text:
    MULHOLLAND v. KELSEY.
    1. Trover and Conversion — Chattel Mortgages — Sales—Contracts.
    There was evidenoe of conversion, in an action of trover for the value of a livery stock which plaintiff, after purchasing of defendant, giving him a mortgage back and paying a part of the indebtedness, turned back to the defendant upon his agreement to run the business for the proceeds, and, as soon as he could do so, sell it and pay the surplus remaining, after satisfying the debt, to the plaintiff, but which, in defiance of the agreement, defendant took, claiming absolute title from the time he obtained possession.
    2. Same — Evidence—Opinion Evidence.
    . It was error to permit a witness to testify as to the comparative value of the property, at different times, where he did not show that he was acquainted with its value at any time.
    8. Same — Profits—Damages—Speculative Evidence.
    Testimony concerning the profits of the business, made while defendant conducted it, was too speculative and uncertain to afford evidenoe of its value.

      Error to Ingham; Collingwood, J.
    Submitted April 18,1911.
    (Docket No. 89.)
    Decided June 2, 1911.
    Trover by Homer G. Mulholland against John Kelsey. Judgment for plaintiff. Defendant brings error.
    Reversed.

      C. P. Black and 8. B. Roe, for appellant.

      Gardner & Hood, for appellee.
   Blair, J.

This is an action of trover brought by the plaintiff against defendant to recover for the conversion of a livery stock. In August, 1906, plaintiff purchased this livery stock from one Mott for $2,000, paying $400 down. Defendant, Kelsey, a livery man of long experience, held a chattel mortgage on the property given by Mott for $1,400, and took charge of the business for plaintiff temporarily. By applying profits made, he reduced plaintiff’s indebtedness to Mott to $1,380.83, and on December 12, 1906, a new arrangement was made, whereby Mott’s indebtedness to Kelsey was discharged, the mortgage canceled, and a new note and mortgage for $1,380.83 executed by plaintiff to defendant. Thereafter plaintiff carried on the business till December 23, 1907, when he turned it over to defendant under an agreement, as he testified, that Kelsey was to take charge of the livery stock and conduct the business for the profits until an opportunity arose to dispose of it for what it was worth, when he was to sell it, take out $740 due him on the note and mortgage, and pay the remainder over to plaintiff, in whom the title was to remain till the sale.

“ But there was not a stated amount; that is, stated figure that the barn should be sold for, only it was to be sold for the best possible price. Mr. Kelsey was to sell it at any decent figure. He was to exercise his own judgment as to the fairness of the price. He knew what this stock was worth, and he knew what it ought to be sold for and he did sell it. But he anyway had authority to go on and sell the stock at the best possible price. There was no fixed figure at which the property should be sold, nor date fixed upon when property was to be sold. The title was to remain with me. Kelsey had the privilege of selling it.”

The defendant testified that the transaction was an absolute sale to him of the stock for the amount of plaintiff’s indebtedness, that he surrendered the note and discharged the chattel mortgage, and became the absolute owner , of the property.

The circuit judge instructed the jury that, if they f ound defendant’s version of the transaction to be correct, plaintiff was not entitled to recover, but that, if they found the agreement to be as testified by plaintiff, then defendant was guilty of a conversion of the property at the time the slock was turned over to him, and they should ascertain plaintiff’s damages.

“You will find then from the evidence in this case the value of that stock at that time taking everything into consideration, and you will find the amount due Mr. Kelsey on that mortgage. You will then deduct the one from the other, and that will be Mr. Mulholland’s damage, and he will be allowed on that 5 per cent, interest.”

The jury returned a verdict for plaintiff of #985.62.

Defendant relied upon the following points:

“(1) Under the undisputed evidence the action of trover was not the plaintiff’s remedy.
“(2) If trover could be maintained, there was no legal evidence outside of that offered by the defendant that tended to show the market value of the property in question at the date of the conversion as claimed by the plaintiff.
“(8) The undisputed evidence offered in the case as to the value of the property at the alleged date of conversion showed that the value was less than the amount due the defendant.
“(4) The court erred in permitting the plaintiff to fix upon an erroneous basis for proving the market value of property at the time of the alleged conversion.
“(5) The court erred in admitting and rejecting evidence over the objection of defendant’s counsel.
“ (6) The court erred in refusing to direct a verdict for defendant on defendant’s motion at the close of the case.
“ (7) The court erred in its charge to the jury.”

This raises the principal question in the case. We agree with the circuit judge that the defendant’s testimony proved him guilty of conversion, if the jury should accept plaintiff’s version of the agreement. The defendant testified:

“ * * * Your claim is, is if, Mr. Kelsey, that at the time you took that property from Mulholland, December, 1907, immediately when you went into possession you became the absolute owner of that property, is it ?
“A. Yes, sir.
“ Q. And you have claimed to be the owner ever since ?
“A. No; not ever since.
“Q. Up to the time you sold ?
“A. Yes. * * *
“Q. You claim that you bought the stock from Mr. Mulholland for the debt ?
“A. I do.
“Q. And immediately, when you took possession of it, you claimed absolutely the title in you ?
“A: I did.
“Q. And you also claimed that you had a right to do with that property whatsoever you wished ?
“A. Yes, sir.
“Q. And you from that moment did not recognize that Mr. Mulholland had one cent of interest in that property ?.
“A. Not one penny.
“Q. And that has been your attitude ever since you took possession of that property ?
“A. Yes, sir.”

It is apparent from defendant’s own testimony and from that of others that defendant never for an instant held this property as the property of plaintiff, to be sold at the first opportunity for the plaintiff’s benefit. On the contrary, he secretly held it from the outset in defiance of his agreement and with the settled determination to deprive plaintiff wholly of it and apply it wholly to his own use. He intended to convert the property to his own use at the time he obtained the possession, and could predicate no rights whatever as against plaintiff upon such fraudulent possession. People v. Hanaw, 107 Mich. 337 (65 N. W. 231); Iler v. Baker, 82 Mich. 226 (46 N. W. 377).

At the time plaintiff purchased the stock in August, 1906, defendant told him “that he did not think the stock was worth over $1,800, or it ought to be bought for that.’ Plaintiff testified that he added to the property bought of Mott other property of the value of $763.50. The witness Miller testified that defendant told him that he was offered $1,300 for the stock, leaving out the horse “Sam R,” worth $200, and would not take it. Speaking of the man who made the offer, he said:

“He don’t know this stock is worth just as much today as it was the day Mulholland bought it.”

The witness Osborne testified:

“I called on Mr. Kelsey before buying the stock, and he asked me $1,400 for the stock as it was. Kelsey said he had one stock horse that he would reserve with the harness; that he would take $200 less for the horse, and, after a day or two jewing, I bought the stock for $1,150, and Kelsey reserved the horse and his harness. I got seven horses in the purchase. * * * I paid Mr. Kelsey $1,150 for the stock, and got the hay and grain that there was in the barn. There was about $50 worth of hay and grain in the barn.”

The witness McFadden testified for plaintiff:

“That somewhere between the 21st day of January and the 12th day of February, 1908, as near as I could look it up since this thing came up, I attempted to buy this livery stock or Mr. Kelsey and I offered Mr. Kelsey $1,300 in cash for it. I had the cash with me. At first he offered to take that. In about a week I came back, and Kelsey said his boy was coming in there with him, and he would not sell it.”

Defendant testified that prior to the sale to Osborne he had sold property to the amount of $180, making, with the horse reserved, $1,480. Plaintiff testified that there were three horses not turned over to defendant:

“ The first horse was a bay mare, I believe I have forgotten the name, weight about 950 to 1,000 pounds, about 12 or 15 years old, a very good one. That was killed. The value of the horse was probably $150 or better. Mr. Kelsey received for that horse $100, so he said. Gave credit on the note and mortgage. The second house called ‘Bill’ became lame and was sold for $35, while witness was at the barn. That was all that could be obtained for the horse. The third horse was a chestnut saddle horse. It died in the barn. Witness thought a fellow offered him $25 before it died. That was a fair price for the horse at the time.
“Plaintiff’s Counsel: Were there any other articles that you purchased that you did not turn over to Mr. Kelsey at the time of this arrangement ?
“A. I am not positive. There might have been one old buggy or two old buggies that were not there. That is all I could recall that was absent from the stock. The value of these buggies would not exceed $15 each or $30 for both. That is my memory. I am not positive but what I turned them over to Mr. Kelsey.”

Defendant testified that the full market value of all the property received from Mulholland except the horses was $291, that the value of the horses averaged $40 each, and that there were 11 horses turned over to witness. Defendant’s testimony and that of his witnesses tended to show that when he took the stock it was badly run down and depreciated. Although the jury appears to us to have placed a very high value upon the stock, we cannot, in view of the admissions of the defendant as testified to by plaintiff’s witnesses, say that there was no evidence of the value of the stock when it was delivered to defendant.

We are of the opinion, however, that the court erred in overruling defendant’s objections to questions put to the witness Miller as to the comparative value of the stock at the time Mulholland took it and at the time Kelsey took it. The witness was asked:

“Q. Did you at the time know the values of livery stock like this was ?
“A. Why, no; not exactly.
“Q. You have seen horses sold and bought ?
“A. Horses sold and bought.
“Q. And you have seen harnesses and carriages bought and sold ?
"A. Yes, sir.
'‘Q. And had some experience in them ?
“A. Sure, some.
“Q. And know what they ought to bring?
“A. What they ought to have brought; yes, sir.
“Q. Now, I ask you how much more was that worth at the time Mr. Mulholland turned it over to Mr. Kelsey than it was when he got it in December, 1906 ? * * *
Q. You may state how much more it was then worth ?
“A. Well, I should think it was worth three to four hundred dollars more.”

The stock comprised many other articles besides horses and carriages, and the witness’ competency was rather disproved than proved by his own testimony. We also think it was erroneous to -receive testimony as to the profits of the business while defendant was running it, since, although this might have some bearing upon the character of the property producing the profits, it would be too uncertain and speculative to afford more than a conjecture as to the value of the property.

