halts in its deliberation, meeting that obstruction. That obstruction is of an insurmountable character; that is, the jury cannot proceed on their way and come to a conclusion, if their way is barred by that obstruction known in the law as a reasonable doubt. Other doubts, which, as I said, may be imaginary or captious doubts, may not arise to the dignity of a reasonable doubt and may be removed from your minds by discussion among yourselves. Such doubts would not weigh with you. It is only the doubt known as a reasonable doubt based upon reason, which I have explained to you, that could constitute such an obstruction as would prevent the jury from going beyond that. When such a doubt exists, if it does exist, the benefit of that doubt should be given to the person or persons on trial for any criminal offense, and an acquittal would follow — must follow. Now, that is what is meant, and all that is meant, by a reasonable doubt.”

It was said by Mr. Justice Champlin in People v. Stubenvoll, 62 Mich. 329, 334 (28 N. W. 883, 885):

“All persons who possess the qualifications of jurors know that a ‘doubt’ is a fluctuation or uncertainty of mind arising from defect of knowledge or of evidence, and that a doubt of the guilt of the accused, honestly entertained is a ‘ reasonable doubt. ’ ”

This court, in People v. Finley, 38 Mich. 482, 483, approved and commended the following charge t

“A reasonable doubt is a fair doubt growing out of the testimony in the case. It is not a mere imaginary, captious, or possible doubt, but a fair doubt based upon reason and common sense. It is such a doubt as may leave your minds, after a careful examination of all the evidence in the case, in that condition that you cannot say you have an abiding conviction to a moral certainty of the truth of the charge here made against the respondent.”

See, also, McGuire v. People, 44 Mich. 286 (6 N. W. 669, 38 Am. Rep. 265); Hamilton v. People, 29 Mich. 194. . The proposition that a reasonable doubt must be an insurmountable doubt is not approved.

It is unlikely that upon another trial other questions presented by the record will arise.

The conviction is set aside, and a new trial ordered. The respondents will be delivered to the custody of the sheriff of the county of Mecosta to. be dealt with according to law.

Montgomery, Hooker, Moore, and Brooke, JJ., concurred.


text:
    LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. JOHNSON.
    1. Landlord and Tenant — Estoppel—Adverse Possession.
    An occupant of land for upwards of 40 years may set up his adverse possession against the other party to an agreement which was signed by his predecessors in title, then in possession of the disputed premises under a valid claim of title, and which provided for a surrender of possession upon 60 days’ notice.
    3. Same.
    Estoppel arises between landlord and tenant by reason of indentures under seal or possession given; following Fuller v. Sweet, 30 Mich. 337; Michigan Gent. R. Go. v. Bullard, 130 Mich. 416.
    3. Real Property — Adverse Possession — Limitations.
    Continued occupation of premises for 40 years, coupled with the payment of taxes and express refusal to recognize plaintiff’s rights, is notice of the adverse claim.
    Error to Lenawee; O’Mealey, J.
    Submitted May 4, 1909.
    ( Docket No. 125.)
    Decided May 26, 1909.
    Ejectment by the Lake Shore & Michigan Southern Railway Company against Harry Johnson and Sarah E. Johnson. A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.
    Reversed.

      Smith, Baldwin & Alexander, for appellants.

      Herbert B. Clark, for appellee.
   Brooke, J.

This is a suit in ejectment brought by the plaintiff against the defendants for the following premises:

“All that portion of lots 2 and 3 of Gibbon’s-survey of the village (now city) of Hudson, county of Lenawee and State of Michigan, bounded on the north by a line parallel with and 50 feet northerly of the center of the railway track of said plaintiff across said lots; on the east by the east line of said lot 3; on the south by a line parallel with and 15 feet northerly of the center of said track; and on the west by the west line of said lot 2. Excepting therefrom a strip of land 8.5 feet in width, situated in the northwesterly corner of the land above described, and southerly of and adjoining the northerly line thereof, and extending from the westerly line of said lot 2 to a point distant 2% feet easterly from the easterly side of the dwelling house of said Harry Johnson and Sarah E. Johnson, which said premises, except the strip of land last described, the plaintiff claims in fee.”