The other questions discussed will probably not arise upon another trial, and we therefore do not consider them.

The judgment is reversed, and a new trial granted.

Moore, McAlvay, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    HARRINGTON-WIARD CO. v. BLOMSTROM MANUFACTURING CO.
    1. Novation — Contracts—Elements.
    The necessary elements of a novation are parties capable of contracting, a valid prior obligation to be displaced, the consent of all the parties to a substitution, based on sufficient consideration, the extinction of the old obligation, and the creation of a new one, and these elements must be established by direct evidence or by evidence of such facts and circumstances as logically lead to the conclusion that a new contract has been made.
    2. Same.
    Where defendant corporation transferred its assets to another corporation in part consideration of the assumption by the succeeding company of certain contracts with plaintiff, necessary elements of a novation were lacking in that plaintiff was not a party to the contract of transfer and never agreed to any substitution of the new company or any other debtor.
    3. Same — Payment or Performance of Contract.
    While it may not be essential that the assent to and acceptance of the terms of the novation be shown by express words to that effect, but may be implied from the facts and circumstances attending the transaction and the conduct of the parties thereafter, the consent of the obligee is not infer-able merely from the performance of the original contract or the payment of money by the substitute.
    A Same.
    And a novation is not to be implied from acts consistent with a continuing liability of the original obligor.
    5. Damages — Profits—Contracts—Evidence of Facts Mitigating Loss.
    In an action for profits lost by virtue of breach of contract, defendant was entitled to show on cross-examination that plaintiff’s loss was reduced by profits made under a contract with a third party during the time when plaintiff would have been engaged in carrying out the broken agreement.

      6. Same.
    It is the duty of an injured party to do all in his power to diminish damages suffered by breach of contract, and if he has an opportunity to protect himself from loss and does not do so he cannot be heard thereafter to complain.
    7. Same — 'Verdict.
    Under a charge which permitted the jury to consider profits lost without deducting any profits made or which might have been made by plaintiff in mitigation of damages, the verdict will be held erroneous, although it was less in amount than plaintiff claimed.
    8. Trial — Practice.
    It is not a commendable practice to permit the stenographer to state his recollection of facts without referring to his notes.
    Error to Wayne; Murfin, J.
    Submitted April 18,1911.
    (Docket No. 102.)
    Decided June 2, 1911.
    Assumpsit by the Harrington-Wiard Company against the Blomstrom Manufacturing Company for breach of a contract. Judgment for plaintiff. Defendant brings error.
    Reversed.

      John E. Moloney (Frank W. Atkinson, of counsel), for appellant.

      Corliss, Leete & Joslyn, for appellee.
   Stone, J.

This is an action of assumpsit brought to recover damages for the breach of two contracts made by the parties, as hereinafter stated.

On the 9th of April, 1908, the defendant was engaged in the manufacture of automobiles. It entered into contract with the plaintiff company, which was a contracting machinist. By and under the terms of this contract the plaintiff was to build and construct 25 two-cylinder Gyroscope motors for the defendant for the sum of $2,412.50. It was to furnish all the materials and workmanship for the engines, with the exception of crank shafts, connecting rods, valves, main ball bearings, forgings, steel castings for steering device, intake and exhaust water pipes. The latter materials were to be furnished by the defendant, which was also to furnish all materials necessary for building jigs and tools, and to pay, in addition to the contract price, 60 cents per hour for the work done upon the jigs and tools. From time to time, as the work progressed, the defendant was to advance to the plaintiff sufficient moneys to meet its pay rolls upon this work. Ten motors were built and delivered under this contract, and considerable other work is claimed to have been done, and materials furnished towards completing the 15 additional motors. On or about the 24th day of July, 1908, the plaintiff was instructed to cease manufacturing any more motors under the contract of April 9, 1908. Under this first contract the plaintiff claimed the value of each item that was manufactured, embracing the cost of material and labor, to be $1,256.75, and damage by reason of defendant’s failure to fulfill the contract in accordance with the terms thereof of $500 as reasonable profits on 15 motors not constructed.

On February 23, 1909, the second contract was made by the parties. Under the terms of this contract, the plaintiff was to manufacture for the defendant 300 small two-cylinder Gyroscope motors for the sum of $87 each, and deliver the engines as fast as completed and tested, and the defendant was to advance, from time to time, to the plaintiff, all pay rolls, and pay for all materials going into said engines when payment therefor should become due and payable. Fifty-two engines were delivered under this contract by the plaintiff to defendant. Some time in June, 1909, at the request of the defendant, the plaintiff suspended work under this contract. It was the claim that up to that time it had acquired a large quantity of material and expended a great amount of labor in manufacturing parts for the completion of the contract. Plaintiff’s statement of this material and labor appears as an exhibit in the case. That exhibit contains a statement of labor and material required to construct 248 Gyroscope motors under the last contract. It aggregates $8,214.82, with the additional item of $1,500 for loss sustained as damages by reason of the cancellation of the contract. The bill of particulars in the case contains these two items, respectively, of $500 and $1,500 as damages for loss of gains and profits under the two contracts. There was a credit to the defendant allowed upon the trial of $4,954.08 in excess of the engines actually delivered.

On or about the 31st of August, 1909, the defendant entered into an agreement with Fred Postal and Henry Bowen by and under the terms of which it agreed to sell to said last-named parties, and to a corporation which was to be organized by them and their associates, all of its assets for a consideration therein named, and the said Bowen and Postal agreed as follows:

“We will not assume any debts or obligations of your company, founded on contract or tort, except for materials not delivered and agency contracts for machines to be delivered, such contracts we are to assume and carry out.”

On or about the 11th day of September, 1909, in accordance with the terms of this contract, said Postal and Bowen and their associates organized a corporation known as the “Lion Motor Car Company.” Mr. Bowen was elected president and general manager of this corporation at that time. Pending the negotiations for the transfer of the property of the defendant, as above contemplated, the plaintiff threatened to institute proceedings to prevent the transfer. Between the 19th and 31st days of August the attorney for the defendant had an interview with the general manager and treasurer of the plaintiff and its attorney, when he informed them of the proposition that had been made by Bowen and Postal, and stated that, if the proposition was accepted, Bowen, Postal, and their associates, when organized into a corporation, were to assume all contracts for materials which the defendant had. At this interview it was stated that the plaintiff would not allow any transfer until its matters with the defendant had been settled and adjusted, and attachment proceedings were threatened. It was agreed that nothing should be done which would change the position of the plaintiff without notice to it. While these negotiations were pending, Mr. Wiard, the general manager and treasurer of the plaintiff, acting for it, was kept informed as to what was going on; and some time between the 1st and 10th of September, 1909, he was given a copy of the contract by the attorney of the defendant, who called Mr. Wiard’s attention to the fact that under the terms of the agreement the two contracts between the parties to this suit would be assumed by the purchasers of the plant, and that, as soon as the corporation was organized, it was going to begin business at Adrian, and continue the manufacture of the products of the defendant. In these conversations Mr. Wiard stated to the attorney for the defendant that all the plaintiff wanted was to have these contracts carried out. He did not care whether this was done by the defendant, Mr. Postal, Mr. Bowen, or the Lion Motor Car Company.

On the 16th day of August, 1909, Mr. Blomstrom resigned the position which he held as superintendent and manager of the defendant. On the same day he entered into the employment of Messrs. Postal and Bowen, and, after the organization of the Lion Motor Car Company, became the superintendent of its plant at Adrian, Mich., and continued in that position down to the time of this suit.

On the 11th day of September, 1909, immediately following the adjournment of the meeting at which the Lion Motor Car Company was organized, Mr. Bowen, Mr. Blomstrom, and others interested in the new company went to the office of the attorney of the plaintiff. The attorney was there informed that the corporation known as the Lion Motor Car Company had been organized, and that it had taken over the contracts for materials of the defendant, and Mr. Bowen said that in a few days he would be down and have some money. On the 16th day of September Mr. Bowen gave his personal check to the plaintiff for $2,000, and the following paper was executed:

“ Memorandum of agreement made this 16th day of September, 1909, by and between Harrington-Wiard Company, a corporation in Detroit, Michigan, and Henry Bowen of Adrian, Michigan.
“Whereas, the said Harrington-Wiard Company hold a contract with the Blomstrom Manufacturing Company for the manufacture of motors, upon which has accrued accounts for material aggregating upwards of two thous- and dollars ($2,000.00).
“And whereas, said Blomstrom Company has failed to advance funds required sufficient to meet said obligations and the funds are required to go on with said work under the contract:
“ Now, therefore, said Henry Bowen, in consideration of the premises, hereby advances as a loan to said Harrington-Wiard Company two thousand dollars ($2,000.00) to enable said company to take up said pressing demands for material and to permit said Harrington-Wiard Co. to use said loan of two thousand dollars in connection with the fulfillment of the contract above mentioned, settlement therefor to be made in the final adjustment of said contract.
“ Harrington-Wiard Co.
“ F. Wiard, Treas.
“ Henry Bowen.”

Prior to the time this payment of $2,000 was made by Mr. Bow.en to the plaintiff, neither Bowen, Postal, nor the Lion Motor Car Company had any business whatever with the plaintiff.

The defendant retired from active business operations on or about the 31st day of August, at the time of signing the contract with Bowen and Postal, above referred to.

On the 6th day of October, 1909, Mr. Wiard went to Adrian to the plant of the Lion Motor Car Company for the purpose of ascertaining when the plaintiff could proceed with these contracts. He was there notified both by Mr. Bowen and Mr. Blomstrom, who was then superintendent of the Lion Motor Car Company, that they were making some little changes in the engine, and that as soon as these changes were completed they would proceed with carrying out the contracts. Mr. Wiard told Mr. Bowen that the plaintiff was rather hard up, and Mr. Bowen instructed the treasurer of the Lion Motor Car Company to give Mr. Wiard a check for $500, which he did. The $2,000 payment and the $500 payment were credited to the defendant’s account on the books of the plaintiff.