The plaintiff offered in evidence a paper writing as follows:

“ Whereas, the Lake Shore & Michigan Southern Railway Company has, for my accommodation and at my special request, permitted me to erect a fence inside of its track and outside of my boundary lines, on its railroad in the following place or town, viz., across a part of lot 1 and across lots 2 and 3, and also across a part of lot 4 in block 3 of Gibbon’s survey of the village of Hudson in the State of Michigan, as now occupied by me, viz., inclosing all that part of said lots and parts of lots which lie south of a line north of and parallel with and 50 feet distant from the center of the railway track, and which is the property of said railway company, to enable me to cultivate and enjoy the use of said premises so inclosed so long as they are not required for the use of the said railway company at such place, and thus avoid much expense for ground rent, alteration of grade, fence, purchase, etc.
“ Now, therefore, in consideration of the premises, I do covenant for myself, my assigns, heirs, executors, and administrators, to and with such railway company that I will remove any buildings, fences, trees, or other obstacles upon these lots from the grounds of said company within sixty days after I or they shall be notified in writing by said company so to do, and I hereby expressly waive greater or longer notice, and if I or my assigns, heirs, executors or administrators shall fail to remove said buildings, fences, trees, and whatever else may be upon the railway company’s ground within sixty days after being notified so to do as aforesaid, then and in that case said buildings, fences, and everything else whatever upon said grounds shall be henceforth forfeited to and become the property of said railway company, and it shall and may be lawful for said company, or their certain attorney, to enter into said buildings and to repossess said premises and remove and put out each and ¿very occupant thereof.
“ In witness whereof I have hereunto set my hand this 24th day of April, A. D. 1871.
[Signed] “ Phoebe J. Moore.
“John G. Moore.”

The plaintiff was not able to show the execution of the foregoing paper by the Moores. It was not acknowledged nor recorded. It is the claim of the defendants that it should have been excluded. No other evidence of title in the plaintiff to the premises in dispute was offered by plaintiff.. Testimony on behalf of the defendants was introduced tending to show that the fence now standing between the railway and the defendants’ house was standing upon exactly the same line which it had occupied for upwards of 40 years. The conveyance from Anna M. Avery to Phoebe J. Moore, dated September 28, 1870, describes the property conveyed as follows:

“ Lots 2 and 3 and 28 feet off of the south end of lot 11, on block 3, according to Gibbon’s survey, in the village of Hudson, being all the ground now inclosed by fence around the said described premises in the village of Hudson, Lenawee .county, Michigan.”

It will be noticed that this deed bears date a year earlier than the agreement between Phoebe J. Moore and the plaintiff, and it cannot be doubted that the fence referred to inclosing the described premises was then in the same locality it is at- the present time. The deed from Phoebe J. Moore to Russell J. Packard, dated April 7, 1874, contains in its description the following:

“ Also all that part of the west part of said lot 2 now inclosed by the fences around the above described premises.”

The deed from Packard to the defendants is in the same terms. It is apparent from the foregoing that at the time the attornment was made by Phoebe J. Moore and John G. Moore they were already in possession of the premises in question, and that their grantor, Anna M. Avery, had likewise been in possession of the same prior to that time.

It is the claim of the plaintiff, and the learned circuit judge evidently reached the same conclusion, that the agreement referred to amounted in a legal sense to a lease as to the disputed strip, so that the Johnsons, the present owners, claiming title through Phoebe J. Moore, the signer of the paper, would be estopped from setting up a title to the same by an adverse possession, and, further, that this relation would relieve the plaintiff from proving title in any other manner. We think ¡that in this the learned circuit judge was in error. This court said in Fuller v. Sweet, 30 Mich. 237 (18 Am. Rep. 122):

“Where a person in possession agrees by parol to pay money to a person out of possession, and who has no title, it is impossible to find any sensible ground for sustaining such a promise which would not sustain any other promise made without consideration. Where there is an indenture, there is at common law a presumed consideration. Where there is possession given, there is an actual consideration, which may render it also reasonable enough, under ordinary circumstances, to require the landlord to be put back in statu quo. But a person who never had or gave up possession to the tenant is left in statu quo by the tenant’s remaining in possession, and in reason should have no further claim. If he has, it must be by some peculiar anomalous rule, for which we have found no support. * * * Accordingly it has been regarded as competent in all cases where the tenant has not received possession from the party who claims rent to authorize the claimant’s title to be investigated, unless there is some other ground of estoppel ” — citing many cases.