After returning to Detroit, on or about the 11th day of November, 1909, Mr. Wiard claims that he ascertained that the Lion Motor Car Company was not having blueprints of changes made, and that he then concluded to put the matter into the hands of his attorney. About this time the plaintiff made up a statement which appears in this record as Exhibit 14. This statement was made out to the Lion Motor Car Company of Adrian, Mich., and purports to be a complete statement of all the claims of the plaintiff in this suit, together with all credits, including the $2,000 and $500 payments.

The Lion Motor Car Company gave no orders for engines, and in February, 1910, this suit was started. The main defense urged by defendant was that there had been a novation of these contracts in litigation.

We have not here attempted to make a full statement of all of the testimony relating to the claimed novation. We have, however, read the record with care. Upon the trial of the case some questions arose as to the admissibility of evidence bearing upon the subject of the plaintiff’s claim for damages. In the direct examination of Mr. Wiard the following occurred:

“Q. You knew what the net profit of your company would be if it completed the contract in accordance with the terms thereof ?
“A. We figure 25 per cent. I should say that was a fair estimate. That would give us a profit of $21.75 on each motor, and there were 248 motors yet to be delivered. In figuring $1,500 loss on this (the second) contract, I considered the loss of time, the loss of taking on other contracts, lots of things as that, storage and handling the material and so forth.
“The Court: I don’t think these other items are proper under the circumstances. * * *
“Q. Giving credit for the payments made upon this contract at the time the suit was commenced, on the second contract, what was the balance due your company ? (Objected to as incompetent and immaterial. Objection overruled and exception.)
“A. That is $8,235.30. That includes the '$1,500 loss under this contract, and is giving credit for all payments that have been made according to our books.
“Defendant’s Counsel: He asked what the balance is. Now he is trying to put |1,500 as a prospective loss.
“The Court: Which I have stricken out. Why isn’t this a great deal simpler ? He has now detailed a claim. You can get the payments that have been made, and in that way strike your balance.”

On cross-examination of the witness Wiard the following occurred:

“During the year 1908 we did very little work outside of the work of the Blomstrom Manufacturing Company while we were working on their contract. Our contracts gave our shop, while we were working on them and pushing them, practically full employment. We did take up other work in our shop in 1908. . We took a contract from the Hupp Motor Car Company.
Q. How much of a contract was ydur contract with the Hupp ? ( Plaintiff’s counsel objected to this question as incompetent.)
“ The Court: I sustain the objection. (Defendant excepts.)
“A. The contract which we took from the Hupp Motor Company in the fall of 1908 was not sufficient to keep our shop going in business.
Q. Did you make another contract with Hupp mobile in 1909?
" Plaintiff’s Attorney: I object to that as immaterial
The Court: There is no occasion for going into tha any further.
“Mr. Moloney: Then I would like to make my statement of what I intend to show. I simply offer to show by this witness on cross-examination that they made contracts in 1909, and that those other contracts were such that they took up all of their time in the shop. That by reason of having another contract they did not suffer anything in loss of profits on our contracts, because they simply turned their men and machines over on the other contracts.
“The Court: In other words, it is your theory that they cannot do two things at the same time.
“Mr. Moloney: Exactly, it is the situation in which they were down there.
“The Court: I will exclude it. (Defendant’s counsel excepts.)
“A. We did not have a contract with the Hupp in 1908; it was 1909.
“The Court: I don’t care whether it was or not; I have excluded the inquiry.”

The court refused to submit the question of novation to the jury, but did submit to the jury the question of breach of contract by the defendant and damages claimed by plaintiff. The court charged the jury upon the subject of damages as follows:

“ The plaintiff would be entitled to recover: First, the amount of money in dollars and cents that the plaintiff has expended for the parts of these motors, and for the labor and material involved in those parts, which he has not been able to put into these motors, and turn over; that is to say, the parts which he still has on hand which he is prevented from using because the defendant, as he claims, had, if you so find, told him to stop making these motors, less, however, the value of those parts, whatever you find the value of those parts to be. * * * In addition to that item of damage which he is entitled to recover, he is entitled to recover whatever in dollars and cents you find would have been his profits on that job had he been able to complete the job.”

After the jury had retired to consider their verdict, they returned into court, in the absence of counsel for both parties, and made the following inquiry:

The Foreman: Your Honor, we want to get some information in regard to the contracts, as to the amount that they ask in each contract, or if they have got to be fetched in separate. That is what we want to get.
The Court: They should be figured separately, but your verdict should be returned to the court as an entirety.
The Foreman: Well, we would like to get the information of what the total damages asked for were.
The Court: Well, now, that is a matter of the evidence that was detailed before you.
The Foreman: There is some mix-up in the figures.
The Court: I have not before me the figures, nor did I carry them in my head. Are the files still here ?
The Clerk: Yes.
The Court: The claim for loss of profits on the first contract was $500, and the claim for loss of profits on the second contract was $1,500; but the figures for the alleged cost, or the alleged value of the work and materials that were on hand changed so many times, so many computations, that I have not got those before me. I thought one of your number took those figures down.
“A Juror: I have some figures, but there is some dispute.
“ The Foreman: There is a dispute about it.
The Court: Let me see it.
The Foreman: Some claim that is on the second contract, and some says on the total. (Hands paper to the court.)
“A Juror: $556.25 was on the first contract; on the second contract was $8,214. I don’t think that that in-included the loss.
“ The Court: My recollection is that that figure there was the gross total claimed by the plaintiff.
The Foreman: On everything?
“ The Court: On everything. That was the total claimed.
“The Foreman: On everything, that included the $500 ?
The Court: That included the $500 and $1,500. That was the maximum total claim.
The Foreman: That is what we want to get.
The Court: That is correct.
" The Foreman: Interest on top of that ?
The Court: No, that also included the interest as computed by counsel.
The Foreman: Wasn’t that cut down to $7,900 and something ?
“The Court: Possibly, in order to be accurate, we better get the statement. 1 (The court asks the stenographer if he took down the statement of the counsel for plaintiff to the jury as to their total claim. The stenographer speaks to the court privately.)
“The Court: The stenographer tells me that he has taken his minutes back to his office, but that he has a very distinct recollection that the last claim made during the argument of counsel was that the total claim including interest and everything was 7,000 and some odd dollars. The details of that the stenographer does not have; but he says he recalls very distinctly that the last claim made by counsel during the course of the argument, figuring in everything that the plaintiff claimed, was 7,000 and some odd dollars.
“The Foreman: Then we have nothing to do with figuring the interest. That includes interest?
“The Court: That includes interest and everything else, yes.” •

The jury thereupon retired; the foreman saying, “We will be ready in about five minutes, and thereupon the jury returned a verdict in favor of the plaintiff for $4,851, upon which judgment was entered.

The defendant has brought the case here upon writ of error, and there are 28 assignments of error. The first 18 of these relate to rulings of the court upon the admission of evidence. The fourteenth to twenty-sixth assignments relate to the charge of the court. The twenty-seventh and twenty-eighth complain of the additional instructions by the court in the absence of counsel.

The principal argument of counsel upon both sides relates to the subject of novation. It is properly raised by assignments of error based upon the refusal of the court to charge as requested by the defendant. The defendant contends that thé evidence establishes a novation of the contracts involved in the case, and that the Lion Motor Car Company assumed the liability, and that the plaintiff accepted the Lion Motor Car Company in place of, and released, the defendant from liability. It is a well-established rule that the necessary legal elements to establish novation are: (1) Parties capable of contracting; (2) a valid prior obligation to be displaced; (3) the consent of all parties to the substitution, based upon sufficient consideration; and, (4) lastly, the extinction of the old obligation and the creation of a valid new one. All of these elements must be established by the evidence; not necessarily by direct evidence, but by evidence of such facts and circumstances as logically lead one to the conclusion that a new contract has been made,

It is the claim of the defendant that at least this question should have been submitted to the jury upon proper instructions, and that the court erred in refusing such submission. The decisions of this court upon the subject of novation are so numerous that citation of authority seems to be unnecessary. We will, however, refer to a few authorities: 29 Cyc. pp. 1130-1133; 21 Am. & Eng. Enc. Law (2d Ed.), p. 663; Dean v. Ellis, 108 Mich. 240 (65 N. W. 971); Fuller, etc., Manfg. Co. v. Houseman., 117 Mich. 553 (76 N. W. 77); Martin v. Curtis, 119 Mich. 169 (77 N. W. 690); Piehl v. Piehl, 138 Mich. 515 (101 N. W. 628).

In our opinion there are several indispensable elements wanting here, to establish the contract of novation:

(а) Plaintiff is not a party to the contract between Bowen and Postal and the defendant herein, even though Bowen and Postal assumed the contracts in question.

(б) There is no evidence whatever in the record that the plaintiff ever agreed to substitute either Bowen and Postal, or the Lion Motor Car Company, in the place and stead of the defendant.

To constitute novation the creditor must have consented to the discharge of the original debtor, and must have accepted the promise of the new debtor.

It is true that it has been held that it is not essential that the assent to, and the acceptance of, the terms of novation be shown by express words to that effect, but that the same may be implied from the facts and circumstances attending the transaction, and the conduct of the parties thereafter. Such consent, however, is not to be implied merely from the performance of the contract or the payment of money by the substitute, for that might well consist with the continued liability of the original party. Illinois Car & Equipment Co. v. Wagon Co., 112 Fed. 737, 50 C. C. A. 504.

The fact that the plaintiff accepted $3,000 from Bowen, and $500 from the Lion Motor Car Company, is perfectly consistent with the position of the plaintiff that the defendant was not discharged from its contract liability. One may accept money or performance of a contract from a third party without releasing the original obligor. In the case last above cited, the defendant, which had contracted to furnish plaintiff with iron required in its business, leased its mills to the second company, which agreed to fulfill defendant’s contracts, including that with the plaintiff. In an action by plaintiff to recover for the breach of the contract, defendant pleaded a novation as a defense. It was held that the lease containing the agreement of the lessee was admissible in behalf of the defendant as a link in the chain of evidence to prove novation, but that its exclusion was harmless error, where there was no evidence showing any agreement on the part of plaintiff to accept the lessee and release defendant from the contract. Upon that branch of the case Jenkins, Circuit Judge, speaking for the court, said:

“The evidence treating the lease as before us is wholly insufficient to establish a novation. In American Paper-Bag Co. v. Van Nortwick, 3 C. C. A. 274, 52 Fed. 752, we had occasion to consider the principles upon which the doctrine of novation is founded, and we declared that assumption of liability is not novation, unless there concur the consent of the one party to accept the substitute in lieu of the other party to the original contract, and a discharge of the latter. There must be consent by the creditor to take the new debtor as his sole security and to extinguish the claim against the former debtor. Butterfield v. Hartshorn, 7 N. H. 345 (36 Am. Dec. 741). Such consent is not to be implied merely from the performance of the contract by the substitute, for that might well consist with the continued liability of the original party; the substitute acting for that purpose in the capacity of agent for the original obligor. Nor does payment by the wagon company to the Southern Company prove a novation. The car company, by its lease to the Southern Company, had put it out of its power to perform the contract. It sought to protect itself by agreement with the lessee to make and deliver to the wagon company the undelivered part of the iron contracted. In no other way could the contract have been performed. The Southern Company was entitled to receive payment for the iron it should thus manufacture and deliver. Payment to the Southern Company does not prove consent by the wagon company to a discharge of the liability of the car company. There must be something more — some evidence speaking an agreement between the original parties to the contract to discharge the original obligor from liability and to accept the substitute. We fail to discover sufficient evidence in this record proving such agreement. There is no evidence that the car company ever sought to be released from its liability, or that the wagon company was ever asked to accept the Southern Company as a substitute. There is no direct evidence upon this point, or any evidence from which an agreement in that respect could be implied.”

In our opinion the circuit judge did not err in refusing to submit the question of novation to the jury.

This brings us to consider the seventh assignment of error, which is to the effect that the court erred in sustaining plaintiff’s objection to the question, “ Did you make another contract with the Huppmobile in 1909 ? ” propounded to witness Wiard on his cross-examination. This was objected to as immaterial. The objection was sustained and exception taken.

While there is some confusion in the record, it is very clear that the plaintiff sought to recover the sum of $1,500 as loss of profits under the second contract. This is made very clear, not only by the testimony of Mr. Wiard, but also by the charge and by'the colloquy which occurred between the court and jury, when they came in for further instruction. The object of defendant’s counsel as to his purpose in asking this question was made very clear in his statement to the court in the language quoted above. This was proper cross-examination. It was competent and material to show upon cross-examination of this witness the terms of the contract with the Hupp Automobile Company. If that contract was such that it occupied the entire time, and force employed, of the plaintiff, and the profits therefrom were such that they would offset the loss of profits under the second contract with defendant, it had the right to show it, as bearing on the question of damages.

The doctrine is well settled that, when there has been a breach of contract, the injured party must do all in his power to diminish the damages suffered, or which he may suffer. If he has an opportunity to protect himself from loss and does not do so, he cannot be heard thereafter to complain. 13 Cyc. p. 72; Chandler v. Allison, 10 Mich. 460; Hopkins v. Sanford, 41 Mich. 243 (2 N. W. 39); Dennis v. Huyck, 48 Mich. 620 (12 N. W. 878, 42 Am. Rep. 479); Talley v. Courter, 93 Mich. 473 (53 N. W. 621); Tradesman Co. v. Manufacturing Co., 147 Mich. 702 (111 N. W. 343, 112 N. W. 708).

It cannot be said, in view of the language of the court above referred to, that in computing damages the jury did not take into consideration the claimed loss of $1,500 on the second contract. It is no answer to say that the verdict was less than the claim of the plaintiff.

The jury, under the instruction of the court, had the right to consider the $1,500 as entering into the element of damages, and it will be presumed that they followed the court’s instruction. We are constrained to say that the ruling of the court in excluding the offered evidence was reversible error.

By the twenty-fourth assignment of error defendant claims that, from the first part of the charge above quoted, the jury would naturally understand that the plaintiff could recover the value of the material and labor not furnished by it, because of the breach of the contract by defendant, but which plaintiff would have furnished if the contracts had been carried out; and that this was erroneous in view of the further instruction quoted, as to loss of profits.

While this part of the charge is not very clear, we doubt if defendant’s contention is correct, and doubt if the jury were misled by it. However, it does show that the question of the loss of profits was submitted to the jury, in connection with the claim, of $1,500 damages under the second contract.

By the twenty-seventh and twenty-eighth assignments of error the course pursued by the court in its colloquy with the jury is complained of. The statement of claimed facts as resting in the recollection of the stenographer was at least questionable, and the practice is not to be commended. It would have taken some time to have read the testimony from the stenographer’s notes to the jury; but it certainly would have been the better practice. We should hesitate to reverse the case upon this latter ground alone; but we refer to it in the interest of proper practice. We find no further reversible error in the record. Other questions are raised by counsel; but they are not likely to occur upon a new trial.

For the error pointed out the judgment is reversed and a new trial ordered.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


author: Blair, J.

text:
    PEOPLE v. C. KERN BREWING CO.
    1. Intoxicating Liquors — Sales — Criminal Law — Statutes — Local Option.
    The sale of intoxicating liquors on the order of a customer sent by mail from a county in which prohibition is in force to a county in which the traffic is legal, the goods to be sent by express, C. O. D., is lawful, and the contract is executed in the place where the order is received.

    2. Same — Delivery to Carrier — Constitutional Law.
    In so far as Act No. 107, Pub. Acts 1909, may have attempted to change the rule by amending the local-option law so as to constitute a mere delivery to the carrier of such liquors to be forwarded C. O. D. a violation of the statute, it is unconstitutional, since the proposed amendment would not be germane to the title of the law.
    3. Same.
    And the conviction of a brewing company and its officers for shipping C. O. D. intoxicating liquors from a county in which such sale was lawful to a county in which the local-option law was in force, is unwarranted.
    Exceptions before sentence from Sanilac; Beach, J.
    Submitted April 20, 1911.
    (Docket No. 117.)
    Decided June 2, 1911.
    The C. Kern Brewing Company, Christian Kern, Otto Kern, and Julius Kern were convicted of violating the local-option law.
    Reversed, and respondents discharged.

      H. O. Babcock, Prosecuting Attorney, for the people.

      John B. Mcllwain, for respondents.

       As to when and where title passes on G. O. D. sale of intoxicating liquor, see notes in 2 L. R. A. (N. S.) 383; 24 L. R. A. (N. S.) 143.

   Blair, J.

Respondents appeal from a conviction under section 36 of Act No. 107 of the Public Acts of 1909, which section reads as follows:

^ “All shipments of any of the liquors referred to in section one of this act from any point within the State consigned to any point within any county wherein the provisions of this act are in operation to be paid for on delivery, commonly called C. O. D. shipments, shall be held to be sales made at the place of destination in violation of the provisions of this act.”

The local-option law of this State went into force in Sanilac county May 1, 1909. The section of the law upon which the complaint is founded was not adopted by the legislature until later, and approved by the governor May 19, 1909. On October 23, 1909, a letter was received by the C. Kern Brewing Company reading as follows:

“ Lexington, Mich.,
“ Oct. 20th.
“Dear Sir:
“Will you send me one case of pints to Croswell? Send it so I can get it Saturday night. Send Cream of Michigan. I do not know how much to send.
“Send your bill with it and I will pay it in Croswell, and oblige,
“William Dunsmoee, “Lexington, Mich.”

William Dunsmore was a farmer living between Croswell and Lexington. He testified:

“Q. For what purpose did you desire the beer ?
“A. Myself.
“Q. Was it for the purpose of selling or giving away in violation of the statute?
“A. No, sir; it was for myself.
“Q. Did you do it on your own motion.
“A. Yes, sir.
“ Q. Did any one on behalf of the Kern Brewing Company ask you to do that kind of thing ?
“A. No.”

The shipping clerk then shipped by express a case of 24 pints of beer C. O. D to William Dunsmore, Croswell, and the instructions were to collect $2.20 from Dunsmore on delivery thereof. The case of beer arrived at Croswell on the evening of October 25th. It was shipped by the C. Kern Brewing Company. The express agent at Croswell on receipt of the case of beer laid it aside that evening, intending to return it the next morning. Mr. Flower, the agent, testified:

“It arrived at 5:18 p. m., October 25th. I carried it into the office and advised my clerks not to deliver it to any person under any circumstances without referring the matter to me first. This was done because we have instructions not to deliver shipments of liquor which are billed C. O. D. The instructions came from the express company. * * * I calculated to send it back to Port Huron on the first train. * * * The first train was 9:01 a. m. the morning of the 26th.
Q. What did you actually do in the way of sending it back to Port Huron ?
“A. Put the shipment out, and wrote the agent in Port Huron a letter advising him I was returning it on that train, and my reasons for doing so.”

His letter to the Port Huron agent reads as follows:

“Croswell, Mich., Oct. 26, 1909.
“Mr. S. T. Percy, Agent,
“Port Huron, Mich.
Dear Sir: Port Huron, Mich., to Croswell, Mich., W. B. 173-1, Oct. 25, covers one case beer C. O. D., $2.20 for Wm. Dunsmore.
“ I do not dare deliver these goods, am returning them to you on No. two this a. m. Mr. Mueller advised me not to deliver any of these goods C. O. D., but to return them, I have returned this on same bill. You can cancel the W. B. and make flat bill if you desire.
“Yours truly,
“P. F. Flower, Agent.”