Again, in Michigan Cent. R. Co. v. Bullard, 120 Mich. 416 (79 N. W. 635), Mr. Justice Montgomery, speaking for the court, said:

“An estoppel of the tenant arises out of indentures under seal, or from possession given, whereby an advantage is derived by the tenant from the act of the landlord. But, where one in possession agrees by parol or by an instrument not under seal to rent, there is no just ground for denying the right of such tenant to show that the agreement was made under a mistake of fact, that the title to the property was in himself, and the lease therefore without consideration. Fuller v. Sweet, 30 Mich. 237 (18 Am. Rep. 122); 2 Taylor on Landlord & Tenant, § 707, and cases cited in note.”

Under the foregoing authorities, the defendants had a right to set up their title to the disputed strip as against the company. The record discloses the fact that they bought the premises under a deed which conveyed to them the strip in question in 1884, and that they have continued in the actual daily possession of the whole of it since that time under a claim of ownership. The record further discloses that the railroad company has, from time to time during the possession by the defendants, endeavored to secure a recognition of plaintiff’s rights in the disputed strip. Defendants have at all times refused to acknowledge any right of the plaintiff in the premises. We think the continued occupation of the premises by the defendants and their predecessors in title of the premises in question as a home, coupled with the payment of taxes thereon for upwards of 40 years, was notice to the plaintiff of the adverse claim.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Montgomery, Hooker, and Mc-Alvay, JJ., concurred.


author: Mooke, J.

text:
    PEOPLE v. MINDEMAN.
    1. Evidence — Maps—Accuracy.
    In a prosecution for the larceny of diamonds from a safe, a plan or drawing of the room in which the safe was situated was properly admitted after testimony had been introduced tending to show that the drawing indicated with approximate correctness the location of an adjacent point from which it was claimed the act of the respondent had been seen.
    3. Same — Remarks oe Trial Court.
    A statement of the trial judge that the situation could be cleared up did not amount to an expression of opinion as to the weight of evidence.
    8. Same — Criminal Law — Larceny.
    Testimony given by a witness who might be implicated in the crime, that he did not commit the same, is admissible.
    4. Same.
    Testimony that respondent subsequently left the State and avoided an important business engagement is material.
    5. Criminal Law — Larceny—Corpus Delicti.
    Testimony that the diamonds were taken from a- safe without the authority of the owner, and that respondent was seen in a suspicious attitude near the safe, is prima facie evidence that the crime of larceny had been committed.
    6. Evidence — Trial—Instructions—Credibility oe Witnesses.
    It is error to charge the jury in a criminal case where respondent did not take the stand, that it is the duty of the jury to accept as true the undisputed testimony of a witness unless of suoh a conflicting nature as in itself to discredit it.
    Exceptions before judgment from Calhoun; North, J.
    Submitted February 15, 1909.
    ( Docket No. 152.)
    Decided June 7, 1909.
    George Mindeman was convicted of larency.
    Reversed.

      Weeks & Cooper, for appellant.

      Howard W. Cavanagh, Prosecuting Attorney, for the people.
   Mooke, J.

The respondent was convicted of the larceny of three diamond rings and a set of diamond earrings, the property of Mrs. Murdock, which the people claim were of the value of $2,000 or more. The case is brought here upon exceptions before sentence.

A brief statement of what is claimed by the people is essential to an understanding of the questions involved. Mr. and Mrs. Murdock were the occupants of several rooms in Albion. One of these rooms contained a bed, a desk, some chairs, and a safe. The diamonds which it is claimed were stolen were kept in the safe. Mr. Murdock was interested in a projected electric road from Albion to Charlotte, and was one of the owners of an old right of way which had been obtained some years ago. The respondent and one Charles H. White, contractors and promoters, opened negotiations with Mr. Murdock, looking to a revival of the railroad project and a completion thereof. Some time during the business relations between these men, Mr. Murdock broke his leg and was confined to the room above mentioned. The respondent and Mr. White frequently saw him there, and it is claimed that at their solicitation they were shown the diamonds and knew where they were kept. After Mr. Murdock was able to be up and about, the respondent, upon one of his visits, became drowsy, and, upon the request of Mr. Murdock, occupied the bed which was near the safe. Mrs. Murdock was not in the room, and Mr. Murdock had occasion to go to the back room, and it is the claim of the people that at this time the diamonds were taken, though their loss was not discovered until some days later.