Witness further testified:

“ I wrote that letter about 8:30 standard time. I had then the goods arranged to be returned. Between the time I got the box ready for shipment and the time the train arrived, a deputy sheriff came in and took the box away. He came in about 8:40 with the papers, a search warrant. And I was unable to return the goods to Port Huron.
Q. Would you, under any circumstances, have delivered those goods to the consignee ?
"A. Not upon the 0. O. D. bill. When the officer took the goods away, I showed him the letter I had written returning the goods.”

The circuit judge instructed the jury, among other things, as follows:

“There is another very close question on the construction of this section, as to whether a shipment, the mere shipment, C. O. D., is intended by the section to be treated as a sale, or whether the other elements of a sale, as we ordinarily understand them, must be shown. * * * I am inclined to think that the terms of the law were intended to prohibit the shipping C. O. D., and in its terms the mere shipment of goods C. O. D., delivered to the express company, is to be treated as a sale. Any other construction of it would simply nullify the object of the statute.”

In our opinion this was an erroneous interpretation of the section. Independent of the statute, by the weight of authority the sale in question was made at Port Huron and was a lawful sale. People v. Converse, 157 Mich. 29 (121 N. W. 475); 17 Am. & Eng. Enc. Law (3d Ed.), p. 300.; Benjamin on Sales, p. 86; Black on Intoxicating Liquors, § 207; Keller v. State (Tex. Cr. App.), 87 S. W. 669 (1 L. R. A. [N. S.] 489), and cases cited; State v. Rosenberger, 212 Mo. 648 (111 S. W. 509, 20 L. R. A. [N. S.] 284, 126 Am. St. Rep. 580); 23 Cyc. p. 185k; American Express Co. v. Iowa, 196 U. S. 133 (35 Sup. Ct. 182).

Assuming this to be the view taken by the legislature, its intention would appear to have been to change by statutory enactment the effect of a delivery to the carrier as theretofore determined by a majority of the courts, and introduce in place thereof the rule adopted by other courts that the sale was consummated before the shipment was delivered to the consignee at the point of destination.

To hold that the legislature intended to make a mere delivery to the express company, in a county where the sale was lawful, of a parcel consigned C. O. D. a violation of the statute, would involve the holding that, if the parcel was destroyed before passing the boundaries of the shipper’s county or the shipment was countermanded, the shipper would still be guilty of the offense. Such an amendment would not be germane to the title of the local-option law.

The prohibitive features of the act are limited by the title to the manufacture and traffic in intoxicating liquors within the territorial limits of the county where prohibition is adopted. People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134); People v. Myers, 161 Mich. 40 (125 N. W. 701).

Section 1 of the act provides:

“ The people of the State of Michigan enact, that it shall be unlawful for any person, directly or indirectly, himself or by his clerk, agent or employé, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished, in any county of this State on and after the first day of May, next following after the adoption by the board of supervisors of such county of a resolution prohibiting the same,” etc.

The sales referred to in section 1 are actual sales within the county, whereby the ■ title to and possession of the liquor itself actually pass to the purchaser. Under the provisions of section 36, in the case of C. O. D. shipments made outside of the local-option county, the title and property in the liquor remain throughout its transportation in the seller, and the person ordering the same acquires no interest therein until actual delivery to him, whereupon the transaction becomes a sale “made at the place of destination.”

To interpret this section as rendering acts performed entirely outside of the local-option county as criminal, without reference to any act within the county, would, in our opinion, render the section obnoxious to the provisions of article 5, § 21, of the Constitution (1909).

It results, therefore, that the conviction must be reversed, and the respondents discharged.

Moore, MoAlvay, Brooke, and Stoné, JJ., concurred.


author:
Brooke, J.
      Ostrander, O. J.

text:
    HEALD v. MONTCALM CIRCUIT JUDGE.
    Garnishment — Notice of Judgment — Demand for Trial — Statutes.
    Judgment may be entered against a garnishee defendant after judgment for plaintiff in the principal case without notice, at any time after 10 days from the filing of the report of the commissioner showing admissions of the garnishee on examination that such garnishee had property of the principal debtor under his control at the date of service, unless either party has filed a demand for the trial of the issue as required by 3 Comp. Laws, § 10610.
    Mandamus by Henry T. Heald, trustee in bankruptcy of the estate of Mattie Walker, bankrupt, to compel Frank D. M. Davis, Montcalm circuit judge, to set aside an order vacating a judgment upon a garnishee’s disclosure.
    Submitted April 19, 1911.
    (Calendar No. 24,432.)
    Writ granted June 2, 1911.

      Cleland & Heald, for relator.
    Relator, as trustee, brought suit against one Eliza Close upon a promissory note, and on the same day, April 2, 1910, caused a writ of garnishment to issue against one Mint Hockstra. This writ was duly served upon Hockstra, who, on April 16, 1910, filed a written disclosure denying all indebtedness to the principal defendant. An order was made for an oral examination of the garnishee, and the examination was held before a circuit court commissioner. Upon that examination it was disclosed that Hockstra was in possession of a stock of goods belonging to the principal defendant at the time the garnishee summons was served upon him, that he turned the possession of said stock over to the principal defendant after the garnishee summons was served, and that the stock was worth about $1,500. The report of this examination was filed July 15,1910. No demand for a trial of the garnishment proceeding was ever filed by either plaintiff or Hockstra, the garnishee defendant. On October 3, 193 0, judgment was rendered in favor of the plaintiff against the principal defendant in the sum of $348.82 and costs, and at the same time, on motion of counsel for plaintiff, it was ordered that said judgment should likewise run against Mint Hockstra, the garnishee defendant. On November 10, 1910, the judgment was set aside as to Hockstra. A motion to set aside the order vacating the judgment as to the garnishee having been denied, plaintiff asks for a mandamus to compel the circuit court to grant that relief.
   Brooke, J.

(after stating the facts). The return of the respondent shows that the learned circuit judge set aside the judgment as to Hockstra because there should have been notice to Hockstra that judgment would be asked, and no suchjnotice was shown.

Plaintiff relies upon the provisions of 3 Comp. Laws, § 10610:

“The affidavit for the writ of garnishment shall be held and considered as a declaration by the plaintiff in trover against the garnishee as defendant, where the garnishee is chargeable for property and for money had and received, when he is chargeable upon indebtedness against the garnishee, and upon the filing of the garnishee disclosure, or upon filing of the answers to such written interrogatories in cases where the same are required and filed, or upon the filing of the report of the testimony, or statement, made by such garnishee on personal examination, in cases where such examination is had, the matter of such affidavit shall be considered as denied, except so far as the same is admitted by such disclosure, answers to interrogatories or report, which admission shall have the effect of admissions in a plea, and also shall be prima facie evidence of the matters therein admitted. And thereupon a statutory issue shall be deemed framed for the trial of the question of the garnishee’s liability to the plaintiff. And judgment may be rendered against such garnishee defendant as upon declaration and plea, or on plaintiff’s motion to the court at any time after final judgment against the defendant in the principal cause, without further notice to such garnishee.”

As a part of this quotation:

Provided, however, if such plaintiff or such garnishee defendant shall within ten days after filing of such disclosure, answer, or statement, file with the clerk of such court a demand for trial of the cause, said cause shall stand for trial in the manner provided by this act. The time for filing said demand may he extended by the court upon application and showing.”

Under the admissions of the garnishee defendant in his oral examination, there would seem to be no doubt of his liability as garnishee.

The statute clearly provides for the entry of judgment against the garnishee at any time after final judgment against the principal defendant on motion of the plaintiff and without further notice to the garnishee.

The record shows that more than 10 days had elapsed after the report of the commissioner was filed before judgment was taken, during which interval no demand for a trial was filed by the garnishee. King v. Harrigan, 145 Mich. 436 (108 N. W. 748).

The writ will issue.

Bird, Blair, and Stone, JJ., concurred with Brooke, J.

Ostrander, O. J.

I express no opinion concerning the effect of the disclosure as affecting the liability of the garnishee defendant, if he had framed or asked for the trial of the issue. Considering the ground asserted for setting aside the judgment, I concur with Mr. Justice Brooke.


author: Moore, J.

text:
    LATHAM v. SAVAGE.
    1. Guaranty — Principal and Surety — Bills and Notes — Contracts — Rescission.
    In a suit to cancel complainant’s guaranty on a certain note and mortgage on the ground that it was given to secure the purchase price of certain real and personal property, and that the seller converted to his own use a part of the personalty, it was not sufficient ground for cancellation where the value of the personalty so converted was deducted from the amount of a decree of foreclosure thereafter rendered against the purchaser who had not at any time taken action to rescind his contract for failure to turn over to him all the property.
    2. Same.
    The contention of one of two guarantors of a note that he was only to be liable for the first §1,500 due on a note and mortgage and that more than such sum had been realized by a foreclosure sale of the premises, thus releasing him, is not sustained where his claim was contradicted by the payee of the note, and it also appeared that his guaranty was the second of two indorsed on the back, and both by their terms guaranteed severally the payment of §1,500,
    Appeal from Wayne; Rohnert, J.
    Submitted April 18, 1911.
    (Docket No. 6.)
    Decided June 2, 1911.
    Rehearing denied September 29, 1911.

      Bill by Charles K. Latham against Nicholas Savage to cancel a guaranty of part of a note and mortgage. From a decree for defendant, complainant appeals.
    Affirmed.

      W. C. Stuart, for complainant.

      Clark, Lockwood & Bryant, for defendant.
   Moore, J.