One of the assignments of error relates to the admission in evidence of a plan of the rooms. Another relates to the questioning of one of the witnesses by the trial judge and an expression used by him which it is claimed amounted to an expression of an opinion as to the weight of the evidence. These assignments may be considered together. The plan is not in the record, so that we do not know just how it appears. Evidence was given that it was approximately correct. A lengthy cross-examination then followed as to the rooms and the arrangement thereof, a part of which is as follows:

‘ ‘ There is a desk in that room taking up a couple of feet. Then room for a chair back of that two or four feet. Then comes the safe. It’s over two feet. The bed stands right against the safe and is about four feet wide and about six feet from the bed to the north wall. The door from the office bedroom to the dining room swings back toward the bathroom partition. There is a door from the dining room to the kitchen which swings towards the south. The plan does not show the arrangement of those doors as they are in the apartment.
“Mr. Weaver: I think we will renew our objection to the introduction of this plat in evidence on the witness’ own testimony. It cannot possibly serve any purpose here whatsoever.
“The Court: I shall overrule the objection at this time, because I think the situation can be cleared up. It is somewhat obscure now, to be sure.
“Mr. Weaver: We will take an exception.
“ There are two water-closets on that floor, side by side. We have the use of the one nearest the kitchen. The water comes right through the wall from it into the kitchen. I was standing 15 or 18 feet away from it when I saw Mr. Mindeman through the doorway. I stood opposite the table near the east side and looked across the kitchen, across the corner of the dining room and across the bedroom to the safe. I stood there long enough to drink a glass of water and was facing the safe while drinking. When I got through I set the tumbler down and went out. I did not stand and watch Mindeman, but I see what he was doing, or tried to.”

After the cross-examination was over, the judge asked the witness several questions and then ruled the plan might be received in evidence. The only way in which the plan was material was to show that, when the respondent was at the safe, Mr. Murdock could see him from where he was getting a drink of water. The evidence upon that subject justified the ruling of the trial court. The opinion of the judge did not relate to the weight of the evidence, but related wholly to the question of whether, under the evidence, the plan as to its material part was approximately correct. We do not think either of these assignments is well taken.

Another assignment of error grows out of the testimony of Mr. White. It is said his testimony was immaterial. We quote from the brief:

“This testimony was highly prejudicial to the respondent in this case. It caused the jurors to believe that Mindeman was trying to shove the crime upon White, and when, later, the smooth, well-groomed, handsome Mr. White was introduced on the witness stand, he gained the good opinion of the jury by this indirect method. The responsibility of the crime was thrown upon the nervous, unprepossessing appearing respondent.”

It has already appeared that Mr. White and the respondent had access to the room where the diamonds were, and knew where they were kept. After they were missed the respondent expressed an opinion to the officer that Mr. White had taken them and went with the officer to the room of Mr. White in his absence, and under the pretext of getting a shirt collar, searched a traveling bag belonging to Mr. White, claiming to the officer that he expected to find the diamonds there. It was also the claim of the people that, after the diamonds were taken, respondent absented himself from the State, though he had an important business engagement with Mr. White in the State. It was to meet this situation Mr. White was called. His testimony was material and important. Counsel say:

“ The question raised by the fourth assignment of error is the admission of testimony tending to show criminal intent before corpus delicti had been established or any evidence offered to show that a crime had been committed. In all trials for crime the prosecution must prove to the satisfaction of the jury and beyond a reasonable doubt the corpus delicti that a crime had been committed, before evidence tending to implicate the party on trial is introduced. This principle has always been regarded in eases involving the life and liberty of the citizen, and is generally strictly observed by the court” — citing many cases.

There is no question about the rule, and we think it was not violated in this trial. It was clearly shown that some one who was not authorized had removed the diamonds from the custody and possession of the owner under such circumstances as to warrant the inference of larceny.