This is a suit in chancery brought by Mr. Latham against Nicholas Savage, the payee of a note, which will be referred to later, to have his guaranty of collection of $1,500 on said note canceled and held for naught because said Savage had wrongfully taken and appropriated $500 worth of the personal property covered by the chattel mortgage which was collateral to said note, thereby making it impossible for the maker of the note to pay it. The bill of complaint recited that the mortgage accompanying the note was in process of foreclosure, and would not result in the payment of the note. One Mr. Butler bought a small hotel property of Mr. Savage, paying $1,500 down, and giving a mortgage and the note in controversy for $3,000, the balance of the purchase price. The note reads as follows:

“$3000. Detroit, Mich., May 6, 1907.
. “ On or before three months after date I promise to pay to Nicholas Savage or order Three Thousand & No/100 Dollars at Home Savings Bank, Detroit. Value received.
“Williams G-. Butler.
“Kate L. Butler.”

The following indorsement was on the face of the note:

“ Secured by chattel and real estate mortgages of even date herewith.”

The indorsements on the back of said note were as follows:

“For a good and valuably consideration to me paid I hereby guarantee the collection of $1,500.00 of the within note.
“F. C. Harvet.”
“For a good and valuable consideration to me paid I hereby guarantee the collection of $1,500.00 of the within note.
“C. K. Latham.”

An answer was filed by defendant in the nature of a cross-bill, in which affirmative relief was asked. The case was heard in open court. The relief asked in complainant’s bill was denied, and the relief prayed for in the cross-bill was granted. The case is brought here by appeal.

Counsel make conflicting claims as to what occurred in court. We quote from the brief of complainant:

“When the testimony had been partly taken and an offer was made to read the testimony taken in the foreclosure suit in the St. Clair circuit court of Williams G. Butler, who had died since that case was tried, the court announced he didn’t wish to hear any more testimony, and further stated as follows: ‘ I will let this case rest upon a strict legal construction to be put upon the indorsement.’”

On the part of the defendant it is insisted the parties put in all the testimony they cared to, and that it was all considered. In view of this conflict, it may be helpful to incorporate here the written opinion of the trial judge. It is as follows:

“ I am inclined to think in this case from the testimony and from the form of the indorsement, as a matter of law, that the indorsement upon the note executed by Mr. Buttler to Mr. Savage rendered each of the indorsers liable for such part of the uncollected portion of the note as the amount of their indorsement bore to the face of the note, in this case, each one-half. They are not jointly liable for the face of the note, but they are severally liable, each for one-half of the note. A decree must be entered in this case, granting to the defendant as cross-complainant the relief he seeks, and that Mr. Latham account to and pay over to him one-half of the deficiency.
“ I do not consider that there is testimony in the case which will equitably afford Mr. Latham any relief from the liability for his indorsement by reason of the alleged claim that all the goods sold were not delivered. While undoubtedly as between Mr. Butler and Mr. Savage the decree of the St. Clair chancery court as to the deficiency on the sale by Savage to Butler is binding upon this court, yet the character and the extent of the deficiency, as shown in the testimony in this case, is in the mind of the court questionable. It was not made a basis for revocation of the contract by Mr. Butler. He continued in possession of the property purchased by him after he well knew that the deficiency which he claimed existed. He was allowed for this deficiency in the chancery decree, and complainant in this suit got the benefit of that allowance. Mr. Butler was the sole judge as to whether he would allow the contract with Mr. Savage to stand, and if he concluded that it should stand, although not fully carried out by Mr. Savage, it would not give the complainant ground to deny his liability, as complainant’s guaranty was simply that the amount of the indebtedness from Butler to Savage, contracted for by Butler, would be paid.
“Morse Rohnert, “Circuit Judge.”

This indicates very clearly that in reaching his conclusion the court considered the testimony as well as the written instrument.

Counsel, of course, understand that, when a chancery case reaches this court, it is heard de novo. There is nothing in the record to indicate that counsel were prevented from putting in all the testimony they had, both in the lower court and in the record prepared for this court. It is the claim of Mr. Latham that he agreed to be liable for the collection of only the first $1,500, and, as that amount has been received, he is released from his guaranty.

The testimony about the giving of the note and the guaranties is in sharp conflict; it being the claim that Mr. Harvey first guaranteed the collection of $1,500, and that Mr. Latham then guaranteed the collection of $1,500, it being the intention of the two guarantors to cover the full amount of the note, but neither of the signers to be liable for more than one-half of the deficiency. The judge had the great advantage of hearing this testimony. If it was a fact that complainant was to guarantee the collection of only the first $1,500, it would seem tobe a strange omission to sign the second guaranty after Mr. Harvey had signed the first one, without the second guarantor writing into the second guaranty that it was to apply only to the collection of the first $1,500. We are satisfied with the conclusion reached by the trial court as to this feature of the case.

It is claimed by complainant that as Mr. Savage removed $500 worth of the personal property, which he sold and which wab covered by the chattel mortgage, that this released appellant from this contract of guaranty. We quote from the brief of counsel:

“(a) The taking by appellee of said $500 worth of said personal property changed the contract between him and Butler (principal), and also between appellee and Latham (guarantor of collection).
“(6) A change of contract either between Savage and Butler or between Savage and Latham discharged Latham, the guarantor.”

This contention seems to be based upon the claim that, when Mr. Butler was given possession of the hotel property, he was not given possession of all the personal property he had bought, and that this fact was established in a foreclosure proceeding between Mr. Savage and Mr. Butler, in which proceeding a reduction was made in the amount found due on the mortgage of $500, and a certain amount of costs, which amounts were treated as payments on the mortgage and were taken out of the amount found to be due. In this case there is a sharp conflict in the testimony as to whether there was any failure to turn over all the property, but it is clearly established that the Butlers were present when the property was removed, and Mr. Butler helped load part of it. It also appears that they did not rescind the contract because of any failure to deliver the personal property. Conceding that all of the property was not turned over, it does not appear that the allowance made in the foreclosure proceeding was not full compensation for any injury done.

We have examined each of the cases cited by counsel for complainant, and do not think they sustain his contention. The complainant has failed to sustain by a preponderance of evidence the averments of his hill of complaint.

The decree is affirmed, with costs.

Mo Alva v, Brooke, Blair, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    PARSONS BUSINESS COLLEGE v. CITY OF KALAMAZOO.
    1. Taxation — Exemptions — Educational Institution — Words and Phrases — Business College.
    A business college organized under chapter 218, 2 Comp. Laws, for the profit of its stockholders and off ering courses of three, six, nine and twelve months in stenography, bookkeeping and related studies is not a general educational institution,, the real estate of which may be held exempt from taxation under Act No. 309, Pub. Acts 1909.
    2. Same.
    Nor is its real estate used for educational purposes solely, within the meaning of the statute, where the corporation owns valuable vacant realty which it holds for an advance in its value and the upper story of the building is occupied by the proprietor and his family as a residence.
    Appeal from Kalamazoo; Knappen, J.
    Submitted April 18, 1911.
    (Docket No. 135.)
    Decided June 21, 1911.
    Bill by the Parsons Business College against the city of Kalamazoo and Albert Ten Busschen for an injunction to restrain the collection of a tax and for a decree declaring property of complainant exempt. From a decree for complainant, defendant appeals.
    Reversed

      Dorr O. French, for complainant.

      Marvin J. Schaberg, for defendants.
   McAlvay, J.

Complainant filed its bill of complaint against defendant city and its assessor to have its property declared exempt from taxation, and to restrain defendant city and its assessor perpetually from assessing, levying, or collecting any taxes against its property, for the reason that all said property is exempt from taxation under the provisions of Act No. 309, Pub. Acts 1909, and underchapter 218 of the Compiled Laws of 1897, entitled “An act to provide for the incorporation of institutions of learning.” An issue was joined between the parties and a hearing had before the court. A decree was granted in accordance with the prayer of the bill. Defendants upon appeal ask this court for a reversal.

It appears that Mr. William F. Parsons entered upon this business at Kalamazoo in 1869 as a private business under the name of Parsons Business College, and continued it with a reasonable amount of success until 1893, when he purchased and moved upon the premises, the taxation of which is in question in this suit, under a land contract, and proceeded to and did erect the building, in part of which complainant now conducts business, and so continued until the year 1905, up to which year taxes were annually assessed against said property, and regularly paid. The undisputed proof is that this property is now of the value of about $20,000. The property so purchased by Mr. Parsons was deeded directly to his wife, Mary P. Parsons. Up to 1905 the business had been conducted by Mr. Parsons, a son and a daughter, who “ shared equally in the gains and losses, and each owned one-third of the business college.” In 1905 the business was incorporated under chapter 218 above cited. Mr. Parsons testified :

“I had the institution incorporated because I felt I ought to be exempt from taxes. That is one reason I had it incorporated; and another reason was that I was at the head of the institution, and, if anything happened to me, the institution could go along without any change in it at all, and I felt it was no more than right that I should be incorporated and be relieved from taxation.
“Q. That was your principal reason, to avoid taxation, that you incorporated, was it not ?
“A. That was the principal reason.”

The son, who is secretary and bookkeeper of the complainant, testified to the same effect. This was purely a stock corporation. The incorporators were the members of the Parsons family, who certified—

“ That they in good faith subscribed and paid in the sums set opposite their names for the purpose of founding and establishing a commercial and business school, viz., Mary P. Parsons 80 shares, $4,000; William F. Parsons 5 shares, $250; Caroline Parsons 5 shares, $250; Frederick S. Parsons 5 shares, $250; William W. Parsons 5 shares, $250.”

The cash paid in was in fact the property in question, and all the assets of the old business arbitrarily fixed at a valuation of $5,000. They were named in the articles of incorporation as trustees, to hold office for the term of 15 years. At the first meeting, William F. Parsons was elected president, Caroline Parsons treasurer, and William W. Parsons secretary, to hold these respective offices, and have so continued ever since. The articles of incorporation bear date January 19, 1906, and were filed with the secretary of State February 2,1906. The deed of this property from Mary P. Parsons to the corporation bears date November 6, 1905, and was recorded March 3, 1908. At the first meeting of the stockholders, the president was voted a salary of $2,500, the secretary $2,000, and the treasurer $2,000 per annum, respectively. These salaries have been drawn each year pro rata to the amount of cash available, and for the balance each has taken the note of complainant each year. The entire third floor of the building is occupied by the family as a residence, without payment of rent. The president testifies:

“We teach bookkeeping, penmanship, business law as used in the ordinary work of the school, shorthand, typewriting, and correspondence, also grammar.”