Error is assigned upon the failure of the court to give the following request :

“In civil cases, where the mischief of an erroneous conclusion is not deemed remediless, it is not necessary that the minds of the jurors be free from all doubt. It is' their duty to decide in favor of the party on whose side the weight of evidence preponderates; but in criminal cases, because of the more serious and irreparable nature of the consequences of wrong decision, the jurors are required to be satisfied beyond any reasonable doubt of the guilt of the accused, or it is their duty to acquit him.”

As to that feature of the case the court charged:

“ The defendant having the benefit of the presumption of innocence at all times until that presumption is overcome by such a measure of proof as removes from your minds all reasonable doubt as to the guilt of the accused. In this case the evidence is entirely circumstantial and must be received by you and properly sifted to arrive at a conclusion, unless it be of such a nature and furnishes such a complete chain of evidence as to exclude every other reasonable hypothesis, except the guilt of the party accused, and unless you find that the evidence in this case furnishes such a complete chain that you are unable by the exercise of due care to see any other explanation for these circumstances except the guilt of the accused, your verdict should be not guilty. If, after considering all the evidence in the case, you have any reasonable doubt as to the guilt of the accused, it is your duty as jurors in this case to bring in a verdict of not guilty, and by a reasonable doubt I do not mean mere possible doubt, but I mean that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge made against the defendant. The burden of the proof is on the prosecutor. All the presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proven to be guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to an acquittal, for it is not sufficient to establish a probability, even though a strong one, arising from the doctrine of chance that the act charged is more likely to have been committed than not; but the evidence must establish the truth of the fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.”

The same rule of law was stated in different verbiage in other places in the charge. The request was fully covered.

Error is assigned upon that portion of the charge reading:

‘ ‘ I also say to you, as a matter of law, that it is your duty to accept as true the undisputed testimony of a witness, unless such testimony is of such a conflicting nature as in itself to discredit it.”

This is not a correct statement of the law. No witnesses were produced on the part of the respondent. It was the right and the duty of the jury to decline to accept as true the testimony of any witness, if, after considering all the testimony and the circumstances surrounding the case, they did not believe the testimony to be true.

The case is reversed, and a new trial ordered.

Ostrander, Hooker, MoAlvay, and Brooke, JJ., concurred.


author: McAlvay, J.

text:
    FISHER v. BURROUGHS ADDING MACHINE CO.
    Contracts — Compromise—Account Stated.
    An agreement for the purpose of taking care of certain mechanics’ liens, containing a recital that the defendant is indebted to the plaintiff in an amount named, does not operate as a compromise of disputed items when plaintiff did not know the amount due him, and claims that false representations were made concerning deductions to be charged, and both parties admit the incorrectness of some of the items.
    Error to Wayne; Rohnert, J.
    Submitted April 17, 1908.
    (Docket No. 130.)
    Decided June 7, 1909.
    Assumpsit by George W. Fisher against the Burroughs Adding Machine Company upon a building contract. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Willard E. Warner, for appellant.

      Walker & Spalding, for appellee.
   McAlvay, J.

Plaintiff in 1904 contracted in writing with the American Arithmometer Company to do the mason work in the construction of a factory in Detroit, according to plans and specifications of the architect, for the sum of $19,769. Defendant is the successor of the American Arithmometer Company, and as such responsible for any judgment plaintiff may recover. During the construction certain changes from the original plans and specifications were ordered and directed to be performed by the architect, which were made by plaintiff with the knowledge of the superintendent of construction. After certain delays caused by the owner not securing certain material, the work under plaintiff’s contract was completed, shortly before which time plaintiff was taken seriously ill. During the prosecution of the work, plaintiff, by reason of delays and losses caused by the company, was unable to pay for some of the materials which were used in the construction of the building, and several mechanics’ liens were filed. Later foreclosure proceedings of one of these liens were begun. Plaintiff was also sued by one of his creditors in justice’s court, and the defendant company garnished, and on an appeal by plaintiff the president of the company signed his appeal bond. Under these circumstances, and while plaintiff was confined to his house by sickness, and was not present at any meetings between the attorneys for the parties and defendant’s agents, the following agreement in writing was made and executed