The regulation course is 12 months, at $75. Tuition is charged as follows: Three months $28. Six months’ course $45. Nine months $60. The average attendance is 200. A total of $150 has been received from the city for rent of room on election days. There has been no other income than as stated. This property is five rods by twelve rods, on one of the most valuable corners in Kalamazoo. The larger portion of it is not occupied by the building, and is held for a rise in its value. Taxes were not assessed against this property after 1905 until the present assessment in 1910.

An extended statement of what an uncontradicted record in this case shows has been considered necessary because of the importance of the question involved. Complainant’s contention that it is exempt from taxation is founded upon the provisions of paragraph 4 of section 7, Act 309, Pub. Acts 1909, as follows:

‘' Fourth. Such real estate as shall be owned by library, benevolent, charitable, educational and scientific institutions incorporated under the laws of this State, with the buildings and other property thereon, while occupied by them solely for the purposes for which they were incorporated. ”

Complainant relies upon the case of Detroit Home & Day School v. City of Detroit, 76 Mich. 521 (43 N. W. 593, 6 L. R. A. 97), as decisive of the case at bar. The statute of which the one invoked is an amendment (Act No. 301, Pub. Acts 1887, § 3, par. 2 [Of. as amended, 1 Comp. Laws, §§ 3830-3832]) was under construction in that case. The words “educational” and “solely ” have been added since that time. The court in that case, where the corporate purpose named in the charter was to establish, maintain, and conduct a seminary of learning, said:

“ Unless the term ‘ scientific institutions ’ includes educational corporations, there is no statute exempting from taxation any schools, unless those in the hands of public authorities, and those are only exempt by implication. And if it does not include the seminaries of learning, there is practically nothing exempted, for there are no other scientific institutions, properly so called. But it is a matter of common knowledge that all general educational establishments have universally been known as ‘ scientific institutions’ and fall naturally and directly within it.”

Such construction brought within the terms of the exempting act educational corporations. The legislature later amended the law to include by express terms “educational ” corporations. If this word had been included in the earlier law, the only question for the court in that case to determine would have been whether the institution claiming the exemption was within the class exempted. The majority opinion of the court in the case relied on by complainant was considering and passing upon “ general educational establishments” in express terms, holding that it was a matter of common knowledge that such institutions have universally been known as “scientific institutions.” The minority opinion shows that this was a school with kindergarten, primary, preparatory, and collegiate departments, with courses of instruction in all the elementary and advanced sciences, and ancient and modern languages. In the advanced departments there were the courses of instruction usual in the colleges of this State. The court determined that it was a general educational establishment. The disagreement in the opinions is not upon that question, but whether a stock corporation, organized and run for profit as a business venture, was within the legislative intent as expressed in the exemption law. The court without doubt was correct in classifying that school as a general educational institution. This is the “educational institution” intended by the legislature in the statute under consideration in the instant case. We have then this standard, as interpreted by the court, by which to measure the institution of complainant which seeks the protection of exemption from taxes accorded to general' educational institutions.

In our opinion it does not in any way measure up to the standard it has set up and claims for itself. It cannot be called a general educational institution. It is organized and conducted for special purposes only. It completes its courses in three, six, nine, and twelve months. The statute under which it is incorporated prohibits the granting of diplomas by it “unless candidates shall have pursued such course of study for at least two years.” It is a matter of common knowledge that during the periods which complainant has fixed for the completion of the subjects indicated in the statement of facts, except typewriting and stenography, students could obtain but a mere smattering of knowledge. Not that this institution and similar ones are not useful and very beneficial to a large class, but to put them, as complainant suggests, in the same class with Hillsdale, Olivet, Albion, and Kalamazoo colleges, well-known institutions in this State, would be giving this statute a construction which the facts will not warrant, and which evidently was not within the legislative intent, and contrary to the former construction. It appears from the record that the incentive to incorporation was to avoid taxation, and not to obtain recognition as a general educational institution.

Complainant is not entitled to the relief asked for another reason, that the property for which exemption from taxation is claimed is not occupied ‘ ‘ solely ” for the claimed purposes for which it was incorporated. One entire story is used as a residence, and the larger portion of the lot is vacant and held for an advance in value. By this change in the law the legislature has restricted and narrowed the scope of the exemption. Complainant makes no showing as to any irregularity in the matter of the assessment and levy of the taxes in question by defendant city and its assessor, but invokes the statute as exempting it from taxation.

Our conclusion is that it was not entitled to the relief granted. The decree of the circuit court is reversed, and set aside, and the injunction dissolved, and a decree will be entered dismissing the bill of complaint, with costs of both courts to defendants.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    KILLACKEY v. KILLACKEY.
    1. Dower — Husband and Wife —Damages for Withholding Dower in Lands Conveyed.
    Under 3 Comp. Laws, §§ 8941, 8942, and 10988, a widow, entitled to dower in lands of her deceased husband who had deeded them to his son for a nominal consideration to deprive the widow of her dower, may recover damages for withholding dower on the theory that such conveyance was in fraud of her rights and her husband must be considered to have died seised of the lands.

    2. Same — Demand—Actions—Mesne Profits.
    A sufficient demand for mesne profits so withheld was made by the commencement of an action to recover dower previously to the proceeding for recovery of mesne profits.
    Error to Chippewa; Steere, J.
    Submitted April 18, 1911.
    (Docket No. 109.)
    Decided June 2, 1911.

      Ejectment by Margaret Killackey against Robert Killackey and others. Subsequently to the affirmance of a judgment for plaintiff she filed a declaration against Robert Killackey in the nature of statutory proceedings for the recovery of damages for withholding dower. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John W. Shine, for appellant.

      F. T. McDonald and M. M. Larmonth, for appellee.
    This is a supplemental proceeding to recover mesne profits for the withholding of dower taken under the provisions of section 10988 et seq., 3 Comp. Laws. The action is prosecuted in accordance with the suggestion of this court in its opinion wherein it was determined that plaintiff was entitled to dower out of certain lands sold by her husband in his lifetime to defendant, but in the conveyance of which plaintiff did not join. For a full statement of the facts there and here involved, see opinion. Killackey v. Killackey, 156 Mich. 127 (120 N. W. 680). The case was heard by the court without a jury and findings of fact and law were made as follows:
    “Findings op Fact.
    “ Plaintiff brings this proceeding to recover from defendant, Robert Killackey, damages for withholding dower in a farm of 140 acres, situated in Bruce township, Chippewa county; her right to dower in such land having been established in the case of Killackey v. Killackey, et al., 156 Mich. 127 (120 N. W. 680).
    “The farm in question was inherited by James Killackey, Sr., husband of the plaintiff, from his son, James Killackey, Jr., who died intestate and unmarried. Soon after inheriting the same, James Killackey, Sr., deeded it for a nominal consideration to his son, Robert Killackey, the defendant. Plaintiff did not join in the deed.
    “ This farm was and is a good, well-improved piece of property, most of it cleared land, all fenced, with good buildings upon it. Since receiving a conveyance from his father, the defendant has rented it to a tenant by the name of Miller at an annual rental of $270. He testifies that he has not regularly collected all of this rent, making a deduction in the neighborhood of $25 a year when adjusting the accounts with his tenant. He also testifies that he has spent in the neighborhood of $25 a year caring for the property, hiring rigs to drive out to visit it, and other small items, but gives no specific dates nor any items of amounts.
    “ James Killackey, Sr., husband of the plaintiff, died in September, 1904. Shortly thereafter she made claim to an interest in his estate, and probate proceedings were soon instituted, but the first specific demand for dower in this property clearly shown to be brought home to the defendant is by a suit commenced in January, 1907, to recover dower. Although this suit was subsequently dismissed on technical grounds, the process was personally served upon defendant on January 14, 1907, and he employed counsel to defend him. Testimony taken as to the rental value of this farm tended to show that it is worth an annual rent of approximately $2 per acre, or, taking the farm as a whole, $275, or in that neighborhood. The court finds as one of the facts in the case that the value of the use of said premises is $270 per annum, less $25 per year, cost of caring for same, and taxes and insurance. The insurance paid on the buildings on said property was $4.67 a year during the years 1907, 1908, and 1909. The taxes were as follows: 1907, $54.51; 1908, $36.90; and 1909, $42.83.
    “ In the proceedings for setting off the plaintiff’s dower in said property, the commissioner’s report was confirmed September 24, 1909, since which time defendant has not occupied Or used that portion set off to her as dower, but he harvested, and had the benefit of all the crops growing upon the farm during that season.
    “One-third of the value of the use of said farm, from January, 1907, to September 24, 1909, with interest computed at 5 per cent, per annum from the end of each year to June 1,1910, is found to be as follows: 1907, $61.94, interest $7.57, total $69.51; 1908, 167.78, interest $4.79, total $72.57; 1909, $65.84, interest $1.37, total $67.21— making a total for the three years of $209.29. All exhibits, files, and records introduced in evidence in this case are hereby made a part of these findings.”
    “ Conclusions of Law.
    “Plaintiff’s right to dower in this farm has already been adjudicated, and, as to her, James Killackey, Sr., is to be regarded as having died seised of the property. She has already actually recovered a judgment, which stands confirmed and cannot now be disputed. This being established, her right to a proportionate share of the mesne profits from the time the same were demanded follows, and the beginning of suit to recover dower is a sufficient demand. The exact amount of the rent collected by defendant Killackey is not the measure of her damages, but it is a fair value of the use of said premises during the time withheld, allowance being made for taxes, insurance, and costs of care. Computed on that basis from January, 190?, to September, 1S09, the testimony showing that he had full value of the premises for 1909, plaintiff’s one-third entitles her to recover the sum of $209.29 as above stated.
    “ The clerk will enter judgment accordingly.”
    Defendant has removed the case to this court for review by writ of error.