“An agreement made by and between the C. H. Little Company of the first part, and the American Arithmometer Company of the second part, and George W. Fisher of the third part, under date of May 19, 1905, was duly proven and introduced in evidence by the defendant and marked Exhibit G. and is as follows:
“It is hereby agreed by and between the C. H. Little Co., of the first part, the American Arithmometer Company of the second part, and George W. Fisher of the third part, as follows:
“ Whereas, there is a balance owing to the third party from the second party of $6,211.05 for materials furnished and labor performed in construction of the second party’s factory at the corner of Second and Amsterdam avenues, Detroit, Michigan; and, whereas, liens have been filed upon said factory premises by the following parties for materials and labor furnished to said Fisher for the amounts set opposite their respective names, to wit:
“Trussed Concrete Steel Co...................... $236 16
Philip Carey Mfg. Co........................... 264 95
The C. H. Little Co............................. 3,672 81
Michigan Pressed Brick Co_____________________ 677 50
Garner Bros.................................... 24 50
Larkins Brick Co..........-....._.............. 1,207 50.
Sheehan Artificial Stone Co. __.................. 308 75
Elmer Jones.......................-........... 1,524 72
E. B. Holmes & Co.........-___________________ 823 43
$8,739 32
—and a suit at law has been commenced and is now pending on appeal in the circuit court for the county of Wayne by said Sheehan Artificial Stone Company against said Fisher for the same claim for which it has filed said lien, one Joseph Boyer, a stockholder in said American Arithmometer Company, being surety on the appeal bond; and, whereas, it is represented by the first and third parties that the liens of the following parties may be settled for the amounts set opposite their respective names, to wit:
“Trussed Concrete Steel Co...................... $100 00
Philip Carey Mfg. Co__________________________ 200 00
The C. H. Little Co_____________________________ 2,194 41
Michigan Pressed Brick Co...................... . 474 25
Larkins Brick Co________________________________ 1,107 50
Garner Bros.___________________________________ 14 70
$4,090 86
—and, whereas, it is represented by the said Fisher that good defense exists to the remaining lien claims and the said suit at law or to some part thereof:
“It is agreed by the respective parties, the agreement of each being in consideration of the agreements of the others as follows:
“Said the C. H. Little Company agrees:
“1. To protect and save harmless said American Arithmometer Company from all loss, costs, damages and expense on account of or by reason of any and all of the said lien claims hereinbefore referred to and all litigation thereon, and of the settlement of the claims whereof the settlement is hereby contemplated.
“3. To assume and carry on at its own expense the defense of said suit at law and of all of the lien claims hereinbefore mentioned until final adjudication or settlement thereof and to pay any amount necessary to effect a discharge and satisfaction of record of said suit, and of all of said claims as finally determined by adjudication or settlement in excess of the amount of $5,961.05, hereinafter provided to be paid from the fund in the second party’s hands.
‘ ‘ The second party agrees:
“1. To purchase the lien claims of the following named parties at the amounts set opposite their respective names if settlement can be effected at said amounts, paying therefor from the said balance owing to third party hereto, to wit:
“ Trussed. Concrete Steel Co...........-....... 5100 00
Philip Carey Mfg. Co________________________ 200 00
The C. H. Little Co..........'............... 2,194 41
Garner Bros................................. 14 70
Michigan Pressed Brick Co................... 474 25
Larkins Brick Co............................ 1,107 50
54,090 86
—taking assignments of the claims settled in the name of some person selected by itself which assignments shall be held for the purposes hereinafter provided.
“2. To pay W illard E. W arner, attorney for said Fisher, the sum of $250.00 from said balance owing third party, this payment being made by direction of the first and third parties and for services performed for the third party.
“3. On the adjustment of any of the remaining lien claims on terms satisfactory to the first and third parties or upon final adjudication thereof, to pay the same from the balance of said amount owing to third party hereto but not otherwise after making the payments provided for in clauses 1 and 2 of this paragraph, taking an assignment thereof in like manner as above provided, it being understood that the suit at law and the lien suit of said Sheehan Company must be settled together.
“4. To assign to the first party a certain bond executed by the third party to the second party wherein the American Bonding Company is surety and to pay over to the first party whatever remains of said amount owing to said third party when either upon settlement or final adjudications the claim set up in said suit at law and all claims of lien and all judgments and decrees that may be rendered therein are satisfied and discharged of record.
“ Said Fisher agrees:
“1. That he will render all assistance in his power in the settlement of the claims, the settlement whereof is hereby contemplated, and in the defense of all claims not settled.
“2. That he approves and consents to the disposition of said funds in the hands of the American Arithmometer Company and all the arrangements hereby contemplated.
“It is mutually agreed that the assignments of any claims settled shall be presented in the litigation over the unsettled claims of lien in order that they may be allowed and included in any decree that may be rendered, to the end that the parties hereto may be protected so far as possible against the unsettled claims, the expense, however, of presenting and securing the allowance of such assigned claims to be borne by the first party.
“ In witness whereof, the first and second parties have caused this instrument to be executed by the hands of their respective president, and the third party has hereunto set his hand this 19th day of May, 1905.
[Signed] “The C. H. Little Co.,
“ By O. H. Little, Prest, and Geni. Manager.
[Signed] “ American Arithmometer Company,
“By Joseph Boyer, President.
[Signed] “George W. Fisher.”

Under this agreement defendant company disbursed the sum stated according to its terms. Later plaintiff sued defendant company in assumpsit for a balance claimed to be due under his building contract, including materials and labor furnished and performed for extras in excess of the contract price, also averring that the amount stated in the agreement of May 19, 1905, as a balance owing him, was not the correct amount, but was arrived at by wrongfully deducting certain amounts on account of construction and material fraudulently represented by defendant to be defective and unfit. Upon the trial the court directed a verdict in favor of defendant, on the ground that the agreement of May 19, 1905, stated a balance as agreed upon between the parties in adjusting their accounts. No evidence was offered by defendant.

The case is before us for review upon writ of error. The material assignment of error necessary to be considered is upon the action of the court in directing a verdict. The determination of this question depends upon the construction to be given to the writing of May 19, 1905. It is contended by defendant that it was a settlement and adjustment between plaintiff and defendant of their differences arising out of the building contract, reduced to writing, signed by the parties, and is conclusive. That there were differences between these parties, and that at the time a large amount of money was still unpaid on this contract, is not disputed. Plaintiff and his attorney both testify that they do not know what was included in the $6,311.05 stated in the writing of May 19, 1905. It also appears that there had never been any settlement or adjustment between plaintiff and defendant, unless the agreement may be so considered. Both parties had presented items for adjustment, plaintiff for extras, and defendant for deductions, and the record shows that both parties now admit that some of these items should be allowed each party. It does not appear what is included in the amount of $6,311.05, admitted by defendant to be owing plaintiff at that time; but it does appear that the sum of $300 was arbitrarily stricken out because of a claim for defective work which must be removed, which has never been done. Plaintiff, who was confined to his house by serious sickness, never took any part in these negotiations. He was represented by his attorney.

It is also urged by defendant that to allow plaintiff to dispute the amount expressed in the agreement would be a fraud upon his creditors. It is apparent that at the time plaintiff did not know the amount he was entitled to. The apparent object of this agreement was to dispose of certain liens on the properly, and a certain lawsuit without loss to defendant. The principal lienor undertook to dispose of the liens and settle the claims out of this amount of $6,311.05, belonging to plaintiff, in defendant’s hands, on condition that he take any amount that was left over, and an assignment of the surety company bond given by plaintiff to defendant as its protection, presumably when the contract was entered into. From the preambles to this contract this appears to have been a safe undertaking on the part of this lienor and justified by the results. It was carried out, and all of these claims were adjusted and settled out of this fund. Plaintiff claims he is entitled to about $1,700, the balance due under his contract. If this had been a matter of mistake by or against either one of these parties, under the circumstances, it is clear that either one could recover from the other the amount of the true balance. If brought about by what amounted to a deception or a fraud, plaintiff ought not to be bound by it. It does not appear that any creditor was deceived by the recital that this was the balance owing plaintiff from defendant, and, if such deception of creditors could be charged as resulting therefrom, if plaintiff’s contention is true, defendant, and not he, is chargeable with it. Defendant has been in no way damaged, upon any theory of the case. On the contrary, if plaintiff is right, defendant has profited $1,700 by the transaction.

As between plaintiff and defendant, there can be no estoppel against plaintiff by reason of the recital in the agreement “whereas there is a balance owing to the third party from the second party of $6,211.05.” This recital does not constitute a settlement and adjustment between these parties.

The court was in error in instructing a verdict for defendant.

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

Blair, C. J., and Grant, Montgomery, and Hooker, JJ., concurred.