       As to power of husband or his creditors to defeat dower, see note in 18 L. R. A. 75.
      As to right of widow to recover from estate value of her dower interest in land conveyed by her husband during his lifetime, see note in 8 L. R. A. ( N. S.) 1101.

   Brooke, J.

(after stating the facts). Defendant’s first contention is that plaintiff is not entitled to damages in this State for the withholding of dower in lands sold and conveyed by her husband prior to his death. The learned trial judge found, as a matter of fact, that the conveyance from James Killackey, Sr., to defendant was for a nominal consideration (the consideration mentioned in the deed was “ one dollar and other good and valuable consideration”). He found, as a matter of law, that, as between the widow (plaintiff) and this defendant, James Killackey, Sr., is to be regarded as having died seised of the property.

We have no doubt that the conveyance by James Killackey, Sr., to his son, this defendant, was made with the intent of depriving plaintiff of her dower rights in the property. If this be true, the conveyance would amount to a fraud as to plaintiff, even though it was made for a valuable consideration and the grantee therein named went into possession of the premises. We think, under the circumstances of this case, the conclusion of law that, as between the parties to this action, James Killackey, Sr., must be held to have died seised of the property, was correct. Brown v. Bronson, 35 Mich. 415; Rea v. Rea, 63 Mich. 257 (29 N. W. 703).

3 Comp. Laws, § 8941 et seq., provide for the recovery of mesne profits in cases where dower is withheld. The bringing of the action to recover dower was a sufficient demand upon defendant (Fuller v. Hubbard, 6 Cow. [N. Y.] 13 [16 Am. Dec. 423]), and the rents and profits were properly computed from that time.

Defendant insists that, even conceding the liability of defendant, the judgment is excessive to the extent of $28.33. "With reference to this claim, we need only say that the record contains ample evidence to support the finding of the trial court.

The judgment is affirmed.

Moore, McAlvay, Blair, and Stone, JJ., concurred.


text:
    PEOPLE v. ROHL.
    1. Criminal Law — Confession — Admissions — Trial — Instructions to Jury.
    A statement of respondent who was charged with the attempted murder of his divorced wife, made to the prosecutor and other officials while the accused was in jail, not containing, however, any admission of the offense charged, or of connection with it, was not a confession, and it was prejudicial error to refer to it as such in the charge to the jury.
    2. Same — Homicide—Assault with Intent to Murder — Evidence.
    Threats made by respondent at a time more than 12 years before the alleged crime, not related thereto, and threats made by respondent in the presence of his wife against another person of whom he was jealous, were not competent to show intent.
    Exceptions before sentence from Macomb; McKay, J.
    Submitted April 20, 1911.
    (Docket No. 148.)
    Decided June 2, 1911.
    Emil Rohl was convicted of assault with intent to murder.
    Reversed.

      Charles H. Hummerich, Prosecuting Attorney (Warren S. Stone, of counsel), for the people.
    O. C. Lungerhausen, for respondent.
   McAlvay, J.

Respondent was convicted of the crime of an assault with intent to murder Signe Rohl at Mt. Clemens, in Macomb county, on June 27,1910. The case is before this court on exceptions before sentence.

Signe Rohl was the divorced wife of respondent. They were married in New York, April 28, 1897. After the marriage they lived in several places, and finally came to Mt. Clemens in 1903. Later they separated, and February 3, 1906, she obtained a divorce in Macomb county on the ground of nonsupport, and was decreed the custody of their daughter Lillian, who was 11 years of age at the time of the assault upon the mother. Respondent was notified of the divorce by her solicitor by letter written February 26, 1906. He came to Mt. Clemens afterwards, and remained until the occurrence of the assault charged. There was evidence showing that he had met her and asked to see the child, which she refused to allow, and also tending to show that his conduct was annoying to her; that she made complaint, and he removed from her neighborhood. Respondent was a professional masseur, born in Sweden, and had been previously married. Signe Rohl followed the same business as respondent, and by her work supported herself and daughter and lived alone with her.

Early in the morning of the day in question, at about 3 o’clock, Mrs. Rohl was awakened by a blow on her head and a pillow put over her head smothering her. A person jumped upon her. She struggled and succeeded in throwing the body off and in the struggle both went out on the floor. She screamed several times. She was then struck a violent blow on the head, crushing in her skull, and again a pillow was put over her head. She remembered no more until she heard her daughter calling, and she managed to get up, strike a light, and get to her telephone to call a physician. A shoemaker’s hammer covered with blood was found on the bed by the doctor. Her skull was fractured at the corner of the right eye, from which the brain exuded. She also had a scalp wound on the left side of her head and on the same side a fracture at the point of the jaw. The medical testimony is that she would have died if she had not received prompt attendance. The daughter testified that in the dim light after she had been waked up by her mother’s cries and gone towards her room she saw a man running through the room of the size of her father. The mother says that she knew that the person was respondent by the muscles of his arms which she grasped; that she called to him, “Emil, don’t murder me.” She also said that he was jealous of her, threatened before they were divorced that he would make her crawl yet. A young man at a livery stable gave testimony tending to show that respondent at or near the hour of the assault was going from the direction of Mrs. Rohl’s house towards his rooming place. Other evidence tended to show that very small spots of blood were upon some of his wearing apparel. Respondent was arrested at his rooming house soon after 4 o’clock on the morning of the assault. He came downstairs from his room in his nightgown. The officer examined his room. His shoes were dusty, and his shirt collar, cuff, and front had spots on them. Some of these spots were identified as blood spots. The analyst testified that there was not enough to determine that it was human blood.

On account of the nature of the errors claimed, it will be unnecessary to further outline the evidence on the part of the prosecution. That an assault with intent to murder was committed is not in dispute. The respondent denied all knowledge of the assault, and offered proof tending to establish his contention.

While respondent was confined in jail before the trial, he was examined by the prosecutor, in the presence of the chief of police and a stenographer, who took what was said at the time, and has identified the transcript of the notes. The statement was made July 18, 1910. It was the third time he had been examined. Twice the chief of police had already talked with him. It is printed in the record and covers 28 pages. This statement was admitted and read in evidence over the objection of counsel for respondent. The reasons for objection do not appear. In both briefs and upon the oral argument, it was treated as in evidence, and in the charge of the court it is referred to at considerable length as a statement, admissions, and confession. The following excerpt from the charge will indicate that the consideration of what the statement contained was admitted to the jury. The court charged:

Some evidence has been offered of statements made by respondent shortly after his arrest while in the police station in the city of Mt. Clemens, and I charge you in relation thereto that such statements are to be received with great caution, for besides the danger of misapprehension of witnesses, or the misuse of words, the failure of the party to express his own mind, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is often oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear to make statements. Subject to these cautions in weighing and receiving them, it is generally considered that deliberate confessions of guilt are among the most effectual proofs in the law. Their value depends on the supposition that they are deliberate and voluntary and on the presumption that a rational being will not make admissions prejudicial to his interests and safety unless urged by the promptings of truth and conscience. * * * Where they are not made voluntarily but under threats of promise of favor, they are to be entirely disregarded, where made deliberately, intelligently and with understanding on the part of respondent, they are entitled to such weight as you see fit to give them.”

The respondent makes the giving of this charge his principal assignment of error. Our examination of this so-called confession satisfies us that it cannot be so considered. In it there is no admission of guilt of the offense charged or of any knowledge of, or connection with, the assault, or circumstances leading up to it. If it had any of the earmarks of a confession, it was not secured under the cautions to respondent usual and necessary to protect him if it was intended to be used as a confession of guilt. Much of this part of the charge quoted was taken from the opinion of this court in People v. Peterson, 93 Mich. 35 (52 N. W. 1039), and was used in a discussion where it was held that the charge upon the claimed confession was erroneous. We have quoted all of the material part of the charge which contains the portion objected to, for the purpose of making it clear that from the entire charge it is impossible to conclude that the court was not giving the jury to understand that this statement was an admission and a confession. The court was in error in this matter. The question of a confession was not in the case at all, and the charge was therefore not applicable, and was misleading and prejudicial. This statement was not entitled to be considered as substantive evidence. We do not find that the record shows that respondent was cross-examined in regard to it.

Errors are assigned upon the admission of certain testimony for the purpose of showing threats by respondent against Mrs. Rohl, on the ground that such testimony was immaterial, was not rebuttal, and the instances were too remote, and threats shown were not against Mrs. Rohl. The first questions which respondent was permitted to answer over objection were:

“Q. Were you jealous of Dr. Collins?
“Q. And it was upon the request of your wife that you. married her ?”

Both related to matters before the marriage in 1897. Neither was connected with the assault. Both were immaterial. The threat proposed to be shown was not made against Mrs. Rohl, but against Dr. Collins. It occurred in 1904 on an occasion when respondent attempted to embrace his wife, which she repulsed, and he said:

“ Damn you, I wish I had shot that cur in New York, when I had an opportunity.”

It was immaterial. Mrs. Rohl just before the close of the case was recalled, and allowed over objection to testify:

“Q. Didn’t you marry him under a threat ?
“A. I did.”

Whatever this threat might have been does not appear. It was inadmissible if considered evidence of a threat, because not made at a time and under circumstances as would have a bearing on the issue being tried. Paul v. Bissett, 121 Mass. 170; 5 Enc. L. & P. pp. 766, 776.

Other claimed errors are assigned. They are of minor importance, and, as the questions will probably not arise on another trial, do not require discussion.

For the errors pointed out, the conviction is set aside, and a new trial is ordered.

Moobe, Bbooke, Blaib, and Stone, JJ., concurred.